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Lori Welty

Twenty-Five Years – the FMLA and Beyond

Today marks the 25th anniversary of the signing of the Family and Medical Leave Act (FMLA) into law. It is hard to imagine that 25 years ago, employees had no mandated job protection to take leave for the basic rights under the FMLA – time needed for their own or a...

read more
Anne Ahlman

Take Cover from the Flu This Season

Defend against viral invasion with three simple steps   The flu season this year is nothing to sneeze at. The current H3N2 subtype of influenza A is a particularly severe strain that is affecting not only the young, old, and ill, but is also striking down people...

read more
The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the 12-month period immediately preceding the start of the leave). Not so fast, said the 11th Circuit in Pereda v. Brookdale Senior Living Cmtys., Inc., which opened the eligibility door a crack back in 2012. And more recently, on April 13, 2017, a federal district court in Oregon nudged that door open just a bit wider when it issued the decision in Johnson v. Jondy Chemicals, Inc., 2017 WL 1371271 (D. Or. 4/13/2017).

For those of you who don’t have the Pereda case at your fingertips, a quick refresher: In Pereda, the employee notified her employer she would be taking FMLA leave for the birth of her child on or about Nov. 30, 2009. At the time of her request, she had not yet met the eligibility requirements to take FMLA leave, but she would have become eligible by her due date. The court held that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” Thus, an employee can maintain an FMLA interference claim even though at the time of the termination, she was not an “eligible employee” with respect to the 12-month employment requirement.

The Johnson case present us with the intersection of another wrinkle. Recall that if an employee becomes FMLA-eligible during a leave (by meeting the 12-month requirement), the beginning of the leave must be designated as non-FMLA leave while the portion of the leave after the employee meets FMLA eligibility requirements would be designated as FMLA. 29 C.F.R. § 825.110(d). The Johnson case combines the prescience of the Pereda case with the hindsight of this provision to create a new animal: in some circumstances–despite the fact that the employee is not eligible for FMLA at the time of the request or at the time the leave is to begin–an employee’s request for leave could trigger FMLA protections if, at some point in time during the leave, the employee will meet the 12 months of employment eligibility requirement. The Court considered this hypothetical and concluded “the fact that an employee’s treatment commences pre-eligibility…does not, in and of itself, bar the employee’s rights in subsequent FMLA leave for the same treatment during the same contiguous absence…” The court held that an employee who notifies the employer of the need for treatment that will extend into a period of time in which the employee will be FMLA-eligible is entitled to FMLA-protected leave for that period. Therefore, any adverse treatment based on the leave request could be grounds for the employee to claim the employer interfered with his right to FMLA leave.

In the case at hand, the Court was not so sure that the employee had demonstrated that FMLA would have applied to a portion of the leave, because the claim did not specify whether the leave would have extended beyond the employee’s FMLA-eligibility date. As a result, the Court dismissed the claim; leaving open the possibility the employee could refile with more facts to support the claim.

Concerned about navigating your way through complex leave administration issues? Reed Group has options. We offer both outsourced and software solutions for clients with complex and/or multi-state employee populations. To learn more about ReedGroup’s products and services visit reedgroup.com.

Top 3 Notable ADA Cases in 2017, So Far
Ashlee Brennan

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether the requested accommodations were reasonable. The third focuses on overcoming the hurdle of establishing that an employee is, in fact, disabled under the ADA. All three cases resulted favorably for employers.

In Whitaker v. Wisconsin Dep’t of Health Servs., No. 16-1807, 2017 WL 745600 (7th Cir. Feb. 27, 2017), Whitaker worked as a corrections officer for the Wisconsin Department of Health Services, eventually transitioning into other positions due to a back injury. Her most recent position relevant to her case was that of an economic support specialist in the Department’s Income Maintenance Program. In this role, Whitaker’s job duties included processing applications for benefits, answering phone calls, and general case management, all requiring regular attendance.

Whitaker exhausted her available FMLA leave for her medical condition as well as a 30-day unpaid leave to care for her father and due to her own personal illness. Whitaker was informed by the Department that if she failed to return to work upon the conclusion of the 30-day leave, the termination process would begin. Whitaker did not return to work on her expected date but did submit notes from her doctor requesting additional time off for a medical leave. The notes did not provide any detail on her condition, course of treatment, or estimated recovery. Whitaker continued to assert she was unable to return to work and the Department terminated her employment. Whitaker sued, claiming the Department should have considered her request for an accommodation of unpaid leave rather than terminate her.

The court found that Whitaker was unable to establish that she was an “otherwise qualified” employee as required by the ADA as she provided no proof that she could fulfil the requirement of regular attendance, even with an accommodation. Whitaker argued that if she had been given additional leave as an accommodation, she could return to work on a regular basis. Consistent with other cases we have seen, the Seventh Circuit did not find this argument persuasive. Rather, the court found this accommodation to amount to an open-ended leave request, which was not reasonable and would have imposed an undue burden on the department.

Like Whitaker, Bagwell v. Morgan Cty. Comm’n, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017), analyzes an employee’s essential job functions and whether an employee’s request to accommodate those essential job functions is reasonable.

Bagwell was a County groundskeeper whose essential job functions included tasks necessary to maintain and upkeep city parks, such as traversing uneven and wet surfaces, standing, and walking. Due to stamina and endurance issues caused by a leg injury, she was unable to safely perform these functions consistently, even with the assistance of an accommodation. It was established that Bagwell could only tolerate walking and standing for one-third of her shift. Although some equipment accommodations would reduce related difficulties, Bagwell was unable to perform the essential job functions of the position, with or without accommodations; thus, the court found that Bagwell was not an “otherwise qualified” employee. Additionally, the court found that if the County were to consider an accommodation, it would be a significant one, requiring a co-groundskeeper or hiring a third-party service to complete the work. Finding in favor of the employer, the court held that this type of accommodation would be unreasonable as it was the duty of the groundskeeper to perform such work.

Two employer tips stand out in these cases:

  1. Be sure to keep your job descriptions up to date and accurate. Regular attendance is often an essential job function and the courts rely heavily on employers’ job descriptions to establish the essential functions of a job.
  2. The courts continue to side with employers when an employee is requesting indefinite leave under the ADA, which is considered unreasonable and burdensome to the employer.

The third notable ADA case of 2017 brings us to Alston v. Park Pleasant, Inc., No. 16-1464, 2017 WL 627381 (3d Cir. Feb. 15, 2017). In 2011, Park Pleasant hired Alston to be the Director of Nursing at an adult care facility; one year later, Alston was having significant performance issues. Shortly after meeting with her HR director to discuss these issues, Alston missed work to have a biopsy and was diagnosed with early-stage DCIS (a form of breast cancer). Alston’s performance continued to be in question and she was terminated in early August 2012. Upon termination, Alston sued, claiming employment discrimination under the ADA.

To establish a claim for discrimination under the ADA, Alston was required to demonstrate that she was a disabled person within the meaning of the ADA. The court relied on 29 C.F.R. § 1630.2(j)(1)(iv) in concluding that the determination of whether an employee is disabled under the ADA requires an individualized assessment to analyze whether the employee’s impairment ‘substantially limits a major life activity.’ Throughout the case, Alston failed to provide enough evidence to prove she had a disability. The court did note that cancer generally would qualify as a disability; however, based on the individualized assessment for Alston, there was no argument or proof that this condition limited any of her major life activities. Therefore, the court found that Alston failed to establish she was disabled under the ADA and dismissed her discrimination claim.

This case goes back to the basics, but it reminds employers that an individualized assessment of each employee and his or her ailment(s) or condition(s) is required to establish whether the employee is considered disabled under the ADA and thus entitled to the protections afforded by the act.

It’s evident that ADA discrimination cases continue to be brought by disgruntled employees. To avoid potential risks in litigation:

  • make sure your job descriptions are specific and in writing;
  • follow the interactive process; and
  • evaluate employees on an individual basis.

Outsourcing to a third-party administrator that specializes in ADA management, such as ReedGroup, will keep you ahead of the curve and compliant on all ADA matters. For more information, check out our solutions here.

Get Ready for Washington State and Washington D.C.’s New Paid Family Leave Programs!
Lori Welty

Get Ready for Washington State and Washington D.C.’s New Paid Family Leave Programs!

Back in 2017, we told you about the double dose of Paid Family Leave (“PFL”) enacted in Washington State and Washington, D.C. As both laws march to full implementation, we provide an update on the progress toward establishing rules and regulations to bring these programs to fruition.

Washington, D.C.

The D.C. Universal Paid Leave Amendment Act of 2016 (D.C. PFL) provides paid family and medical leave for employees beginning on July 1, 2020. Benefits are funded by a 0.62% employer payroll tax that the city will collect from employees starting July 1, 2019. The D.C. PFL program is administered through the District of Columbia and does not allow for employer-administered plans.

Under D.C.’s existing local Family and Medical Leave Act (D.C. FMLA), employees can use16 weeks of unpaid leave for certain qualifying reasons; however, the new PFL law provides paid leave as follows:

  • 8 weeks within a 52-week period to bond with a new child
  • 6 weeks for the care of a family member with a serious health condition
  • 2 weeks for an employee’s own serious health condition

An employee is limited to a total of 8 weeks of PFL in a 52-week period.

While D.C. FMLA leave is job-protected, the D.C. PFL program expands upon the job protection. For example:

  • The D.C. FMLA covers employees who have worked for the employer for at least one year preceding the leave request, while the D.C. PFL provides coverage if the employee must have been a covered employee “during some or all of the 52 calendar weeks immediately preceding the qualifying event.” The new law also provides expanded leave rights for part-time employees.
  • The D.C. FMLA applies only to employers with 20 or more employees. The pay component of D.C. PFL covers all employers who are required to pay unemployment insurance on behalf of employees. However, employers with fewer than 20 employees are exempt from providing job protection.
  • While D.C. PFL provides different protections from the D.C. FMLA, the new paid leave will run concurrently with, and not in addition to, the D.C. FMLA.

The District of Columbia Department of Employment Services has published Universal Paid Leave Proposed Regulations that set forth rules for filing and processing claims, documentation, calculation of benefits, and notifications, among other topics. Information about how to submit comments on the proposed rulemaking is also provided.

Washington State

Washington State’s law differs from D.C. PFL in that it provides employers with more options for plan administration. Additionally, the plan pre-empts the existing Washington State Family Leave Act, which currently provides unpaid leave for Washington employees. Deductions for the new program begin January 1, 2019, while benefits begin January 1, 2020. The program will be funded by premiums paid by both employees and employers, and will be administered by the Washington State Employment Security Department.

Washington State’s PFL program provides benefits as follows:

  • 12 weeks per 52 consecutive calendar weeks for an employee’s own serious health condition, and
  • 12 weeks per 52 consecutive calendar weeks for:
    • caring for a family member with a serious health condition
    • bonding with a new child
    • military exigency

The law provides a combined maximum of 16 weeks per 52 consecutive calendar weeks for paid family and medical leave benefits. The combined maximum can be extended to 18 weeks if the employee experiences a serious health condition with a pregnancy that results in incapacity.

Premiums: A total premium of 0.40% up to the Social Security cap is assessed for each employee. The employer is responsible for approximately 37% of the premium. If an employee makes $50,000 annually, the total annual assessment would be $200, of which $126.67 would be paid for by the employee, and $73.33 would be paid for by the employer. Employers are responsible for sending premiums to the state and reporting hours and wages. Employers can contribute some or all of the employee share of the total premium; the employer would reduce the premium amount deducted from employee paychecks, cover the difference, and then send the full amount to the state. An employer who opts to do this can be eligible for grants of up to $3,000 per employee up to 10 times per year to help cover wage-related expenses or hiring a temporary replacement.

Voluntary Plan: An employer can apply to the Commissioner of the Washington State Employment Security Department for approval of a voluntary plan for either family leave benefits or medical leave benefits, or both. Voluntary plan applications can be submitted through an online portal, currently under development and anticipated to be available in late summer of 2018. For the first 3 years of a voluntary plan’s existence, re-approval is required every year. After 3 years, re-approval is only required if the employer makes changes to the plan that are not required by statute.

While generally an employee becomes eligible for Paid Family and Medical Leave benefits after completing 820 hours of work for any employer in Washington State in the qualifying period, employees are eligible for benefit payments under an approved voluntary plan after working 820 hours in the qualifying period and 340 hours for that employer. Employees who are not yet eligible for coverage under an approved voluntary plan will be eligible for benefits under the state plan if they have worked 820 hours in the qualifying period.

Voluntary plans must, at a minimum, offer the same benefits and duration of leave as the state plan. This includes:

  • allowing the employee to take the same duration of leave as would be allowed under the state plan;
  • paying the same total amount of benefits as the state plan;
  • withholding an amount from an employee’s paycheck that is the same or less than what the state plan would withhold; and
  • meeting all reporting requirements.

Washington State has issued resources including an Employer FAQ, Employee FAQ, and Voluntary Plan Information. Washington State has issued Phase 1 Proposed Rulemaking that pertains to Collective bargaining agreements, premium liability, and voluntary plans aspects of the new law. Information about submitting public comments is available on the Public Comment Portal. A public hearing regarding Phase 1 rulemaking is expected on May 23, 2018.

D.C. and Washington State are in good company. Across the country more states and the U.S. Congress continue to propose paid family leave programs. The current legislative session has seen a plethora of activity, such as:

  • Colorado House Bill 1001, passed first committee
  • Connecticut House Bill 5487, passed first committee
  • Georgia Senate Bill 63, introduced
  • Hawaii House Bill 2598, passed house and senate, awaiting house concurrence
  • Iowa Senate Bill 2133, introduced
  • Illinois House Bill 2376, passed first committee
  • Indiana Senate Bill 309, introduced
  • Massachusetts Senate Bill 1048, introduced
  • Maine House Bill 1091, passed first committee
  • Mississippi Senate Bill 2337, introduced; failed
  • Nebraska Bill 305, introduced
  • New Hampshire House Bill 628, passed first committee
  • Ohio House Bill 550, introduced
  • Oklahoma House Bill 1815, introduced
  • Oregon House Bull 4160, introduced
  • Pennsylvania House Bill 1634, introduced
  • Virginia House Bill 40, Introduced; failed
  • United States House Bill 947, introduced

ReedGroup will continue to closely monitor the progress of the paid family leave programs in Washington, D.C. and Washington State. Stay tuned to stay informed!

The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the...

read more
Top 3 Notable ADA Cases in 2017, So Far
Ashlee Brennan

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether...

read more
Twenty-Five Years – the FMLA and Beyond
Lori Welty

Twenty-Five Years – the FMLA and Beyond

Today marks the 25th anniversary of the signing of the Family and Medical Leave Act (FMLA) into law. It is hard to imagine that 25 years ago, employees had no mandated job protection to take leave for the basic rights under the FMLA – time needed for their own or a...

read more
Take Cover from the Flu This Season
Anne Ahlman

Take Cover from the Flu This Season

Defend against viral invasion with three simple steps   The flu season this year is nothing to sneeze at. The current H3N2 subtype of influenza A is a particularly severe strain that is affecting not only the young, old, and ill, but is also striking down people...

read more