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Archive for the ‘Employment Law Blog (US)’ Category

Handling Telework Requests in a Post-COVID Environment

Posted on: April 13th, 2021

By: David Chang

As COVID-19 numbers retreat and vaccine distributions increase, many businesses that shifted to a Working From Home (“WFH”) environment are preparing to transition back to the office.  This will likely bring increased requests for “reasonable accommodations” under the Americans with Disabilities Act (“ADA”), particularly for permission to continue working remotely.

While every case is fact-specific, the EEOC has issued broad guidelines to help employers and employees determine when continued WFH could be appropriate. Two prominent issues are:

  1. Employees without a disability asking for an accommodation to protect a family member with a disability from COVID-19 exposure.
  2. Employees asking for teleworking as their reasonable accommodation because of an employer’s 2020 and 2021 WFH policy. (The employer can opt for alternative reasonable accommodation options that eschew WFH.)

With respect to the first issue, the employee here is not entitled to accommodation under the ADA, as protections based on association with an individual with a disability are currently limited to disparate treatment or harassment.

In regards to that second issue, the EEOC guidelines specifically provide,

“The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

The Commission does note, however, that teleworking does require a closer look as a reasonable accommodation if an employee was able to satisfactorily perform all essential functions while working remotely.

As these issues are typically fact-specific, employers must be sure to promptly and properly address accommodation requests with flexibility and cooperation. To strike such a balance, obtaining the review of counsel is always recommended in an environment that continues to grow more virtual than ever.

For more information, please contact David Chang at [email protected].

Websites Not Considered Places of Public Accommodation under the ADA

Posted on: April 9th, 2021

By: Joyce Mocek

The Eleventh Circuit recently held that websites of businesses open to the public are not necessarily considered places of public accommodation under Title III of the Americans With Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in places of public accommodations, such as hotels, grocery stores, and restaurants. However, the ADA as drafted does not specifically include websites of such places of public accommodations. As a result, there has been uncertainty as to how, when and if the ADA applies to websites of businesses that are generally open to the public.    

The Eleventh Circuit decision vacates a 2017 Florida court decision that held that Winn-Dixie’s website violated the ADA because it was “heavily integrated with” and served as a “gateway” to the grocery store’s physical locations. Winn Dixie did not actually sell its products on its website, although it had a few services its customers could use through its website such as filling prescriptions. The underlying Florida court had ruled the website did not offer a visually impaired customer “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations,” and as a result it violated the ADA. In its decision, the Eleventh Circuit found that the absence of “auxiliary aids” on the Winn Dixie website did not act as “intangible barriers” to the customers, and “absent congressional action that broadens the definition of ‘places of public accommodation’ to include websites” ADA liability should not be extended. This ruling helps to clarify the applicability of Title III of the ADA to the websites of businesses that are generally open to the public.  

For more information about this topic, please contact Joyce Mocek at [email protected].

EEOC 2020 Data Shows Increased Cost of Resolving Workplace Claims

Posted on: March 30th, 2021

By: Brenton S. Bean

The Equal Opportunity Employment Commission has released its 2020 enforcement statistics.  These statistics are important because they show trends in the types of claims being brought by employees, as well as those which the EEOC chooses for enforcement action.  In summary, the statistics indicate that while claims are down, the amount spent by employers to resolve these claims is up considerably.

The data shows the number of charges declined in 2020 to 67,448 charges, down from 72,675 in 2019.   However, the amount of the average recovery to resolve each charge rose 11.4%.  Additionally, the amount of recovery in merit lawsuits brought by the EEOC rose considerably from $39.1 M to 106.1 M.    

As in 2019, claims of retaliation remain the most frequently asserted, accounting for nearly 56% of all charges submitted.  Second among the types of charges submitted were claims of disability discrimination at 36.1 %. 

Knowing that retaliation claims are the most frequently filed charge is important for employers in not only fashioning their workplace policies and procedures, but also in implementing training to avoid such claims.  Retaliation occurs, generally speaking, when the employee engages in some type of protected activity, after which the employer takes adverse employment action against the employee.  The employee has to show the adverse action would not have occurred but for the protected activity.  Employers’ procedures for investigating workplace claims of discrimination or harassment, along with their policies for documenting not only those investigations but also employee discipline, are keys to defending and defeating retaliation claims. 

If you have any questions about workplace training, handbooks and developing compliant policies and procedures, please contact Brent Bean at [email protected].

The Third Round Of COVID-19 Relief And How It Could Impact Employers

Posted on: March 19th, 2021

By: Bill Catto and Brittany Kurtz

While most Americans are checking their bank accounts for a stimulus check, employers should be aware of the extensions and expansions of the latest COVID-19 legislation allowing for additional tax credits for voluntarily providing COVID-19 paid sick and family leave.

On March 11, 2021, the President signed the American Rescue Plan Act into law and with it extended potential tax credit for employers. The 2021 Consolidated Appropriations Act (CAA) gave employers the option to decide whether their company would provide paid leave, which was originally mandated under the Families First Coronavirus Response Act (FFCRA) and expired December 31, 2020.  The American Rescue Plan Act extends CAA’s voluntary decision allowing employers to offer paid leave and receive tax credits for employees leave between March 31, 2021 and September 30, 2021. In addition to providing paid sick and family leave related to COVID-19 symptoms, the American Rescue Plan Act expands qualifying reasons for leave, including receiving immunization related to COVID-19 and recovering from any injury, disability, illness or condition related to receiving that vaccination. The latest law also allows tax credit for paid leave when an employee is seeking or awaiting the result of a diagnostic test or medical diagnosis for COVID-19 or if their employer has requested such a test or diagnosis.

In addition to the expansion for potential voluntary tax credits to the employer, the American Rescue Plan Act includes non-discrimination language and disqualification for receiving the credits should an employer discriminate and withhold paid leave to its employees based upon compensation level, full-time employee status or employees on the basis of tenure with the company. Employers must uniformly provide paid sick and family leave related to COVID-19 symptoms, testing and immunization to all employees to be eligible for the associated tax credits. The Act calls for an all or nothing approach as it relates to the paid leave and receipt of tax credits.

Another potential tax credit for employers includes voluntarily providing an additional ten (10) days of FFCRA paid sick leave beginning April 1, 2021. While employers are not required to provide the additional ten (10) days, they would be eligible for additional credits by doing so.

The American Rescue Plan Act provides voluntary tax credits for employers. However, they should remain on alert for new legislation focused on mandating additional protections for employees related to COVID-19 as referenced during the campaign of the current Administration.

For more information, please contact Bill Catto at [email protected].

Update to Massachusetts Paid Family and Medical Leave

Posted on: March 2nd, 2021

By: Janet Barringer and Lori Eller

The Massachusetts Department of Family and Medical Leave (“the Department”) has continued to update its guidance and resources on the Massachusetts Paid Family and Medical Leave Law (“PFML”), which went into effect at the beginning of 2021. It is important for employers to stay updated on this guidance and their requirements under the PFML.

As of January 1, 2021, most of the paid family and medical leave benefits are now available to Massachusetts workers. These paid benefits include:

  • Up to 20 weeks of paid medical leave to manage an employee’s own serious health condition;
  • Up to 12 weeks of paid family leave to bond with a child newly born, adopted, or placed in foster care, or to manage family affairs while a family member is on active duty overseas or has been notified of an impending call to active duty in the Armed Forces; and
  • Up to 26 weeks of paid family leave to care for a family member who is a covered Service Member with a serious health condition.

The remainder of paid family leave benefits, such as up to 12 weeks of paid leave benefits to care for a family member with a serious health condition, will become available on July 1 of this year. These benefits apply to employers of all sizes and can run concurrently with FMLA leave. The benefits are capped at 26 weeks total of leave in a single benefit year for covered individuals. More detail about the specific provisions of the PFML law can be found in our previous blog about the topic.

As a result of the PFML’s implementation, the Department has continually issued new guidance for employers and for workers. The Department has stated that PFML benefits run concurrently with any employer-provided PTO, sick time, or vacation time. Thus, if an employee uses a sick day for a situation where the reason for the sick day also qualifies for PFML benefits, that sick day will reduce the total PFML days available to that employee. Further, if an employee on leave receives short-term disability benefits or paid parental leave provided by an employer plan, and such plan states it runs concurrently with the PFML, then the worker can obtain both PFML benefits and also a “top off” amount from the employer. This total amount of the maximum PFML benefit per week, plus the employer’s “top off” amount, cannot exceed the employee’s average weekly salary. The Department additionally issued guidance on intermittent leave and reduced leave schedule. This includes setting minimum leave time increments, and a default if the employer sets no minimum.

Finally, employers are eligible for reimbursement for payments made to workers if they provide short term disability benefits or a paid family/medical leave program and participate in the PFML, and if the benefits are equal to or greater than what the employee would receive under the PFML. However, payments to workers for PTO, sick time, or vacation time that was either earned/accrued or under a private plan are not eligible for this reimbursement.

The Department has also updated the Mass.gov website with many helpful resources to employees and employers. These available resources include:

  • Guidance for employers on how to comply with the PFML law
  • A calculator to estimate the required contributions an employer will need to send to the DFML on behalf of their employees
  • A new workplace poster that must be displayed in the workplace
  • A fact sheet including frequently asked questions
  • Instructions on how to create an employer account to review PFML applications
  • Instructions on how employees can apply for PFML, and
  • The portal to apply for PFML.

The PFML also provides a useful option for employers to require an employee to provide a fitness-for-duty certification from a health care provider before they return from medical leave. This certificate is similar to that under the federal FMLA but, if desired by the employer, can be further tailored to address the employee’s specific job functions. An employer can require that this certificate specifically certify that the employee can now perform the listed essential functions of their job, so long as a list of those functions is provided to the employee within ten days of the employer’s notice of the Department’s approval of the employee’s medical leave. If that list of job functions is timely provided to the employee, the employee will not be entitled to reinstatement, nor to an extension of benefits, after the leave period without supplying this certification to the employer. This new tool is outlined in Section 2.11 of the PFML law.

Employers can determine whether the above certification is something it wants to implement into their leave and benefits processes. It is important for employers to review and integrate these new materials into their handbooks and policies, and to make employees aware of the PFML by posting the new mandatory poster in the workplace. Employers should also create an account with the Department to review and manage PFML applications for their organization’s staff.

If you have any questions about the Massachusetts Paid Family and Medical Leave Law, feel free to contact Janet Barringer at [email protected] or Lori Eller at [email protected].