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Monthly Archives: October 2013

The Boss is Watching… And Two Courts Said That’s OK.

So, your employee calls in and requests time off under FMLA. You grant the request. You’re checking Facebook the next day and find fresh photos of your “sick” employee, enjoying a night on the town with friends. What can you do about it? Read more.

Three Ways to Improve Your ADA Practices

 By Kevin Curry, Reed Group Senior Vice President and National Practice Leader

As I reviewed the results of the in-depth survey that Reed Group conducted with Spring Consulting Group on employer practices around the Americans with Disabilities Act, I kept finding reminders of a simple fact: the ADA is not easy for employers to interpret.

Even though it’s been around since 1990, most employers still have trouble understanding how to administer the Act. Based on the survey findings, there are a few steps that many of you probably need to take to get started on improving your ADA practices:

  1.  Update job descriptions to include essential functions. 30% of the employers who responded to our survey haven’t done so. Detailed job descriptions that include the physical requirements and essential functions of every job are crucial; if they’re not clearly defined, you’re missing a simple way to limit your exposure to ADA claims that might require costly accommodations.
  2. Update policies and procedures. Clearly defining how your organization will handle leave as an accommodation can prevent misunderstandings down the road.  Eliminate language that references automatic termination after leave for medical reasons; a review process should be outlined in the policies, and that process should be followed consistently.
  3. Don’t automatically agree to restructure jobs. Although 43% of the survey respondents indicated that they do restructure jobs in response to ADA claims, this is rarely required under the law, and nearly a third (27%) found it challenging to do so.

To learn more about the survey’s findings, download the white paper, “Survey: Employers and the ADA.”

Jersey City Jumps on the Local Paid Leave Bandwagon

By Lori Welty, Reed Group Compliance Counsel

On September 25, Jersey City became New Jersey’s first city, and the nation’s sixth, to require private employers to offer paid sick leave. We have previously written about other cities enacting similar ordinances, and it certainly appears that this trend is continuing to gain momentum. Jersey City’s ordinance goes into effect on January 23, 2014.

Below is a summary of Jersey City’s Ordinance Number 13-097:

Covered Employers:

All employers who operate a business in Jersey City must comply.

Eligible employees:

An employee is eligible if the employee works at least 80 hours per year within Jersey City, not including government employees.

Amount of sick time:

Employers must provide 1 hour of paid sick time for every 30 hours of work. If the employer has 9 or fewer employees then the sick time can be unpaid.

An employee begins accruing sick time at the commencement of employment. Employees can begin using sick time on the 90th calendar day following the commencement of employment.

Employees can carry over sick time from year to year, but employers can cap sick time use and accrual at 40 hours per year.

Reasons for Sick Time

Employees can use sick time for any of the following reasons:

  • Treatment of an employee’s or a family member’s mental or physical illnesses, injuries, health conditions, or preventative care; or
  • Because the employer’s business or the employee’s child’s school or childcare facility closes for a public health emergency; or
  • To care for a family member whose exposure to a communicable disease jeopardizes the health of others.

Interaction with Employer Policy

If an employer policy already provides time off such as paid sick time that is equivalent to the sick time required under the Ordinance, then the employer does not need to provide additional sick time.

Notice and Verifying the Need for Sick Time

An employee must provide notice of the need to use sick time to the employer as soon as practicable.

If the employee’s absence is more than 3 consecutive work days, the employer can require reasonable documentation that the use of sick time was for an authorized purpose; however the employer may not require that the documentation explain the nature of an illness.

In addition to displaying a poster, employers are required to give individual written notice of the Ordinance to employees when they are hired, or as soon as practicable for existing employees.

Stay on Top of the Wave

If the trend holds, local leave laws are only going to become more widespread.  It’s crucial for employers to stay alert to the developments in local leave laws, as well as changes at the state and national level.  Employers need to be prepared to comply with new local leave laws, including consideration to how the new provisions interact with existing leave obligations.


Employers: Are You Analyzing Your Employees’ ADA Accommodation Requests Too Narrowly? Beware of This Pitfall!

By: Lori Welty, Compliance Counsel and Marti Cardi, Chief Compliance Officer

When an employee approaches your HR representative with a request for a disability-related accommodation, does HR only consider whether the request relates to the employee’s ability to do his or her job? According to the Court of Appeals for the 5th Circuit, this may be too narrow of a review. Employers have a broad obligation to accommodate a disabled employee’s reasonable request for accommodation, even where the accommodation does not relate the employee’s ability to perform the job.

In Feist v. State of Louisiana, (5th Cir. 2013), Pauline Feist’s employer, the Louisiana Department of Justice, argued that Feist’s request for on-site parking as a result of her osteoarthritis of the knee did not require accommodation since the parking situation did not limit her ability to perform the essential functions of her job. Feist countered that the ADA did not require a relationship between the accommodation and her ability to perform her job. The 5th Circuit agreed, finding that a reasonable accommodation includes making work facilities readily accessible to an individual with a disability.  The Court noted that the requirement to provide a reasonable accommodation is defined and interpreted broadly, enabling an employee to “enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”  This decision is consistent with the outcome in Colwell v. Rite Aid Corp., (3rd Cir. 2010), where the Court held that changing an employee’s shifts to accommodate a disability-related difficulty in getting to work (meeting bus schedules) is an accommodation contemplated by the ADA.

Caution for Employer: Accommodation Need Not Be Related to the Employee’s Ability to Perform the Job

Employers should exercise caution when considering an employee’s request for accommodation.  Keep in mind that providing an employee equal access to the benefits and privileges of employment is key, even where those benefits do not relate directly to the employee’s ability to perform his or her job.

Can I require my employees to report FMLA time to a specific person or phone number?

Most employers have policies regarding when and how an employee is required to report absences from work, whether planned or unanticipated. The federal Family and Medical Leave Act (FMLA) allows an employer to require an employee taking FMLA leave to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. But what if the employee has already put the employer on notice of the need for leave by other means? Can an employer still enforce its reporting policy and not run afoul of the FMLA?

Yes!  As substantiated by a recent case, an employer’s policy is the final word on how an employee must report an FMLA absence. In Srouder v. Dana Light Axle Manufacturing, LLC (6th Cir. 2013), employees were responsible to personally call in absences to a specified phone number on a daily basis before the start of the scheduled shift. The policy emphasized “calls to other numbers will not be acceptable.” The policy also warned that if an employee failed to report to work for 2 days without calling, the employee was considered to have voluntarily quit.  Finally, the policy specified that the employer could deny or delay an employee’s taking of leave if the policy’s requirements were not met. The employee did not call the absence phone number, even though he had already notified his supervisor and human resources about his need for leave.  The court supported the employer’s FMLA reporting policy, relying upon the FMLA regulation that allows an employer to enforce its “usual and customary notice and procedural requirements for requesting leave”. 29 C.F.R. § 825.302(d).

It is important for employers to understand that this regulation is a revision of the 1995 FMLA regulations.  Previously, an employer could not necessarily enforce its internal procedural requirement to deny an FMLA leave not requested in accordance with that procedure.  However, the FMLA regulations were revised in 2009, allowing employers to enforce notice and procedural requirements for requesting FMLA time off from work.

This is especially good news for employers who use third party FMLA administrators like Reed Group.  The employer  may require an employee to report an absence, such as an intermittent day off due to a flare-up of an FMLA serious health condition, to call a specific absence phone number.This provides the employer with one central point of leave management and the absence can be accurately tracked pursuant to the employee’s FMLA entitlement.

Same Sex Marriage Confusion from the DOL

By: Martha J. Cardi, Esq. and Megan G. Holstein, Esq.

Since the United States Supreme Court decision in the case United States v. Windsor, employers are scrambling to ensure that benefits provided to employees and their spouses are correctly applied to same-sex spouses, as now required by law.  We’ve written on the impact of the Windsor case as it applies to leaves of absence here and here. In the past few months, several government agencies, including the United States Department of Labor (DOL), have issued clarifying guidance in an attempt to assist confused employers.  However, the issued guidances have not necessarily clarified things for employers.  Read more.