Category Archives: employee accommodations

Missouri Employers Now Required To Provide Unpaid Leave To Victims Of Domestic Or Sexual Violence

Contributed by Brian Wacker, September 24, 2021

Words ‘Leave of Absence’ on white paper

As a part of Missouri’s new Victims Economic Safety and Security Act (VESSA), employers in the state with at least 20 employees must now provide unpaid leave to employees who are victims of domestic or sexual violence, or who have family or household members who are victims of the same.  Effective August 28, 2021, all covered employers are required to notify employees of their right to unpaid leave under the law by or before October 27, 2021.  The Missouri Department of Labor has published a poster which, if prominently posted, will meet this requirement. 

The new mandate is designed to provide domestic and sexual abuse victims, and their families, the opportunity to:

  • Seek medical attention for, or recover from, physical, or psychological injuries;
  • Obtain victim services;
  • Obtain counseling;
  • Participate in safety planning;
  • Relocate, temporarily, or permanently;
  • Take actions to increase safety for themselves or family members; and/or
  • Seek legal assistance.

Employees seeking such leave must provide their employer at least 48 hours’ advance written notice, unless doing so is not practicable under the circumstances.  To determine if a requesting employee is eligible for VESSA leave, an employer may require the employee to provide certification that either the employee or his/her family or household member is the domestic or sexual violence victim seeking the type of assistance described above.  This certification can come by way of:

  • Written documentation from a victims services organization, attorney, clergy member, or medical professional;
  • Police or court records; or
  • Other corroborating evidence.

Employees are required to provide such certification within a reasonable period of making the request for leave.  However, when an unscheduled absence occurs, an employer cannot take adverse action against an employee when, upon the employer’s request , the employee does provide this information within a reasonable time.

Again, VESSA only applies to employers with 20 or more employees and then dictates that the amount of leave available to eligible employees is based on the number of the employer’s employees:

  • 0-19 employees: no leave required
  • 20-49 employees: 1 week of unpaid leave required per year
  • 50+ employees: 2 weeks of unpaid leave required per year

If eligible, an employee may take this unpaid leave intermittently or on a reduced work schedule.  Any eligible employee must be returned to the same, or similarly equivalent, position upon return to work.  Finally, if the employee taking leave is covered by an employer’s group health plan, the employee’s (and any covered family or household member’s) coverage must be maintained during the eligible leave.  However, under certain circumstances, the premiums paid by the employer during the leave may be recovered from the employee if  they fail to return to work once the leave period has expired.            

The bottom line is that this is a new unpaid leave mandate for nearly all Missouri employers.  Employers would be well advised to post the VESSA notice as soon as possible and update their employee handbooks to reflect these new requirements.

What Can Employers Do About Employees Who Refuse to Refer to Transgendered Employees By Their Preferred Names or Pronouns?

Contributed by Peter Hansen, August 6, 2021

law concept with gavel and scale in background. composition in court library

The short answer is, private sector employers can very likely terminate the employee.  If the employee is at-will, they can be fired for any non-discriminatory reason (or no reason at all); and, intentionally using the wrong name or pronoun to refer to a coworker is certainly a non-discriminatory reason.  Even if the employee has “for cause” protection through an employment contract, there’s a pretty good chance that intentionally misgendering their coworker is sufficient cause to terminate, especially if they’ve been previously warned about similar behavior.

The issue is a bit more complicated if an employee claims their religious beliefs prevent them from referring to their coworkers by their preferred names or pronouns.  Employers are generally required to accommodate employees’ sincerely held religious beliefs, but what if accommodating those beliefs – i.e., allowing them to call transgendered employees by something other than their preferred name or pronoun – requires them to discriminate against others?  The answer is pretty straightforward:  employers do not need to grant an accommodation that violates state or federal law, and as the EEOC recently noted, discrimination on the basis of gender identity violates federal law.  Put another way, where the requested “accommodation” amounts to allowing one employee to discriminate against their transgendered coworkers, the accommodation amounts to an undue hardship that employers need not (and should not) provide. Public sector employers, particularly universities, should also speak with their counsel about employees’ potential First Amendment and Free Exercise Clause protections.

The Southern District of Indiana recently reached the same conclusion as the EEOC in Kluge v. Brownsburg Community School Corporation, regarding a teacher who alleged his employer failed to accommodate his religious beliefs and retaliated against him because he refused to refer to his students by their preferred pronouns on the basis of his religious beliefs.  The court dismissed the lawsuit, noting in part that the employee’s requested accommodation would result in an “’increased risk of liability’ which in turn constituted an undue hardship” that employers need not bear.

So, employers should engage in the interactive process and at least attempt to come up with a reasonable accommodation to offer the employee.  One possible accommodation employers could consider is a “last names” accommodation whereby the employee refers to all coworkers by their last names only … though the Kluge employer offered the same accommodation and had to withdraw it after receiving complaints.  If you can think of another accommodation, I’m all ears.  Seriously, email me.  But I digress.  The takeaway is this:  regardless of an employee’s religious beliefs, employers absolutely should not allow any employee to refer to others by anything other than their preferred name and pronoun.

So Your Employee Wants to Work Remotely Out of State

Contributed by John R. Hayes, March 8, 2021

Work Remotely memo stick. Laptop for remote job.

Given the “new normal” of remote work for many employees throughout the country, the question as to whether to allow an employee to work in another state – either permanently or temporarily – has become something employers are now scrambling to answer.  However, it is not as simple as determining whether the employee can do the work remotely, there are numerous considerations and implications employers should be aware of if they have employees working in a different state than the location of their main operations. 

First, employers should have clear guidelines and policies regarding what is expected of the employee in terms of hours, availability, and work product. That is true wherever they are remotely located. Some general areas to consider include:

  • Detailing their normal work duties and responsibilities;
  • Making clear the hours of work the employee is expected to put in along with strict adherence to any timekeeping policies;
  • Setting the hours of availability to communicate regarding company business and job duties;
  • Determining how to handle communication of work assignments and personal needs, including reporting absences of work due to injury, illness, or caring for a family member;
  • Discussing the use of company equipment and materials;
  • Ensuring the employee protects company information by following the company’s policies and practices regarding information security and data protection; ensure that unauthorized individuals do not access company data, either in print or electronically; and not accessing restricted-level information in print or electronically unless approved by the supervisor; and
  • Maintaining a safe environment in which to work.

Next, for employees wanting to work out of state either all the time or for a period of time, there are potential tax and payroll issues for both the employee and the employer. Unfortunately, there is no one size fits all answer. It will depend on the state the individual is performing work in, how long they are there, and a host of other factors.  When an employee is working outside of the state where the employer operates the employer may be responsible for the other state’s taxes, including income taxes. Each state’s income tax and withholding requirements vary significantly, and may be based on both personal residence and/or work location. Making it even more complicated, states have differing thresholds for when an individual working remotely in that state triggers tax implications, for example in Illinois it is 30 days and in New York it is 14 days.

COVID-19 related remote work has dramatically impacted this area of the law, as it has exponentially increased the numbers of employees working in a different state than where the employer is located or where they reside, and many states have been slow to adjust to this. However, several states have implemented “COVID-19 Rules” regarding the tax implications for remote workers. Again, this is a state-by-state analysis that needs to be done by the employer for each employee wishing to work remotely out of state. 

In addition to state and local taxes, the labor and employment laws of the state where a remote employee is working may apply to the employment relationship.  An employer needs to examine the state’s (and possibly the county’s and/or the city’s) employment laws to see whether there are specific laws that would affect the employee, such as posting requirements and paid family or sick leave, amongst others.

Employers should also be aware of state laws regarding workers’ compensation insurance and unemployment insurance. Employers usually must obtain workers’ compensation insurance in the state where the employee is actually working. It may be the case that the workers’ compensation laws in the employer’s state would not apply to the employee working remotely in another state. The same also applies to unemployment insurance, where the out of state employee would likely trigger the state’s requirements that the employer register for and pay the unemployment insurance premiums through that state’s particular unemployment insurance program.

Ultimately, the decision to allow remote location work is up to the employer and depends on the particular facts and circumstances of each employment situation.  Given the complexity of having to figure out other states’ employment, tax, and other state-specific laws, employers may be justified in saying no to such arrangements.  The answer really depends on the employer’s desire to hire/retain the individual, and whether remote work is a means to that end.  And once such a remote work arrangement is granted to one employee, employers must be mindful in granting/denying it to others, as allowing it for one employee but denying it to another could potentially be considered discriminatory, depending on the facts of each situation.

Any remote work arrangement should be carefully considered in advance, a written policy and understanding between the employer and employee should be put in place, and the particular laws of the remote work location should be examined and understood, ideally by experienced counsel.

U.S. House of Representatives Passes Pregnant Workers Fairness Act

Contributed by Michael J. Faley, September 29, 2020

On September 17, 2020, the House voted 329-73 to pass the Pregnant Workers Fairness Act.  The bill seeks to clarify the law and require employers to make reasonable accommodations for employees impacted by a known pregnancy-related limitation.  Like the Americans with Disabilities Act, the bill calls for an interactive process between employers and pregnant workers to develop proper reasonable accommodations. The bill’s report states that such accommodations could possibly include, for example, providing seating, water, closer parking, properly sized uniforms and safety apparel, light duty, and extra break time to use the bathroom, eat and rest.

The bill comes as the number of pregnancy discrimination complaints has dramatically increased over the last two decades and many employers have faced confusion and uncertainty due to recent court rulings and inconsistent state and local laws. Most notably, in 2015, the U.S. Supreme Court held in Young v. UPS that plaintiffs who bring claims under the federal Pregnancy Discrimination Act can claim damages if they were denied accommodations that their employer granted to other workers. Since then, several major companies, including Walmart, Amazon, and Google among them, have contended with expensive pregnancy discrimination lawsuits from their employees and the negative press that comes with it. At the same time, workers’ rights groups have never been fully comfortable with the outcome of the Young decision as many argue that it imposes an unduly high burden upon an employee to prove her case.  

The Pregnant Workers Fairness Act is now being touted as a significant compromise between businesses and their workers. According to the U.S. Chamber of Commerce, who has voiced its support, the “bill would provide pregnant employees with important workplace protections while also making sure employers have clear and flexible options to ensure pregnant employees can remain at work for as long as they wish to do so.” 

The U.S. Senate will probably wait until after the election to take up the bill.

COVID-19 Webinar Series: The Latest Local, State and Federal Mandates Impacting the Workplace

Families First Coronavirus Response Act: What It Means For Employers

Contributed by SmithAmundsen’s COVID-19 Task Force (Kelly Haab-Tallitsch, Rebecca Dobbs Bush, Suzannah Overholt, and Jeff Risch), March 15, 2020

On March 14, 2020, the U.S. House of Representatives passed House Bill 6201 (HR6201). The legislation seeks to protect private sector workers and government employees during the COVID-19 pandemic. However, the legislation does not apply to any private sector employer with 500 or more employees. To be clear, the current legislation will regulate only those private sector employers who employ less than 500 employees. The Senate is expected to take up the bill early this week. The legislation would take effect within 15 days of enactment and expire on December 31, 2020.

HR6201 contains major changes to the FMLA as it seeks to provide job protected paid leave to any employee who has been on the job for at least 30 days – for up to 12 weeks – related to the COVID-19 pandemic. The legislation also mandates up to 80-hours of paid sick leave for reasons related to COVID-19. It also provides $1 billion in additional funding to the Unemployment Insurance (UI) System and encourages states to relax UI eligibility requirements. Tax credits are provided to employers to help offset the financial cost of the paid leave.

Highlights of the legislation include:

PAID TIME OFF:

Emergency Paid Sick Leave – up to 80-hours for ALL employees working for a private employer with less than 500 employees or any public sector employer

HR6201 requires employers with fewer than 500 employees and all government employers to provide all employees up to 80-hours of paid sick leave, paid at the employee’s regular rate of pay in order to:

  1. self-quarantine if diagnosed with COVID-19;
  2. seek a diagnosis or care for symptoms of COVID-19; or
  3. comply with an order or recommendation by a public health official or health care provider to self-isolate due to exposure to or symptoms of COVID-19.

Additionally, this paid sick leave entitlement must also be available – at two-thirds the employee’s regular rate of pay – for employees to care for a family member for such purposes or to care for a child (under 18 years of age) whose school has closed or paid child care provider is unavailable due to the coronavirus.

Full-time employees are entitled to 2 weeks (80 hours) of paid leave and part-time employees are entitled to the average number of hours that they work in a typical two-week period. Paid sick leave under HR6201 must be provided in addition to any paid time off provided under an employer’s existing policies and employers may not require employees exhaust existing accrued paid time off prior to using emergency paid sick leave. The bill ensures employees who work under a multiemployer collective agreement are also provided such benefits that meet the requirements of the Act.

EXPANDED COVERAGE FOR FMLA:

Paid Family and Medical Leave — up to 12 weeks for employees employed for 30 or more days by a private employer with less than 500 employees or any public sector employer

Employees of employers with fewer than 500 employees or government employers, who have been on the job for at least 30 calendar days, have the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act to be used for any of the following reasons:

  • To comply with a requirement or recommendation by a public health official or health care provider that the presence of the employee in the workplace would jeopardize the health of others due to the employee’s exposure to or symptoms of coronavirus;
  • To care for a family member who is adhering to a requirement or recommendation by a public health official or health care provider to quarantine due to exposure to or symptoms of coronavirus; and
  • To care for a child (under 18 years of age) of an employee if the child’s school or place of care has been closed, or the child-care provider is unavailable, due to coronavirus

The first 2-weeks of time off for the above reasons are unpaid under the FMLA, but the Emergency Paid Sick Leave Law requires that an employee is paid during that time period, as described above.  After the first 2-weeks of leave under the FMLA, employees will be entitled to receive a benefit from their employers that will be no less than two-thirds (2/3rd) of the employee’s usual pay. The bill ensures employees who work under a multiemployer collective agreement and whose employers pay into a multiemployer plan are provided with leave.

Certain small employers can be exempt from this expanded FMLA coverage if they meet a “viability” exception.  While we can assume the general intent behind the exception, the precise mechanism and process for such an exception is subject to US DOL regulation yet to be published.

The Act also clarifies that individuals that are subject to a multiemployer collectively bargained agreement and whose employers pay into a multiemployer plan must be provided with leave and benefits on par with the benefits provided under the Act.

PAYROLL CREDIT FOR PAID LEAVE

HR6201 provides a refundable tax credit applied to the employer portion of the Social Security payroll tax equal to 100 percent of paid sick leave and family leave wages paid by an employer for each calendar quarter, subject to the following caps: Sick leave wages paid with respect to employees who must self-quarantine, obtain a diagnosis or care for symptoms, or comply with a self-isolation recommendation or order from a public health official or health care provider are capped at $511 per day for purposes of the payroll tax credit; Sick leave wages paid to employees caring for a family member or for a child whose school or place of care has been closed, are capped at $200 per day; and  Family leave wages under the expanded FMLA taken into account for each employee are capped at $200 per day and $10,000 for all calendar quarters.

If the credit exceeds the employer’s total Social Security payroll tax liability for any calendar quarter, the excess credit is refundable to the employer. Employers may elect to not have the credit apply. A similar refundable tax credit is available for self-employed individuals.

SmithAmundsen’s Labor & Employment COVID-19 Task Force is continuing to monitor all local, state and federal orders and legislative initiatives in these unprecedented times. Be assured that we will continue to provide updates where and when warranted. We will also be providing ongoing webinars on the subject to try and help employers operate as effectively and safely as possible. With that in mind, please do not hesitate to contact your SA relationship attorney in the days and weeks ahead for direct guidance. We are here 24/7.

Register Today! Reasonable Accommodations: Employer Obligations under the ADA and Beyond — Complimentary Webinar

Join Suzanne Newcomb at noon ET on June 19 for an in-depth look at workplace accommodations, specifically legal obligations, best practices, and emerging trends.

Workplace accommodations take many forms. Most often, accommodations are thought of as modifications which allow individuals with disabilities to perform essential functions of positions for which they are otherwise qualified.

While certainly the most common, workplace accommodations are not limited to an employer’s obligations under the ADA. Accommodations can also allow employees to practice their religious beliefs, allow pregnant employees to continue working until they give birth, allow new mothers to return to work and breastfeed their newborns, and assist transgender employees to navigate workplace obstacles.

During this webinar attendees will learn:

  1. How to determine whether an individual is entitled to ADA protection
  2. How to distinguish between “reasonable” accommodations and those that impose “undue hardship”
  3. How to properly document the ADA-mandated “interactive process”

Zap! It’s the Devil – No Really: Accommodating Religious Beliefs

Contributed by Beverly Alfon, June 21, 2017

Imagine that in order to increase time and attendance record accuracy and efficiency, you have invested in a new biometric time clock system. This makes good business sense and overall, it is a straightforward issue…until HR tells you that an employee has refused to use the time clock for religious reasons.

34405947 - man reading the definition of faith

Man reading the definition of faith on a computer screen

In U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc., (4th Cir. June 12, 2017), a coal mine worker who was a practicing evangelical Christian, refused to use a hand scanner time clock because he believed that it would “mark” him with the sign of the Antichrist. The employee offered to verbally report his time in or out, or to use a conventional punch clock. The employer responded with a letter from the scanner manufacturer indicating that because the Bible only refers to the “Mark of the Beast” as associated only with the right hand or forehead, use of the left hand in the scanner should not be of concern. The employer told the employee to use his left hand for the scanner. In response, the employee resigned and filed an Equal Opportunity Employment Commission (EEOC) charge.

Notably, the employer was already accommodating two other employees who had hand injuries.  They were allowed to enter their employee identification numbers into a keypad – instead of using the scanner. The EEOC brought an enforcement action against the coal mine for failure to accommodate the employee’s religious beliefs in violation of Title VII and construction discharge.  At trial, the EEOC and employee won. The award was $150,000 in damages, plus $436,860 in front pay, back pay and lost benefits. The coal mine appealed the decision.

The coal mine argued that there was no conflict between the employee’s religious beliefs and the requirement that he use the hand scanner system, especially in light of the employee’s admission that even his pastor did not believe that use of the hand scanner would produce a physical mark.    However, the appellate court found it significant that the employee clearly laid out his religious objection to using the system overall and there was no dispute that his beliefs were sincere. The court reasoned that it is not the employer’s place to “question the correctness or even the plausibility of [the plaintiff’s] religious understandings,” and affirmed the lower court verdict and findings.

Bottom line:  This case serves as a reminder that an employer cannot escape the requirement to accommodate simply because it thinks that an employee’s religious belief is nonsensical or mistaken. If there is enough evidence to show that the employee sincerely holds a religious belief that contradicts job requirements, an employer should consider an accommodation.

Properly Accommodating Pregnant Employees in Hazardous Workplaces

Contributed by Steven Jados, March 2, 2017

The settlement of a recent pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) against RTG Furniture Corp., provides a valuable reminder to employers that even well-intentioned limitations placed on pregnant employees are likely to violate Title VII and, where applicable, state laws that prohibit pregnancy discrimination.

pregnant-employeeAccording to the EEOC’s allegations in the lawsuit, within days of being hired, a new employee informed RTG that she was pregnant, but that she had no work restrictions and could perform all aspects of the job. The job required the employee to use certain chemicals to repair furniture. The same day the employee disclosed her pregnancy, RTG management allegedly met with her and confirmed that she was pregnant. During that same meeting, a manager allegedly showed the employee the can of a chemical used in the workplace, and discussed the warning written on the can, which essentially stated that the contents could pose a danger to pregnant women and their unborn children. At the conclusion of that discussion, RTG allegedly terminated the new employee.

Now, it is important to remember that allegations in an EEOC lawsuit are, of course, not necessarily true—and the fact that the case settled, likewise, does not mean the EEOC’s allegations are the truth. Nevertheless, this case provides the useful instruction that employers generally cannot terminate pregnant employees or refuse to hire pregnant applicants, even if the job involves exposure to hazards that are particularly dangerous with respect to pregnancy.

This case also provides the opportunity to discuss the proper approach for employers concerned about exposing pregnant employees to potentially hazardous workplace conditions. Step one, of course, is: don’t terminate employees just because they are pregnant. Instead, employers concerned about exposing pregnant employees to harmful workplace conditions should have policies in place—in employee handbooks, for example—that inform employees, upon hire or even earlier, of the potential risks of the job. And if those risks are greater for pregnant employees, the policies should make clear that pregnant employees should feel free to request accommodations or otherwise bring any questions or concerns to human resources or other appropriate members of management.  Additionally, when an employee informs the company that she is pregnant, the company should take that opportunity to reiterate, in writing, the particular risks of the work environment, and remind the employee of her right to request a pregnancy-related accommodation.

If a pregnant employee wishes to continue doing her job, despite knowing and assuming whatever risks there may be, employers generally do not have the right to take any action that would adversely affect the employee’s job. Moreover, it is especially important for employers to recognize that in addition to federal law protections, there may also be state and local laws that provide additional protections or accommodation requirements for pregnant employees and applicants.

Bearing all of that in mind, employers concerned about exposing pregnant employees to workplace hazards or their obligations to accommodate a pregnant employee should consult with experienced labor and employment counsel to evaluate the hazards in the workplace, and ensure that all policies and notices to pregnant employees are drafted appropriately, and communicated properly.