Tag: ADA

New FMLA Forms

New FMLA Forms (Technically)

If your organization has 50 or more employees, then it may have to deal with the federal Family and Medical Leave Act (FMLA). FMLA compliance involves paperwork. Employers must provide eligible employees prescribed notices and can require their workers to complete leave-request forms. The U.S. Department of Labor maintains sample forms that most covered employers use. The DOL recently updated its model FMLA forms, though in a minor way.

The FMLA grants eligible employees up to 12 weeks (26 in limited cases) of leave per year to use in several situations. These include personal or family member serious health conditions, birth/adoption of a new child, and certain military-related matters. What documents should you be using when these situations arise in your workplace?

What Changed on the FMLA Forms?

Ready for this? The date. That’s it. The expiration date to be precise.

In 2015 the DOL made several substantive revisions to the FMLA forms related to the Genetic Information Nondiscrimination Act (GINA). Those forms showed a May 31, 2018 expiration date. Since then, the DOL has been extending the expiration date on a month-to-month basis up to August 31, 2018.

Over Labor Day Weekend (ironically) the DOL finally issued new forms that don’t expire until August 31, 2021. But there are no substantive changes. Just a new expiration date.

Get the New FMLA Forms

Even though nothing meaningful has changed, you might as well use the new forms. If nothing else, it will avoid questions from employees about why you’re giving them “expired” paperwork.

Here are links to the new FMLA forms:

Notices

WH-381 Notice of Eligibility and Rights & Responsibilities
WH-382 Designation Notice

Certification forms

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
WH-384 Certification of Qualifying Exigency For Military Family Leave
WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave
WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Review FMLA Compliance

Since you’re already thinking about the FMLA now, it would be a good time to double check your organization’s compliance.

Here’s are some basics.

First, are you still covered? Have you dropped below the 50-employee threshold? Do you have any eligible employees? Among other criteria, an employee must work within a 75-mile radius of 50+ employees to personally qualify even if the company has 50 employees overall.

Second, are you providing the right documents to employees at the right times? Once an employee puts the company on notice of a possible FMLA situation, you must give them the notice of FMLA rights within 5 business days. You can either also provide the designation form or seek certification and then make a determination once the employee provides more information. Make sure you get the timing right either way.

Third, are you applying additional legal requirements correctly? Some states, like New York and California, have their own paid leave laws. These are not exactly the same as the FMLA and don’t necessarily apply under all of the same circumstances. Plus, the Americans with Disabilities Act and state disability discrimination laws might also extend leave entitlements as reasonable accommodations.

There’s much more to the FMLA. If you have questions or need more guidance, consult an experienced employment attorney.

 

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Retaliation Federal Law

Preventing Federal Retaliation Claims

According to EEOC statistics, retaliation is the most common basis for discrimination or harassment claims against employers. Retaliation occurs when an employer takes an adverse employment action against an employee for filing a complaint or otherwise participating in protected activity. Adverse actions include firing, giving undesirable assignments, and harassment. A retaliation claim can be asserted even if the original discrimination or harassment claim turns out to be unfounded, so long as the claim was made in good faith.

In addition to preventing lawsuits, employers should avoid retaliation because of its harmful effects on the workplace. Employees often do not report perceived harassment or discrimination because they fear reprisals from supervisors or other employees. If employees don’t report and potential issues remain unresolved, it can harm productivity and produce higher turnover. If employees see that their employer does not tolerate retaliation, they are more likely to report concerns.

Retaliation claims can arise in many contexts:

Title VII

Under Title VII of the Civil Rights Act of 1964, covered employers may not discriminate against employees on the basis of race, color, religion, sex, or national origin or by their association with others who are of a particular race, color, religion, sex, or national origin. Therefore, if an employee files a discrimination claim, employers should ensure that they suffer no adverse employment action because of the filing.

Disability Accommodation

Under the Americans with Disabilities Act, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” This means employers cannot retaliate against employees for requesting reasonable accommodations, such as a disabled cashier asking if he can sit on a stool while working.

Sexual Harassment Investigation

Sexual harassment cases are ripe for potential retaliation because the alleged harasser is often higher in the chain of command than the alleged victim. Employers should ensure that employees who feel they are being harassed have multiple avenues of reporting their concerns to management.

Retaliation for Contesting Terms of Employment

Many other federal laws and agencies afford employees protection against retaliation.

Under the National Labor Relations Act, it is illegal for employers to retaliate against employees for filing charges with the NLRB or participating in that agency’s investigations or proceedings.

The U.S. Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act. This law requires employers to pay minimum wage and overtime. It also prohibits retaliation against employees’ efforts to assert their rights under the FLSA.

The Occupational Safety and Health Administration (OSHA) enforces various “whistleblower” provisions. These include protections from retaliation for employees raising workplace safety or health concerns.

What Constitutes Retaliation?

U.S. Supreme Court cases have clarified what the scope of adverse employment actions can constitute retaliation if they are in reaction to protected activity. This includes retaliation for oral or written complaints. The standard is whether the employer’s response would deter a reasonable employee from engaging in protected activity. Examples include:

● Strongly opposing a promotion or denying a raise
● Denying training or mentorship opportunities
● Poor performance reviews
● Exclusion from meetings or projects
● Changing shifts or work assignments

Claims of retaliation can arise even after the employment relationship has ended. Negative job references can constitute retaliation if an employer gives them because the former employee made a complaint. Refusing to provide a reference can also be retaliation, as can informing a potential future employer of protected activity. For example, the Supreme Court found retaliation for requesting disability leave when an employer described a former employee’s leave for “medical issues” in a job reference.

Retaliatory references are unlawful regardless of whether they affect the potential employer’s decision. However, whether the employee obtains the job may reduce the monetary relief available to the employee. To reduce the risk of liability, many employers adopt a neutral reference policy. By policy, these employers only give the dates of employment and final job title. Employers with these policies must apply them consistently and equally.

Zone of Interests

Adverse employment actions can be unlawful even if they are not directed against the employee who claims retaliation. The Supreme Court looks at whether the employer’s retaliatory conduct affects the employee’s “zone of interests.”

The “zone of interests” includes family members. For instance, the Supreme Court held that an employer unlawfully retaliated by terminating the husband of an employee who filed a charge of sex discrimination. The Supreme Court has not clarified whether the “zone of interests” includes friends. But it has ruled out mere acquaintances.

Conclusion

Employers must train supervisors and managers to avoid retaliation. These employees must know that no one can retaliate throughout or after an investigation. During an investigation, employers should inform participants of the company’s retaliation policy and encourage them to report perceived retaliation. If an employee alleges retaliation, the employer should conduct another investigation into the claim.

Employee Drug Addiction & Alcoholism

Employee Drug Addiction and Alcoholism in New York

There are rising costs associated with employee substance abuse across all organizations. It can lead to serious safety issues, disruption of operations, more leave time, and lower productivity. It can also lead to greater use of healthcare and management resources. Nonetheless, employers cannot take adverse employment action against employees based on drug addiction or alcoholism. But employers can discipline these employees for misconduct involving alcohol or drug use.

Americans with Disabilities Act

Alcoholism can be a disability under the Americans with Disabilities Act (ADA). Under the ADA, the burden is on the employee to prove they have a current or past addiction to alcohol and their addiction “substantially limits one or more major life activities.”

Drug addiction can also qualify as a disability. To receive ADA protection, an employee must prove they previously had a drug addiction and they are currently in treatment, have completed treatment, or have recovered without treatment. The employee must also demonstrate their addiction limits a major life activity or they are regarded as a drug addict. The ADA also protects employees who are incorrectly assumed to be drug addicts from discrimination upon that assumption.

Major life activities include working and caring for oneself. If the ADA applies to an employee, their employer must provide, upon the employee’s request, a reasonable accommodation to help the employee perform their work. Allowing an employee to take leave to attend a rehabilitation program may be a reasonable accommodation. However, drinking on the job is not. And these addictions do not excuse an inability to perform the essential functions of the job. Both alcoholics and employees with drug addictions must be able to perform the essential functions of their position with or without a reasonable accommodation.

New York State Human Rights Law

Drug addiction and alcoholism are also disabilities under the NYS Human Rights Law. The law is similar to the ADA in that recovering and recovered alcoholics and drug users receive protection.  However, the Human Rights Law does not require that drug addiction or alcoholism “substantially limits a major life activity.” Like the ADA, employees qualifying as disabled under the Human Rights Law based on drug addiction or alcoholism may seek reasonable accommodations from their employers.

When an Employer Can Discipline

Under New York law, employers cannot discipline for employees’ legal use of consumable products (such as tobacco or alcohol) outside of work hours when the employee is not in the workplace and not using the employer’s equipment. Yet, employers can discipline employees when they arrive at work under the influence or use drugs or alcohol while working.

The ADA distinguishes between addictions and the conduct resulting from these addictions. Although an employer cannot discipline an employee for the status of being an addict, an employer can discipline for behavior arising from addiction. If an employer disciplines an employee for a result of their addiction, such as arriving late to work, the employer must discipline the employee at the same level as they would discipline other employees for the same offense.

Both the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights allow that employers may discipline employees for current illegal drug use, even while off duty. Although the term “current user” is not well defined, the EEOC defines it to mean that the employee used illegal drugs “recently enough” for an employer to reasonably believe that the drug use is an ongoing issue. Employers may drug test employees to determine recent use.

Although not required, the EEOC encourages employers to enter into “last chance” agreements with an employee whose addiction has deteriorated their job performance. Under these agreements, the employer might allow the employee to take leave for a rehabilitation program upon condition that the employee has an acceptable performance level and attendance rate upon their return. If the employee fails to meet their end of the agreement or refuses to sign the contract, the employer may terminate their employment.

Addressing Employee Drug Addiction and Alcoholism

As a general rule, employers should not ask employees about their past drug or alcohol use. Exceptions may apply if drug addiction or alcoholism create problems at work. However, employers must remember that drug addiction and alcoholism themselves are disabilities and may afford the employees some protections.

Current use of illegal drugs typically constitutes a valid basis for discipline. However, alcohol consumption, especially outside of work, is harder to regulate. But when alcoholism affects an employee’s attendance, productivity, or behavior at work, employers may take appropriate action.