If you’re a leave and disability nerd like us, in addition to being the envy of nearly everyone you know, you thoroughly enjoy taking otherwise great songs and making them truly remarkable by adding customized leave of absence lyrics. That’s right, Wham! really missed out by not engaging us in the song-writing process. But here’s a little something to put a smile on your face:
Leave of Absence, you put the boom-boom into my heart, and send my soul sky-high. Employers, you don’t wanna miss it when they make that request. But something’s bugging me, something ain’t right, [your coworker] told me what you did last night. . . You left [us working here] instead, you went skiing, but you should’ve been on-site instead.
Now that we have your attention, we have a lot to get through this quarter. A good deal of federal guidance was released over the past few months. Thank you, Department of Labor, for not leaving me hanging on like a yo-yo and releasing a new round of Field Assistance Bulletins and Opinion Letters (its first since 2020)!
But let’s not forget Oregon and Colorado, who plan to keep us busy throughout the remainder of 2023 as they prepare to make their paid family and medical leave benefits available to your employees.
DOL Guidance on Telework Under FMLA
The U.S. Department of Labor (DOL) has issued guidance on the application of FMLA for employees who telework from home or another location.
The Field Assistance Bulletin (FAB) 2023-1, released on February 9, 2023, provides employers a glimpse into how the DOL applies existing law and regulations to common remote-work scenarios.
The FAB (un-shockingly) reiterates the 1,250-hours determination for remote workers is based on compensable hours of work under FLSA principles.
With respect to worksite size determination, FMLA regulations explain an employee’s personal residence is not a worksite. Instead, whether a remote employee is FMLA-eligible is based on the size of the worksite from which “they report to” or “their assignments are made.” If a remote employee reports into or receives assignments from a site with 50 or more employees working within 75 miles, then the employee would meet that eligibility factor.
I’ll use myself as an example – I work remotely in Nebraska, but my assignments come from a manager working at our headquarters in Portland, OR. Our Portland office has 50 employees within a 75-mile radius, thus making me eligible for FMLA (assuming I have enough service and hours worked).
DOL Resources for Workers Impacted by Cancer
In December, the Department of Labor announced it released new resources for workers impacted by cancer. The page does not provide any new guidance, but rather offers a compilation of existing resources to help employees living with cancer, their caregivers, and survivors understand their rights.
DOL Opinion Letter on Calculating FMLA
In February, the DOL released this opinion letter about calculating FMLA leave for employees who generally work more than eight hours a day. Ultimately, if the employer schedules the employee to work more than 40 hours per week, the employee is entitled to more than 480 hours of FMLA leave per 12-month period.
The focus should be on the employee’s “normal” workweek (hours/days per week) before the start of FMLA leave as the controlling factor for determining how much leave an employee is entitled to use.
For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.
Furthermore, the DOL takes the position that employees who would usually be required to work more than eight hours a day but can’t because of an FMLA-qualifying reason may work a reduced schedule and use FMLA for the remainder of each shift. The employer may count the hours the employee was required to work against the employee’s FMLA entitlement, and the employee may continue to use FMLA indefinitely as long as they continue to be eligible, have a qualifying reason for leave, and have not exhausted their entitlement. Thus, if the employee never exhausts their FMLA, they may work the reduced schedule indefinitely.
This guidance isn’t really new – we’ve known for awhile that if an EE is scheduled to work more than 40-hours a week, they are entitled to more than 480 hours. However, we recognize the challenges this brings for employers utilizing an outsourced partner or software solution to manage leaves. The most critical element of ensuring EEs receive the appropriate amount of job protected time off if they work more than 40 hours a week is providing 12 weeks of time. If you can’t pass some of this variable information on a demographic file and/or your vendor partner is unable to ingest it, make sure you aren’t decrementing an employee’s entitlement more than 40 hours a week, thus giving less than 12 weeks of time overall.
Pregnant Workers Fairness Act & Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)
The “Pregnant Workers Fairness Act” (PFWA), modeled after the Americans with Disabilities Act, expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to a qualified employee or applicant with known limitations related to pregnancy, childbirth, or related medical conditions.
Employers must engage in an interactive process to determine a reasonable accommodation, provided it does not impose an undue hardship. Employers may not require an employee to take paid or unpaid leave if another reasonable accommodation is available. In addition, the PFWA protects employees from retaliation, coercion, intimidation, threats, or interference if they request or receive an accommodation.
The pregnancy accommodation provisions will become effective on June 27, 2023.
Additionally, the PUMP Act expands workplace protections for lactating employees. The PUMP Act requires employers to provide nursing employees with reasonable time and private space to express breast milk.
The new law expands on the Fair Labor Standards Act’s existing lactation accommodation provisions, which required employers to provide non-exempt, lactating employees with reasonable break time and a private location, other than a bathroom, to express milk for one year following the birth of a child. The PUMP Act expands this right to cover all exempt and non-exempt employees covered by the FLSA.
Employers with fewer than 50 employees may be exempt from the requirements if they can show compliance would impose an undue hardship.
New EEOC Resource Document for Hearing Disabilities
The EEOC is continuing to educate employers on how the ADA applies to job applicants and employees who are deaf, hard of hearing, or have other hearing conditions in this updated resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act.”
The document explains:
- when an employer may ask questions about a hearing condition and how it should treat voluntary disclosures;
- types of reasonable accommodations for those with hearing disabilities;
- how an employer should handle safety concerns of those with hearing disabilities; and
- how an employer can ensure employees are not harassed because of a hearing or other disability.
Before offering a job, employers should avoid asking about any disabilities. However, if an applicant has an obvious or voluntarily disclosed impairment and the employer reasonably believes the applicant will require an accommodation to complete the application process or to perform the job, the employer may ask whether the applicant will need an accommodation and what type. Stick to questions about the applicant’s ability to perform the essential functions, with or without reasonable accommodation.
Post-offer, employers may ask questions about the applicant’s health and may require a medical examination, if all applicants for the same type of job are treated equally.
An employer may ask current employees’ disability-related questions or require a medical examination when the medical condition is known, performance problems have been observed, and the employer reasonably believes the problems are related to a medical condition. An employer may also ask an employee about a hearing condition if there is reasonable belief the employee will be unable to safely perform the essential functions of the job because of it. Train your managers to engage with you when/if these scenarios occur. Trusting your managers to navigate these conversations independently is like taking a bath with a toaster.
The EEOC also provides a list of potential accommodations for individuals with hearing disabilities including a sign language interpreter, assistive technology, note-taking assistance, work area adjustments, time off, altering marginal (non-essential) job functions, and reassignment.
And don’t forget about the wonderful resources available from askjan.org – they offer an A-to-Z listing by disability, topic, and limitation designed to help employers determine effective accommodations.
FMLA requires an employer to restore an employee to their old job after FMLA ends, but that duty does not apply to an individual who would have lost their job regardless of taking FMLA, and a recent trial court and the Sixth Circuit Court of Appeals confirmed this position.
Following FMLA leave, an employee has no greater right to reinstatement or to other benefits and conditions of employment, than if he or she had not taken leave. An employer must be able to objectively demonstrate an employee would not otherwise have been employed at the time reinstatement is requested to deny restoration. Be sure to include in your FMLA policy the exceptions to the general rule that EEs be restored to work, such as layoffs, shift eliminations, fraudulently obtaining leave, performance deficiencies, and occasions when the employee is unable to perform essential job functions. (29 CFR 825.216)
Employee Obligation in Supporting an Accommodation Request
One of the many issues employers face under the Americans with Disabilities Act (ADA) is determining what information a disabled employee must provide to trigger the employer’s duty to accommodate. Lucky for us, the Eleventh Circuit addressed that question in Owens v. Georgia. Employers, I caution you, the Eleventh Circuit is composed of Alabama, Georgia, and Florida – states that more traditionally favor the employer. But nonetheless, there are some takeaways from this case. And do I feel a flicker of triumph? No comment.
In 2016, Nicole Owens began working for the Georgia Governor’s Office of Student Achievement (GOSA). In early 2018, she informed GOSA she had a high-risk pregnancy and took and exhausted FMLA shortly before giving birth. She also notified her immediate supervisor she was experiencing childbirth-related complications. Owens subsequently provided a doctor’s note advising she “delivered a baby by cesarean section,” was “doing well,” and “may return to work via tele-work from her home.”
GOSA’s executive director believed this note qualified as a medical release to return to work and approved the request to work from home. However, GOSA did not believe Owens’ request to work from home was due to any medical complications.
Owens provided a second doctor’s note in September 2018, which advised she “may return to work November 5, 2018” and “may continue to telework at home until then.”
GOSA determined additional medical documentation was needed to conclude whether any accommodations other than working from home were reasonable and sent Owens accommodation paperwork for her doctor to complete. In the following weeks, GOSA asked Owens to provide the completed accommodation paperwork, but she failed to do so explaining she was unable to “expedite” the “internal processes” of the doctor’s office. Subsequently, GOSA issued Owens a final directive advising that her “failure to provide the completed reasonable accommodation documentation” or “to return to the worksite” “may result in termination of employment.”
Ultimately, Owens notified HR she had not received her medical documentation and would not be returning to work onsite the day GOSA directed. As a result, her employment was terminated.
Owens brought claims against GOSA alleging failure to accommodate, retaliation, and discrimination under the Pregnancy Discrimination Act. The District Court granted summary judgment in favor of GOSA, finding Owens never triggered GOSA’s obligation to accommodate because she failed to identify a specific disability or explain how remote work would accommodate it. Further, the court found, even if Owens triggered GOSA’s duty to accommodate her, Owens was responsible for the breakdown in the interactive process.
On appeal, the Eleventh Circuit affirmed the lower court’s dismissal. It held that to request a reasonable accommodation, an employee must (1) identify the specific disability and (2) suggest how the accommodation will alleviate the workplace challenges posed by the specific disability. Her doctor’s notes were inadequate, because they did not explain how her requested accommodation would mitigate any physical or mental limitation.
This is a great reference for employers when trying to navigate ambiguous provider notes that list only the restriction and/or accommodation, with no additional detail on the disability or how the request will assist in overcoming the impairment.
Keep in mind that the information an employee must provide will depend on the particulars of each situation. There can be a clear connection between the disability and the requested accommodation, such as an employee with an obvious impairment. However, where the link between limitations and the requested accommodation is unclear, the Eleventh Circuit determined it is reasonable to require the employee to specifically outline how the needed accommodation will address the limitations. Simply providing a doctor’s note requesting an accommodation is not enough.
Employers should establish and communicate clear deadlines to return completed accommodation paperwork and outline the consequences of failing to do so. However, an employer should be flexible if the employee is making good faith efforts to obtain the necessary information.
And finally, a special note to California employers: You cannot ask for diagnosis or medical details, but you can require an EE to outline their disability-related limitations and how the accommodation will assist with those limitations.
Reasonable Accommodation Expiration Dates
After a diagnosis of severe depression, anorexia, and anxiety, the EE in this case took FMLA. Before returning to work, the plaintiff delivered notes from his treating providers, who recommended not returning to a swing-shift schedule, which may directly affect progress.
The employer offered to put the employee on a consistent schedule of only the day or night shifts for 30 days but required the EE to return to a swing-shift schedule after 30 days.
The employee declined the offer but tried to continue communications with the company for the next month. However, rather than continuing to engage with the employee to discuss alternatives, the company delayed any substantive dialogue about potential accommodations and refused to consider a permanent, consistent schedule.
Without the requested accommodation and no remaining available leave, the plaintiff resigned and subsequently sued.
The court noted the company failed to show that an accommodation beyond 30 days would have been unreasonable. This is an inquiry our practice receives quite often – can we provide an accommodation for X amount of time? Well, it depends. (I should have gone to law school.) While employers should let an employee know their approved reasonable accommodation will be regularly reviewed and is subject to change based upon business or operational necessity, it is not advisable to communicate that the accommodation will only be available for X days. Logically, how does an employer argue an accommodation is reasonable for 30 days, but not 31, or 45, or 60? This goes back to the essence of the interactive process – each request must be evaluated on a case-by-case basis.
Courts have long established that employers are not required to remove essential job functions as an accommodation. In this case, working a swing shift likely was an essential function, but due to the breakdown in process, the employer lost.
We had a great time at DMEC’s Compliance Conference in Orlando (or at least I am assuming we will have a great time, as this was written before attendance).Next up is the Annual Conference in San Diego from August 14–17. And great news, TPG will be speaking! Stay tuned for more information! Between now and then, I will be watching Anchorman on repeat to identify as many work-appropriate jokes as possible about San Diego.
San Francisco Mandates Paid Military Leave
On January 20, 2023, San Francisco approved the Military Leave Pay Protection Act, which mandates certain employers provide paid leave for employees for military duty.
The ordinance took effect February 19, 2023, and applies to employers who employ 100 or more employees worldwide.
The ordinance applies to any employee of a covered employer who 1) works within the geographic boundaries of San Francisco, including part-time and temporary employees; and 2) is a member of the reserve corps of the United States Armed Forces, National Guard, or other uniformed service organization of the United States.
Under the ordinance, employers must pay covered employees the difference between the amount of the employee’s gross military pay and the gross pay the employer would have paid the employee had the employee worked their regular work schedule. In addition, the employer is required to continue paying all benefits, including healthcare, retirement, and profit-sharing, as if the employee had worked their regular schedule.
Covered employees may take the leave in daily increments for one or more days at a time, for up to 30 days in any calendar year.
The ordinance includes limits on the leave taken, including the following:
- The supplemental compensation can be offset by amounts paid under any other law or employer military leave policy.
- If an employee can return to work but does not do so within 60 days of release, the employer may treat any paid supplemental compensation as a loan to be repaid, with interest, to the employer under the terms of the ordinance.
San Francisco Public Health Emergency Leave (PHEL) Expiration
Under permanent law, covered employers must provide paid PHEL during a public health emergency, which includes a local or statewide health emergency related to any contagious, infectious, or communicable disease, declared by local or state health officials. On February 28, the COVID-19 PHE for both California and San Francisco ended, resulting in PHEL for COVID-19-related reasons becoming unavailable. However, that PHEL remains available during air-quality emergencies for employees who primarily work outdoors and are a member of a vulnerable population.
Colorado Paid Family and Medical Leave Insurance (FAMLI)
Q1 Reporting Deadline
Q1 reports are due April 30, 2023. A 30-day grace period will be offered before the first premium payments and wage reports are considered late. Employers will need to submit their FAMLI premiums separately from UI premiums owed.
Premium payments and wage reports are due on the same schedule as is typical with Unemployment Insurance (UI). If an employer fails to submit wage reports and premium payments, the employer may face a fine of up to $50 per employee whose wages are not reported.
Resources for Employers Considering Private Plans
Colorado released an Employer Guide to Private Plans for employers interested in fulfilling their FAMLI requirements by using an approved private plan. The guide is published under the state’s new dedicated page for Private Plans where employers will also find several tools including surety bond guidance, a self-insured plan template, a surety bond calculator, and past Private Plan webinars. The state will add a list of insurance carriers offering approved plans as available.
The Illinois Paid Leave for All Workers Act passed both houses in January. The Act entitles covered employees to earn and use up to 40 hours of paid leave in each 12-month period of their employment and goes into effect on January 1, 2024.
The Act applies to all employers in Illinois except for public school districts organized under the School Code or park districts organized under the Park District Code.
The Act applies to all employees working in Illinois, with limited exceptions.
Under the Act, employees accrue one hour of paid leave for every 40 hours of work. Employers are permitted to cap accrued leave at 40 hours annually. Employers have the option of frontloading the leave annually in lieu of an accrual system.
Employees begin to accrue paid leave on January 1, 2024, and may begin using paid leave 90 days after the start of employment or on March 31, 2024.
Unused accrued paid leave will carry over annually and employers may limit employees to using no more than 40 hours of paid leave in the 12-month period.
Like the paid leave laws in Nevada and Maine, the Act allows employees to use the paid leave for any reason; the employer may not require the employee to provide a reason or provide any documentation to support the leave. Employers also cannot require employees to search for or find a replacement worker to cover their leave.
Employers may adopt a reasonable paid leave policy with notification requirements. That policy may require employees to give up to seven calendar days’ notice for foreseeable leave and to give notice as soon as practicable for unforeseeable leave.
On December 9, 2022, New York State amended the Nursing Mothers in the Workplace Act to provide additional specifications for lactation rooms and impose new written policy requirements on all employers. The new requirements will take effect on June 7, 2023.
Since 2007, New York State has required employers to either provide reasonable unpaid break time or allow employees to use paid rest periods or meal breaks to express milk up to three years following the birth of a child. Employers must also provide a room or alternative location for employees to express milk in private.
Under the existing guidance, employers are required to give at least 20 minutes at a time to pump and additional time if needed. Employees can take breaks at least once every three hours and take breaks right before or after scheduled paid rest periods or meal breaks. The amended law now provides that employees may take breaks “each time such employee has reasonable need to express breast milk.”
Under the new law, employers must provide a location for employees to express milk that is: (1) near the work area; (2) well lit; (3) shielded from view; and (4) free from intrusion. The designated room or location cannot be a restroom or toilet stall. The designated location must include: (1) a chair; (2) a working surface; (3) nearby access to clean running water; and, if the workplace has electricity, (4) an electrical outlet. Additionally, if the employer’s workplace has access to refrigeration, employees must be allowed access to refrigeration to store pumped milk.
If the lactation room requirement imposes an undue hardship, the employer must make reasonable efforts to provide a private room or location that is in close proximity to the employee’s work area.
Employers must also adopt a lactation accommodation policy, which must be distributed to each employee upon hire and upon returning to work following childbirth. Employers must also distribute the policy to all employees annually.
The amendments also expressly prohibit employers from retaliating against employees for exercising their rights under the statute.
Paid Leave Oregon
Benefit & Contribution Taxability
Paid Leave Oregon and the Oregon Department of Revenue issued guidance regarding the taxability of mandatory contributions and plan benefits for employers who have chosen to participate in the State’s program (as opposed to an equivalent plan through an insured product or self-insured policy).
The federal taxability of benefits will be determined by the Internal Revenue Service, which has not yet provided guidance. However, under Oregon’s state tax laws, the contributions and plan benefits will be treated as follows:
- Employee contributions (0.6% of payroll) are made post-tax and therefore included in wages subject to Oregon income tax withholding.
- Employee contributions should be reported in box 14 of the W-2.
- Employee contributions are not allowed as an Oregon itemized deduction.
- Should an employer elect to cover the employee’s portion of the contribution, that amount would be considered imputed income and taxable wages to the employee.
- Family leave benefits are fully taxable to the employee. However, medical leave benefits are taxable based on the ratio of employer contributions to total contributions—40% of the medical benefit will be considered taxable income (unless the employer is picking up the employee’s contribution, in which case the benefit would be 100% taxable).
Paid Leave Oregon Website Adds New Features
Paid Leave Oregon has refreshed its website (PaidLeave.Oregon.gov) in response to community feedback. The updated website is now available in six languages: English, Spanish, Russian, Vietnamese, Simplified Chinese, and Traditional Chinese.
Some of the new features include:
- An interactive contributions calculator so employers and employees can determine their payroll contributions.
- A safe exit or “quick escape” feature – used on websites for domestic violence and sexual assault survivors. The button allows users to quickly exit the browsing site and will automatically open a blank search page.
Q1 Combined Payroll Reporting Deadline
For employers participating in the State plan or offering an equivalent, the deadline for submitting Q1 reporting via Frances Online is April 30, 2023. Employers who are participating in the state plan or those who did not receive exemption from Q1 contributions will also need to submit contributions by this date.
The Paid Leave Oregon reporting process has been combined with the existing UI reporting process. Here are more key details:
- Frances Online replaced the Oregon Payroll Reporting System (OPRS) and the Employer Account Access (EAA) portal late last year.
- Reporting for each quarter is due by the last calendar day of the month following each calendar quarter (i.e., 4/30 for Q1, 7/31 for Q2, and so on).
- The Paid Leave Oregon website outlines what employers will need to do here in great detail – see the section called “Get ready to file your quarterly reports.”
- Please note these instructions are specific to employers that are going with the State or are pursuing an Equivalent Plan but did not file a Declaration on time.
- Employers pursuing an Equivalent Plan who did file a Declaration on time won’t owe contributions to the State for Q1.
Your Q2 deadline is July 31, 2023, so mark your calendars!
Public Health Emergency Declaration Expiration
Governor Brown declared a public health emergency November 14, 2022, in response to an increase in pediatric cases of respiratory syncytial virus (RSV). The declaration ended March 6, 2023. As a result, employers revert to the standard OFLA eligibility rules.
Please continue to be aware that OFLA eligibility is revised during periods of a Public Health Emergency.
Hey, Oregon, at least you’re not difficult. . . .
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