New York State’s Paid Family Leave Benefits Law – Are You Ready?

By Lynne Anne Anderson

Private employers in New York will need to be ready to provide paid family leave to eligible employees as of January 1, 2018. However, by July 1, 2017, employers may start withholding from employee paychecks to fund the program.

As a brief background, the New York Paid Family Leave Law (NYPFL) is effective January 1, 2018, and has been touted as the nation’s most comprehensive paid family leave program. The NYPFL provides for a phased schedule of paid leave entitlement for employees that need to take time off to:

  • bond with their child during the first 12 months after the child’s birth, adoption or foster care placement:
  • assist a “close relative” with a serious health condition such as inpatient care, outpatient chemotherapy or at-home recuperation from surgery; or
  • for reasons outlined in the federal Family and Medical Leave Act (“FMLA”) with regards to assisting a family member called to active military service.

Continue reading “New York State’s Paid Family Leave Benefits Law – Are You Ready?”

Do You Have At Least 20 Employees in California?

By Pascal Benyamini

Currently, if you are an employer with 50 or more employees within 75 miles, you are required, under the federal Family and Medical Act (FMLA) and the California Family Rights Act (CFRA), to provide an unpaid protected leave of absence of up to 12 weeks during any 12 month period to eligible employees for various reasons, including, for the birth or placement of a child for adoption or foster care; to care for an immediate family member with a serious health condition, or to take medical leave when the employee is unable to work because of a serious health condition.

A pending California Senate Bill (SB), if passed, would extend some of the benefits of the FMLA and CFRA to California employers with 20 to 49 employees. SB 63, aka Parental Leave, would add Section 12945.6 to the Government Code, and prohibit employers with 20 to 49 employees within a 75 miles radius from refusing to allow an employee with more than 12 months of service and at least 1,250 hours of service with the employer during the previous 12-month period, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.

SB 63 would also prohibit employers from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave (assuming an employer has a group health plan). Further, under proposed SB 63, eligible employees will be entitled to utilize accrued vacation pay, paid sick time, or other paid time off during the period of parental leave.

If an employer employs both parents who are eligible for leave, SB 63 would authorize, but not require, the employer to grant simultaneous leave to both employees.

This bill would also prohibit an employer from taking any adverse action, such as refusing to hire, or from discharging, fining, suspending, expelling, or discriminating against, an employee for exercising the right to parental leave or giving information or testimony as to his or her own parental leave, or another person’s parental leave, in an inquiry or proceeding related to rights guaranteed under this bill.

Finally, SB 63 would prohibit an employer from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any right provided under this bill.

It remains unclear whether SB 63 will pass and be signed into law by Governor Brown. We will continue to monitor any developments on SB 63 and other pending bills that may impact employers in California.

Illinois Employers Must Provide Qualifying Employees Two Weeks of Unpaid Child Bereavement Leave

By Stephanie Dodge Gournis and Shavaun Adams Taylor

Illinois is now the second state to require that employers provide unpaid bereavement leave to eligible employees under its Child Bereavement Leave Act. This Act provides that employers with at least 50 employees must provide two weeks (10 working days) of unpaid leave due to the loss of a child. In the event of death of more than one child in a 12-month period, an employee is eligible for up to six weeks of bereavement leave.

Coverage

The Act defines “employers” and “employees” in the same manner as they are defined under the Family Medical Leave Act (FMLA). Thus, an employee will be eligible for child bereavement leave under Illinois law if the employee has been employed by the employer for at least 12 months and has worked at least 1250 hours during the previous 12-month period. However, an employee who has exhausted his or her FMLA leave is not eligible for child bereavement leave under this Act.

While an employee’s eligibility for child bereavement leave is tied to the employee’s FMLA entitlement, the employee’s bereavement leave cannot be deducted from the employee’s available FMLA leave. In other words, an employee can take two weeks of bereavement leave and still be eligible for 12 weeks of FMLA leave for another qualifying event.

The Act defines “child” as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

Bereavement Leave

An employee may use bereavement leave to:

  • Attend the funeral or alternative to a funeral of a child;
  • Make arrangements necessitated by the death of the child; or
  • Grieve the death of the child.

Employees must take such leave within 60 days after the date on which they receive notice of the death of the child. Employees who wish to take bereavement leave must provide 48 hours’ advance to their employer, unless providing such notice is not reasonable and practicable.

Employers may require that an employee provide reasonable documentation, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Substitution of Paid Leave

Under the Act, employees may elect to substitute paid leave, including family, medical, sick, annual, or personal leave, that is available pursuant to federal, state, or local law, a collective bargaining agreement, or employment policy. Unlike FMLA provisions, the right to substitute paid leave rests with the employee and the Act does not provide any right to the employer to require an employee to use available paid leave.

Retaliation and Enforcement

An employer may not retaliate or take any other adverse action against any employee who:

  • Exercises rights or attempts to exercise rights under this Act;
  • Opposes practices which such employee believes to be in violation of the Act; or
  • Supports the exercise of rights of another under this Act.

If an employee feels that his or her rights have been violated under this Act, he or she may file a complaint with the Illinois Department of Labor or file a civil action in court within 60 days after the date of the violation.

An employer who violates this Act is subject to a civil penalty not to exceed $500 for the first offense and not to exceed $1,000 for the second offense.

The Emergence of Paid Sick Leave Laws

By Thomas J. Barton and Matthew A. Fontana

In last week’s blog entry, Lynne Anne Anderson highlighted the increasing number of states that mandate employers to provide school related unpaid leave for parents.  This week’s entry looks at another growing trend in the employee leave space, paid sick leave.  An increasing number of states and localities now provide paid sick leave. It is important that both employers and employees are aware of this trend and whether these laws apply to their locality or state.

The following states (and District of Columbia) have paid sick leave laws:

State: Coverage/Eligibility: Amount of Paid Sick Time: Can Sick Time Be Used to Care for Loved Ones:
Connecticut Hourly workers in certain “service” occupations who work for businesses with 50 or more employees. [1] Up to 40 hours per year Yes: children and spouses.
California Workers employed in California for 30 or more days a years, including state and local public workers. [2] Workers can earn up to 48 hours or 6 days but an employer isn’t required to allow use of more than 24 hours or 3 days a year. Yes: children, parents, grandchildren, grandparents, spouses, registered domestic partners and siblings. 
Massachusetts Workers employed in Massachusetts who do not work for cities and towns. Workers in businesses with 11 or more employees up to 40 hours of paid sick time a year.  Yes: children, spouses, parents, or parents of a spouse.
Oregon Workers employed in Oregon, including public workers but excluding independent contractors. Workers in businesses with at least 10 or more employees: up to 40 hours of paid sick time a year. Yes: children, spouses, same-sex domestic partners, parents, parents of a same-sex domestic partner, grandparents, and grandchildren.
Washington, D.C. Individuals employed by an employer within Washington D.C. [3] 24 or fewer employees: up to 24 hours a year.25-99 employees: up to 40 hours a year.

100 or more employees: up to 56 hours a year.

Yes: children, grandchildren, spouses of children, siblings, spouses of siblings, parents, and registered domestic partners.
Vermont Workers employed by an employer in Vermont for an average of no less than 18 hours per week during a year.  [4]  From 1/1/17-12/31/18: up to 24 hours a year. After 12/31/18: up to 40 hours a year.   Yes: children, parents, parents-in-law, grandparents, spouses, grandchildren and siblings.

As demonstrated by the above chart, paid sick leave laws vary from state to state and it is important to know the detail of the laws that apply to your business. For example, the coverage/eligibility requirements, use of sick time to care for loved ones, and the amount of paid sick leave available are different for each of the states with paid sick leave laws.  Other differences include the rate that paid sick leave is earned, whether paid sick leave can be carried over to subsequent years, and whether paid sick leave applies to care for a new born child.  As an example, in Connecticut, sick time is earned at a rate of one hour for every forty hours worked, whereas in California, sick time is earned at a rate of one hour for every thirty hours worked.  Additionally, Oregon’s law is the only one that allows the use of paid sick leave to bond with a newborn child.  [5]  The bottom line for business is if you operate in a state with a paid sick leave law, it is important to carefully review the law and make sure your policies conform to its requirements.

Beyond states, several cities and counties have paid sick leave laws, including the following: Montgomery County (MD), San Francisco, Seattle, New York City, New Jersey Eleven (Newark, Passaic, East Orange, Paterson, Irvington, Trenton, Montclair, Bloomfield, Jersey City, Elizabeth, and Plainfield), Oakland (CA), Tacoma, Philadelphia, Emeryville (CA), Pittsburgh, Spokane, Santa Monica (CA), Minneapolis (effective date July 1, 2017), and Chicago (effective date July 1, 2017).  As with the state paid sick leave laws, the eligibility requirements, amount of sick leave available, and how that sick leave can be used differ from locality to locality and require individualized analysis.

Even if your business does not operate in a locality that currently has a paid sick leave law, it is increasingly likely that your state or locality may soon consider such a law.  The combination of the growth of paid sick leave laws and their prominence in policy discussions surrounding support for families continues to build momentum for their adoption in more communities.  Currently, New Jersey, Maryland, and Washington have paid sick leave legislation that is under consideration and there is growing support for these laws in numerous other states.

Employers should stay tuned and follow these developments to ensure that their sick leave policies and procedures stay compliant in the ever changing world of leave laws.


[1] For a full list of which professions are covered “service” occupations go to www.ctdol.state.ct.us./wgwkstnd/SickLeaveLaw.htm

[2] Workers subject to the Railway Labor Act (i.e. employees of airlines and railroads) are exempted. Workers who provide in-home supportive care are exempted until July 1, 2018.

[3] The following individuals are exempted: independent contractors, students, health care workers choosing to participate in a premium pay program, unpaid volunteers. 

[4] The following individuals are exempted: workers under 18 years of age; workers employed for 20 or fewer weeks in a year in a job scheduled to last 20 or fewer weeks; certain State workers excluded from the State classified service; certain employees who work on a per diem or intermittent basis at a health care or long-term care facility; certain per diem or intermittent workers who only work when indicating availability, have no obligation to accept the work, and have no expectation of continued employment; certain substitute educators for a school district or supervisory district/union if under no obligation to work a regular schedule or period of long-term (30 or more consecutive school days) substitute coverage; and certain sole proprietors/partner owners of an unincorporated business.

[5] California has a paid family leave law that provides paid leave for the care of a newborn child. 

 

New Jersey Expands Protections Against Pregnancy-Based Discrimination By Employers And Other Entities

Update 1/23/14 – On Wednesday, January 22, 2014, Governor Christie signed  S2995 into law.  LaborSphere’s original post on the legislation appears below. 

By: Meredith R. Murphy

New Jersey is on the precipice of expanding anti-discrimination protections to both pregnant women and new mothers and those recovering from childbirth.  The State Senate and now the State Assembly have passed identical measures with only one dissenting vote in either legislative body.  The expansive legislation now awaits the signature of Governor Chris Christie in order to become law. 

Amendments to New Jersey Law Against Discrimination

In order to address the perceived vulnerability of pregnant women in the workplace as well as to foster the goal of healthier pregnancies and recovery from childbirth, the legislation passed by New Jersey’s legislature expands the anti-discrimination and anti-retaliation protections of New Jersey’s Law Against Discrimination (“NJLAD”).  Should it pass, both pregnant women but also those who have recently given birth or have medical conditions related to pregnancy will be statutorily protected against disparate treatment and retaliation by employers, labor organizations, landlords, lending institutions as well as an array of other entities that offer public accommodations.

Further, not only does the pending legislation add “pregnancy” to the array of protected categories covered by the NJLAD.  It also specifically requires employers to provide “reasonable accommodations,” such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules and temporary transfers to less strenuous or hazardous work.

The legislation implied but does not specifically state that any such requested accommodations will likely need to be based on the advice of a physician.  As such, it appears that pregnant women and those who have recently given birth cannot merely demand that an accommodation is “reasonable” and necessary absent some input from her physician.

Further, employers are not obligated to agree to any requested accommodation, even if it is supported by a physician’s recommendation, if such an accommodation would impose an “undue burden” as defined by the statute.  The proposed legislation provides specific factors to be utilized in determining whether an accommodation would impose undue hardship on the operation of an employer’s business.  These include:

  • overall size of the employer’ business with respect to the number of employees;
  • number and type of facilities;
  • size of budget;
  • the type of the employer’s operations, including the composition and structure of the employer’s workforce;
  • the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions and outside funding; and
  • the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

New Protection To Employees Seeking Information About Claims

Perhaps the start of a new trend, among the proposed amendments to the NJLAD is also a provision that protects any employee against reprisals by employers for asking coworkers or former coworkers for information that is part of an investigation or in furtherance of a possible claim under the NJLAD.  Such information may include requests for data regarding pay, compensation, bonuses or benefits.  Significantly, this new protection extends beyond pregnant women and those who have recently given birth. 

Impact of Amendments

If enacted, the amendments to the NJLAD would override the New Jersey Supreme Court’s 2005 ruling in Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005).  In that case, New Jersey’s highest court held that the NJLAD does not protect against the firing of a female worker who exceeded the leave available under state and federal as well as the defendant-employer’s policy.  Under the proposed amendments, it is likely that the accommodations requested in the Gerety case, by a plaintiff who had a difficult pregnancy with twins, would be considered reasonable and covered under the NJLAD.

More broadly, while the federal Family Medical Leave Act and New Jersey Family Leave Act each allow for a maximum of twelve weeks of pregnancy-related leave, under the proposed amendments, the amount of leave available to a woman who is pregnant or recovering from childbirth is not as clearly defined.  To the extent a women seeks an accommodation – including additional leave or a reduced work schedule – because of pregnancy and childbirth-related conditions, an employer has, at the very least, an obligation to review and consider such requests.

Should the proposed amendments to the NJLAD be passed, we recommend a review of leave policies as well as training for managers to identify requests for accommodations.  Each request for accommodation must be considered carefully and should it appear to impose an undue burden, then the statutorily defined factors must be taken into account.

Recorded Webinar – Impact of DOMA and Proposition 8 on California Employers

Members of Drinker Biddle’s newly formed “California HR” team, a cross-practice group featuring lawyers from our Employee Benefits & Executive Compensation and Labor & Employment practices, presented a webinar on the impact of the U.S. Supreme Court’s Defense of Marriage Act ruling and what it means for employers, especially in connection wtih Proposition 8.

The webinar focused specifically on the concerns of human resources professionals and in-house counsel of companies headquartered or doing business in California, including how DOMA will impact their policies and how it will affect benefit plans and retirement plans.

Other areas of discussion include:

  • Possible changes California employers need to make to welfare benefit and retirement plans.
  • How beneficiaries are now determined.
  • What documentation employers can require in confirming a domestic partnership or same sex marriage?
  • The intersection between DOMA and FMLA.
  • Marital status discrimination issues and other issues of concern to California employers.

To listen to a recording, please click here.  It may take a moment to load.