Tag: leave

September 12, 2019

Paid Family Leave in 2020

We are now in the second year of New York’s Paid Family Leave Program. The phase-in continues. And it’s getting more costly for employees. What do you need to know about Paid Family Leave in 2020?

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2020. It will increase from 0.153% to 0.270% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $196.72 in 2020 compared to $107.07 in 2019.

The contribution rate increased from 0.126% to 0.153% in 2019. That changed the maximum annual contribution from $85.56 to $107.97.

Overall, the maximum annual contribution has increased by 130% in just 2 years.

This means an additional annual cost of up to $111.16 for many employees from 2018 to 2020. And additional increases are likely each year.

2020 Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase again in 2020. The weekly benefit rate increases from 55% of the employee’s average weekly wage to 60%. This percentage only applies up to the first $1,401.17 of weekly earnings. An employee who earns more than that can only receive $840.70 per week in paid family leave benefits.

The maximum leave allowance remains 10 weeks as in 2019.

Future Paid Family Leave Rates

Expect the contribution and benefit rates to change again.

Under the original schedule, maximum weekly benefits will increase to 67% of the average weekly wage in 2021. The NYS Superintendent of Financial Services could delay these increases, but did not do so for 2020.

The maximum leave allowance will increase to 12 weeks per year beginning in 2021.

What Must Employers Do?

Companies should confirm their 2020 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflected specific rates for paid family leave in 2019, then you might need to change those.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

Finally, employers might find that these changes increase the utilization of paid family leave in 2020. On one hand, the benefit is higher, making it more financially viable for employees to take time off from work. On the other hand, since employees have to pay more for the program in the first place, they might feel even more entitled to use it. These factors might require employers to replace more worker hours next year or otherwise allow for lost productivity.

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November 16, 2018

Who Is an FMLA Eligible Employee?

To get really technical about it, there a difference between an FMLA eligible employee and an employee with an FMLA qualifying circumstance. The federal Family & Medical Leave Act (FMLA) generally allows eligible employees to take up to 12 weeks of unpaid leave each year related to the birth or adoption of a child, serious health conditions, and certain family-member military-related situations. But not all employees in these covered situations are protected by the law in the first place.

So, let’s take a look at the requirements for being FMLA eligible.

[The FMLA differs from state laws, such as New York’s Paid Family Leave Benefits Law. New York employers can click here to contrast the two.]

Work For a Covered Employer

In many respects, FMLA eligibility is beyond an employee’s control. This primarily comes down to the size of a company’s workforce. Private sector (non-governmental) employers with less than 50 employees are not subject to the FMLA. Their employees have no leave rights under the law.

The FMLA covers all public agencies, including federal, state, and local governments, and schools even if they have fewer than 50 employees. However, that doesn’t change the eligibility for employees working for governmental employers under that workforce threshold . . . because of the next requirement.

Work within a 75-Mile Radius of 50+ Employees

To be FMLA eligible, an employee must work at a location where their employer has at least 50 total employees working within a 75-mile radius.

Sometimes this is an easy requirement to measure. Many companies have more than 50 employees working at the same location. If you don’t, however, you might need to get out a map (probably digital these days) to check whether employees are FMLA eligible.

And how do you measure those 75 miles? Here’s what the Department of Labor’s regulations have to say about that:

“The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).”

There are other potential complexities. Some employees have no fixed work location. Then, per the regulations, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”

Have Worked for the Employer for at Least 12 Months

Even in large workplaces, employees don’t become FMLA eligible their first day on the job. Not even the first month . . . or the first year. Instead, they must remain employed for at least 12 months before earning FMLA protections.

However, the 12 months don’t have to be consecutive. Time off, or even formal termination of employment, doesn’t restart the clock. An employee with a year or more of service who quits but then returns to the company later might satisfy this requirement on their first day back. And an employee who first worked less than 12 months before leaving and returning can count the previous period of employment. Except . . . if the break in employment lasted at least 7 years, then prior employment doesn’t count (barring special circumstances).

But gaps in employment will often still affect FMLA eligibility, because an employee must . . . .

Have Worked for the Employer for at Least 1,250 Hours in the Past Year

This requirement means that many part-time employees are not FMLA eligible. It also limits the initial eligibility of employees returning to a company after a break in employment.

The hours requirement looks backward from the date leave begins. In other words, on the day the leave will start, has the employee worked 1,250 hours in the past 12 months. If not, they are not FMLA eligible. However, such employees might be able to delay the leave (assuming a non-emergency situation) until they will have worked enough to become eligible.

Sometimes this eligibility condition prevents employees from taking FMLA leave in consecutive years. Previous time off (under the FMLA or otherwise) might mean that even when an employee would otherwise regain annual FMLA leave time, they will no longer (at least initially) be eligible to use it.

Understanding Which Employees Are FMLA Eligible

If your company is subject to the FMLA, then you must be prepared to evaluate whether a particular employee is FMLA eligible.

Employees don’t have to use any magic words in requesting leave under the FMLA. Asking for time off for a reason that would qualify for leave (e.g., childbirth, surgery, etc.) is usually sufficient to shift the burden to the employer to follow the FMLA. This includes determining whether the employee is FMLA eligible and notifying the employee of their eligibility and rights.

Employers with limited experience applying the FMLA or those facing less-than-straightforward scenarios should consider consulting with an experienced employment lawyer on questions of employee eligibility and other legal parameters.

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October 11, 2018

Mental Health Leave Under the ADA

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees with mental disabilities to enable them to perform the essential functions of their jobs. Leaves of absence often qualify as a reasonable accommodation. This includes allowing employees to use either accrued paid leave or unpaid mental health leave to treat or manage their conditions.

Mental Health “Disabilities”

Federal law prohibits employment discrimination based on mental disability. The ADA broadly defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” This definition also covers employees with a record of having a mental disability or a perception of having one.

Many state anti-discrimination statutes also prohibit discrimination based on mental health conditions. Definitions of “disability” may vary under state law, sometimes expanding on what conditions the ADA protects.

Mental health conditions that might qualify as disabilities under the ADA include depression, anxiety, and post-traumatic stress disorder (PTSD), among many others.

Click here to read more about “What Is a Disability Under the ADA?”

Employee Privacy

Under the ADA, employers cannot require applicants or employees to disclose a disability, with a few exceptions. Employees may need to disclose mental disabilities when they are requesting a reasonable accommodation. Then, employers can ask for medical records describing the disability and employee limitations. All information related to employee disabilities must be kept confidential.

Requesting Mental Health Leave

Employees can request an accommodation at any time during employment. The request can be in plain language and does not have to include the term “reasonable accommodation.” Requests need not be in writing. Employees typically provide notes from their doctors. Employers may also require employees to undergo evaluation from a health care provider of their choice as long as the employer covers the cost.

The U.S. Equal Employment Opportunity Commission (EEOC) oversees the enforcement of the ADA. In guidance documents, it gives an example of a situation where a secretarial employee requests time off “because of her medical condition.” This statement is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. But the employer can ask for medical documentation to learn the specifics of the employee’s condition and limitations.

Employers do not have to grant a leave of absence every time the employee requests one. But they must determine whether the employee has a disability, whether leave is a reasonable accommodation, and whether, even if reasonable, the leave would pose an undue hardship on the employer. All of these determinations depend on the circumstances.

Click here to read more about “Reasonable Accommodations of Disability in Employment.”

Return to Work

When returning from leave, employers can require employees to undergo a medical examination to determine fitness for duty. Employees often ask for extended leave or other accommodations upon return. Employers may honor these requests. But organizations are not required to provide accommodations that would create an undue hardship on the workplace. Nor must employers permit an employee to work if doing so would pose a direct threat to anyone’s health or safety.

The EEOC gives the example of an employee returning from a leave of absence after she underwent a hospital stay and adjusted her medication. The employer may request a fitness-for-duty evaluation to ensure the employee can still perform the essential functions of the position. But the medical examination must be limited to her mental condition.

What Do the Courts Say About Mental Health Leave?

Employers must evaluate every situation carefully to determine their obligations under the ADA.

Here are just some examples of what courts have said in specific cases:

In one case, a teacher with an anxiety disorder requested an extended leave of absence as an accommodation. The court upheld the employer’s refusal to grant the leave because there was no certainty that the teacher would be able to return to work at the end of the leave

In another case, a manufacturing employee returned from leave due to severe depression. Upon return, he requested the accommodation of having no contact with co-workers or supervisors. The court upheld the employer’s determination that this accommodation was unreasonable.

These are just two among numerous cases that have resulted in litigation. Obviously, employers would prefer to avoid litigation under the ADA, whether related to mental health leave or other employee disability issues.

No Retaliation

Employers (through supervisors and co-workers) may not retaliate against employees for requesting or taking mental health leave. This includes both taking tangible job actions (e.g., firing) or making the employee’s workday miserable (e.g., harassment).

Employer Takeaways

According to the National Institute of Mental Health, about 18.5% of the United States population report having a mental health condition during the past year. Thus, mental disabilities are among the most prevalent types of disability that the ADA covers.

Managers and supervisors must accept that mental health conditions qualify for the same general protections as physical impairments. As with many disability accommodation issues, mental health leave is often not a straightforward subject. Accordingly, employers should consult with an experienced employment attorney when these issues arise.