Ms. Lora Wagner -- see below
Ms. Lora Wagner — see below

So, in yesterday’s post, I alerted you to a portion of the state’s pregnancy discrimination law that you may not have been aware of, namely Conn. Gen. Stat. Sec. 46a-60(a)(7)(E).  If you haven’t read it yet, I’d suggest you do so for background for today’s post.

But after yesterday’s post, you may be wondering, is this a theoretical issue? In other words, have their been any lawsuits that employers should perk up their ears to?

As it turns out, yes.

One such case (Fenn Mfg. v. CHRO) began in 1983, when an pregnant employee complained to the CHRO that her employer, Fenn Manufacturing, had violated her rights under Section 46a-60(a)(7)(E) by refusing to permit her to work outside her normal work area whenever a co-worker at a nearby work station spray painted aircraft housings with an aerosolized paint primer containing aromatic hydrocarbons. Claiming that she had suffered ill effects when the primer was first used in her area, and that her doctor had later instructed her to avoid all exposure to aerosols and hydrocarbons during pregnancy, the pregnant employee insisted that she had come “reasonably[to] believe[ ] that continued employment in [her current]position m[ight] cause injury to [herself] or [her] fetus.‘

On that basis she contended that upon informing Fenn in writing of her belief and of the basis therefor, she became entitled under Section 46a-60(a)(7)(E) to have Fenn ‘make areasonable effort to transfer [her] to any suitable temporary position which may [then have] be [en] available‘ for her.

Claiming that at least one such ‘suitable temporary position‘was indeed ‘available‘ for her — that being a modified version of her existing position in which, during the first part of her pregnancy, Fenn had admittedly allowed her to work outside her normal work area during spray painting — the employee argued that Fenn had violated Section 46a-60(a)(7)(E) by refusing to allow her to work in that or some other suitable temporary position until the birth of her baby. As a result of Fenn’s refusal to make this accommodation, she argued, it should be required to compensate her for the wages she lost and the emotional distress she suffered when, as a result of that refusal, she was forced to leave her job to protect the health of her unborn child.

The CHRO sided with the pregnant employee and Fenn appealed. The case went all the way to the Connecticut Supreme Court on the issue of emotional distress damages, but as to the underlying discrimination claim, it was upheld without comment.  Indeed, it’s the lower court’s decision that is instructive.

The court addressed what “reasonable belief” in injury means.

The text of Section 46a-60(a)(7)(E) gives much useful guidance as to what the legislature intended when it conditioned the availability of the statute’s transfer remedy on a pregnant employee’s “reasonabl[e] belie[f]” that continued employment in her current position may cause injury to herself or her fetus. Of special note in this regard are three distinct features of the statute’s triggering mechanism.

The first of these is the use of the term “belief” to describe the measure of conviction which the employee must have as to the existence of a workplace danger before she can invoke the statute’s protections. A “belief” that one faces a particular danger is clearly different from “knowledge” that such a danger exists. Whereas “knowledge,” in common parlance, is a subjective state of certitude as to a fact that is demonstrably true, “belief” is but a firm commitment to or acceptance of the truth of a given proposition, with or without the corresponding ability to prove by any standard that it is true. Though a person cannot “know” what he doubts or cannot prove, he can readily “believe” it, notwithstanding his uncertainties. Therefore, by expressly providing that an employer’s obligation to accommodate an employee under this statute is triggered by the employee’s reasonable “belief” that continued employment in her current position may cause injury to herself or her fetus, the legislature must be found to have intended that pregnant employees should be entitled the statute’s protections even when they cannot prove, by objective, scientific evidence or otherwise, that the dangers they seek to avoid are real and substantial.

In other words, this is a much lower standard for a pregnant employee to meet.

Continue Reading Connecticut Law May Force Employer to Transfer Pregnant Employee

Since we just an election last week, I thought it would be fun to revisit one of my earliest blog posts from back in November 2007 (!).

Let me pose a scenario first. Suppose you work for a mid-size employer in the state and decide to run for a local or state office. Perhaps against the public’s better judgment, you even win a full-time elected position — for two terms. But then – after eight years in office — you have been voted out of office.

Can you get your job back with your prior employer? Well, under state law, the answer is likely yes.  And you can get credit for your time in office.

Sounds a little absurd right? After all, new parents who leave the workforce for years to raise their kids don’t get this protection, nor do people who suffer from long-term illnesses who have to leave their jobs for some years.

But, it’s all there in black and white. Indeed, in Conn. Gen. Stat. 31-51l, any person employed by a private employer of 25 or more people who leaves such employment to accept a full-time elective municipal or state office must be granted a personal leave of absence for two consecutive terms.

Upon reapplication to the employer, the employer must then reinstate that employee to his or her original position or a similar position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits.

There is one exception to the general rule. If the employer’s circumstances have changed as to make it impossible or unreasonable to do so, the employer is not required to do so. But how often is it “impossible” for an employer to rehire an employee to at least a similar position?

(Before you start berating our current legislators for preserving their own interests, remember that they are part-time legislators so this statute does not apply to most of them.)

Certainly, we want to encourage public service, but it’s not like we have a shortage of people running for full-time elected office. In other words, is there really a problem that needs a fix like this statute? Moreover, why should employers bear the burden when a person seeks elected office for their own personal growth? And why should an employer have to rehire someone who may no longer have the skills necessary for the position or whose actions while in office lead the company to believe that it does not want to be associated with that person?

Ultimately, this statute is a trap and bad deal for the unwary private employer and boon to elected officials. The solution: Eliminate the law and let elected officials seek jobs like the rest of the workforce.

Today my colleague Chris Engler returns with a post that tackles a recent case that explores what should happen when an employee has exhausted her FMLA leave.  Case closed? Well, not exactly, as Chris explains.  

Most readers have heard the admonition that “No good deed goes unpunished.”  (Readers might be less aware that the phrase was coined by Connecticut’s own former U.S. Representative, Clare Boothe Luce.)

A recent federal decision in Wanamaker v. Town of Westport Board of Education reminds us that this warning is more than just a clever saying.

The plaintiff, an elementary school computer teacher, became pregnant with an expected due date in late April 2009.  Many months into the pregnancy, her  doctor ordered her to bed rest due to complications with her pregnancy.  The school district granted her FMLA leave.

So far, so good.

However, this story took an unfortunate turn after the teacher gave birth in April 2009. Suffice it to say that both the employee and her newborn daughter began to suffer from a number of severe complications and ailments.

As a result of these medical issues, the teacher couldn’t immediately return to work.  In fact, she wasn’t cleared to return to work at all until the following spring, and she ended up missing the rest of that school year.

Here’s where it gets contentious.  

It’s now the summer of 2010.  Ms. Wanamaker has not worked in roughly 16 months.  The school district offered her a job as a regular classroom teacher at her current salary for the 2010-11 school year.  She wanted to be a computer teacher again instead.  Ms. Wanamaker argued that she wasn’t medically able to work as a classroom teacher because it was more physically demanding.

After the school district eventually terminated her for, among other things, job abandonment, Ms. Wanamaker filed suit under the FMLA, the federal Americans with Disabilities Act (“ADA”), and state anti-discrimination laws.

(If the case sounds familiar so far, you’re not having déjà vu.  A number of bloggers (for example, here, here, and here) covered an earlier court ruling in this case that prevented the district from getting a quick win on the FMLA claims.  The issue there was whether the two teaching jobs were equivalent, and all the court said was that they might be.  As it turned out, in the more recent decision, the court neatly sidestepped the issue of whether the two teaching gigs were equivalent under the FMLA.)

Now for the bad news for employers.  This is where the “good deed” quote fits in.

Continue Reading No Good Deed Goes Unpunished: The Fallout From Allowing Excessive Absences

Last week, Attorney Robin Shea of Employment & Labor Insider proposed 10 rules of etiquette that “will save you from a pregnancy discrimination suit”.  Rule No. 1? Pregnancy is always good news.  Always. Always. Always.

If you haven’t read it, I’ll wait.

There are lots of rules regarding pregnancy that may come into play including FMLA, CTFMLA and the Pregnancy Discrimination Act.

But one rule in Connecticut that is often overlooked is found in Conn. Gen. Stat. 46a-60(a)(7).  The first part of this rule is fairly obvious; its illegal to fire someone because she’s pregnant. (If it’s not obvious, we should talk.)

But there are several other subsections that are not as well known. For today’s post, let’s focus on subsection (B) which states that an employer cannot  “refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy.”

Two things of note: First, this refers to “disability resulting from” pregnancy, not pregnancy itself.  So, if an employee is having a difficult pregnancy and is confined to bedrest, that’s the type of situation we are probably most concerned with because it would be viewed as a  “disability.” 

Second, what does a “reasonable leave of absence” mean? And isn’t this covered by FMLA? Well, not necessarily.  FMLA (and Connecticut’s equivalent) only cover employers who have 50 or more employees and even then, only cover employees who otherwise meet certain qualifications.  This rule covers all employers who have three or more employees and covers all pregnant employees.  

Can this “reasonable leave” run concurrently to FMLA, if eligible? Probably, though there isn’t much out there on the topic. A recent unpublished Superior Court case, Kenney v. DHMAS (Casemaker registration required), suggested that an employee could not make a claim under this section where the employee failed to provide the requisite documentation under FMLA.   

And what is “reasonable”? That too will probably have to be a figured out on a case-by-case basis. The Connecticut Supreme and Appellate Courts have yet to flesh that out.

For now, just know that when dealing with pregnant employees, there are more laws to consider than just FMLA.  And check with your trusted counsel to make sure you aren’t inadvertantly violating one of those rules.

During the summer last year, I started a weekly series of posts about various "basics" of employment law, with a particular focus on Connecticut.

I had planned to start it again this week on a different topic, but in driving into work this morning after a meeting, I was struck by what I saw and inspired to write this post.

While stopped at an intersection, on the far corner was a group of college-aged kids all dressed in suits in black. It took me a moment to realize that in the otherwise barren sidewalk in the heat of the summer sun, they were carrying a casket. 

It was a surreal scene. In the midst of all the bustle of a busy street, there were 8 people carrying a casket for a friend or relative in solemn fashion.  They were stoic and yet the sadness was easily seen on their faces.

Death and funerals are a way of life, and they become all the more common with each passing year.  They happen with such frequency that it takes a moment like the one above to sometimes wake you from their routine occurrence.

So what are the rules that employers must follow when it comes to bereavement leave?  For the most part, there aren’t any.  You won’t find the topic on Connecticut DOL’s wage and workplace standards pages. 

While FMLA leave is designed to provide leave to care for a family member (particularly in the end stages of life), an immediate death may not qualify and it does not seem to cover attending funerals.  Indeed, do a search for "death" or "funeral" in the Connecticut FMLA regulations and your searches will come up empty.  Thus, employers have crafted their own set of rules. 

In looking back over this blog, I realized I hadn’t covered this much other than in one of my very first posts back in September 2007.  In that piece, I discussed several issues that employers may want to consider. 

  1. Are your bereavement policies are established? If so, are they non-discriminatory?
  2. What practices do you have to help the grieving worker communicate with colleagues? And do you have a employee assistance program that you can refer employees to?
  3. How can you help co-workers express their sympathy, particularly if the loss is actually in the workplace?
  4. How do you help the bereaved employee and his or her supervisor deal with any lingering productivity issues?

None of this is easy.  Usually, for immediate family members, many employers will provide employees two-three days off with pay, and no pay for any additional time, unless employees arrange to use personal days or vacation time. How you define "immediate family member" is up to the particular employer, but make sure that it takes into account the changes that have been made in Connecticut for same-sex marriages.

Earlier this afternoon, President Obama signed the National Defense Authorization Act of 2010.  By doing so, he approved of several changes to the FMLA .  But before you rip up your existing FMLA policies, the provisions relate to the military-related leaves under the Act.  (H/T Ohio Employer’s Law Blog)  The changes as a whole expand the coverage and the availability of military family leave. 

Carl Bosland at the FMLA Blog summarizes the details:

  • Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
  • Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. 
  • Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

But of course, in Connecticut, this will only create another set of headaches. Connecticut just amended the state FMLA rules to be more consistent with the federal rules as they relate to military caregiver leave.  These new rules now create a significant difference between the state and federal rules.

Nevertheless, where the FMLA and the state FMLA conflict, employers in Connecticut must implement the more favorable of rules. Therefore, employers subject to FMLA in Connecticut

Late last week, the Connecticut House approved Senate Bill 710 (S.B. 710) which makes some important changes to the state FMLA law to bring it more in line with the federal family and medical leave act rules as they relate to military caregiver leaves of absences.  

I’ve covered the bill in a post earlier this month and nothing has changed since the Senate passed it.  The bill now moves on to Governor Rell for her approval. 

Importantly, the provisions of this bill will be effective immediately upon the governor’s signature.  

The core provision of the bill (you can download the text here) is the creation of a one-time leave related to injured armed forces members.

Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave. If there are any nuances between federal and state law, the more generous of the two benefits will apply. 

This measure will only apply to those employers who are already covered under state FMLA rules. (You can read my prior posts about state FMLA rules here.)

Employers should immediately start revising their FMLA policies to ensure compliance with this new state law.  This may require revising some forms as well to document the leave.  Note that this will not be that different from what has been implemented at the federal FMLA level, but because many employers in Connecticut are still unaware of those provisions, this new state law should serve as a wakeup call to get the policies updated now.

Late last week, the Connecticut Senate approved a measure that would permit an employee to take up to 26 weeks of unpaid leave from work to care for family members who may have been injured in the line of military duty.  The bill (Senate Bill 710) is now on the House’s calendar for a vote within the next few weeks; it is likely to be approved.

The bill mirrors many of the provisions that were implemented last year in revisions to the federal FMLA

The Office of Legislative Research has done a good job summarizing the measure’s main provisions here

Notably, the measure has different provisions for private sector workers and state employees, so as the bill progresses, this distinction ought to be reviewed. 

The core provision of the bill, however, is the same for each — a one-time leave for each armed forces member per serious injury or illness incurred in the line of duty.  Employees who are immediate family members of those servicemembers or next of kin will be entitled to this leave.  If there are any nuances between federal and state law, the more generous of the two benefits will apply.

In the meantime, employers should make sure their FMLA policies reflect the current state of the law and, if they do have any requests for leaves to care for injured servicemembers, employers should check back on the status of this bill — if they are not already covered under federal law.

courtesy morgue file "paperwork" - As I reported on Friday, the U.S. Department of Labor has released final regulations implementing the Family and Medical Leave Act (FMLA).  The regulations (which you can dowload here) become effective on January 16, 2009.  At 750 pages, you need a book just to summarize the changes (and I’m sure one of the legal book publishers out there is already fast at work.)

60 days may seem like a long time away, but with the holidays coming up, these new regulations leave employers will little time to make the changes. Add to the fact that the ADA Amendments go into effect on January 1, 2009 and this represents a huge potential minefield.

 

For the remainder of the week, I’ll be summarizing what employers need to know now about the FMLA:

 

The Rules on What Employers are Covered by FMLA Are the Same, But Connecticut’s Rules Still Apply

Employers may first ask if they are covered by the FMLA.  The rules on who is a covered employer (as determined by the number of employees) haven’t changed.  Importantly, Connecticut’s FMLA rules (which differ in some important ways from the federal FMLA) haven’t yet been affected by this change. I’ll try to note, in an upcoming post, some of the differences between the two, but for now, employers in Connecticut should tread carefully when adopting any blanket changes as a result of the federal FMLA, without reviewing state law (and consulting an attorney where needed.)

 

The Important Takeaway From the New Regulations is Improved Communications and Collaboration

Overall, the new regulations require employees and employers to communicate better.  Whether its requiring more notices from the employer, or more information from employees, the regulations suggest that "hiding information" is frowned upon.  As a result, employers will need to update their policies and forms regarding FMLA.  Employees will also need to provide more updates about their leave, including providing sufficient notice where possible. 

 

Lots More Notice Requirements and New Forms to Use for Designating Leave

  • For employees, they must now follow their employer’s call-in policies regarding absences. Thus, if the employer has a policy of requiring employees who are going to be absent to call-in before work, FMLA-eligible employees must do at least the same. 
  • For employers, there are two new notice requirements. Employers will now need to use two forms (instead of the prior one): the first will tell employees of their FMLA eligibility and rights; the second will formally designate the leave as FMLA leave. Employers will now be required to use a new form (which had been optional) that tells employees of their eligibility to take leave within 5 business days. 
  • If employees are eligible for FMLA leave, then they must be given a notice of “Rights and Responsibilities” which tells employees of several obligations, including that they must provide medical certifications. 
  • Clarifying a prior issue, employers can now provide retroactive notice so long as the delay doesn’t cause any harm to the employee. In addition, employees and employers can agree that leave be retroactively designated as FMLA leave. 
  • Overall, if employers have been using any of the optional forms, there are several new forms available for use as well including new certifications and designation of leave forms. 

In upcoming posts, we’ll cover some of the other changes. Here are some previews:

  • New regulations defining what is a “chronic condition” and other parameters for chronic conditions and intermittent leave;
  • New rules that prohibit direct supervisors from getting employee’s medical information;
  • New guidance on how to substitute paid leave for FMLA leave;
  • New medical certifications that distinguish between employee and family member “serious health conditions”
  • Information on the “Bermuda Triangle” – the interplay between the ADA, FMLA and workers’ compensation. 
  • More guidance on when employers can request medical certifications and recertifications as well as fitness for duty certifications. 

Lastly, there are new rules that will govern military leave as well. The new regulations clarify how to implement the expanded 26 weeks of unpaid FMLA caregiver leave for relatives of seriously injured or ill service members.

As I predicted last month, Congress will quickly take up the bill regarding defense spending (which also includes a provision for protected leave for military families) this week, when it opens its 2008 session. 

The New York Times is reporting this morning that a resolution of the issues which resulted in the President’s pocket veto of the bill are being resolved, and passage is expected shortly.

Officials said the most likely approach would be to vote to send the Pentagon measure back to the Armed Services Committee, where the disputed provision could be quickly corrected, allowing the bill to be brought back for a final vote by the end of the week.

“We hope to fix it,” an aide said.

For background on the expanded FMLA leave for military families portion of the bill, see my earlier post on the subject

(Hat Tip: Ohio Employer’s Law Blog)