Category Archives: employee accommodations

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.