This Is How We Do It
Are we in a safe space? I have a confession: Montell Jordan (with an appearance by KC & JoJo) was my very first concert. Some of the lyrics to ‘This Is How We Do It’ are not appropriate for a company newsletter, but doesn’t that song get you kind of pumped up and excited? Even if listening to it alone in the car? Maybe that’s just me.
Well, I hope you are equally excited to dive into this quarter’s Compliance Corner. It’s a meaty one, my friends – we have two states that enacted their own paid family and medical leave programs and a lot of legislative updates in both Oregon and Washington.
Special shout-out to our newest account manager, Andrew Eldridge, who was the brains behind this newsletter’s song-title subject!
FMLA Guidance on Mental Health Conditions
Mental health has been brought to the forefront since the start of the pandemic. Many of us, our children, and loved ones have encountered new struggles with anxiety and other mental health conditions. In May, the Department of Labor published new guidance including Fact Sheet # 28O: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions. Mental health conditions are considered serious under the FMLA if they require 1) inpatient care or 2) continuing treatment by a healthcare provider. Keep in mind that continuing treatment may be defined by a course of prescription medication.
Employees can also take leave to care for a spouse, child, or parent who cannot work or perform other regular daily activities because of a serious mental health condition. This care may include providing psychological comfort and reassurance that would benefit a family member with a serious health condition receiving inpatient or home care.
Simply put, a growing number of employees are dealing with serious mental health issues that render them unable to work. It’s our new reality; as employers, we need to know how to manage and support our employees during these difficult times.
EEOC Caregiver Discrimination Guidance
In March, the Equal Employment Opportunity Commission (EEOC) shared new guidance for employers to avoid caregiver discrimination issues. The EEOC included a new section on caregivers/family responsibilities in its ongoing COVID-19 FAQ, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other “EO Laws.”
Employers may not discriminate against employees with caregiving responsibilities based on any protected class. This is often associated with gender stereotypes. Here are a few examples from the new guidance:
- “Employers may not decline to assign female employees with caregiving responsibilities demanding or high-profile projects that increase employees’ advancement potential but require significant overtime or travel.”
- “Employers may not reassign such projects to other employees based on assumptions that female caregivers cannot, should not, or would not want to work extra hours or be away from their families if a family member is infected with or exposed to COVID-19.”
- “Employers may not deny male employees permission to telework or to adjust schedules to enable them to perform pandemic-related caregiving obligations, while granting such requests when made by similarly situated female employees.”
Similarly, an employer cannot discriminate against an applicant or employee because of that person’s association with an individual with a disability.
- It is unlawful under the Americans with Disabilities Act for an employer to refuse an employee’s request for unpaid leave to care for a parent with long COVID that is a disability under those laws while approving other employees’ requests for unpaid leave to handle different personal responsibilities.
- It also would be unlawful for an employer to refuse to promote an employee who is the primary caregiver of a child with a mental health disability that worsened during the pandemic, based on the employer’s assumption the employee would not be fully available, or committed to the job, because of the employee’s caregiving obligations.
However, the ADA does not require an employer to accommodate an employee (disabled or not) because they need to care for someone else with a disability.
FMLA & ADA FAQ
We get this question a lot – can we have employees with a permanent workplace accommodation need recertify their continued need each year? Let me make this analogy: There’s something about a flame and wicker basket that makes me repeatedly say no to a hot air balloon ride. Same application here – generally, no, there will rarely be a valid reason to request that the employee recertify the existence of the disability to continue providing accommodations for an arbitrary duration (i.e., annually). According to the EEOC, employers cannot ask for medical documentation when the disability and/or need for reasonable accommodation is known or obvious, or the individual has already provided sufficient information to substantiate the existence of an ADA disability. However, individual circumstances might allow an employer to request updated information when it is job-related and consistent with business necessity.
On to another very common inquiry, this time in the FMLA space. How should employers manage eligibility determinations when an EE requests FMLA months in advance of their first absence? Regulatory requirements conflict in this scenario because employers are required to provide eligibility within five business days of the initial request for leave, BUT eligibility is determined, and the notice of eligibility status must be provided, based upon the first time the employee takes leave for an FMLA qualifying reason in the designated 12-month leave year. In this case, our best practice is to send the eligibility and Rights &Responsibilities notices within the five-day requirement, but then set a task closer to the actual leave start to recheck eligibility and issue an updated eligibility notice if eligibility has changed. This way, the employer meets its obligations to send the notices in a timely manner. See 29 C.F.R. §825.300.
A U.S. dairy processor recently found itself in a wide-awake nightmare when, according to this press release from the EEOC, it will pay $79,000 and provide other relief to settle a federal disability discrimination lawsuit in which the EEOC charged that the company violated the Americans with Disabilities Act by failing to provide a disabled employee a reasonable accommodation, which resulted in her discharge.
Let’s review where the company went wrong – the employee suffered from a severe skin condition and was also allergic to rubber and plastics. When she requested the reasonable accommodation of a different type of glove while working, she was instead sent home when her condition flared AND received attendance points for those absences. She was subsequently terminated for accumulating so many attendance occurrences.
Unless this employee made an outlandish request, there is almost no way providing a set of non-reactive gloves would cause the company an undue hardship.
Employers should also remember that strict, no-fault attendance polices are likely an ADA/FMLA violation waiting to happen. Penalizing eligible employees for taking time off for a serious health condition (FMLA) or reasonable time off for a disability (ADA) often results in a lawsuit and a settlement check or jury verdict.
The EEOC emphasized in its press release that “employers should determine whether an employee who needs leave because of a medical condition is entitled to an accommodation under the ADA.” That accommodation could be as simple as providing a pair of gloves to avoid exacerbating a skin condition.
DMEC’s Annual Conference will be held August 1–4, 2022, in Denver, CO. Your favorite TPGers (that’s us!) will be on hand and our very own Patty Borst will be presenting on harnessing HR technology to simplify the leave process for employees and the HR team. We hope to see you there!
San Francisco’s Family Friendly Workplace Ordinance Amendments
Do you think California legislators wake up every day and say, “You know what this experience is really missing? More leave and accommodation regulation!” I thought so. On March 14, 2022, the City of San Francisco passed amendments to its existing Family Friendly Workplace Ordinance (“FFWO”). The amendments went into effect on July 12, 2022, and will affect any employer with 20 or more employees who has workers either working in or telecommuting out of San Francisco. The new amendments primarily expand the FFWO by:
- Requiring employers provide predictable or flexible working arrangements except where it would create an undue hardship
- Requiring employers to engage in a good-faith interactive process to find predictable or flexible arrangements
- Including teleworking employees
- Expanding protected caregiving activities to include elderly family members other than parents
The existing FFWO, which passed in 2014, gives certain employees the rights and protections to request flexible or predictable work arrangements to assist with caregiving responsibilities. The original FFWO did not give employees a right to any specific outcome related to that request. By contrast, the amended FFWO requires employers to provide employees with a flexible or predictable work arrangement for qualifying caregiving responsibilities upon request unless doing so would cause the employer undue hardship.
Under the original FFWO, protected caregiving included care of child(ren) under the age of 18; a person(s) with a serious health condition in a family relationship with the employee; or a parent (age 65 or older) of the employee.
Under the new FFWO, protected caregiving is expanded to include care of any person age 65 or older who is in a “family relationship” with the employee. “Family relationship” is defined as a relationship in which a caregiver is related by blood, legal custody, marriage, or domestic partnership to another person as a spouse, domestic partner, child, parent, sibling, grandchild, or grandparent.
All employers in Colorado have been required to provide public health emergency (PHE) leave since January 1, 2021, and the obligation to do so will continue through at least this summer due to a recent extension. Under state law, all Colorado employers must provide this leave if there is a federal, state, or local declaration of emergency. On April 16, the federal declaration of emergency was extended another 90 days. As a result, the obligation to provide PHE leave in Colorado is still currently in place.
You can find a detailed summary of your leave obligations here. It is important to understand that Colorado PHE leave is a one-time leave obligation. If an employee used all their supplemental PHE leave in 2021, they must rely on their accrued leave or take any additional COVID-19 leave unpaid.
As background, the Act requires employers provide employees an additional amount of paid sick leave during a public health emergency.
Healthy Delaware Families Act
Remember the movie Wayne’s World where they use Chroma key to travel through time and space? Wayne and Garth are then magically whisked away to Delaware and all they can think of to say is, “Hi, I’m in Delaware.” Well, now Delaware has something else to talk about. On May 10, 2022, Delaware Governor John Carney signed the Healthy Delaware Families Act, which provides up to 12 weeks of leave and benefits to covered employees for certain parental, family caregiving, and medical reasons.
The program will be funded by employer and employee contributions. Contributions will begin on January 1, 2025. Employees will be able to utilize the job-protected paid leave beginning on January 1, 2026.
The law provides benefits to replace up to 80% of an employee’s average weekly wage and job-protected leave for the following reasons:
- Care for a child during the first year after the child’s birth, adoption, or placement of the child through foster care;
- Own or care for a family member with a serious health condition; or
- Qualifying exigency, as defined under FMLA.
The maximum amount of leave benefits is 12 weeks per year for parental and an aggregate of six weeks in any 24-month period for other qualifying reasons, for a cumulative total of up to 12 weeks of benefits per year.
Any employee, primarily working Delaware, who has worked for one year for their employer and at least 1,250 hours in the previous 12 months is eligible to utilize the benefits and leave.
Employers with at least 10 employees in Delaware must contribute to the program and provide parental leave. Employers with at least 25 employees also must provide family caregiving and medical leave.
Time to Care Act
Maryland passed the Family and Medical Leave Insurance Program (also known as the Time to Care Act).
Employer and employee benefit contributions through payroll taxes will be announced in 2023, and contributions to the fund will be collected beginning October 1, 2023.
Employees will be able to utilize the job-protected paid leave beginning on January 1, 2025.
The Time to Care Act provides benefits to replace a portion of a covered individual’s income and job-protected leave for the following reasons:
- Care for a child during the first year after birth or after placement of the child through foster care, kinship care, or adoption;
- Own or care for a family member with a serious health condition;
- Care for a service member who is the covered individual’s next of kin; or
- Employee has a qualifying exigency arising out of the deployment of a service member who is a family member.
The maximum amount of leave an employee may take is 12 weeks per year (the year begins the day the employee files an application for benefits). However, the employee may receive an additional 12 weeks of leave for their own serious health condition during the same year even if they have utilized leave to care for a child following the child’s birth or placement.
Any employee who worked at least 680 hours in the prior 12 months is eligible to utilize the benefits and leave. Covered employers that must provide leave are those that employ one employee in the state, although only employers with at least 15 employees, with limited exception, must contribute to the program.
Employers must provide notice to employees of entitlements under this law beginning in 2023.
Paid Leave Oregon
Paid Leave Oregon (PLO)? Do you mean Oregon Paid Family and Medical Leave Insurance? Sure don’t. In April, the state announced they had done “extensive work” (those are their words, not mine) with a contractor to rebrand the program to ensure the program’s look and feel match the vision and further equity goals. Kind of reminds me of the time South Dakota did “extensive work” with a firm to land on the anti-drug slogan “Meth. We’re On It” (true story, Google it). Yes, I am being rather critical, I apologize, Oregon. Oregon employers should be on the lookout for the name change in all communications from the state.
In May, Paid Leave Oregon announced they set the contribution rate for employers and workers at 1% when contributions begin in 2023. Starting January 1, 2023, workers will pay 60% and employers will pay 40% of the combined contribution rate of 1%. Contributions will go into a trust fund, which in turn will provide the revenue for workers’ paid leave benefits starting September 3, 2023. The Oregon Employment Department Director will set the paid leave contribution rate annually, which cannot exceed 1%. The law also requires the trust fund to have enough funds to pay benefits for up six months.
If you are considering an equivalent plan, please familiarize yourself with the new draft rules for 2022 applications. The new rule references the completion of a “declaration of intent to obtain approval of equivalent plan” (which will be a webform on the state’s site). If this is done by November 30, 2022, and then followed up with an actual application by May 31, 2023, employers can avoid contributions to the state in Q1 ’23. If the equivalent plan application is denied, the state will collect premiums retroactive to January 1, 2023. Here is a bit more detail on equivalent plans:
- Approved equivalent plans become effective on September 3, 2023, at the same time PLO benefits may first be paid to eligible employees.
- No later than May 31, 2023, an employer who wishes to provide an equivalent plan with an effective date of September 3, 2023, must submit to the department an equivalent plan application that meets the requirements of OAR 471-070-2210.
- (a) To be exempt from paying required quarterly contribution payments to the PLO program, an employer that is going to provide its employees with an equivalent plan as of September 3, 2023, must submit to the department a Declaration of Intent or an equivalent plan application by the following dates:
- By November 30, 2022, to be exempt from paying and remitting the contribution payments beginning with the first quarter that starts January 1, 2023.
- By February 28, 2023, to be exempt from paying and remitting contribution payments beginning with the second quarter that starts April 1, 2023.
- By May 31, 2023, to be exempt from paying and remitting contribution payments beginning with the third quarter that starts July 1, 2023.
- (b) No Declaration of Intent may be submitted after May 31, 2023.
Finally, Oregon has updated the definition of benefit year to 52 weeks starting with the Sunday of the week in which leave begins.
Expanded Reasons for Paid Sick Leave Usage
On March 21, 2022, the Oregon Bureau of Labor and Industries (BOLI) adopted a permanent rule, effective April 1, 2022, that expanded the reasons employees can use leave under Oregon’s paid sick and safe leave law during a public health emergency. Under the permanent rule, eligible employees may take protected sick leave for absences connected to: (1) an emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or (2) a determination by a public official that the air quality or heat index is at a level where continued exposure to such levels would jeopardize the employee’s health. BOLI’s permanent rule expanding paid sick and safe leave is identical to its temporary rule in effect from August 6, 2021, through January 17, 2022. During a public emergency, eligible employees can also use protected paid sick leave for the following reasons: (1) closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency; (2) a determination by a public health authority or health care provider that the presence of the employee or the employee’s family member in the community would jeopardize the health of others, such that the employee must provide self-care or care for the family member; or (3) the exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons. Employers should remember there are numerous other reasons employees can use leave under Oregon’s paid sick and safe leave law
Paid Family and Medical Leave Amendments
The Washington State Legislature has amended the state’s Paid Family and Medical Leave (PFML) Act. This amendment was effective June 9, 2022. Here are the most significant changes to the law:
- First six weeks of postnatal leave for incapacitated employee is presumptively medical unless the employee chooses to use paid family leave during that period. Such an employee does not need to obtain certification of a serious health condition.
- Permits use of paid family leave for bereavement purposes during the seven calendar days after the death of a qualifying family member. This leave is permitted for the death of a family member for whom the employee (1) would have qualified for medical leave for the birth of their child, or (2) would have qualified for family leave to bond with their child following their birth or placement.
- Waiting period no longer applies to claims for medical leave taken upon the birth of a child. Employees who take leave for qualifying military events or to bond with a new child are already exempt from a waiting period.
- The Washington Employment Security Department, must now publish a current list of all employers that run their own “voluntary plan” that was approved by ESD.
- Ending CBA Exception. Previously, the law did not apply to an employee who was subject to a collective bargaining agreement (CBA) that was in existence on October 19, 2017, until the CBA was reopened, renegotiated, or expired. This exception now expires December 31, 2023.