It’s interesting how changing a single word in a song lyric can turn it from an ‘80s ballad to a very relevant plea for information – one we hear from employers often. Worry not, leave and disability professionals! Because we at TPG are committed to making sure you don’t feel like a Foreigner (pun intended) to developments in this space. This time around, we’ll “show you what leave is” and more. We have updates on the Pregnant Workers Fairness Act (PWFA), details on new EEOC guidance on visual disabilities, and lots of nitty-gritty changes on the state level. Oh, and Paid Leave Oregon went live! Congratulations to our Oregonian readers for their patience and participation in this long-awaited PFML program.

FEDERAL UPDATES

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Takeaways from EEOC Draft Regulations on PWFA

I don’t make a habit of writing about draft regulations . . . a lot can change, and my brain only has so much space. BUT, there are important elements of the EEOC’s draft regulations on the Pregnant Workers Fairness Act (PWFA) to get ahead of. These regulations were released on August 7 and the public has 60 days to comment, so expect more in our final newsletter for 2023!

First up, the PWFA is broader than the Americans with Disabilities Act. Your employees do not need to prove a disability, just a limitation – meaning the condition does not need to be disabling. The standard for asking for accommodation under the PWFA is also very low (i.e., train your managers!). Employees cannot be asked to follow a specific process for requesting an accommodation or required to put anything in writing. Employees should not have to wait for an accommodation that is simple and/or results in no cost, and medical documentation is not reasonable for accommodations such as the ability to carry water or drink, additional breaks for restroom, food, or drink, allowing an EE who is required to stand, the ability to sit and/or lactation.

In general, employers should be cautious of requiring medical documentation. The EEOC has signaled that employers are not at liberty to require medical documentation before agreeing to accommodations. When employers choose to require documentation, when permitted under the regulations, they must grant interim accommodations as a best practice if an employee indicates they have tried to obtain documentation and there is a delay.

More notably, employees are entitled from relief of essential functions, temporarily, if not a hardship. And while under the ADA employers are at liberty to choose an effective accommodation, under the PWFA, employers cannot require acceptance of an accommodation other than any accommodation identified through the interactive process. Employers should avoid forcing leave if the employee wants to stay working and there is an accommodation available.

Finally, for scenarios where leave is the only option, jobs under the PWFA (and the ADA!) are protected, unless the employer demonstrates that holding open the position would impose an undue hardship. If an employer cannot hold a position open during the leave period without incurring a hardship, the employer must consider if there is a vacant, equivalent position, for which the employee can be reassigned to continue their leave, and at the conclusion of the leave, returned to this new position.

While there may be some changes to the above during this 60-day window, because of the generosity of this new regulation, we advise familiarizing yourself with some of these provisions.

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EEOC’s Updated Guidance on Visual Disabilities

On July 26, 2023, the EEOC issued updated guidance about the Americans with Disabilities Act (ADA) and employees and applicants with visual disabilities.

Applicants and employees with vision impairments should not be denied employment opportunities based on stereotypes or incorrect assumptions that they may cause safety hazards, increase costs, or have difficulty performing certain job functions.

The key main takeaways from the new guidance are:

  • Applicants: Employers generally should not ask a job applicant questions about a visual impairment or treatment related to such impairment before making a conditional job offer.
    • Employers may ask questions about the applicant’s ability to perform the job, on functions that are part of the job.
    • The applicant is not required to disclose a disability before accepting a job offer unless they are seeking a reasonable accommodation for the application process. An employer must provide an applicant an accommodation during the application process even if they believe they will not be able to provide the applicant with a reasonable accommodation to perform the job.
    • Employers should not ask applicants with obvious visual impairments questions about the impairment. However, employers may ask applicants with obvious impairments, or applicants who disclosed impairments, whether they will need an accommodation, and if so, what type, if the employer reasonably believes an accommodation will be needed to perform the job.
    • Post-offer but before employment begins, the employer may ask questions designed to determine what limitations the offeree has and to determine what accommodations the offeree may need to perform the job.
    • An employer cannot withdraw a job offer if the offeree is able to perform the essential functions of the job with or without a reasonable accommodation. But if the employer is concerned the offeree is a safety risk, the employer should conduct an individualized assessment to evaluate if a direct threat exists that cannot be eliminated or reduced with a reasonable accommodation.
  • Employees:  Employers may ask employees disability-related questions when:
    • The employer has a reasonable belief, based on objective evidence, that the employee’s ability to perform his/her essential job functions is impaired or may pose a direct threat to themselves or others in the workplace;
    • To support an employee’s request for a reasonable accommodation related; and/or
    • To comply with federal safety statutes or regulations.
  • Accommodations/Engaging in the Interactive Process: Employers should always engage in the interactive process and not assume an accommodation cannot be provided to perform the essential job functions. The new guidance emphasizes employers should consider a wide range of potential accommodations during the interactive process.

Other Issues: Employers should also evaluate whether accommodations are needed in areas beyond the employee’s specific job, such as modifying employee break rooms or forms, and/or providing access to other information in the workplace.

CASE LAW

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We all agree that accommodations that allow employees to stay at work and effectively perform the essential functions of their job are generally better than ones that require a leave of absence.

But sometimes, leave is your only option. Consider this recent Fourth Circuit decision (Virginia, Maryland, West Virginia, North Carolina, & South Carolina).

The plaintiff drove a big truck for UPS. During his employment, he got hurt and requested a smaller truck with a softer suspension or another position altogether. Prior to this request, UPS provided a better padded seat, but he could still only work sporadically.

As a reminder, The Americans with Disabilities Act prohibits an employer from discriminating against an employee with a disability if the employee can perform the essential functions of the job with “reasonable accommodation.” However, the duty to accommodate does not include removing essential functions or creating a new position, which is precisely what would have needed to happen here to accommodate the plaintiff’s requests. UPS determined the route the plaintiff had been driving required a larger truck, and there were no alternative openings.

UPS also managed to avoid issuing a blank check by not simply rejecting the plaintiff’s accommodation requests and ending the conversation. They offered an unpaid leave of absence until the employee’s injuries healed and he could return to work. We know an unpaid leave of absence may not be ideal, but when it’s the only option that enables an individual with a disability to remain employed, it’s reasonable. Remember, friends, per the EEOC, reasonable leave should be considered as an accommodation when it enables an employee to return to work following the period of leave.

On these facts, the Fourth Circuit concluded that the plaintiff’s ADA failure-to-accommodate claims were unsuccessful because the plaintiff had not shown that the requested accommodations were reasonable – they would not enable him to perform the essential functions of the job and the unpaid leave of absence constituted a reasonable accommodation in the circumstances.

STATE UPDATES

COLORADO

Colorado Paid Family and Medical Leave Insurance (FAMLI)

New Wage Definition

The FAMLI Division issued a new definition of “wages”: wages will include pre-tax amounts. This is a change from previous guidance limiting gross wages to post-tax amounts. Premiums and benefits will be calculated using this new definition starting January 1, 2024.

Gross wages include the following pre-tax amounts:

  • Salary
  • Hourly wage
  • Overtime
  • Tips
  • Bonuses
  • Commissions
  • Piece rate
  • Employer-provided paid leave (PTO, sick, vacation, etc.)
  • Disability benefits paid by the employer and not by a third party
  • Parental leave paid by the employer and not by a third party
  • The value of lodging or meals used as a credit toward the minimum wage

Gross wages do not include:

  • Severance payments
  • Employer contributions to, or payouts from, a deferred compensation plan
  • Profit sharing
  • Pensions or retirement plan payments
  • Expense reimbursements (mileage, travel, moving, per diems, etc.)
  • Non-monetary payments (except lodging or meals to the extent they’re used as a credit toward the minimum wage)

The new definition of wages can be found on the Employer’s page under Important FAMLI Matters. To review the complete set of newly adopted rule amendments, please refer to our Rules page.

Reinstatement Clarification

The law requires that a worker who has been employed by their current employer for at least 180 days before using FAMLI be reinstated to the same or an equivalent position as the one held when the leave began. Further rulemaking clarifies that the 180-day period need not be consecutive, but the gap in employment must not exceed 365 days, or the number of days employed resets to zero.

Additionally, employers are not required to reinstate an employee when:

  • the leave extends beyond the maximum time allowed;
  • the return coincides with a scheduled cessation of seasonal operations;
  • the written employment contract has ended;
  • the position has been eliminated due to legitimate downsizing or reorganization;
  • the individual cannot perform the essential functions of their job upon return from leave (however, the employee can request disability-related accommodations); or
  • the employee submitted a fraudulent FAMLI Act certification.

An equivalent position means one with substantially similar duties, responsibilities, skill, effort, and authority, taking into account base pay, benefits, proximate location, approximate shift times, and approximate hours per week.

Changes to Paid Sick Leave Reasons

Effective August 7, 2023, Colorado employees were able to use paid sick leave for additional reasons under the Healthy Families and Workplaces Act (HFWA).

Previously, the HFWA permitted employees to use up to 48 hours of paid sick leave per year for an employee’s or an employee’s family member’s illness, injury, or health condition, to obtain services related to being a victim of domestic abuse, sexual assault, or harassment or if the employee’s place of business or the employee’s child’s school or place of care closed due to a public health emergency. Now, employees can use paid sick for the following additional reasons:

  1. To grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member;
  2. To care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member’s school or place of care; or
  3. The employee needs to evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee’s residence.

Employers should post the updated Colorado Department of Labor and Employment poster.

CONNECTICUT

Expanded Paid Sick and Safe Leave Uses

Effective October 1, 2023, employees have expanded leave reasons under the state’s paid sick and safe leave law.

Expanded coverage comes in two ways: First, service workers can use “sick” leave for a “mental health wellness day,” i.e., a day an individual attends to their emotional and psychological wellbeing. Second, in addition to taking “safe” leave if they personally are a victim of family violence or sexual assault, service workers can take such leave if they are a parent or guardian of a child who is a victim for the care or criminal proceedings related to or resulting from family violence or sexual assault.

ILLINOIS

Organ Donation Leave

Effective January 1, 2024, Illinois has amended its Employee Blood Donation Leave Act to include leave for organ donation. The law applies to employers that have 51 or more employees. An eligible employee is full-time and has been employed by a covered employer for a period of six months or more.

The law provides that, upon request, an employee may be entitled to leave with pay to donate blood or an organ. An employee may use up to 10 days of leave in any 12-month period to serve as an organ donor.

Bereavement Leave

On August 4, 2023, the governor signed the Child Extended Bereavement Leave Act (SB2034). Effective January 1, 2024, the Act entitles employees who experience the loss of their child by suicide or homicide to take unpaid leave to grieve. This expansion comes a little more than a year after Illinois expanded unpaid leave rights to employees for pregnancy and adoption loss, and the death of a family member, under the Family Bereavement Leave Act.

All employers with at least 50 full-time employees in Illinois are covered by the Act. However, the length of the leave entitlement differs based on whether the employer is considered “large” or “small.” All full-time employees who have worked for their employer for at least two weeks are eligible for bereavement.

A “large” employer employs 250 or more full-time employees in Illinois. Eligible employees of large employers are entitled to use up to 12 weeks of unpaid leave. A “small” employer employs at least 50 but fewer than 250 full-time employees. Eligible employees of small employers are entitled to use up to six weeks of unpaid leave.

Employees may take leave under the Act in a single continuous period or intermittently in increments of at least four hours. Unlike the Family Bereavement Act, which requires leave be taken within 60 days after the employee receives notice of the death of a family member, leave under the Child Extended Bereavement Leave Act may be taken within one year after the employee notifies the employer of the loss.

Employers may require reasonable documentation, which includes a death certificate, published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency. Employers may also require that the documentation include a cause of death.

Leave for Family Members of Those Killed in Crimes of Violence

Finally, also effective January 1, 2024, Illinois amends the Victims’ Economic Security and Safety Act (VESSA). VESSA entitles employees who are victims of domestic violence, sexual violence, or gender violence (or whose family or household members are victims of such violence) to take unpaid leave to address issues related to the violence.

The amendment expands leave available. The law will now permit employees to take up to two weeks (10 workdays) of unpaid leave related to the death of a family or household member who is killed in a crime of violence to (1) attend the funeral or wake, (2) make arrangements necessitated by the death, and (3) grieve the death.

Leave must be taken within 60 days after the date on which the employee receives notice of the death of the victim.

Employers may require certification of the death including a death certificate, published obituary, written verification of death, burial, or memorial services documenting that the family or household member was killed in a crime of violence.

If the employee is also entitled to unpaid leave under the Family Bereavement Leave Act that leave is not in addition to and will not diminish leave taken under VESSA for the above listed reasons.

LOUISIANA

Here’s a state we don’t write about often! Louisiana has amended its employment discrimination statutes to provide employees protection for obtaining genetic testing and medically necessary cancer screenings. An employer must grant an employee a leave of absence to obtain genetic testing or preventative cancer screening when medically necessary.

“Medically necessary” means healthcare services that are in accordance with generally accepted evidence-based medical standards or are considered to be the standard of care by most physicians or independent licensed practitioners. Services that are experimental, not approved by the FDA, investigational, or cosmetic are not medically necessary and are excluded from coverage.

An employee may use one day of leave for this purpose. The employee must provide the employer at least 15 days’ advance notice and make a reasonable effort to schedule the leave to not unduly disrupt operations. The employee must provide supporting documentation confirming that the genetic testing or cancer screening occurred, when requested by the employer.

An employer is not required to provide paid time off. However, an employee must be permitted to substitute any accrued vacation or other appropriate paid leave.

Finally, an employer must post a notice of these leave rights as prepared by the Louisiana Workforce Commission in a conspicuous location on its premises.

MAINE

Paid Family & Medical Leave

Let’s continue with the heavy conversation, shall we? Maine enacted paid family and medical leave. The new law provides up to 12 weeks of paid leave per year to all eligible employees in the private and public sector, except for employees of the federal government, regardless of employer size. The state will impose a 1% payroll tax split evenly between the employer and employee.

Employers and employees must start paying the payroll tax January 1, 2025, and benefits will be available May 1, 2026.

Employees who have earned at least six times the state average weekly wage in the first four calendar quarters immediately preceding the first day of an individual’s benefit year are covered.

Employers with fewer than 15 employees do not need to contribute toward the payroll tax but must still collect and remit their employees’ portions of the tax.

Private employers that offer equivalent or greater paid leave benefits may apply to the state for a waiver to avoid participating in the state’s program.

Eligible employees may take leave for any of the following reasons:

  • to bond with a child during the first 12 months after birth or placement of the child for adoption or foster care;
  • the serious health condition of self or to care for a family member with a serious health condition;
  • to attend to a “qualifying exigency;”
  • to care for a family member who is a covered service member;
  • safe leave; or
  • any other reason set forth in Maine’s family and medical leave statute, which includes:
    • birth of the employee’s domestic partner’s child;
    • placing a child 16 years of age or under with the individual’s domestic partner in connection with the adoption of the child;
    • death or serious health conditions of certain family members in the military who died or incurred a serious health condition while on active duty; or
    • organ donation or human organ transplant.

The definition of family member is broad and includes “an individual with whom the covered individual has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship.”

Leave may be taken intermittently in increments of not less than eight hours.

The program will replace 90% of an employee’s wages for income earned that is equal to or less than 50% of Maine’s average weekly wage. The portion of the covered individual’s average weekly wage that is over 50% of the state average weekly wage must be replaced at 66% up to the maximum weekly benefit.

If a covered employee has been employed for at least 120 days before taking leave, the employer must restore that employee to the same or equivalent position. An employee who takes leave before working at least 120 days does not have the same job restoration rights. However, the law includes prohibition against retaliation. As a result, employers may face retaliation claims from employees who take leave during their initial 120 days of employment who do not return to the same or similar job after their leave.

OREGON

Paid Leave Oregon – WE’RE LIVE!

Benefit Contribution Cap

Unlike Louisiana, Oregon has a permanent standing placeholder in our newsletter. Under the current law, employer and employee contributions to the state fund are capped at 1% of an employee’s wages, up to a maximum of $132,900. An amended law removes the specific monetary value of the cap and replaces it with an amount equivalent to the Social Security contribution ($167,700 in 2024) and benefit base limit, as established by the federal government. The new cap will be effective January 1, 2024.

Benefit Supplement

Employers may allow their employees to replace the entirety of their wages while on leave by using their paid sick time, vacation, or other paid time off benefits to supplement the benefits received under the state program. An amended law clarifies that employees may use all or part of their other paid time off to do so. This language replaces the former requirement that an employee must only be brought up to 100% of their average weekly wage.

This revised language indicates the state is bowing out of attempts to dictate how an employer pays an employee in coordination with Paid Leave Oregon benefits. However, it creates the potential for double-dipping if employers do not put clear policy guardrails in place. This amendment does not impede an employer’s ability to create rules within their policies indicating that employees are not permitted to receive more than 100% of their base salary through any combination of company programs and Paid Leave.

Reinstatement

Reinstatement rights apply only to employees that have been employed for at least 90 consecutive calendar days before taking leave. Employees must be restored to the position they formerly held. If an employee notifies the employer they are ready to return to work earlier than predicted, they must be given the opportunity to work their hours on the second business day after notifying the employer of their return.

If an employee’s position has been eliminated, the employer must restore the employee to any available equivalent position that the employee is qualified for within a 50-mile radius of their former job site.

Employees are generally not entitled to accrue certain benefits while on leave such as production bonuses or other non-healthcare-related benefits that accrue while the employee is working.

Employers must continue healthcare benefits, but may require the employee pay their share of premium costs. If the employee does not return to work after the leave, unless it is because of a serious health condition, safe leave, or another circumstance outside the employee’s control, the employer can recover the share of the employee’s health insurance premiums that it paid on the employee’s behalf.

Q3 Combined Payroll Reporting Deadline

For employers participating in the State plan or offering an equivalent, the deadline for submitting Q2 reporting via Frances Online is October 31, 2023.

Here are more key details:

  1. Frances Online replaced the Oregon Payroll Reporting System (OPRS) and the Employer Account Access (EAA) portal late last year.
  2. Reporting for each quarter is due by the last calendar day of the month following each calendar quarter.
  3. 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 going with the State OR pursuing an Equivalent Plan but did not file a Declaration on time.

Paid Sick Leave Expansion

Effective September 3, 2023, amended rules clarify sick time may be taken for any of the purposes authorized under Paid Leave Oregon.

The amended rule clarifies this definition to include an individual related by affinity to the employee or who is the employee’s:

  • spouse or domestic partner;
  • child, or child’s spouse or domestic partner;
  • parent, or parent’s spouse or domestic partner (this includes a biological, adoptive, or step-parent, current or former foster parent, or person who was or is the employee’s legal guardian or serves or served in loco parentis; it also includes the parent of an employee’s spouse or domestic partner);
  • sibling or stepsibling, or the sibling or stepsibling’s spouse or domestic partner;
  • grandparent, or grandparent’s spouse or domestic partner;
  • grandchild, or grandchild’s spouse or domestic partner;
  • domestic partner; or
  • an individual related by affinity to the employee.

“Affinity” is defined in the same way as it is under the Paid Leave law and an employer may require an employee to provide a written attestation about their relationship. Specifically, the employee must state the employee and the person receiving care have a significant personal bond that is like a family relationship.

Oregon Family Leave Act (OFLA) Covered Relationship Expansion

Effective September 3, 2023, an employee may also use OFLA leave to care for an individual related to the employee by affinity. The rules define “affinity” the same as above. An employee may establish this relationship by showing:

  • shared personal financial responsibility such as leases, ownership of property, joint liability for bills, or beneficiary designations;
  • emergency contact designations;
  • expectation to provide care because of the relationship or prior providing of care;
  • cohabitation;
  • geographic proximity; and
  • any other factors that demonstrate a family-like relationship.

As with Paid Sick Leave, an employer may require an employee to provide a written attestation about the relationship.

WASHINGTON

WAPFML Records Request

SOMEONE IS LISTENING TO US! (But not in a creepy way.) The Washington governor signed Senate Bill 5586, which provides that effective January 1, 2024, certain interested parties may request access to Washington Paid Family and Medical Leave Act claim records related to employee paid family or medical leave claims. An “interested party” means a current employer, a current employer’s third-party administrator, or an employee.

The types of records and information that can be accessed include:

  • Type of leave being taken;
  • Requested duration of leave including the approved dates of leave;
  • Remaining hours of leave available in the employee’s entitlement;
  • Weekly benefit amount; and
  • Actual benefits paid and hours claimed.

This development will finally provide some assistance for employers in administering leave and supplemental benefit programs concurrently with the state benefit. We expect further guidance and rulemaking will follow prior to the law’s effective date.

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