Connecticut Employment Law Blog

Insight on Labor & Employment Developments for Connecticut Businesses

EEOC Releases Guidance on Employer-Provided Leave Under ADA

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations

nurseSo, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”

As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act. 

And that is the crux of the issue for employers.

Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility.  It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.

The EEOC’s guidance tries to explain this flexibility in various ways.  Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.

The guidance is broken down into six key areas.

1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.

2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally.  The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee.  This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.

4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.  Thus, policies with hard caps may violate the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment).  In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work.  A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example.  Again, the notion of a “reasonable accommodation” and flexibility controls.

6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more.  For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances.  A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”.  But overall, employers will need to examine such requests on a case-by-case basis.

Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.”  I respectfully disagree with Jon.  The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts.  Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.

For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?

That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.

But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”

And with the EEOC’s guidance, that end point remains as muddy as ever.

Legislative Update: New Non-Compete Restrictions for Physicians

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Wage & Hour

doctorContinuing my review of new employment-related bills is a measure that limits the use of non-compete agreements for doctors.

Anyone who tracks bills knows that the name on the bill sometimes doesn’t match the content. Senate Bill 351 entitled “AN ACT CONCERNING MATTERS AFFECTING PHYSICIANS AND HOSPITALS” is a good case in point.

Seems innocuous enough, right? But through various amendments and compromises, it actually contains specifics on what can or cannot be in a non-compete agreement for physicians.  (For limits in other professions, see prior posts here and here.)

In general, the bill sets up a one year and 15 mile limit for physician non-compete agreements for any agreement after July 1, 2016.

The bill does not specify what is to happen to existing agreements that may have broader restrictions; will courts find that they violate the new ‘public policy’ of Connecticut, as the attorneys at the Working Together blog suggest? That remains to be seen.

For employers that have yet to draw up agreements, arguably there is a 60-day window to do so but given that this may now become law, it might be too little too late.  (I have not heard whether the governor intends to veto this measure.)

For existing agreements, it appears that the review will attempt to mirror common law with three standards (note that the term “covenant not to compete” is actually defined as being applicable only to physicians).  These standards are:

A covenant not to compete is valid and enforceable only if it is: (A) Necessary to protect a legitimate business interest; (B) reasonably limited in time, geographic scope and practice restrictions as necessary to protect such business interest; and (C) otherwise consistent with the law and public policy.

The bill goes on to state that:

A covenant not to compete that is entered into, amended, extended or renewed on or after July 1, 2016, shall not: (A) Restrict the physician’s competitive activities (i) for a period of more than one year, and (ii) in a geographic region of more than fifteen miles from the primary site where such physician practices;

Simple enough, right? Well, not exactly, the agreement also shall not:

(B) be enforceable against a physician if

(i) such employment contract or agreement was not made in anticipation of, or as part of, a partnership or ownership agreement and such contract or agreement expires and is not renewed, unless, prior to such expiration, the employer makes a bona fide offer to renew the contract on the same or similar terms and conditions, or

(ii) the employment or contractual relationship is terminated by the employer, unless such employment or contractual relationship is terminated for cause.

That’s a lot of “ands” and “unlesses” if you’re keeping track at home.  But one thing I’m sure of is that a “for cause” termination allows for more flexibility.

But what is “for cause”? Can it be defined by the employer? Or is the legislature using another definition of “cause”? That, unfortunately, is a question for another day.

For now, physician groups, hospitals and other health care providers need to track signing of the measure and, if signed, review all existing agreements and form agreements for compliance with this new potential law.  The one-year/15 mile restriction should become the norm.

And if you have a strong opinion against this measure, now would be a good time to lobby the governor to veto it.

 

Legislative Update: CTFMLA Expands to Cover Military Qualifying Exigencies

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour
Air Force Memorial in Arlington, VA

Air Force Memorial in Arlington, VA

UPDATED

Continuing to recap various employment law bills out of the Connecticut General Assembly, the legislature passed a measure Wednesday night that brings Connecticut’s FMLA law more in line with the federal counterpart.

The federal FMLA was amended back in 2008 (prior post on the subject here) to provide coverage for any “qualifying exigency” arising out of the fact that the spouse, son or daughter, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces.  Regulations were put in place as well.

The new Connecticut rule — which will go into effect immediately upon the Governor’s signature — covers that same type of qualifying exigency. Indeed, it defines such an exigency by reference to the U.S. Department of Labor’s regulations on that very subject.

What this means is that employees in Connecticut will now have 16 weeks over a 24 month period for such a leave.  You can review Senate Bill 262 here.

The new rule, however, is not a mirror image of the federal counterpart but brings its nearly up to date with it. And as readers will recall, there is a 26 week period for caregiver leave also in place in Connecticut as a result of P.A. 09-70 back in 2009.

Ultimately, employers in Connecticut will have to update their FMLA policies and procedures to account for this leave, if you haven’t been allowing military leaves under CTFMLA.

And while it’s obviously important to support the military and those that serve — the confusing and overlapping laws on the subject don’t make it easy for employers who want to do right by their employees.

Legislative Update: Bi-weekly Payroll Periods (Without CTDOL Approval) are Here!

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour

GA2It’s been a long-time coming but the General Assembly finally approved of a measure that would allow employers to pay employees on a bi-weekly basis without receiving prior CTDOL approval.

The provision, part of a set of “technical” revisions to various Department of Labor matters, is long overdue.

Several employers had moved to a bi-weekly payroll scheme without realizing that they needed approval from the CTDOL beforehand.  That approval won’t be required anymore (assuming this bill is approved by the governor).

I’ve previously discussed the requirement so now employers who have been wary about seeking such approval, can just move ahead on their own.

Senate Bill 220 also makes lots of technical changes to the unemployment compensation scheme and even to drug testing (getting rid of the suggesting that the DOL develop some regulations in this area).  These probably won’t be of interest to most employers, but it’s worth a look through the bill summary to see if something else touches on your industry.

The measure will become effective when the Governor signs the overall bill.  (Other provisions in the bill go into effect October 1, 2016.)

Legislative Update: Modified “Ban the Box” Bill Approved in Connecticut

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour

rockRemember “Ban the Box” and the fair chance employment bill from earlier in the session?

Well, it passed last night. Sort of.

An amendment to the original bill essentially wiped the prior version clean.  Thus, whatever you think you knew about the measure you can put that aside.

What passed last night (House Bill 5237) was a very watered-down version of the measure.   It moves on the Governor’s office for signature and will become effective January 1, 2017.

The key provision is as follows:

No employer shall inquire about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application, unless (1) the employer is required to do so by an applicable state or federal law, or (2) a security or fidelity bond or an equivalent bond is required for the position for which the prospective employee is seeking employment.

Any violation of this rule is subject to a complaint filed with the Labor Commissioner, but not a lawsuit.

I don’t expect that this will be the end of the issue however. The measure also creates a “fair chance employment task force to study issues” related to employment for individuals with a criminal history.

For now, employers need only amend their employment application to remove the box that asks about “prior arrests, criminal charges, or convictions.”  But nothing prevents a followup form from being requested or prevents these issues from being discussed in the job interview itself.

As the CBIA noted, the revised version that passed is a “wise reworking” that also affirms that businesses may run background checks on candidates if state or federal law prohibits people with criminal backgrounds being hired for a job.

Employers ought to review their existing applications and update them to comply with this new state law by January 1, 2017 (assuming the Governor’s signature, as noted.)

Legislative Update: Payroll Cards Finally Approved in Connecticut

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour

generalassemblyPayroll cards are finally here.

The General Assembly finished their regular session last night with several employment law bills getting passed, including some that have been kicking around for years.

One of them is Senate Bill 211, which authorizes employers to use payroll cards — instead of checks or direct deposit — to pay their employees.

But there are a number of conditions that must be met before this happens and there are a number of restrictions as well.  The bill will become effective October 1, 2016 — assuming the governor signs the measure, which is expected.

The Office of Legislative Research has done a thorough recap, which I’ll liberally borrow from here.

In order to use the card, an employee must “voluntarily and expressly authorize, in writing or electronically, that he or she wishes to be paid with a card without any intimidation, coercion, or fear of discharge or reprisal from the employer. No employer can require payment through a card as a condition of employment or for receiving any benefits or other type of remuneration.”

In addition, as noted by the OLR report:

  1. employers must give employees the option to be paid by check or through direct deposit,
  2. the card must be associated with an ATM network that ensures the availability of a substantial number of in-network ATMs in the state,
  3. employees must be able to make at least three free withdrawals per pay period, and
  4. none of the employer’s costs for using payroll cards can be passed on to employees.

Under the bill, a “payroll card” is a stored value card (similar to a bank account debit card) or other device, but not a gift certificate, that allows an employee to access wages from a payroll card account. The employee can choose to redeem it at multiple unaffiliated merchants or service providers, bank branches, or ATMs. A “payroll card account” is a bank or credit union account (1) established through an employer to transfer an employee’s wages, salary, or other compensation (pay); (2) accessed through a payroll card; and (3) subject to federal consumer protection regulations on electronic fund transfers.

Another big change, according to the OLR report: The bill also allows employers, regardless of how they pay their employees, to provide them with an electronic record of their hours worked, gross earnings, deductions, and net earnings (i.e., pay stub). To do so, the (1) employee must explicitly consent; (2) employer must provide a way for the employee to access and print the record securely, privately, and conveniently; and (3) employer must incorporate reasonable safeguards to protect the confidentiality of the employee’s personal information.

Lastly, current law allows employers to pay employees through direct deposit only on an employee’s written request. The bill allows an employee’s request for direct deposit to also be an electronic request.

An amendment, which also passed, (1) changes the timeframe in which an employer must switch an employee from a payroll card to direct deposit or check; (2) specifies that the limit on fees or interest charged for the first two declined transactions each month applies to calendar months; and (3) requires the cards to be associated with ATM networks that ensure, rather than assure, the availability of in-network ATMs in the state.

Overall, this is a big boost for both employers and employees.  The CBIA had supported the measure and it had received “cautious” support from the AFL-CIO as well.

Legislative Update: Employee Training Required for Hotels, Inns on Human Trafficking

Posted in Highlight, Human Resources (HR) Compliance, Legislative Developments, Manager & HR Pro’s Resource Center, Wage & Hour

cgaOver the next week or so, I’ll be providing updates on various bills to pass (or fail) at the state general assembly.  They’re coming in fast and furious so patience is the order of the day.

But as we review various bills, there are employment-related aspects in places that you might not think. The first of these is in a human trafficking bill (House Bill 5621).  After passage in the House last month, this bill passed the state Senate last night. It now moves to the Governor’s office for his signature.

Section 5 of the bill sets forth new requirements for hotel (and similar lodging) operators to train and educate their employees.

Specifically, it requires that the employees receive training at the time of hire on the “(1) recognition of potential victims of human trafficking, and (2) activities commonly associated with human trafficking.”

But in addition to training, the hotel operator shall also conduct “ongoing awareness campaigns” for employees on the “activities commonly associated with human trafficking.”

Of course, the legislation is silent as to what exactly are the “activities commonly associated with human trafficking”, though prostitution is obviously mentioned in one aspect of the legislation.  It is unclear how detailed this training and the awareness campaign must be.

Beyond that, on or before October 1, 2017, and annually thereafter, hotel operators must “certify that each employee of any such establishment has received the training prescribed by this section in each employee’s personnel file.”

But again, it does not appear that this training needs to occur yearly — only at the time of hire — and only that the hotel operator certify that the training happened at the time of hire.  So the bill has a gap; current employees do not appear to need to be trained in this. And the employer must only conduct “awareness campaigns” which perhaps can be as simple as an email reminder or inclusion in employee handbooks.

In any event, hotel operators should consider updating their hiring packages to include this aspect and should update their employee handbooks to have a provision in there.

Upon signature from the Governor (which is expected), this provision becomes effective October 1, 2016.

Lastly, I would be remiss if I did not mention the efforts of both the Connecticut Bar and the American Bar Associations on raising awareness and seeking legislation on this important issue.   Members of the CBA testified at the legislature on this bill and its passage last night was an end product of their efforts.

EEOC: Bathroom Access Rights Guaranteed By Title VII

Posted in CHRO & EEOC, Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Laws and Regulations

restrm1Last fall, I raised the issue of bathroom access for employees that corresponds with their gender identity.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

What’s happened since then? Well, we’ve seen it become a topic on the presidential campaign trail and in North Carolina.

But we’ve also seen the EEOC say: Wait a minute. Federal law has something to say on this too.

Yesterday, the EEOC went a step further and issued a new fact sheet reminding employers that even a contrary state law isn’t a defense.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.  In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Connecticut is one of the few states that already prohibits discrimination on the basis of gender identity. Thus, the EEOC’s statement should be seen as one in support of the interpretation in Connecticut.

For employers, keep it simple: Let employees use the bathroom that corresponds to the employee’s gender identity.  But it can also mean turning single-occupant bathrooms into gender-neutral ones too.  You can look at the OSHA guidance on this issue for more best practice tips.  If any employee complains, well, that’s not enough of a reason to deny access.

Connecticut Businesses Should Exercise Caution on DOL’s New FMLA Guide for Employers

Posted in Highlight, Human Resources (HR) Compliance, Laws and Regulations, Manager & HR Pro’s Resource Center
USDOL Headquarters in DC

USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

Thoughts on Connecticut’s Congressional Delegation, Despite Inaction by Congress

Posted in Highlight, Legislative Developments

dcvisitLast week, as part of my work with the American Bar Association, I had the opportunity to meet with all of Connecticut’s Representatives and Senators in Washington, D.C.  Most were available in person, while I met with senior staff in a few offices.

It was a truly rewarding experience. We talked about helping to ensure that legal services funding for the poor remains available and some other items that the ABA has been pushing on a national level both for lawyers and the general public.  You can learn more about #ABADay here.

Perhaps this sounds a bit corny, but I was struck by how earnest everyone was.  In the private meetings, each indicated a strong desire to get things accomplished and asked for help in doing so.  We talked about ways that bar leaders can work with their offices to push bi-partisan legal issues.

Those visits stand in stark contrast to the prevailing wisdom that nothing is happening in Washington or that the legislators are merely interested in their next term in office.  In talking with my ABA colleagues who made similar visits to other Congressional offices, most (but unfortunately not all) felt the same way.

congressOf course, all those positive feelings can’t overcome a simple fact: Congress is getting nothing done when it comes to employment laws.  Just think about how Congress and President Bush were able to come to terms on amendments to the Americans with Disabilities Act and you realize how paralyzed things have become.

Now, members of Congress hold hearings on things like the one today the changes to DOL’s proposed Persuader Rule, rather than working to pass a bill that might address some of those issues.

The Connecticut delegation isn’t immune to this either. Indeed, some of their proposals stand no likelihood of passage right now as well. Rep. Delauro has proposed the Paycheck Fairness Act which has 193 co-sponsors, but no real support among the Republican leadership.  She has also proposed the Healthy Families Act as well, though that bill has 140 co-sponsors.  Joe Courtney has sponsored a bill that would amend OSHA by expanding the law’s coverage.

But after my visit to D.C., I left knowing that there are still many people in D.C. who work on bills that receive no publicity but that can have an impact on Americans every day.

If you have the opportunity, I highly recommend visiting your representative or senator in D.C.  The offices are very accessible to the public and I have no doubt that they do listen to constituents who visit the offices personally.

My thanks to their offices for listening.