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COMPLIANCE CORNER

Now that we have your attention with song lyrics, I hope you have Guns N’ Roses stuck in your head. And isn’t this how we have all felt over the past 18 months? That our daily professional (and personal) lives have been a “jungle”? Well, at TPG, we got fun and games (see what I did there?) AND a second installment of the Total Absence Management (TAM) quarterly compliance newsletter. We hope you enjoyed our “inaugural” edition and encourage any feedback you have for future content. As always, please reach out to your Account Manager with any additional regulatory questions or concerns.

FEDERAL UPDATES

FMLA

Let’s revisit an oldie, but a goodie—enforcement of call-in requirements for employees on intermittent FMLA. The navigation of intermittent absences is a challenge for nearly all employers, but it’s important you are aware of this gem within the regulations: “When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. . . . If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” 29 CFR 825.303(c).

What does this mean for you? When an employee seeks leave that may be covered under FMLA but has failed to follow call-in procedures, engage the employee in a discussion about why he or she could not follow these procedures. Additionally, consider including in your FMLA policy a provision that warns employees that those who fail to follow the call-in policy are expected to provide an unusual circumstance as to why. And most important, establish and enforce call-in procedures! You should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence (include if there are dual reporting requirements), if they are required to speak to someone live (or if a message is acceptable), and what content should be included. If text messages are not acceptable, state that. This is an excellent tool to combat FMLA misuse, but it’s important you are consistent and your managers are well-trained on acceptable methods of notification.

STATE UPDATES

California

If anyone was wondering what Cal/OSHA was up to over the past month, the main objective appears to have been confusing California employers . . . mission accomplished. The third attempted version of the Emergency Temporary Standards revisions were approved on June 17 and became effective that same day by Governor Newsom.

Here’s what you need to know—fully-vaccinated (at least two weeks after final dose of an authorized vaccine) employees who provide proof of their vaccination status are allowed to work without a face mask in most workplaces. Furthermore, fully-vaccinated employees will not be required to quarantine after a close contact, provided they do not have symptoms of COVID-19. Employers need to document which employees are fully vaccinated by requesting a copy of the employee’s vaccination card or by having an employee self-attest to their vaccination status. Employees who refuse to provide such information or who refuse to vaccinate must continue to wear face masks at work (unless working alone in a room or if a disability prevents them from wearing a mask or a shield) and must quarantine after close contact with someone who tests positive for COVID-19. Employers must provide respirators to 1) any unvaccinated employee who works with others indoors or in a vehicle and who requests one, and 2) where there is a major outbreak to any employees in the exposed group for voluntary use.

Quarantine and exclusion pay requirements remain in place as well as COVID Prevention Programs, training, testing, etc. DFEH FAQ.

Oregon

“By all means, move at a glacial pace, you know how that thrills me.” – Miranda Priestly, The Devil Wears Prada

As we reported in April, the Oregon Paid Family and Medical Leave Insurance implementation project has experienced a string of substantial delays and the current implementation timeline is no longer feasible for the state to implement a successful program.

Therefore, the Employment Department has introduced the following amendment that will push out the effective dates of both contributions and benefits as follows:

  • Contributions Effective 1/1/23 (delay of 12 months)
  • Benefits Effective 9/1/23 (delay of 8 months)

The TAM team is closely monitoring the OR PFMLI project and we will notify you once this change has been made officially.

Montana

Discrimination based on vaccination status is prohibited under a new Montana law (House Bill 702) enacted on May 7, 2021. The new law went into effect immediately.

The law provides that employers are prohibited from refusing employment or discriminating against a person in compensation, condition, or privilege of employment based on the person’s vaccination status. However, the bill exempts licensed nursing homes, long-term care facilities, and assisted living facilities from complying with the law, if doing so would result in a violation of regulations or guidance issued by the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention.

The legislation also prevents an employer from requiring employees to get vaccinated with a vaccine administered under Emergency Use Authorization status.

Montana employers may still encourage employees to become vaccinated.

Washington

We recently worked with a client on a (still) very challenging Washington Paid Family and Medical Leave case—which made us think….did the State make any considerations for employers in designing certain aspects of this plan? The issue? How will employers know if an employee’s request for WAPFML has been approved for attendance purposes when WAPFML is the only plan in play? “Bueller . . . Bueller . . . Bueller . . . Bueller?”

Here is what we know: employers will not receive notification from the Employment Security Department of specific days approved or paid and employees will only receive “notification” (that term may be a stretch) of a direct deposit of benefits.

After many hours of research, here is our best recommendation: require your employees to notify you of dates they requested PFML and if any requested dates were not approved/paid. Let them know if they fail to promptly notify you of any requested PFML dates that were not approved/paid, it will result in discipline up to and including termination. Be sure to include this language in your attendance policies, handbooks, etc. and be careful about asking for proof because if you are not doing this for any other forms of paid leave, this is a risk that could be viewed as retaliatory.

Ultimately, the guidance from the Department puts the responsibility on the employee to communicate with the company and accurately report to the Department their hours worked and company-provided paid time off benefits received. That said, it is well within your rights to engage the employee in discussions so you can accurately code their time, ensure they are being paid correctly, and ensure you are allotting the appropriate leave protections.

And in other Washington news, Governor Jay Inslee signed a bill making amendments to PFML law, effective on July 25, 2021. The definition of “family member” is expanded to include any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care. However, it does not include an individual who simply resides in the same home with no expectation that the employee care for the individual.

Massachusets

On May 28, 2021, the Massachusetts governor signed legislation providing every full-time employee up to 40 hours (pro-rated for part-time) of job-protected, emergency paid sick leave for certain COVID-19 reasons, including to obtain the COVID-19 vaccination or to recover from symptoms arising from the vaccination. All Massachusetts employers, regardless of size, are required to provide the emergency paid sick leave. The law also creates a $75 million fund to reimburse eligible employers for providing the leave. This entitlement began June 7, 2021, and extends until September 30, 2021, or until the fund is exhausted.

COVID-19 emergency paid sick leave is in addition to all job-protected paid and unpaid time off available to employees under Massachusetts Earned Sick Time Law, any existing employer policy, collective bargaining agreement, or federal law.

CASE LAW

“I feel comfortable using legal jargon in everyday life.” – Elle Woods, Legally Blonde

Does an Employer Need to Require Transportation to/from Work as an Accommodation?

Answer: Nope. This is an inquiry we have seen a handful of times throughout the years and if you find yourself facing the same request, consider this recent case out of the 10th circuit. The plaintiff became legally blind and could no longer drive herself to work, a 120-mile round trip. She asked her employer to allow her to work a flexible schedule dependent on her ability to secure rides. The employer permitted this arrangement for a while, but it became a problem because her physical presence at work was unpredictable. The flexible schedule arrangement ended, and the plaintiff alleged an ADA violation.

The court concluded, the employer cannot control where employees live, whether there is public transportation available, or whether friends or family can give rides to and from work. Furthermore, the employer cannot control these variables for any employee, disabled or not. And although the employer lacks the power to eliminate the transportation barrier, the employee could eliminate it

by moving closer to the employer or secure more reliable rides. It would therefore be unreasonable to require the employer to sacrifice an essential job function when the employee alone has the power to eliminate the transportation barrier.

I Need FMLA Because I Cannot Sit for Long Periods of Time, but I CAN Take a Trans-Oceanic Flight!

It makes sense if you don’t think about it. Consider the facts: The plaintiff asked her employer for permission to vacation in Thailand. The employer declined. A few months later, the plaintiff’s doctor diagnosed her with sciatica and a herniated disc in her back, affecting her ability to sit for long stretches. The plaintiff applied for and received FMLA leave. While on FMLA, the plaintiff flew to Thailand. The plaintiff’s co-workers learned about the Thailand trip and reported her to management. (Pro Tip: if considering FMLA abuse, don’t post your whereabouts on social media.) The plaintiff then texted other co-workers, threatening to punch (someone get out the Employee of the Year nomination form!) the employees who complained to management. The employer fired the plaintiff for dishonesty regarding her trip to Thailand and violating the employer’s antiviolence policy (the cherry on top of the FMLA abuse sundae). Plaintiff sued for FMLA interference and retaliation.

In a very unsurprising ruling, the court determined, “It’s plain from the face of the complaint that [the plaintiff] didn’t use her leave for its intended purpose. She took FMLA leave due to sciatica and a herniated disc, preventing her from sitting for long periods of time, then took a lengthy overseas flight. An employer only needs to have an honest suspicion that its employee misused her FMLA leave to defeat the employee’s entitlement to reinstatement.

Regardless of facts, it is important for employers to thoroughly investigate allegations of abuse. Keep an open mind going into an investigation, give the employee an opportunity to explain suspicious circumstances, and follow up on co-worker complaints. Employers who thoroughly investigate any suspected abuse can rely on an honest-belief defense if an employee is disciplined or fired for FMLA abuse and then sues.

Under the honest belief defense, an employer would not be found liable in a FMLA claim if it shows that the reason for an employee’s discharge was an honest belief that the employee was misusing FMLA leave—even where that belief was mistaken.

The Importance of Job Descriptions

Costco did not discriminate against a pregnant worker by putting her on temporary leave under a recent 1st Circuit ruling (Oquendo v. Costco Wholesale Corp.).

A Costco worker with severe nausea and vomiting during pregnancy alleged that the store failed to reasonably accommodate her. She asked a general manager if she could work the day shift for the rest of her pregnancy because her work schedule, which included some evening shifts, was difficult due to pregnancy-related medical issues. The general manager agreed, and the plaintiff provided the work restrictions from her doctor which included an eight-hour workday and forbade her from lifting or carrying more than 10 pounds, in addition to a long list other movement restrictions. A company leave specialist concluded that because of her restrictions, she could not perform the essential functions of any job in the warehouse and put her on a pregnancy disability leave. At the end of the leave, Costco restored her to her former job and gave her the same pay and benefits. She sued, claiming pregnancy, gender, and disability discrimination.

In granting Costco summary judgment, the 1st Circuit noted that the job description included several physical activity requirements the worker’s doctor ordered her to avoid. The court also pointed out that the worker did not make clear the necessity of her accommodation: “She never convincingly explains how working days—the only accommodation she requested—would have enabled her to perform the essential functions of her job with her doctor-imposed restrictions in place.”

This case highlights the importance of having up-to-date job descriptions, one of the most effective ways for an employer to prove that certain duties are essential functions.

UPCOMING EVENTS

Disability Management Employer Coalition Virtual Annual Conference—August 2021

The 2021 DMEC Virtual Annual Conference is your opportunity to access industry knowledge, trends, and best practices. Five days of education, held on the first Tuesday and Thursday in August (3rd and 5th) and the following Wednesdays throughout the month (11th, 18th, and 25th), will explore how to effectively navigate the emerging post-COVID-19 landscape and the impacts the pandemic has had on workplace wellbeing and mental health via a combination of robust educational sessions.

The TPG TAM Team will be presenting “Data Analytics: Extracting Relevant Employer Insights from Standard Vendor Reports” on Wednesday, August 18. To make confident decisions, it is essential for business leaders to have actionable data that is customized to their business, industry, and workforce. In this session, TPG will discuss how you can strengthen and customize your organization’s lost time dashboards so you can easily spot patterns and trends and make informed decisions.

DID YOU KNOW

Under the Family and Medical Leave Act, employees have a two-year statute of limitations to file a lawsuit for ordinary violations and a three-year statute of limitations if the violation is willful​​​​. In case you need an example of willful, it looks something like, “We’re going to fire you for taking FMLA,” but willful is any situation in which the employer knew or showed reckless disregard for whether it violated FMLA.

But wait, there’s more! TPG can provide a FREE one-year DMEC annual membership for clients who are not currently members. The Disability Management Employer Coalition (DMEC) provides ongoing support and the latest information, tools, and resources your organization needs to minimize lost work time, improve productivity, and maintain legally compliant absence and disability management programs. Please contact your TPG Account Manager to learn more.

It’s not over ‘til it's over! Visit our COVID-19 Resource Hub for the latest in mandates, tools, and more.
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