Congress adopted the Family and Medical Leave Act of 1993 (“FMLA”) to provide job security for employees who must miss work due to their own serious health condition, the birth of their children, to care for family members suffering from a serious health condition or for reasons related to their family members’ military service. One of the most vexing issues for employers trying to comply with the FMLA is “intermittent” or “reduced-schedule” leave.
Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts about 2017. Today we turn to the DC Metro Area. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
The District of Columbia, Maryland (including Montgomery County) witnessed an active 2016 with respect to new and amended workplace laws that impose additional responsibilities on employers, and expand employee rights and avenues of enforcement. Employers should be aware of these new requirements and take immediate action to comply with them. We highlight below the most significant updates in both D.C. and Maryland; there were no changes or additions of significance in Virginia.
The New York State Workers’ Compensation Board is out with proposed regulations providing guidance to employers, insurance carriers and employees regarding their rights and responsibilities under New York’s new Paid Family Leave law, which is scheduled to go into effect January 1, 2018. Comments on the proposed rules will be accepted for 45 days – until April 8th (although we note that’s a Saturday). For our earlier post on the enactment of the Paid Family Leave Act, see here.
With Election Day just a week away(!), it’s important that employers familiarize themselves with their employees’ rights to take leave to vote. While there is no Federal law granting employees the right to voting leave, at least half the states provide this right in some form.
As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee. Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation. Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position. In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result. It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.
The New York City Human Rights Law now prohibits discrimination based on an individual’s actual or perceived status as a caregiver. Below, we briefly summarize the law and gauge its potential impact on the workplace.
Earlier this month Governor Cuomo signed into law New York’s Paid Family Leave Act, which, when fully implemented, will provide virtually all employees in the state up to 12 weeks of paid family leave. Under the law, employees will be entitled to paid leave to (1) care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition, (2) bond with the employee’s newborn or newly placed adoptive or foster child during the first 12 months following birth or placement, or (3) address any qualifying exigency relating to a spouse, domestic partner, child or parent who is serving on active military duty. Notably, the law relies on employee payroll deductions to fund the paid family leave benefit, but does not require any similar contribution from employers.
The law also provides job protections, entitling an employee who returns from leave to be restored to the same or a comparable position. Additionally, employers must maintain existing health benefits for employees while they are on family leave. While these protections track closely with the family leave provisions of the federal Family and Medical Leave Act, New York’s law covers a broader group of employees than the FMLA, albeit only for family leave. It does not provide an employee paid leave to care for his or her own medical condition.
Ah, the tell-tale signs of March are here. The winter is starting to dissipate in the northern climes, we’ve set the clocks forward, and Syracuse is bound for another Final Four run. Unfortunately, most teams won’t be so lucky and many coaches will soon find themselves on a beach. And why not? After a long, hard-fought season that fell just a bit short, might as well take a warm-weather vacation – go for a quick swim, maybe hit the amusement park, and take a few pictures of all the fun in the sun and post them to Facebook. Sounds like a marvelous idea for many NCAA coaches, but not so much for employees out on FMLA leave. The plaintiff in Jones v. Gulf Coast Health Care of Delaware, a recent case out of a Florida federal court, learned this the hard way.
On October 6, 2015, the D.C. Council introduced the Universal Paid Leave Act of 2014. If enacted, the proposed law will allow employees in D.C. to take up to 16 weeks of paid family and medical leave in a 12-month period, and as reported in the The Washington Post, D.C. “would become the most generous place in the country for a worker to take time off after giving birth or to care for a dying parent[.]” The law would also set up a system, paid into by employers, under which employees would be able to file a claim for paid family and medical leave benefits, similar to the way individuals file claims for unemployment benefits.
I recently read in the NY Times that the Equal Employment Opportunity Commission settled a charge with Time Warner, Inc., the parent company of CNN and Turner Broadcasting System, Inc. where a former employee alleged that Time Warner’s parental leave policy discriminated against him as a biological father. I encourage employers to read the article, as it reemphasizes the shifting attitudes in this country on family-friendly leave policies, and from a legal perspective, it serves as yet another reminder that employers should review their parental leave policies to make sure they are up to date and do not discriminate against fathers.