Family and Medical Leave Compliance Update – March 2020

Every month, Lincoln puts together the latest compliance news related to family and medical leave laws and regulations – helping you keep track of the important deadlines, compliance considerations and links to additional information.
 

  • Family and medical leave
  • Sick leave
  • Other leave
  • In the news

Washington

February 5, 2020: Washington published new draft regulations on definitions, employer notifications, deceased claimants, and employer maintenance of health benefits. The PFML    rules are expected to be finalized and effective by June 11, 2020. The full text of the draft regulations can be found on the WA PFML website. Washington is also expected to amend the PFML law through House Bill No. 2614, in response to a legislation request by the Employment Security Department (ESD) to make technical fixes to the program.

New Jersey

January 6, 2020: The final regulations for New Jersey’s earned (paid) sick leave were released. Pertinent details of the final regulations include:

  • Establishing a benefit year  
  • PTO policies including sick time
  • Using paid sick time for child non-educational events
  • Carryover of paid sick time
  • Updated definition of public health emergency.

Since October 2018, all N.J. employers were required to provide full-time, part-time, and temporary employees with up to 40 hours of earned sick leave per year. More information on the NJ PSL program is available on the state’s website.

Tennessee

February 20, 2020: Governor Bill Lee has announced that he will be pursuing legislation to implement a paid family leave program for state employees, in lieu of the Executive Order originally announced in January 2020. The Executive Order would have provided up to 12 work weeks of paid leave for Tennessee state executive branch personnel. If the proposed legislation passes, its effective date will be retroactive to March 1, 2020, the original effective date specified by the Executive Order.

Accommodations

American with Disabilities Act
Logo and Resources: ADA National Network (adata.org)

  

The Americans with Disabilities Act (ADA) will be celebrating its 30th anniversary this year. The ADA and the ADA Amendments Act of 2008 (ADAAA) give civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA and ADAAA also assure people who have disabilities equal access to businesses, employment, transportation, state and local government programs and services, and telecommunications.

Spotlight: COVID-19

Lincoln Financial is here to help you stay confident and prepared during this challenging and evolving situation. We're continuously monitoring the latest news, as well as information from the Centers for Disease Control and Prevention and other regulatory and medical experts, to offer targeted guidance and support.

We have created a dedicated COVID-19 Guidance page. We recommend bookmarking this page for important messages from our leaders, timely updates on legislative changes specific to our offerings, employer best practices, and resources to support you as we navigate this unprecedented situation together.

EEOC

Overview: The U.S. Equal Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal anti-discrimination laws that prohibit employers from discriminating against employees and job applicants on the bases of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. Among other laws, the EEOC enforces Title I of the Americans with Disabilities Act (ADA), which prohibits discrimination against a qualified person with a disability in the private sector and in state and local governments.

Through its administrative enforcement process, the EEOC receives, investigates, and resolves charges of employment discrimination filed against private sector employers, employment agencies, labor unions, and state and local governments, including charges of systemic discrimination.

Here are some links to helpful EEOC guidance documents on the ADA and related laws:

January 7, 2020: The EEOC announced that the Hawaii Medical Service Association (HMSA) has agreed to pay a $180,000 settlement in an employment discrimination lawsuit alleging that their policy, which did not allow intermittent leave as an accommodation for employees with disabilities in the customer relations department, violated federal law. HMSA’s practices did not engage in a reasonable accommodation process, as it forced employees to work without accommodations or to resign. In addition to paying the settlement, HMSA agreed to review and update its ADA policies, provide employment discrimination law training to employees, and create an accommodation unit to administer and track accommodation requests and discrimination complaints to ensure proper recordkeeping and monitoring.

January 7, 2020: The EEOC announced that Maurizio Trattoria Italiana LLC has agreed to pay an $18,800 settlement in an employment discrimination lawsuit alleging their actions against a pregnant employee violated federal law. Maurizio reduced the employee’s scheduled hours after she announced her pregnancy, and after she gave birth, they did not allow her to return to her original position and terminated her. In addition to paying the settlement, Maurizio will review and update policies surrounding Title VII and Pregnancy Discrimination Act compliance and provide employment discrimination law training to employees, including pregnancy disability laws, and employees’ rights upon return to work after pregnancy-related leave.

January 22, 2020: The EEOC announced that M&T Bank has agreed to pay a $100,000 settlement in an employment discrimination lawsuit alleging that their failure to accommodate a manager with a pregnancy-related disability violated federal law. M&T told the employee, who was on approved leave for pregnancy- related surgery, that her position as a manager would be filled if she did not return to work within 10 days. After she gave birth and received return-to-work clearance, M&T required that the employee apply for an open position instead of reassigning her to a similar position as an accommodation. In addition to paying the settlement, M&T must develop a non-competitive procedure to allow employees returning to work after a disability-related absence to be reassigned to a similar, qualifying vacant position. They must also provide training to employees on Title VII, post a notice of rights, and report back to the EEOC about compliance with the consent decree.

January 30, 2020: The EEOC announced that BLI Northwest & Successor Harris Pacific Northwest will pay a $100,000 settlement in an employment discrimination lawsuit alleging that the termination of an employee due to her disability violated federal law. After the employee disclosed to her supervisor that she had epilepsy, she was terminated due to safety concerns. The employee’s epilepsy was well controlled by medication, she did not request an accommodation, and she had no medical restrictions. The ADA requires employers to make a case-by-case determination of an employee’s ability to perform a job function if safety concerns arise. In addition to paying the settlement, BLI Northwest and its successor Harris Pacific Northwest must provide anti-discrimination law training to employees with an ADA emphasis, implement an ADA policy, and post a notice of rights and obligations.

February 4, 2020: The EEOC announced that Rancho San Miguel Markets has agreed to pay a $100,000 settlement in an employment discrimination lawsuit alleging that the denial of a disability accommodation, and subsequent termination of the employee, violated federal law. In addition to paying the settlement, the employer reinstated the employee. In the decree, the employer agreed to hire an internal ADA coordinator, review and update policies, provide ADA training to employees, and log accommodation requests and complaints.

From the courts

An employee requesting an accommodation must clarify what accommodation they need and substantiate their need for accommodation, including providing additional medical documentation upon request. The Fifth Circuit ruled that the employer did not fail to offer an employee a reasonable accommodation or engage in the interactive process when the employee requested an ADA accommodation for additional time off after exhausting their FMLA leave. 

After review, the employer determined that the forms the employee submitted were unclear and incomplete because it appeared the employee sought an indefinite leave of absence and there was no indication of when they would be able to return to work. The employer requested additional medical information to substantiate the accommodation request and determine what type of accommodation might be appropriate. The employee insisted the initial forms were sufficient and ultimately failed to provide any additional documentation despite extensions of time to do so. One month after the final deadline to provide documentation passed unmet, the employee was terminated for excessive absenteeism.

The court held that the breakdown in the interactive process was traceable to the employee, due to their failure to submit the requested medical documentation. The court also cited EEOC guidance, which provides that an employer may require an employee to provide documentation sufficient to substantiate the limitation that allegedly requires an accommodation. The district court held in favor of the employer, and the Fifth Circuit affirmed. (Hoskins v. GE Aviation (5th Cir. 2020))

Please note: This alert is provided for informational purposes only and should not be considered legal advice. This information is being provided to Lincoln Financial Group clients so they may conduct any necessary internal evaluation of their policies and procedures. This alert is designed to provide informative and current information as of the date of the alert. Please contact your legal advisor with any questions regarding the laws discussed in this communication. Lincoln continually monitors activity related to family and medical leave laws and as laws pass, we will determine any impacts to our suite of products. Lincoln does not currently administer or track paid sick leave. The information contained herein includes information on major cities and counties and is not all inclusive of all city and county laws.

Insurance products are issued by The Lincoln National Life Insurance Company, Fort Wayne, IN, Lincoln Life & Annuity Company of New York, Syracuse, NY, and Liberty Life Assurance Company of Boston, Boston, MA. The Lincoln National Life Insurance Company does not solicit business in New York, nor is it licensed to do so. Product availability and/or features may vary by state. Limitations and exclusions apply.