Within TPG’s Total Absence Management team, we have fun summing up the latest in leave and disability for you. In fact, we hope you Stop in the Name of Leave when you get our newsletter each quarter.

This time around, stop in the name of leave law – and stay awhile – because, among other big updates, we’ve got sweeping changes to the Oregon Family Leave Act and lots of case law to unpack.

FEDERAL UPDATES

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What is the Association Provision of the ADA?

The ADA’s Association Provision prevents discrimination based on an employee or applicant’s association with a disabled individual. Its purpose is to prevent employers from taking adverse action based upon unfounded stereotypes and assumptions about individuals who associate with people who have disabilities. The types of relationships and associations protected are family, business, social, or other relationships – examples include family members, roommates, significant other, friends, participants in the employee’s off-duty activities, co-workers at a secondary job, and recipients of employee’s volunteer work. So basically . . . anyone except total strangers.

Employers cannot exclude or deny equal jobs or benefits to, or otherwise discriminate against, an employee because of an association with a disabled person. Examples of association discrimination include an employer’s refusal to hire an applicant because of concerns a spouse’s disability will increase health insurance, employer telling an employee not to bring their disabled child to a holiday party (when other children are included), terminating an employee if learning the employee’s partner is HIV-positive, refusal to promote an employee because of fear the employee will suffer a genetic medical event, or refusal to allow an employee to take a week of unpaid leave to care for a parent, but allowing another employee to take a week to attend a child’s camp.

There is no ADA duty to accommodate based on association with a disabled person. For example, an employee is not entitled to a modified schedule as an accommodation to enable that employee to care for a spouse with a disability (but don’t forget about FMLA!). However, if you are operating in California, it’s important to consider the Fair Employment and Housing Act (FEHA) – their definition of disability includes someone who is associated with a person who has a physical or mental disability. Disability discrimination under FEHA includes failure to accommodate a person with a “disability.”

Additional detail on the Association Provision of the ADA can be found here.

Did You Know?

In today’s competitive landscape, staying ahead often means knowing where you stand. That’s why we’re thrilled to announce the Total Absence Management team has purchased DMEC’s interactive benchmarking dashboard called AbsenceExemplar. This one-of-a-kind benchmarking tool is designed to empower businesses of all sizes to measure their performance against industry standards.

The dashboards include responses from over 1,100 companies. The survey remains open, and DMEC continues to collect new responses from organizations across a range of industries, sizes, and regions.

The categories covered in the survey include questions around plans and benefits associated with:

  • Short-Term Disability (STD)
  • Long-Term Disability (LTD)
  • Workers’ Compensation
  • Family and Medical Leave Act (FMLA)
  • Paid Parental Leave and Family Care Leave
  • Time Off
  • Attendance Policies

As a TAM client, we will provide reports to you at no additional cost. If you are interested, please contact your TPG account manager!

CASE LAW

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You’re Not a Doctor (Unless You’re a Doctor)

Dearest HR friends, you all have big brains and provide a tremendous amount of value to your respective organizations – but we, and our managers, are not medical professionals, which why we rely on said medical professionals to provide guidance on when our employees should or should not be at work. Let this recent case from the Equal Employment Opportunity Commission (EEOC) demonstrate why.

In this case, the owners of a hotel in Omaha, NE, agreed to pay $100,000 to a former general manager and furnish other relief to settle a disability discrimination lawsuit.

According to the lawsuit, the general manager told his direct supervisor he needed time to go to the hospital to treat his depression. Two days later – the same day the general manager left the hospital –  his supervisor told him he was fired because the company feared he might hurt others. This is not what I would call “airtight logic.” The EEOC alleged the manager was terminated based on fears and stereotypes regarding his disability, depression.

This conduct violates the Americans with Disabilities Act (ADA), which we all know prohibits discrimination based on disability. Further, the company “failed to conduct an individualized assessment of the general manager’s ability to perform the essential functions of his job with or without reasonable accommodation at the time of discharge.”

In addition to the settlement, the hospitality group is now under a consent decree, which prohibits terminating employees on the basis of disability (pro tip: don’t ever terminate on the basis of disability), requires the adoption of policies and procedures to ensure compliance with the ADA, ensures all employees receive copies of and annual training on those ADA policies, and requires additional recurring ADA training for all owners, general managers, and human resources personnel. The group will also regularly report.

We’re not saying employers should ignore behavior that could reasonably jeopardize workplace safety. But, there’s a right way to go about this type of assessment that typically includes a customized fitness-for-duty assessment, which objectively outlines observed behavior that your employee will need to take to their medical provider for verification its safe for the employee to be at work.

According to the EEOC’s technical assistance manual, “an employer may require, as a qualification standard, that an individual not pose a ‘direct threat’ to the health or safety of the individual or others, if this standard is applied to all applicants for a particular job.” The ADA requirements for establishing a direct threat are “specific and stringent.”

The employer must be prepared to show:

  • significant risk of substantial harm;
  • the specific risk must be identified;
  • it must be a current risk, not one that is speculative or remote;
  • the assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
  • even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a “direct threat” by reasonable accommodation.
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How to Appropriately Manage Employees Who Cannot Perform Essential Job Functions (Due to a Disability)

Exhibit A

Occasionally, we encounter scenarios where despite our best efforts, our employees are unable to successfully perform the essential functions of their role. This case highlights the right way to go about these situations

The plaintiff worked as an account manager for an insurance agency for over 15 years. The plaintiff successfully performed her duties without difficulty for most of her tenure.

In 2018, her work began to suffer. Coworkers and clients complained about her “incompetent and untimely service.” Her mistakes caused the defendant to lose two clients, another asked the defendant for reassignment to a new manager, and a fourth received a threat of legal action because of the plaintiff’s mistake.

The following year, the plaintiff disclosed that she had early-onset Alzheimer’s disease. However, she never asked for a reasonable accommodation, even though her company made repeated inquiries from about how they could help her. Correct move #1 – repetitive requests of “How can I help?” Even though the employee did not provide any suggestions, the employee’s direct supervisor helped by suggesting she take notes at meetings to ensure she followed instructions, and over several months, he reduced her workload.

Unfortunately, performance continued to deteriorate. Eventually, the employee was placed on a performance improvement plan. When her performance did not improve, she was ultimately terminated.

The plaintiff then sued for disability discrimination and failure to accommodate. Unfortunately, during the litigation, the plaintiff’s condition worsened to the point that she could not continue with her deposition, and she would not be able to testify at trial.

Nonetheless, the case continued, and the defendant was granted summary judgment.

To prevail on a disability discrimination claim, a disabled plaintiff needs to show the essential duties of the job can performed with or without accommodation; otherwise, the individual is unqualified. Here, the evidence showed the plaintiff could no longer perform several tasks outlined as essential functions in her job description.

A qualified individual is a person who meets legitimate skill, experience, education, or other requirements of an employment position, and who can perform the essential functions of the position with or without reasonable accommodation.

The court noted, “It was not up to the defendant’s employer to divine what accommodations were needed or would be effective.” Still, when the defendant tried to help the plaintiff, she remained unable to perform the essential job functions.

Ultimately, if an employee is unable to perform the essential functions of their current role, reassignment or “an accommodation of last resort” should be explored. This is an attempt to provide opportunity for employees to continue in employment if a position that they qualify for with or without reasonable accommodations can be found. The reassignment process begins after the search for reasonable accommodation in the current position is exhausted.

Exhibit B

You want another example of how to manage employees who cannot perform their essential functions? Who doesn’t! Your wish is my command. This recent decision involved an employee of Coca-Cola with a rare form of Tourette Syndrome that caused him to involuntarily utter obscenities and racial slurs. In addition to this employee’s interaction with co-workers, the job also required excellent customer service skills while making deliveries and interacting with customers.

Throughout his employment, several customers complained about the employee’s offensive language while he serviced their stores. His service did not result in “Have a Coke and a Smile,” Coca-Cola’s slogan from 1979.

Nonetheless, Coca-Cola adjusted the employee’s route so that he would not service stores alone. He also received a leave of absence, after which he was allowed to work as a driver helper to limit customer interactions further.

However, these accommodations did not eliminate the problem.

Coca-Cola then found out the employee’s tics were “once again out of control, and he was repeating the `N-word’ over and over through his daily route and in the presence of customers and consumers.”

At this point, the employee was offered two options: take another leave of absence or transfer to a vacant, overnight warehouse position with no customer interaction. The employee accepted the warehouse position at a reduced pay rate and eventually resigned.

Then, he sued for disability discrimination.

As we reviewed above, the plaintiff must establish they are “otherwise qualified” for the position, meaning they can perform the essential functions of their job with or without a reasonable accommodation.

Here, the delivery merchandiser role required not just interacting with customers but excellent customer service. However, the plaintiff’s disability caused him to vocalize racist and profane words in front of customers who complained to the defendant about it. Clearly, the plaintiff could not perform the job without accommodations.

Once again, Coca-Cola did a lot of things right, just as the employer above. They adjusted the employee’s route, provided a leave of absence, and otherwise tried to limit the plaintiff’s customer interactions, none of which worked. Eventually, Coca-Cola offered the accommodation of last resort – an alternative position.

While the employee viewed the warehouse position as a demotion, employers may reassign an employee to a lower grade/pay position if the employee cannot be accommodated in the current position and a comparable position is unavailable.

For these reasons, the defendant’s accommodation was reasonable, and the court affirmed the dismissal of the failure-to-accommodate claim.

STATE UPDATES

CALIFORNIA

Increase to Paid Sick Leave Requirements

Last quarter, we announced that beginning January 1, 2024, employers must increase the amount of sick leave provided from three days/24 hours to five days/40 hours and also increase the accrual and carryover cap to 10 days/80 hours.

In late December, the Labor Commissioner published an updated Frequently Asked Questions page to cover changes.

COLORADO

Employee Premium Refunding (Applicable to Private Plans)

The Colorado Division of Family and Medical Leave Insurance recently provided an update on refunds for private plan employers that paid premiums to the state during 2023.

Once the 2023 premium refund is received, employers with fully insured private plans in 2024 are required, within 60 days, to issue the refund to employees. If the employee has separated employment, the Division will attempt to issue a refund directly to that separated individual for any premium contributions paid in 2023.

However, during the February 7 monthly stakeholder update, the Division outlined a new option they’re offering to expedite the refund process, which they admit has been delayed.

To speed up the process, employers can elect to take on the refunding of separated employees themselves (by opting to receive the full refund amount and taking ownership of that aspect of the process). To accept this option, the employer will have to complete an agreement with the Division. And as a reminder, by accepting this option, the employer may also be accepting responsibility for submitting refunded contributions that go unclaimed (i.e., can’t find the ex-employee) as “unclaimed property” to the Department of Treasury – something the Division will do otherwise.

Reporting Fraud

FAMLI recently added a new Reporting FAMLI Fraud page to their website. Additionally, the state is regularly auding claims to ensure benefits are paid according to state law.

MINNESOTA

Sick and Safe Time

Minnesota’s paid sick and safe leave mandate went into effect January 1, 2024. The Department of Labor and Industry (DLI) has posted answers to Frequently Asked Questions (FAQ Guide) that it revised on December 4, 2023.

The revised FAQ Guide provides more information and example scenarios. In addition to the FAQ, the DLI published a slide show presentation.

NORTH CAROLINA

Protection Against Discrimination and Retaliation for Members of Civil Air Patrol

The North Carolina legislature added non-discrimination and non-retaliation protections for employees who serve in the North Carolina Wing – Civil Air Patrol. Effective December 1, 2023, it is unlawful for any employer to discriminate or retaliate against any employee who is a member of the NC Wing Civil Air Patrol based on membership status or an authorized absence required to perform duties.

There are specific criteria defining an authorized absence. An absence is authorized if: (1) the employee is required to perform duties for a state-approved mission or US Air Force authorized mission, (2) the absence is no longer than seven consecutive scheduled working days for the employee, and (3) the total absences do not exceed 14 scheduled working days in one calendar year. Unless an employee chooses to use paid leave thar is otherwise available, an employer is not required to pay the employee during the leave. An employer can require that an employee requesting time off submit the employee’s mission order

OREGON

OFLA Overhaul – Senate Bill 1515

In case you’ve missed our emails or our pre-recorded webinar, we are here again to remind you of the significant changes coming to OFLA. SB1515 is intended to minimize the duplicative provisions of Paid Leave Oregon and Oregon Family Leave Act (OFLA) and minimize leave stacking under these two laws. Except where noted below, most of the changes will go into effect on July 1, 2024.

SB1515: What We Know

  • OFLA leave must be tracked “in addition to” Paid Leave Oregon, meaning they cannot be taken concurrently.
  • Parental leave and leave for serious health conditions will no longer be covered under OFLA, being exclusively available under Paid Leave Oregon.
  • Sick child leave under OFLA is broadened to include care for any illness, injury, or condition requiring home care, including those that might qualify as serious health conditions.
  • Bereavement leave under OFLA is limited to four weeks per year (still available for up to two weeks per incident).
  • While parental and medical leave will be removed, OFLA will still permit an additional 12 weeks of pregnancy disability leave.
  • Temporary OFLA adjustments include:
  • Two extra weeks of leave for effectuating the fostering or adoption process under OFLA until December 31, 2024.
  • Starting January 1, 2025, Paid Leave Oregon will include leave to effectuate the fostering and adoption process.
  • Employees under Paid Leave Oregon can choose to use accrued paid time off in addition to their benefits. Employers will be able to determine whether to allow for use of accrued time off in excess of an employee’s regular wage. Employers will also be able to dictate the sequence supplemental time off is applied if multiple buckets are available to the employee.
  • Employers will be excused from predictive scheduling penalties if employees give less than two weeks’ notice for leave under Paid Leave Oregon, OFLA, or other applicable leave, and if the employer adjusts the schedule of an employee who was temporarily assigned to cover shifts for an employee on leave.

Program Solvency – Senate Bill 1514

SB1514 is a real page-turner and addresses solvency of the state program.

SB1514: What We Know

The solvency of the funds is crucial, ensuring they cover no less than six months of projected expenses. To uphold this, the director of the Employment Department periodically assesses the fund by considering various factors:

  • Total administrative expenses incurred in the preceding six months
  • Number of grant applications received in the previous calendar year
  • Average amount of weekly benefits paid in the previous calendar year
  • Annual predictable birth rate data

In the event the director determines funds are or may be insolvent, SB1514 allows action to be taken to maintain or restore solvency of the funds. Action taken by the director to maintain or restore solvency of the funds would affect Paid Leave Oregon’s weekly benefit amount, maximum weekly benefit amount, and overall leave duration:

  • Max Weekly Benefit: Decrease PLO’s max weekly benefit to less than 120% of state average weekly wage, but no less than 100% of state average weekly wage.
  • Average Weekly Wage: Decrease PLO’s weekly benefit to 65% of state average weekly wage PLUS no less than 40% of the employee’s average weekly wage greater than 65% of the state average weekly wage.

If after taking both actions above it is apparent the funds are or may be insolvent, the bill allows the director to decrease the amount of time a covered individual may qualify for family and medical leave insurance per benefit year to 10 weeks.

The director is required to provide at least 30 days’ advance notice of any changes and furnish a summary of the action and assessment conducted. Changes implemented would remain effective for a maximum of five calendar years and apply to benefits claimed in benefit years starting the first day of the first calendar quarter following the action’s date.

Adjustment to OFLA Eligibility Calculation

During the same period SB1515 and 1514 were being passed, Oregon’s Bureau of Labor and Industries was working independently on updating OFLA rules. What follows is a recap of these rule changes, which were filed on 3/1/24 and became effective 3/2/24.

Oregon has amended OFLA regulations, which requires covered employers to provide eligible employees with up to 12 weeks of leave within any one-year period to care for the employee or a qualifying family member.

Of most significance, when an employer calculates an employee’s average hours worked per week, the employer must take into consideration any hours of protected leave taken by the employee as well as hours worked. This means the calculation methods for determining eligibility must be revised.

Employer Access to Employee Usage History

Breaking News! Employers can request prior usage history for an employee via Frances. Employers can only access this information if the employee approves and signs an electronic consent. The only form currently acceptable is built into Frances.

TPG is continuing to research the details on this process and will share as we learn more.

Equivalent Plan Annual Reporting Requirements

The state recently firmed up its rules around annual reporting for equivalent plan employers.

For employers that went live with an equivalent plan during 2023, the first reporting period will run from the effective date of the plan (i.e., 9/3/23) through the end of 2024 – unless the plan is withdrawn or terminated prior to the end of 2024. Annual aggregate benefit usage reporting will be due for the first time by 1/31/2025, and must include:

(a) the number of benefit applications received during the reporting period and the qualifying leave purpose;

(b) the number of benefit applications approved during the reporting period, the qualifying leave purpose, and total amount of leave; and

(c) the number of benefit applications denied during the reporting period and the qualifying purpose and the number of appeals made on denials and the outcome of the appeals.

Beginning in 2025 and ongoing, the reporting period will be the first of the calendar year through December 31 of that same calendar year, due on or before the last day of the month that follows the close of the calendar year (January). Please make sure to coordinate with your equivalent plan provider as we get closer to the end of this year to determine if, how and when they will support your organization in compiling this necessary data.

Addition of Bias Crime

An important change to Paid Leave Oregon’s law went into effect on January 1, 2024. The Oregon legislature passed a law to include bias crimes in the definition of safe leave. Safe leave for Paid Leave Oregon is for survivors of sexual assault, domestic violence, harassment, bias crimes, or stalking. Under Oregon law, a bias crime is motivated in part or whole by bias against another person’s race, color, disability, religion, national origin, sexual orientation, or gender identity.

WASHINGTON, D.C.

New Paid Family Leave Poster

The DC Department of Employment Services (DOES) issued a new Paid Family Leave notice/poster. This notice must be posted in a “conspicuous place,” such as where the employer posts employment-related information, and must be provided to employees, on or before February 1, 2024.

The new notice is identical to the former notice, previously issued in October 2022, except the maximum weekly benefit has increased.

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