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Yearly Archives: 2012
California recently passed new regulations interpreting, clarifying, and expanding employer duties and employee rights under the state’s California Pregnancy Disability Leave law (PDL). The new regulations were approved on November 30 with little fanfare and are effective December 30, 2012, providing very little notice to employers to bring their practices into compliance.
Reed Group is well-informed about these new regulations, and has updated the California PDL chapter in Leave of Absence Advisor®.
THE NEW PDL REGULATIONS
The new PDL regulations provide the following notable changes or clarifications (among many others):
- “Four months”. The leave entitlement of “four months” of PDL leave, not previously defined, has been clarified to mean 17-1/3 (17.33) weeks. If taken as intermittent or reduced schedule leave, the employee’s entitlement is based on the employee’s average schedule during the four months prior to commencement of leave (693.2 hours of PDL based on a 40 hour work week).
- Pregnancy disability leave. The definition of “disabled by pregnancy” (which entitles the employee to pregnancy disability leave) has been broadened and now includes several specific examples, such as severe morning sickness, pre- or postnatal care, bed rest, gestational diabetes, preeclampsia, post-partum depression, and recovery from childbirth or loss or end of pregnancy. This list is illustrative only.
- Accommodation or transfer. The regulations clarify the employer’s obligation to provide the employee with a reasonable workplace accommodation or a transfer because of a “condition related to pregnancy, childbirth, or a related medical condition.” The definition of the foregoing phrase has been expanded, and now specifically includes lactation and mastitis among many other conditions. A reasonable accommodation may include a lactation accommodation.
- Rerinstatement. Following PDL leave or a transfer, the employee must be reinstated to the same position or one “virtually identical” to the one she left for leave or a transfer.
- Health insurance. The employer must maintain the employee’s health care coverage during PDL leave and CFRA leave, for a possible total of seven months.
- PDL frequency. Four months of PDL is available per pregnancy, not per year.
- Health care provider. The definition of health care provider has been expanded and now includes such providers as marriage and family therapists or acupuncturists, as well as the more traditional medical providers.
- Medical certification form. The employer must provide notice to the employee each time a certification will be required to support the employee’s request for leave, accommodation, or transfer. The DFEH has a new proposed certification form that supports all such requests.
- Updated notice forms. The regulations include new required Notices A and B to be provided to employees, advising them of their rights under PDL. As before, employers must distribute these notices to employees upon knowledge of a pregnancy or a PDL request, and must post the information in the workplace and include it in employee handbooks.
- Nondiscrimination protections have been expanded to prohibit discrimination on the basis of “perceived pregnancy.”
The new PDL regulations are quite extensive and complex, and impose many requirements on employers. Employers should review the regulations thoroughly with appropriate expert guidance and determine necessary actions for compliance. The full text of the regulations can be found here. For assistance in complying with the new California PDL regulations, or to discuss how Reed Group can help your company maintain regulatory compliance with all states’ leave of absence laws, contact Reed Group at 866.218.4650.
Today’s Multi-Million Dollar Question: When Must an Employer Provide Leave as an ADA Reasonable Accommodation?
by Martha J. Cardi, J.D. and Megan G. Holstein, J.D.
The Americans with Disabilities Act (ADA) requires employers to provide an employee who has a physical or mental disability, or a record of such a disability, with a workplace modification or adjustment – an accommodation – that will enable the employee to perform the essential functions of his or her position. In recent years, it has become clear that employers must consider a leave of absence as a reasonable accommodation even when the employee has exhausted or does not qualify for other leaves of absence.
The issues are complex. Current, thorough guidance on how employers should provide leave as an accommodation is scarce or nonexistent. As a result, employers grapple with questions such as when and why a leave of absence is an appropriate accommodation, how long the leave should be, whether the employer can deny a leave request, and what are the employee’s rights upon return from leave.
To help employers and personnel managing absences for organizations, this paper synthesizes the existing guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and case law on leave as an accommodation to provide the best available insights, direction, and best practice suggestions for managing ADA leave of absence obligations.
In subsequent sections, this paper:
- Explains the concepts of “reasonable” and “effective” to help practitioners determine whether a leave of absence is an appropriate accommodation and, if so, for how long;
- Explores the employer’s sole reason to deny a leave of absence that would otherwise be a reasonable accommodation: that the leave will impose an “undue hardship” on the employer’s operation;
- Analyzes key cases and the EEOC’s perspective on leave of absence as an accommodation;
- Provides the employer a simple, workable process for handling ADA-related leave requests in an effective and lawful manner – defining the “interactive process” with a best practice framework; and
- Addresses an employee’s rights during and upon return from leave of absence.
The information and advice in this paper is offered as the most current and thorough reference for handling ADA-related leaves. It will ease the ADA compliance challenge and help employers improve their overall leave management and return-to-work processes for the benefit of their employees and their company.
To download the complete whitepaper, please visit Reed Group.
No Legal Advice. This white paper is provided for general informational and educational purposes only and does not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. This white paper is not offered as and does not constitute legal advice or legal opinions. You should not act or rely on any information contained in this white paper without first seeking the advice of an attorney.
Marti Cardi, J.D., Chief Compliance Officer
Megan G. Holstein, J.D., Senior Counsel
Employers’ treatment of employees who are victims of domestic violence, sexual assault, and stalking (“domestic violence”) is an area of concern to the U.S. Equal Employment Opportunity Commission (EEOC). Although Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) do not explicitly prohibit discrimination because someone is a victim such crimes, the EEOC has recently provided guidance on how these laws may apply to situations involving employees who experience domestic violence. See the EEOC’s Q&A fact sheet entitled The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking.
Employers also need to be aware that many states provide leaves of absences for a variety of reasons to employees who are (or whose family members are) victims of domestic violence. These can include, but are not limited to obtaining services from doctors, counselors, or victims’ advocates, to attend court or other legal proceedings, or to relocate for safety reasons.
Because of the EEOC’s focus on this topic employers should pause to assess whether their policies and trainings are adequate to protect them from falling into any traps when an employee reports that he or she is a victim. The EEOC’s guidance illustrates how Title VII and the ADA may apply to these situations.
Here are 2 examples from the EEOC’s guidance concerning domestic violence and Title VII and ADA:
Title VII – disparate treatment based on sex: An employer allows a male employee/victim to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”
ADA: An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”
By taking the following steps, employers can be prepared to act when an employee indicates that he or she is a victim:
- Update handbooks to address when an employee is a victim of domestic violence;
- Train employees and managers that they should report any concern, threats, or issues that might arise from being a victim, particularly if the employee has received a restraining order against the perpetrator;
- Investigate every concern or complaint regarding workplace treatment voiced by an employee who is a victim of domestic violence;
- Be prepared to engage in the interactive process and offer an accommodation, including time off from work, for victims of domestic violence;
- Know your state’s laws with regard to employee rights as a victim of domestic violence.
Reed Group’sLeave of Absence Advisor™includes comprehensive reference resources for all state laws that concern leaves of absence for employees who are victims of domestic violence, sexual assault, and stalking. Leave of Absence Advisor™ helps you minimize risk and reduce the burden of employee leaves by providing simple, accurate and complete information on FMLA and state leave laws, all prepared by our world-class experts.
EEOC strikes again! $4.85 million consent decree punishing inflexible leave policies in violation of ADA
Marti Cardi, J.D., Chief Compliance Officer
Megan G. Holstein, J.D., Senior Counsel
On November 8, 2012, the EEOC achieved yet another multi-million dollar settlement in a lawsuit alleging systematic disability discrimination, specifically targeting an employer’s inflexible leave policy. Specifically, the employer’s policies required two things: first, any employee who took a leave of absence for a medical reason could not return to work unless the employee was able to perform 100% of his or her job without any medical restrictions; and second, the maximum amount of leave the employer’s policy allowed was 12 weeks (the amount available to eligible employees under the FMLA). The employer’s rigid policies led to termination of qualified individuals with disabilities without consideration of additional leave as a reasonable accommodation, as required by the Americans with Disabilities Act (“ADA”). The plaintiff and 8 others filed a complaint with the EEOC. Through its investigation, the EEOC determined that the employer allegedly discriminated against nearly three hundred employees pursuant to the employer’s unlawful inflexible leave policy. See the consent decree in EEOC v. Interstate Distributor Co. (D.Colo. Nov. 8, 2012). The EEOC’s press release announcing the can be viewed here.
The employer’s leave of absence dilemma. In the past several years, the EEOC has targeted employer’s inflexible policies, such as “no-fault” attendance or rigid leave policies as ADA violations and has secured numerous multi-million dollar consent decrees against employers. At the same time, the EEOC has put on hold indefinitely the release of its guidance regarding leave as a reasonable accommodation under the ADA. Employers are stuck between a rock and a hard place when it comes to figuring out how to comply with the ADA when disabled employees require a leave of absence. Reed Group has created a white paper that is a compilation of EEOC guidance documents, briefs, case law, and practical advice concerning leaves of absence as a reasonable accommodation under the ADA. The white paper synthesizes all of the information in order for employers to easily understand what is required, what is reasonable, and how to go about handling an employee’s request for a leave of absence under the ADA. Reed Group’s white paper will be released approximately December 1, 2012. Be sure to visit www.ReedGroup.com to download a copy at that time. You may also request to receive a copy of the white paper hot off the presses by emailing firstname.lastname@example.org.
Seattle Paid Sick and Safe Leave: Whether or Not You Have Employees in Seattle… Don’t Fail to Read This!
Seattle is the most recent jurisdiction to enact paid sick and safe leave. Pay attention; you may be next!
Starting September 1, Seattle employers must provide job-protected paid time off to employees for their own or a family member’s health and safety reasons. Seattle joins San Francisco, Washington D.C., and the state of Connecticut in requiring paid sick/safe leave. A host of other locales (including New York City, Denver, Miami-Dade County, and others) are wrestling with the issue as advocates of paid sick and safe leave become increasingly active. Check here for a summary of the status of paid sick and safe leave initiatives throughout the country.
Most recently, on August 29, backers of a paid sick leave ordinance in Orlando succeeded in getting the measure on the November ballot. If passed, the law would require employers in Orlando to provide paid time off to part-time and full-time workers who are sick or are taking care of a sick family member. Under the terms of the ballot measure, employees would earn one hour of sick time for every 37 hours of work, with a 56-hour cap. Disney opposes the measure.
In recent years there has also been a move to enact national paid sick leave requirements. The proposed Healthy Families Act (H.R.1876/S.984) would provide 15 days of paid leave per year for an employee’s or family members health and safety needs.
A Growing Trend. Why is this trend toward paid sick and safe leave growing? Here’s why: More than 40 million private sector workers – 40 percent of the workforce –don’t have access to earned paid sick days. (U.S. Bureau of Labor Statistics, March 2011). This causes workers to choose between going to work ill or missing work and pay – and possibly facing discipline or termination.
This article presents a summary of the Seattle law’s key provisions and links to the ordinance and other materials available online. It also raises considerations for non-Seattle employers; clearly, this is a trend employers need to follow. If you have any questions, please call or email Reed Group.
What should Seattle employers do?
What should non-Seattle employers do?
Call Reed Group if you are not sure where to start. We can help you understand the new ordinance better. If you’d like to read more about what is happening in Seattle, see below.
Seattle Overview. The Seattle Paid Sick Time and Paid Safe Time Ordinance (the Ordinance or PSST) becomes effective September 1, 2012. The Ordinance requires private employers with more than 4 full-time equivalent employees to provide their employees who work in Seattle with accrued, job-protected paid time off for any one of several reasons related to health and safety issues.
The amount of paid leave required depends on the size of the employer. The Ordinance contains accrual, carry-over, documentation, notice, and enforcement provisions.
Covered Employers. Private employers who employ more than 4 full-time equivalent (FTE) employees, at least one of whom works in Seattle, must comply with the Ordinance. The employer’s size is determined by counting all of its employees in any location, not just those who work in Seattle. The City of Seattle is also a covered employer, but the Ordinance does not include other public employers such as federal, state, and other local governments.
Eligible Employees. All employees (part time, full time, temporary, occasional) who perform work in Seattle for more than 240 hours in a calendar year are eligible for leave accrual and usage under the Ordinance. An employee may be covered even if the employee only occasionally works in Seattle. In such case, however, PSST can only be used for work time that would have occurred within Seattle.
Independent contractors and individuals engaged through a work-study program are not eligible for PSST.
Breaks in Service. If an employee is separated from employment and rehired by the same employer within 7 months of the date of separation, the previous period of employment is counted toward the employee’s eligibility (240 hours worked) and waiting period for usage (180 days of employment). However, the total time of employment counted toward eligibility and the waiting period must occur within 2 calendar years.
In addition, previously accrued and unused paid sick/safe time is reinstated for the employee’s use upon rehire within 7 months.
Amount of Leave. The amount of PSST a covered employer must offer depends on the employer’s size. The annual accrual cap and allowable carryover of leave from year to year also depends on the employer’s size. PSST is calculated per calendar year. Covered employers fall into the following 3 tiers:
|Number of Employees in Prior Calendar Year||PSST Accrual Rate per Calendar Year||Annual Usage Caps||Annual Carry-over Caps|
|Tier 1||More than 4 – 49 FTEs||1 hour per 40 hours of work in Seattle||40 hours||40 hours|
|Tier 2||50 – 249 FTEs||1 hour per 40 hours of work in Seattle||56 hours||56 hours|
|Tier 3||250 or more FTEs||1 hour per 30 hours of work in Seattle||72 hours
108 hours for combined PTO programs
108 hours for a combined PTO program
An employer may satisfy the Ordinance through an existing time off program as long as the above entitlements are met, the permitted reasons for leave include those specified by the Ordinance, and the procedures for use are no more onerous than the Ordinance. A “combined PTO program” refers to an employer program that provides a single amount of paid time off per year that can be used by the employee regardless of reason (e.g., illness, vacation, family needs, etc.).
Current employees begin to accrue PSST on September 1, 2012. Accrual rates do not apply to hours worked before this date. Employees hired after September 1 will accrue PSST hours starting on their first date of employment.
An employer is not required to pay out any accrued but unused Seattle Sick and Safe Leave upon an employee’s separation from employment.
Who Can Use PSST and When? An employee can use accrued PSST for the following reasons:
- To deal with their own illness, injury or health condition;
- To take care of a family member with an illness, injury or medical appointment (child, grandparent, parent, parent-in-law, spouse, and registered domestic partner)
- When the employee’s workplace or child’s school has been closed by order of a public official for health reasons;
- Because the employee or a family or household member is a victim of domestic violence, sexual assault, or stalking. “Family or household member” is defined very broadly for the usage of safe leave.
Eligibility dates for new employees or new employers. Generally, employees can use accrued PSST starting on the 180th calendar day after their employment commenced, including days worked before the effective date of the Ordinance. Employees of new employers (or existing employers who newly qualify under Tier 1) can use PSST after 24 months from the hire date of the employer’s first employee. Examples can be found on the Seattle Office for Civil Rights (SOCR) website in the FAQs section.
Employer Notice: Covered employers must post or provide paper or electronic copies of a notice explaining employee rights under the Ordinance. A sample poster in English provided by SOCR is available here. Posters are also available in other languages.
A more challenging notice provision requires employers to provide employees with notice of available PSST each time wages are paid, through the employee’s paystub and/or an online system.
Employee Notice: The Ordinance allows employers to enforce their usual absence reporting procedures, provided that they don’t “interfere with the purpose of the leave.” Otherwise, the Ordinance allows the employer to require the following notices:
- Foreseeable leave: a written request at least 10 days in advance of leave, or as early as possible, that identifies the type of leave needed, the dates and amount of time, and a contact person for the employee during the absence
- Unforeseeable leave: “as soon as practicable” under the facts and circumstances
- Safe leave: end of the first day of leave for domestic violence, sexual assault, or stalking
Documentation. No documentation can be required for absences of 3 or fewer consecutive work days. If the absence exceeds or will exceed 3 work days, then the employer can require the employee to provide documentation.
Documentation for sick leave in excess of 3 work days: An employer can require a note from a health care professional. The statement should not reveal the nature of the illness or other private medical information. The employer may be required to pay 50% of the cost of obtaining the documentation if it is not covered by health insurance.
Safe Leave. An employer can require documentation of the need for safe leave such as a police report a court order, or just the employee’s own written statement. The employer cannot require an explanation of the nature of the domestic violence, sexual assault, or stalking.
Recordkeeping. Employers must keep records of each covered employee’s hours worked in Seattle, hours of PSST accrued, and hours of PSST used.
Enforcement. SOCR administers and enforces the Seattle Ordinance. Covered employers are prohibited from retaliation by disciplining or discriminating against an employee who has exercised a right under the Ordinance. This anti-retaliation provision applies to all Seattle employers, regardless of size.
Resources. The above information is a short summary of the provisions the Ordinance. The Ordinance itself is 29 pages and supporting materials provided by SOCR exceed 40 pages. For more information and useful documents and forms, visit the Seattle Office for Civil Rights website, check out their FAQs, or read the Ordinance and the supporting Administrative Rules.
Reed Group Study Finds Employees Taking Intermittent Family Medical Leave Are Three Times More Likely to File for Short-term Disability
Four-year study finds employers struggle with FMLA related to intermittent leave and disability, but professional outsourcing and software can help contribute to decreased loss time
DENVER — (Aug. 7, 2012) — Employees taking intermittent time off to care for themselves or for sick family members under the Family and Medical Leave Act (FMLA) are nearly three times more likely to file a subsequent Short-term Disability (STD) claim within six months than employees not taking FMLA leaves, according to new research findings from Reed Group, the leading expert in leave administration and return to work management.
Intermittent FMLA claims, in which employees are away from work, return and then are away again, are a challenging source of frustration and difficulty for human resource managers. Reed Group’s findings suggest that professional outsourcing and software can be key strategies for HR managers to decrease employee lost time due to intermittent absence and associated costs.
As part of its study of more than 112,000 FMLA claims closed between 2008 and 2011 Reed Group found the following:
- 51 percent of all FMLA claims involved intermittent leaves; and,
- Employees on intermittent leaves are more likely to file a STD claim within the following six months, (21 percent) than those on continuous leave (8 percent).
The most common reasons for disability following intermittent leaves are musculoskeletal conditions and behavioral health problems.
“These findings make it clear that intermittent leaves are a major driver of business disruption and cost. Robust tracking tools or professional outsourcing can help employers better manage FMLA and disability claims and reduce business cost and disruption,” said Kevin Curry, senior vice president and national practice leader for Reed Group. “By intercepting these cases early, employers can provide their employees with timely assistance and support which, in turn, can help reduce the incidence of STD and longer periods away from work.”
Curry also suggests employers use FMLA claims as a gauge for the need of employee assistance programs and offer programs that specifically address the employee needs associated with the most common FMLA claims within their company. By integrating FMLA management with a company’s existing health management programs, (such as employee assistance programs, wellness programs, disease management services, and health coaching) employers can reduce STD incidence, duration and costs.
“Employee assistance programs are often used to help employees remain healthy and prevent common issues that result in STD time away from work; however, most employers haven’t built the connection between FMLA claims, which can be a pre-cursor to a more impactful STD leave, and their employee assistance programs,” Curry said. “Without that connection, employers have a difficult time maximizing their EAP programs and reduce STD incidence as effectively as possible.”
Other recent industry research has generated similar findings; a 2012 employer leave management survey conducted by Spring Consulting Group found that only 32 percent of employers integrated EAP services with FMLA programs.
“Our study found the two most effective intermittent leave services are routine certification of medical conditions and software systems for tracking the leave,” said Karen English, a partner at Spring Consulting. “With the growing complexity of FMLA management, software tools are becoming a necessary management tool.”
To help organizations control the costs associated with FMLA and STD, Reed Group offers employers the industry’s leading online FMLA and leaves reference, Leave of Absence Advisor® and the industry’s most advanced leave management software, LeavePro™. Leave of Absence Advisor® and LeavePro™ will be demonstrated at booth number 24 at the DMEC annual meeting August 12 through 15 in Denver. DMEC members can receive an introductory annual subscription to Leave of Absence Advisor® for $199 a year, a $500 discount from the list price. Click here for more information or to request a personal demonstration.
About Reed Group
Reed Group is the recognized leader in helping organizations reduces the cost, compliance risk and complexity of employee absence. Our products and services address FMLA, ADA, state and other leave laws, workers’ compensation, and short- and long-term disability programs. Headquartered in Westminster, Colorado, Reed Group has been a trusted partner to employers, insurers, TPAs, government organizations, attorneys, and health care providers for over 35 years. Reed Group’s world-class team of clinical and absence management experts help organizations deploy Reed Group products and services to improve employee health and productivity. For more information, visit www.reedgroup.com.
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