On Sunday, March 15, 2020, we provided a comprehensive summary of the paid leave and other employment-related provisions of the Families First Coronavirus Response Act, passed overwhelmingly by the U.S. House of Representatives on March 13. This bill makes sweeping changes to an employer’s legal obligations: (1) imposing a paid sick and safe leave (“PSL”) mandate for COVID-19-related reasons on most employers with fewer than 500 employees; (2) temporarily and vastly expanding coverage and imposing a paid leave requirement on these same employers under the Family and Medical Leave Act (“FMLA”) for school and child care closures associated with COVID-19; (3) making unemployment benefits available for reasons associated with COVID-19; and (4) giving a tax credit for paid sick and paid family and medical leave.

Continue Reading U.S. House of Representatives Amends the “Families First Coronavirus Response Act”

In a rare show of bipartisanship, the U.S. House of Representatives has passed legislation providing a wide scope of benefits and rights to individuals impacted by the COVID-19 national emergency. This legislation makes sweeping changes to an employer’s legal obligations: (1) imposing a general paid sick and safe leave mandate on all employers, with additional time for public health emergencies; (2) temporarily and vastly expanding coverage and imposing a paid leave requirement under the Family and Medical Leave Act for reasons associated with COVID-19; (3) making unemployment benefits available for reasons associated with COVID-19; and (4) giving a tax credit for paid sick and paid family and medical leave. Given that President Trump has already tweeted his support for the bill and the Senate is expected to follow suit, it is likely to be enacted in the coming days and would need to be immediately implemented by employers.

Continue Reading What The “Families First Coronavirus Response Act” Means To Employers

The Equal Employment Opportunity Commission has now directly addressed the coronavirus (COVID-19) outbreak by issuing “What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus.” In this release, the EEOC noted that the rules under the Americans with Disabilities Act and the Rehabilitation Act (the counterpart to the ADA for federal employees and contractors) still apply, but do not interfere with workplace guidance from the Centers for Disease Control (CDC) (which we discussed in detail in our February 2020 Top Tip).

Continue Reading The EEOC Weighs in on COVID-19

And with that obvious (and rather snarky) statement, the U.S. Court of Appeals for the Fifth Circuit made the obvious point that an employee who was asleep or unconscious on the job was unable to perform the essential functions of his job and therefore not qualified for the position under the Americans with Disabilities Act! Now, as my regular readers know, I enjoy a good snark and my blog posts about various court decisions often contain snide comments. But in this case, the (usually quite proper) Fifth Circuit took care of that all on its own…

Continue Reading “[M]aintaining consciousness is a basic element of any job.”

It is a truth universally acknowledged that an employee unable to perform the essential functions of his/her job must be in want of a transfer. And it is also quite clear under the Americans with Disabilities Act that the employer must consider a transfer or reassignment to a vacant position as a reasonable accommodation. What is less clear is whether the employee automatically gets the position (i.e. an arranged marriage) or whether the employer can require the employee to compete for the position (see, e.g. “The Bachelor”).

Continue Reading A Marriage of Convenience? EEOC Continues To Push Non-Competitive Transfer as Reasonable Accommodation

Several years ago, I blogged about Emeryville, California’s paid sick leave ordinance, which  is the only sick leave law that allows employees to take leave specifically to care for a sick service animal. As I noted then, “[t]he concept makes sense – employees can take sick leave because they (or their family member) is temporarily incapacitated because of the illness of the [service animal]. (Not because the dog is a family member!).” I also wondered whether other jurisdictions would adopt similar provisions. But now, I’m not sure they have to.

Continue Reading Sick Leave for Service Animals?

Most human resources folks know that, under the Family and Medical Leave Act, eligible employees can take leave to care for a child with a serious health condition, and that the FMLA defines “child” as being under the age of 18. But what some perhaps don’t realize is the  FMLA has an additional definition of “child”: one over 18 years who  is “incapable of self-care because of a mental or physical disability.” And even if they’re aware of that definition, they may not understand that the disability can be quite temporary in nature. A recent case, Gibson v. New York State Office of Mental Health, clearly makes this point.

Continue Reading FMLA to Care for Adult Child?

In a study published in 2000, two professors – one from Princeton, the other from Harvard –concluded that blind auditions exponentially increased the probability of female musicians being selected for seats on major symphony orchestras. In blind auditions, musicians play from behind screens, thus removing the distraction of the person, including the person’s race, age or (the focus of the study) gender. The study collected data from eight symphony orchestras over four decades. The problem is, according to a Wall Street Journal article, the data presented a “tangle of contradictory trends” that did not support the unequivocal bottom line presented by the authors. Indeed, “[t]he paper includes multiple warnings about small sample sizes, contradictory results and failures to pass standard tests of statistical significance. But few readers seem to have noticed. What caught everyone’s attention was a big claim in the final paragraph.”

Continue Reading Behind the Blind Selection Screen

My interest is piqued by laws with unusual twists, like the Emeryville, California ordinance that permits the use of sick leave to care for a family member’s service animal (about which I blogged previously). Here’s another one – Pittsburgh recently passed a pregnancy accommodations ordinance that extends protections to the partners of pregnant employees!

Continue Reading Pregnancy Protections for Partners?

Ah, the perils of “reply all.” We’ve all been there – but did you know that doing so can implicate the National Labor Relations Act? This was the case in Mexican Radio Corp. v. NLRB. In August 2015, a restaurant hired a new general manager. Soon after this hire, employees lodged numerous complaints with the restaurant’s director of operations about the general manager’s alleged demeaning treatment of employees, as well as the restaurant’s unsanitary conditions.
Continue Reading Nothing Good Comes From Hitting “Reply All”