Employee Leave & Accommodations Law in MA - PowerPoint Presentation

Slide1

Employee Leave & Accommodations Law in MAMCLE

Tracy Thomas BolandLori A. JodoinElizabeth Marcus

June 28, 2016

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Goals And Objectives

Understand the “nuts and bolts” of the leave laws that apply in MA

Learn how these laws overlap

Work through hypothetical scenarios

Learn about trends in claims filed at EEOC

and how to use mediation effectively

Q&A

Slide3

Family And Medical LeaveAct Introduction

Purpose of the FMLA: to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity… 29 U.S.C. § 2601(b)(1)

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FMLA Should Be Broadly Construed

Congress intended the FMLA to be construed broadly to effectuate its broad remedial purposes.

See Hodgens v. General Dynamics Corp.

, 144 F.3d 151, 164 (1st Cir. 1998

)

Slide5

Who is a Covered Employer?

Public

employers,

including local,

state

, and

federal

employers, and local education agencies (schools);

Private

sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar

year; and

Joint

employers and

Successor

employers.

Slide6

Who is an Eligible Employee?

Work for a covered employer12 months of service and 1,250 hours of service during the 12 months prior to leaveWork at a location where the employer has 50 or more employees within 75 miles

Slide7

What You Get

12 Unpaid Weeks of Leave26 Unpaid Weeks -- Military Caregiver

Slide8

Why You Get It

The birth of a child and to care for the newborn child within one year of birth;

The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

To care for the employee’s spouse, child, or parent who has a serious health condition; or

A serious health condition that makes the employee unable to perform the essential functions of his or her job.

Slide9

What is a Serious Health Condition?

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Who is a Qualifying Family Member?

ChildrenSpouseParent

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Who is a Child?

Son or daughter

means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing

in loco parentis

, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence

.

Note: No age requirement for a covered service member’s child.

Slide12

Who is a Spouse?

Spouse:

Husband or wife, including same-sex and common law marriages

,

if the marriage: (1

)

was

entered into in a

state

that recognizes such marriages;

or (2

)

if

entered into outside of any

state

, is valid in the place where entered into and could have been entered into in at least one

state.

29 C.F.R. § 825.102

Slide13

Who is a Parent?

Parent

: a

biological, adoptive, step or foster father or mother, or any other individual who stood

in loco parentis

to the employee when the employee was a son or daughter

as defined in the FMLA Regulations.

No In-Laws.

29

C.F.R. § 825.102

Slide14

What Do You Need to Do ToGet FMLA Leave?

No magic words30 days notice, when leave is foreseeable

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How is Leave Calculated?

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How You Take the Leave

Block LeaveIntermittent Leave

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Substitution of Paid Leave

“… FMLA

permits an eligible employee to choose to substitute accrued paid leave for FMLA leave… [or

]…

the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave

.”

29 C.F.R. § 825.207

Slide18

Leave May Run Concurrently

“The

workers’ compensation absence and FMLA leave may run concurrently (subject to proper notice designation by the employer

).”

29 C.F.R. §825.702 (d)(2)

Slide19

Military Caregiver Leave

26 Work Weeks Next of KinSingle 12 Month Period

Slide20

Employee Responsibilities

United States Department of Labor’s “Need Time? The Employee’s Guide to the Family and Medical Leave Act”: https://www.dol.gov/whd/fmla/employeeguide.pdf

Slide21

Employer Responsibilities

United States Department of Labor’s “The Employer’s Guide to the Family and Medical Leave Act”: https

://www.dol.gov/whd/fmla/employerguide.pdf

Slide22

Recent Cases of Interest

Chase v. United States Postal Serv., No. 12-11182-DPW, 2016 U.S. Dist. LEXIS 25147 (D. Mass. Mar. 1, 2016).Esler v. Sylvia-Reardon, 473 Mass. 775(2016).Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014).

Slide23

Americans With Disabilities Act

“Disability”: a physical or mental impairment that “substantially limits” one or more of the “major life activities” of such individual

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Employer Obligation Basics

U

nlawful

to discriminate

U

nlawful

to harass

Employer

must make

“reasonable accommodation” to enable

the employee

to

perform the

“essential functions of the job”

(or

for an applicant to

interview/apply for job

)

Slide25

Other Protected Individuals

Individuals “

regarded as”

having an impairment;

or

Individuals “associated with”

an individual with an impairment

For these, no accommodation required but cannot discriminate

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What Is An “Essential Function”?

The job

duties

an

employee must be able to perform, with or without reasonable

accommodation

Factors to consider:

The position exists to perform that function

Degree of expertise/skill required to perform that function

Ability to transfer that function

Past practice

Slide27

What Is A “Reasonable Accommodation”?

“In general

, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal opportunities.”

EEOC Guidance

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Examples Of Accommodations

making existing facilities accessible

job restructuring

part-time or modified work schedules

acquiring or modifying equipment

changing tests, training materials or policies

providing qualified readers or interpreters

leaves of absence

reassignment to vacant positions for which

he/she is

qualified

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The Interactive Dialogue

After receiving a reasonable accommodation request “the employer and individual with disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation.

The

employer may ask the individual relevant questions that will enable it to make an informed decision about the request

.”

EEOC Guidance

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Dos And Don’ts Of The“Interactive Dialogue”

How the conversation should begin

What employers can and cannot ask

Can ask for documentation!

Obligation to keep the dialogue going

How to determine what is “reasonable” versus what is an “undue burden”

Keep records

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Employee’s Basic Obligations

Employee does not have right to insist on

her requested

accommodation

Employee must respond to reasonable requests for medical documentation

If

interactive process reaches an impasse and employee refuses to accept “reasonable accommodation,” employee may be considered as “not

qualified”

Slide32

ADA Take-Away

If you take one thing from this training, remember…

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MA Earned Sick TimeWho Is Covered?

Employee includes full-time, part-time, seasonal and temporary employees

Employee’s

primary place of work is in

MA

(regardless of location of employer)

All private sector employers

Under 11 employees versus 11 and over

Includes

seasonal

Includes employees outside of Massachusetts

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For What Reasons Can ThisSick Time Be Used?

1. To

care for an

employee’s child, spouse, parent or parent of spouse

who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care

2. To care for the

employee’s own

physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care

Slide35

Reasons (Continued)

3.

To

attend the employee’s

routine medical appointment

or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse

4.

To

address

psychological

, physical, or legal effects of

domestic

violence

,

as defined by

Massachusetts Domestic

Violence Leave

law

5.

T

ravel

to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken

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How Much Sick Time Can Be Used?

Employees

must earn

a minimum of one

hour

of sick time

for every 30 hours

worked up to

40 hours per “benefit year”

Under

accrual approach,

employees are permitted

to

carryover

up to 40 hours of sick leave accrued in the calendar

year (but can

never use more than 40 hours per year)

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Lump Sum Approach

Nothing prohibits employers from more generous approach

If employer offers a lump sum of 40 hours at start of each benefit year, no carryover is required

and do not have to track use

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Use of Sick Time – Other Key Points

If

employee’s absence

requires supervisor to hire replacement and he/she does so,

employer

may draw down on sick time bank for full amount of hours for which a replacement is hired

Earned sick leave can run concurrently with FMLA, SNLA, Domestic Violence Leave and Parental Leave

Slide39

90-Day Waiting Period

New hires are

not entitled to use their accrued earned sick time until the 90th calendar day following the start date of their

employment

What happens if seasonal employees leave before reaching 90 days and then return?

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Rate of Paid Sick Time

Compensation is

at the “same

hourly

rate,”

which means:

Base rate wages

Does not include commissions, bonuses, overtime, holiday pay or other premium rates

A “differential rate” – meaning a wage rate paid for the same work performed under differing conditions – is not considered to be premium

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Use of Sick Time

Earned sick time must be used in 1 hour increments for first hour and then by the hour or per time and attendance systems

Earned

sick time may not be invoked as an excuse to be late for work without one of the authorized purposes for leave under this law

Slide42

Employee Notice Obligations

For

foreseeable absences,

employer

can have a written policy requiring up to 7

days’ notice  

For unforeseeable absences, “reasonable” notice is

required

 

For multi-day absences,

employer

can require notification of the expected duration

(or daily notification if duration unknown)

Slide43

“Prove It” Documentation

An

employer can require documentation for an employee’s use

of

sick time when the leave

:

exceeds 24 consecutively

scheduled

work hours;

exceeds

3 consecutive days on which

the

employee was

scheduled to

work;

occurs

within 2 weeks prior to an

employee’s

final

scheduled day of work before

termination

of

employment (except in the case of

temp workers

);

or

occurs

after 4 unforeseeable

and undocumented

absences within a 3-month period

Slide44

Documentation (Continued)

For illness: documentation

signed

by health

care provider indicating

need

for

sick

time

For incidents involving domestic

violence: documentation including

but not limited

to

a

restraining order, police report or medical documentation of abuse

Can

never require nature of the illness or details of the domestic violence

Slide45

Documentation (Continued)

An employee has to provide this documentation within 7 days after taking the time

The company may not delay the taking of earned sick time or pay for the period in which time was taken on the basis that the company has not yet received certification

If the employee fails to provide documentation, no discipline

but . . .

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Documentation(Continued)

Employer may

recoup sum paid for earned sick time from future pay as an overpayment

Employer can

deny future use of an equivalent number of hours of earned sick time until documentation is provided

Employer can

require fitness for duty certification

if customarily

required and consistent with industry practice and “reasonable safety concerns” exist

Slide47

PTO Policies

E

mployers

may maintain their own sick leave or paid time off policies

--

and substitute leave provided under those policies for earned sick time

--

as long

as:

all

can

use at least 40 hours of that time

for

the same

purposes

under

the same

conditions,

and

with

the same job protections as they would get under the earned sick time law

Slide48

PTO Policies (Continued)

If employer

provides

40

hours of paid time

off

in accordance with this law, no additional time must be offered

It is ok to treat groups of employees differently

Employers with unlimited

sick

leave do

not have to track accrual of sick leave or allow any

rollover

Slide49

No Interference or Retaliation

If an employee exhibits a pattern of leave before/after a weekend, vacation or holiday, the company may discipline

If employee is found to commit fraud or abuse (by engaging in activity inconsistent with the permissible reasons for use), the company may discipline

Otherwise, absolutely no retaliation or interference

permitted

Slide50

Key Take-Aways

Employers should train managers about the new law, including:

No adverse employment actions

When notes can be requested

How/why paid sick leave can be used

Discuss disciplinary actions, terminations for absenteeism or tardiness with HR

before

implementing

Slide51

Employment Leave for Victims and Family Members of Abusive BehaviorG.L. c. 149 § 52E

Slide52

Employer Responsibilities

Employer must provide

15

days

of paid or unpaid leave during any 12-month period to a qualifying employee. The law allows an employer to require that all employees must exhaust all available leave (sick, personal, vacation, etc.) before the employee may take advantage of this leave.

Only applies to employers who employ

50 more employees

in Massachusetts.

Slide53

Qualifying Employee

The

employee receives wages or any other remuneration;

The employee is or has a family member who is a victim of abusive behavior;

The employee is using the leave from work for a qualifying purpose; and

The employee is not the perpetrator of the abusive behavior against the employee’s family member.

Slide54

Prohibited Acts

No interference/no retaliation

No negative

action against an employee for taking an unscheduled absence if the employee, within 30 days from the unauthorized absence, or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences, provides qualifying documentation.

Slide55

Other Key Provisions

Job Restoration

Documentation

Record Keeping

Confidentiality

Remedies

Slide56

Mediation of ADA Charges

EEOC and Dual Filing Overview.

Determining if Mediation is Appropriate.

Best Practices

.

Slide57

Mediation of ADA Charges

EEOC and Dual Filing Overview

.

Slide58

Mission

The EEOC is the federal agency responsible for enforcing the Nation’s laws prohibiting employment discrimination.

As part of our mission, we receive, review, investigate, and process charges of employment discrimination and file discrimination suits in the private sector.

We offer administrative hearings and issue appellate decisions in the federal sector.

Our guidance and information is designed to educate both employers and employees about their rights and responsibilities under the laws we enforce.

Slide59

Jurisdiction

The Commission was established in 1965 to enforce the employment provisions of the Civil Rights Act of 1964. The EEOC jurisdiction over employment discrimination issues now includes the following areas:

Title VII of the Civil Rights Act,

which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.

Pregnancy Discrimination Act,

which requires employers to treat pregnancy and pregnancy related medical conditions, as any other medical disability with respect to terms and conditions of employment, including health benefits.

Rehabilitation Act of 1973,

which prohibits discrimination on the basis of disability in the federal government.

Equal Pay Provisions of the Fair Labor Standards Act,

which prohibits sex discrimination in the payment of wages to men and women performing substantially equal work in the same establishment.

Slide60

Jurisdiction

Age Discrimination in Employment Act of 1967 (ADEA),

which protects workers 40 and older from discrimination in hiring, discharge, pay, promotions, fringe benefits, and other aspects of employment. ADEA also prohibits the termination of pension contributions and accruals on account of age and governs early retirement incentive plans and other aspects of benefits planning and integration for older workers.

Title I and Title V of the Americans with Disabilities Act of 1990 (ADA),

which prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, fringe benefits, job training, and other terms, conditions, and privileges of employment.

The

Genetic Information Nondiscrimination Act (GINA)

protects against discrimination based on their genetic information when it comes to health insurance and employment. The law went into effect on November 21, 2009.

Slide61

Work Sharing Agreementand Dual Filing

EEOC is the federal agency. Most states have a state Fair Employment Practices Agency (FEPA). In MA we have the Massachusetts Commission Against Discrimination, or MCAD.

EEOC has a work sharing agreement by which a FEPA process cases for us.

https://www.eeoc.gov/employees/fepa_wsa_2012.cfm

A person can file with either the EEOC or the MCAD. The agency that takes in the charge will conduct the mediation and/or investigation.

One agency “dual files” with the other, protecting a person’s state and federal rights should they choose to go beyond the agency to state or federal court.

Slide62

Mediation of ADA Charges

Determining if Mediation is Appropriate.

Slide63

Mediation Overview

Voluntary and Confidential.

Offered right away, position statement is on hold.

M

eet in Boston or by phone within 8 weeks.

Parties craft their own remedy.

Diagnostic Tool. Options for settlement divide into two paths, stay/go, either

path has monetary and/or non-monetary

options. Determine if you can identify

specific

options.

Slide64

Stages of Employment

Current Employees = Best Candidates. Address the situation in real time, establish/resume the interactive process, identify options and obstacles. Alternatively, craft a dignified departure.

Former Employees = Next Best. Possibly resume the relationships, learn best practices for next time, mitigate lost wages quickly, take advantage of time sensitive options like paying COBRA, not contesting unemployment, references, outplacement, etc.

Applicants = Least likely. Limited party investment. CP usually wants the job or the monetary equivalent. An explanation alone will not suffice.

Exception: Break down in the interactive process,

CP is a good viable candidate, both sides want to

re-engage.

Slide65

Mediation of ADA Charges

Best Practices.

Slide66

Attendees & Settlement Authority

Complaint – Support people.

Respondent – People with knowledge and settlement authority, including back up by phone.

Respondent public entities – Essential to consider steps for approval and signing.

Slide67

Stages of Mediation

Opening

Voluntary part of a voluntary day.

Sets the tone for the day.

Zealous advocacy/posturing does not work.

Caucusing

Limited fact finding may help.

Watch

out for creative

terms.

No

one will bid against themselves.

Settlement

terms

may not equate with legal assessments.

Closing

Save time for terms.

At EEOC any general release is separate.

Seating

may be intentional at the

end.

Slide68

Hypothetical #1

Carol, your receptionist, tells her manager that she needs a day off “here and there” – and the ability to arrive late – because of weather-induced asthma. An essential function of her job is arriving on time to answer phones and greet members. You should:

Nicely explain you cannot agree to this – she will not be able to do the job but she can stay on at her former schedule.

Fire her.

Talk to her to find out more.

Ask her for lots of medical documentation.

Slide69

Hypothetical #2

Candidate, in a wheelchair, applies for a job. The counters are too high for her to reach to perform her job. What should the employer do?

Candidate

can be refused a job because she can’t perform the job

functions.

Consider

offering her a job after you

investigate and

learn it costs $1500 to adjust the counters for

her.

Tell

her there are other companies that have lower

counters.

Tell

her to reapply after renovations occur next year

Slide70

Hypothetical #3

Employee is out on a leave of absence. Supervisor learns Employee is about to exhaust FMLA and tells HR he really needs to fill the position. HR tells Supervisor to go ahead and do so. Is this ok?

Yes, as long as employee has exhausted FMLA, it is okay to replace the employee because her leave is not longer protected.

No, Employee needs to be given opportunity to provide justification for additional leave.

Yes, no need to have interactive dialogue when ADA not in play.

No, Supervisor should have made decision himself.

Slide71

Hypothetical #4

Employee works a full-time schedule. No other employees work part-time. Recently, Employee brought in note from doctor indicating his medical condition requires he work no more than 3 days/week and 8 hours/day. You should tell him:

Sorry

, this is a full-time position

only.

We

can accommodate 8 hours a day but

not

3

days a

week.

We

will need some more information

from

your

doctor to determine if we can

provide this accommodation.

Sure

, not a problem.

Slide72

Hypothetical #5

Jeb, one of your groundskeepers, has only worked with you for 4 months. He tells you he needs to be out for 2 days next week because his mother is having surgery and he needs to take care of her. You should:

Tell him he cannot have the time because he is not eligible for FMLA.

Tell him he needs to bring in some documentation from his mother’s doctor with the details.

Let him take the time.

Slide73

Hypothetical #6

A country club hires a lifeguard for the summer. Gail has returned every year for several summers. This year, she worked 64 days and then called in sick. Employer should:

a. Pay her for the day because of MA EST

b. Check her remaining FMLA

c. Tell her she has no protected time and may be disciplined for being absent

d. Ask if she needs an accommodation

Slide74

Hypothetical # 7

Employer fired employee for excessive use of sick time. The employee countered that 5 of the days were on account of the flu; he had a corroborating letter stating that he had the flu. The employee never asked for FMLA leave, the employer never considered it FMLA leave, but fired the employee for taking too much time off.

Slide75

Hypothetical # 8

Employee injures back on the job and applies for FMLA and workers’ compensation. Employee’s workers’ compensation ends. Employee requests 12 weeks of unpaid FMLA leave at the end of the workers’ compensation period. Employer takes the position that the FMLA and workers’ compensation ran concurrently. Employee thought they ran consecutively. Who is right?

Slide76

Hypothetical # 9

Female employee and male manager have a personality conflict and manager would rather not work with employee. Employee is absent 3 times in a 2 week period without any documentation.  Manager terminates her employment for excessive absenteeism. Employee then tells the manager that she was out of work due to physical abuse by her husband and that she has moved out of the marital home. What happens next?

Slide77

Hypothetical #10

CP was a middle school teacher for the last 24 years. She went through a series of absences last academic year, and was diagnosed with Rheumatoid Arthritis. After an extensive interactive process, an accommodation plan was established and worked well last year. This year, CP was having increasing difficulty with temperature fluctuations affecting her conditions. CP wanted to modify her accommodation plan. She is concerned too many changes will impact her employment relationship. R was concerned about how to address this immediate request, and how to anticipate what may come next.

Slide78

Hypothetical #11

Charging Party works as an RN. The last few months of absences have been with little to no notice, causing scheduling chaos. CP is placed on a performance improvement plan, but her attendance worsens. In the meeting schedule to terminate CP, she explains that she has been in recovery for opiate addiction for the last year. The recent absences are due to last minute counseling appointments. Her doctor wants her to take a leave of absence to participate in an in-patient treatment program. CP wants R to reconsider the termination now that they know of her disability and need for accommodation. R is shocked to learned someone with an opiate addiction has had contact with narcotics for the last year. This affirms their decision to terminate CP.

Slide79

Hypothetical #12

CP was a trainer in a call center. R provided her with a reasonable accommodation of time off to attend weekly therapy appointments to help manage her depression. CP was having difficulty arriving at work on time due to medication that made her drowsy in the morning. CP requested an additional accommodation of telecommuting in the mornings and then working in the office in the afternoons. R was skeptical of this accommodation request, suspecting CP wanted to work less. The interactive process commenced, R denied the request, concluding an essential function of a trainer is being available for questions. CP’s employment was terminated.

Slide80

Hypothetical #13

CP worked in a mid-sized factory manufacturing machine components. His position required extensive pulling, pushing, bending, standing and lifting. CP suffered a heart attack, followed by bypass surgery. Upon expiration of all available paid and unpaid leave, R received a note from CP’s doctor clearing him to work at full capacity. R saw CP socially on a regular basis and doesn’t think he was well enough to work. R believed CP convinced his doctor to clear him too soon in an attempt to save his job. R denied CP’s return to work, put him on paid leave for an additional month and told CP to use the time to look for another job.

Slide81

THANK YOU!

Tracy

Thomas Boland

Morgan

, Brown & Joy, LLP

tboland@morganbrown.com

617-788-5052

Lori A.

Jodoin

Rodgers, Powers & Schwartz LLP

617-742-7010

Lori @

TheEmploymentLawyers.com

Elizabeth Marcus, Mediator

elizabeth.marcus@eeoc.gov

617-565-3212