Andrew J. Sommer, Partner in Conn Maciel Carey LLP’s San Francisco office, will be presenting on March 9, 2017 in Los Angeles at the annual conference of the International Health, Racquet & Sportsclub Association (IHRSA), a trade association serving the global health club and fitness industry. Mr. Sommer will speak on hot topics in employment law and practical compliance strategies for clubs. For more information about IHRSA 2017, please click here.
On Wednesday, February 15, 2017, Kara Maciel, Chair of the Labor & Employment Practice at Conn Maciel Carey, will be presenting a free webinar on issues facing small business.
While large companies typically have human resources departments or in-house counsel to advise on myriad and complex employment laws, start-ups and small businesses are often operating in the dark regarding these key issues. However, as these companies grow and begin to hire more employees, compliance with local, state, and federal employment laws are paramount for survival.
This webinar will provide an overview of the most important employment laws, policies and practices that are of particular concern for small businesses and start-ups so that they can comply with proper pay practices and wage and hour law, become aware of applicable anti-discrimination laws, and learn proper procedures for hiring and firing, including offer letters, employment agreements and separation agreements.
The webinar begins at 1:00 pm ET, and is sponsored by Smith College. You can register for the webinar here. If you are unable to attend the February webinar, Conn Maciel Carey will present another opportunity on April 19, 2017 as part of its 2017 Labor & Employment Webinar Series, and you can register here.
Newly elected President Trump will have a significant impact on shaping the executive agencies that impact employers, unions and the workplace in general, not to mention the fact that he may hand pick up to four new Supreme Court Justices. There is no doubt that legislation, regulation, and court cases during the Trump Administration will have lasting effects on employers in 2017 and beyond.
On February 20, 2017, Conn Maciel Carey’s Labor & Employment and OSHA attorneys will host an in-person briefing in its Washington, DC office to discuss the practical impact of the Trump Administration on the legal landscape in key areas for the workplace, including:
- The effort to repeal the Affordable Care Act;
- The rollback of regulation and former President Obama’s Executive Orders, including the Department of Labor’s overtime rule, the persuader rule, and OSHA’s anti-retaliation rule;
- The National Labor Relations Board under Philip Miscimarra’s Chairmanship;
- Anticipated court decisions from the Supreme Court, including whether employers can include class action waivers in arbitration agreements;
- OSHA enforcement, regulatory and policy developments to expect during the Trump Administration’s inaugural year.
Networking will start at 8:30 am, and the briefing will last from 9:00 am – 10:30 at 5335 Wisconsin Avenue, NW, Suite 660. To register for this complimentary briefing, please contact email@example.com.
We hope to see you there!
The D.C. City Council recently passed the Fair Credit in Employment Amendment Act (“the Act”), which now strictly limits an employer’s ability to inquire into an applicant’s credit history as a basis for a hiring decision. The legislation was prompted, in part, by the DC City Council’s concern that a credit history provides no information about job performance, noting that “credit history isn’t a reliable way to measure a person’s ability to do a job.”
While many employers may have a policy to conduct credit checks following a contingent job offer, the Act now prohibits employers from inquiring into an applicant’s credit history at any time in the hiring process, even after a contingent job offer, unless the particular position is exempt from the law’s prohibitions. Specifically, D.C. employers may inquire into an applicant’s or employee’s credit history if Continue reading
On December 12, 2016, the EEOC issued a resource document, titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the Americans with Disabilities Act (“ADA”).
Employers should carefully review the resource document given the rise of discrimination complaints based on mental health conditions. During fiscal year 2016 alone, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions. The EEOC has taken a hard stance on employers’ duties to provide reasonable accommodations for employees with mental health conditions, especially in light of the number of veterans who have returned home with service-connected mental health issues, such as depression and post-traumatic stress disorder.
Mental Health Conditions and the Americans with Disabilities Act
Under the ADA, job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their mental health condition, and may have a right to a reasonable accommodation at work. Many employers are aware of different types of accommodations for people with physical and communication disabilities, but are generally less familiar with accommodations for individuals with disabilities that are not visible, such as mental health conditions.
Over the last few years, increasing numbers of employers have expressed a desire and need for information and ideas on accommodations for individuals with psychiatric disabilities. The resource document, although framed for employees or applicants seeking assistance, describes some types of the available accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.
Under the ADA and other laws, including the Family Medical Leave Act (“FMLA”), it is illegal to discriminate against an employee or applicant because he or she has a mental health condition. This includes firing an employee, rejecting an employee for a job or promotion, and forcing an employee to take leave because of his or her mental impairment, which includes “[a]ny mental or psychological disorder, such as . . . emotional or mental illness.” Some examples of “mental or psychological disorders” include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.
Title I of the ADA requires a private employer with 15 or more employees to provide a reasonable accommodation qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship. Reasonable accommodations are adjustments to a work setting that make it possible for qualified employees with disabilities to perform the essential functions of their jobs.
To be eligible for a reasonable accommodation for any mental health condition, an individual must demonstrate that his or her mental health condition would, if left untreated, “substantially limit” his or her ability to concentrate, interact with others, communicate, eat, sleep, care for them self, regulate his or her thoughts or emotions, or do any other “major life activity.” The EEOC highlighted that the fleeting nature of the presence or severity of a mental health condition symptoms is irrelevant to evaluating whether a mental health condition is substantially limiting. What matters is how limiting the symptoms are when they are present. Although the resource document provides a few mental health conditions that it believes should easily qualify as substantially limiting, including major depression, post-traumatic stress disorder, bipolar disorder, schizophrenia, and obsessive compulsive disorder.
If an individual eligible for a reasonable accommodation, the ADA requires employers to engage in an interactive process to determine what, if any, reasonable accommodation can be made by analyzing the purpose and essential functions of the job, and working with an individual to identify what barriers exist to that individual’s performance of a particular job. After engaging in the interactive process, employers can evaluate the effectiveness of each accommodation and the preference of the individual to be accommodated, and then determine whether the various accommodations would pose an undue hardship upon the employer. The resource document provides a non-exhaustive list of potential reasonable accommodations for employees or applicants with a mental health condition, including altered break and work schedules; quiet office space or devices that create a quiet work environment; changes in supervisor methods; specific shift assignments; and permission to work from home. The Department of Labor Office of Disability Employment Policy has also issued detailed guidance with further information on reasonable accommodations that have helped employees and applicants with mental conditions.
While employers must engage in the interactive process to find a reasonable accommodation for an individual, the guidance document recognizes an employer does not have to hire or keep people in jobs that they cannot perform, or employ people who pose a “direct threat” to safety – (i.e. a significant risk of substantial harm to self or others). However, an employer cannot rely on myths or stereotypes about a person’s mental health condition when deciding whether an individual can perform a job or poses a significant safety risk. There must be objective evidence that an individual cannot perform the essential job duties, or that he or she would create significant safety risk, even with a reasonable accommodation.
Employee Privacy Rights
The resource document also addresses privacy rights, noting that an individual may keep his or her condition private in most situations. However, an employer is allowed to ask certain medical questions, including questions about mental health, in four situations:
- When an employee asks for a reasonable accommodation;
- After an employer has made an applicant a job offer, but before employment begins, so long as everyone entering the same job category is asked the same question;
- For affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case the individual may choose not to respond; and
- On the job, when there is objective evidence that an employee may be unable to do the job or that the individual poses a safety risk because of his or her condition.
Other laws may also require an employee to discuss his or her condition to establish eligibility for benefits under those laws, such as the FMLA. However, an employee does not necessarily have to disclose his or her specific diagnosis. Even if an individual is required to disclose his or her medical condition under one of the situations above, it may be enough to describe the condition generally (e.g., anxiety disorder) and, if requested, submit documentation from a medical provider to that effect.
Given the increasing focus on mental health conditions in the workplace, employers should be up to speed of the ADA’s requirements. If an employer knows that an employee has a mental health condition, the employer’s knowledge and observation of an employee’s symptoms could trigger the employer’s duty to provide an accommodation or determine whether a reasonable accommodation exists. Employers can address this issue within their employee handbooks by establishing policies that advise employees of their rights with respect to mental health conditions impacting their work performance and to have an open dialogue, specifically, and encourage employees to notify their employers if they believe they have a mental health issue.
For over a year, the D.C. City Council has considered a bill that would have provided employees in the nation’s capital paid family and sick leave. Now, after extended debate and comment from the public and business community, on December 20, 2016, the D.C. City Council passed the bill, known as the Universal Paid Leave Amendment Act of 2016 (“the Act”), with some modifications.
The new law gives eight (8) weeks of paid leave to new parents, and six (6) weeks for those taking care of sick family members. Although the bill offers the most generous paid leave in the U.S. for new parents and employees who are taking care of sick family members, the law only offers two (2) weeks of paid leave for personal injuries or illnesses, which is less than other city and state programs around the country. The program will be administered by a social insurance program controlled by the city and funded by a .62 percent increase to employer payroll taxes.
Mayor Muriel Bowser, a staunch opponent of the legislation, has vowed that she will not add her name to the legislation. However, the bill passed by a 9-4 margin – the minimum number of required votes to override a veto by Mayor Bowser. The bill may therefore likely go into law without her signature.
Employers should pay careful attention to this bill and consider changing employer provided paid leave policies, especially since the Mayor will begin collecting the .62 percent payroll tax from all covered employers on or before July 1, 2019. Payment of paid leave benefits to eligible employees will commence on July 1, 2020.
The following highlights what D.C. employers need to know about this groundbreaking law and how it will affect them.
- Who does the law apply to?
The Act requires all covered employers to contribute to the Universal Paid Leave Implementation Fund (“the Fund”). A covered employer is defined as any “individual, partnership, general contractor, subcontractor, association, corporation, business trust, or any group of persons who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee and is required to pay unemployment insurance on behalf of its employees by section 3 of the District of Columbia Unemployment Compensation Act” and a “self-employed individual who has opted into the paid leave program established pursuant to [the] Act.” The law permits a “covered employee” to collect paid leave under the Act. A covered employee is defined as “any employee who spends more than 50% of his or her work time in the District of Columbia for a covered employer.” Therefore, there is no “small business exception” and employers that employ any individuals in the District of Columbia are subject to the Act’s requirements.
To be eligible to receive paid leave under the Act, an “eligible individual” must be a covered employee during some or all the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken, or a self-employed individual who earned self-employment income for work performed more than 50% of the time in the District of Columbia during some of all of the 52 calendar weeks immediately preceding the qualifying event for which paid leave is being taken and has opted into the paid leave program established pursuant to the Act.
Thus, an employee is eligible for paid leave as soon as he or she is hired, regardless of the number of hours worked for the employer, subject to a one week waiting period.
- How long can employees receive paid leave benefits?
Upon the occurrence of a qualifying family leave event (the diagnosis or occurrence of a serious health condition of a family member of an eligible individual), qualifying medical leave event (the diagnosis or occurrence of a serious health condition of an eligible individual), or qualifying parental leave event (the birth of an child; the placement of a child with an eligible individual for adoption or foster care; or the placement of a child with an eligible individual for whom the individual legally assumes and discharges parental responsibility), and after a one week waiting period during which no benefits are payable, an eligible individual is entitled to receive payment of his or her paid leave benefits.
An eligible individual can submit a claim for payment of his or her paid leave benefits for a period during which he or she does not perform his or her regularly and customary work following the occurrence of a qualifying event, as provided below:
- Family Leave: eligible individuals may receive up to a maximum of 6 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying family leave event.
- Medical Leave: eligible individuals may receive up to a maximum of 2 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying medical leave event.
- Parental Leave: eligible individuals may receive up to a maximum of 8 workweeks within a 52-workweek period that an eligible individual may take following the occurrence of a qualifying parental leave event.
- Intermittent Leave: eligible individuals may receive payment for his or her paid leave benefits for intermittent leave, provided the total amount of intermittent leave shall not exceed 6 workweeks in a 52-workweek period for a qualifying family leave event, 2 workweeks in a 52-workweek period for a qualifying medical leave event, or 8 workweeks in a 52-workweek period for a qualifying parental leave event.
An eligible individual can receive benefits under any one or a combination of paid leave provided under the Act. However, eligible employees are only entitled to receive payment for a maximum of 8 workweeks in a 52-workweek period, regardless of the number of qualifying leave events that occurred during that period.
For example, if an employee receives parental leave following the birth of twins, the employee is only entitled to 8 weeks of paid leave, not 16. Also, if an employee receives 4 weeks of paid medical leave to care for a sick family member, and then takes parental leave a few months later, the employee is only entitled to an additional 4 weeks of paid leave within the 52-workweek period.
- What benefits do employees receive during paid leave?
An eligible individual who earns an average weekly wage at a rate that, on an annualized basis, is equal to or less than 150 percent of the District’s minimum wage, currently set at $11.50, are entitled to payment of benefits at a rate that equals 90% of that eligible individual’s average weekly wage rate (based on a 40-hour workweek). For those eligible individuals who earn an average weekly wage at rate that, on an annualized basis, is greater than 150% of the District’s minimum wage are entitled to paid leave benefits at a rate that equals:
- 90 percent of the 150 percent of the District’s minimum wage; plus
- 50 percent of the amount by which the eligible individual’s average weekly rate exceeds 150% of the minimum wage.
However, prior to October 1, 2021, the maximum benefit amount that any eligible individual may receive is $1,000 per week. On October 1, 2021, and October 1 of each successive year, the maximum weekly benefit will increase in proportion to the annual average increase in the Consumer Price Index for All Urban Consumers, Washington-Baltimore metropolitan area, as published by the Bureau of Labor Statistics.
- What obligations do employers have under the law?
Covered employers are required to contribute 0.62 percent of the wages of each of its covered employees to the Universal Paid Leave Implementation Fund in a manner prescribed by the Mayor.
The Mayor has 180 days of the effective date of the Act to provide public notice to covered employers regarding the way contributions to the Fund shall be collected. The Mayor must begin collecting contributions to the Fund from covered employers and self-employed individuals who opted into the paid leave program by July 1, 2019.
An employer that fails to contribute the amount required under the Act is subject to the same notice requirements, procedures, interest, penalties, and remedies set forth in section 4 of the District of Columbia Unemployment Compensation Act.
Employers are required to provide covered employees a notice, as prescribed by the Mayor, at the time of hiring and annually thereafter, and at the time the covered employer is aware that the leave is needed, that explains:
- the employees’ right to paid leave benefits under the Act and the terms under which such leave may be used;
- that retaliation by the covered employer against the covered employee for requesting, applying for, or using paid leave benefits is prohibited;
- that an employee who works for a covered employer with under 20 employees shall not be entitled to job protection if he or she decides to take paid leave pursuant to the Act; and
- that the covered employee has a right to file a complaint and the complaint procedures established by the Mayor for filing a complaint.
An employer that violates the notice requirement may be subject to a $100 civil penalty for each covered employee to whom individual notice is not delivered and $100 for each day that the covered employer fails to post notice in a conspicuous place.
- How is the law administered?
Under the Act, the Mayor is responsible for establishing procedures and forms for filing claims for benefits and specify what supporting documentation is required to support a claim for benefits – none of which have been contemplated. Nonetheless, if an individual is deemed eligible to receive paid leave benefits, the Mayor shall make the first payment to the eligible individual within 10 business days of the determination or eligibility and subsequent payments are made biweekly thereafter.
Covered employers will receive notice that an employee has filed for paid leave benefits under the Act within 3 business days of the claim being filed. However, employees are still required to give their employer notice of their leave under the Act, to the extent practicable. If leave is foreseeable, the written notice shall be provided at least 10 days, or as early as possible, in advance of the paid leave. If leave is unforeseeable, a notification, either oral or written, shall be provided prior to the start of the work shift for which paid leave is being used. In the case of an emergency, the eligible individual, or another individual on behalf of the eligible individual, shall notify the employer, either orally or in writing, within 48 hours of the emergency occurring.
- How does the law interact with DCFMLA and existing employer paid leave policies?
The DC Family Medical Leave Act (DCFMLA), which provides for 16 weeks of unpaid leave, remains unchanged under the Act. Therefore, employees are still eligible to take unpaid leave under DCFMLA. When paid leave taken pursuant to the Act also qualifies for leave under the DCFMLA, the paid leave taken under the Act will run concurrently with, not in addition to, leave taken under other acts such as DCFMLA. Nothing in the act provides job protection to any eligible individual beyond that to which an individual is entitled to under DCFMLA.
Eligible employers are not prohibited from providing individuals with leave benefits in addition to those provided under the Act but employers are still required to provide the paid leave benefits under the Act. The provision of supplemental or greater paid leave benefits does not exempt the covered employer from providing or prevent an eligible employee from receiving benefits under the Act.
Employers should consider modifying any existing paid leave policies. Because a covered employer is required to participate in the Fund, regardless of existing policies, employers may want to amend their paid leave policies to offer additional or supplemental paid leave benefits. However, the parameters of the additional or supplemental paid leave should be clearly laid out to prevent any confusion about employee’s double dipping. Employers may provide additional benefits above the maximum amount received through the Fund or provide additional paid leave beyond the eight, six, or two weeks provided under the Act.
- Is there an exemption or exception for small businesses?
No, there is not an exemption or exception for small businesses. Council members Mary Cheh and Jack Evans introduce an amendment to the bill that the council did not pass, which would fund paid leave through an individual-employer mandate, in which employers pay for parental leave when employees need it, instead of the current plan to raise taxes and provide the benefit through a public-insurance program. The amendment would have also given a tax credit – not an exemption – to small businesses to help them cover their employees’ wages while they are gone. However, under the Act that was passed, employers of all sizes must contribute to the Fund.
In sum, there remain many questions as to how the Act and the Fund will be administered, all of which should be answered after the Act becomes effective and the Mayor’s office issues forms and notices. We will continue to keep you apprised of any developments under the Act, and what employers should do to ensure compliance.