Hawaii adds siblings as a covered relationship for family leave

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

On July 10, 2017, the governor of Hawaii signed an amendment to the state’s family leave law, adding siblings as a family member for whom an employee can take leave.  The amendment took effect immediately.

Under the Hawaii law, employees who have worked for an employer for at least 6 consecutive months are entitled to 4 weeks of unpaid, job-protected leave per 12-month period:

 

  • To bond with a newborn biological child or newly adopted child (a newly placed foster child is not covered); and
  • To care for the employee’s child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition.

The terms “child” and “parent” are defined broadly by the Hawaii statute for the purpose of caring for a family member with a serious health condition:

  • Child: biological, adopted, or foster son or daughter, a stepchild, or a legal ward of an employee.
  • Parent: biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

Employers with 100 or more employees must comply with the law.

The Hawaii family leave law does not provide leave for an employee’s own serious health condition.  However, the state does have a pregnancy disability leave law; temporary disability benefits for up to 26 weeks per year through an employee/employer funded state program; and leave to donate an organ, bone marrow, or peripheral blood stem cells.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Leave rights for victims of domestic violence:  Growing need,  multi-state trend

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

If you don’t think you need to know about state leave laws that protect victims of domestic violence and similar crimes, consider this:

  • More than 27% of women and 11% of men have experienced contact sexual violence, physical violence, and/or stalking by an intimate partner in their lifetime. Commonly reported negative impacts were feeling fearful, concern for safety, and symptoms of post-traumatic stress disorder.
  • Significantly more women and men with a history of sexual violence or stalking reported asthma, irritable bowel syndrome, frequent headaches, chronic pain, difficulty sleeping, and limitations in their activities compared to those without a history of these forms of violence.

Centers for Disease Control 2010-2012 State Report fact sheet, accessed July 12, 2017.

In other words, many of your employees are among these victims.

At Matrix we see a comparatively small number of domestic violence leave requests.  As a good employer, are you educating your employees on their rights to this type of leave in certain states or under company policies?  We have no statistics for this, but it seems logical that leave taken early, when needed, may reduce the need for more extensive time off later.  And as an employer you’ve done the right thing.

Some of the victims’ needs, such as treatment for and recovery from physical and mental injuries resulting from the violence, may be eligible for job-protected leave under the federal Family and Medical Leave Act and similar state laws.  However, these victims often require time off for other related issues such as protecting their families by moving to a new location, obtaining counseling, and obtaining a court-issued protective order.

For these reasons, the number of states enacting or expanding laws that provide leave of absence specifically for victims of domestic violence is increasing.  Nevada is the latest to join the ranks, and California has expanded its notice requirements effective July 1 (see story below).

Nevada enacts leave for victims of domestic violence

Effective January 1, 2018, Nevada employers will be required to provide leave to eligible employees who are a victim of domestic violence or whose “family or household member” is the victim of domestic violence.

Under the Nevada law, an employee must have been employed for at least 90 days to be eligible for the leave. Eligible employees may take up to 160 hours of leave (equivalent to 20 8-hour days) in a 12-month period, continuously or intermittently, within 12 months of the date of the act of domestic violence that necessitated the leave.  The Nevada leave will run concurrently with FMLA if taken for an FMLA-qualifying reason (for example, to get treatment for and recover from incapacitating injuries or care for a family member).

Domestic violence is defined as an act committed by a spouse, former spouse, person with whom the victim has a dating relationship or shares a child, and other relationships, and includes acts such as assault, battery, sexual assault, stalking, larceny, compelling an unwanted action, and trespassing.

Following any immediate leave necessitated by the incident of domestic violence, an employee must provide at least 48 hours’ advance notice to the employer of leave for any of the following reasons:

  • For the diagnosis, care or treatment of a health condition related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;
  • To obtain counseling or assistance related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;
  • To participate in any court proceedings related to an act which constitutes domestic violence committed against the employee or family or household member of the employee; or
  • To establish a safety plan, including, without limitation, any action to increase the safety of the employee or the family or household member of the employee from a future act which constitutes domestic violence.

Employers may require documentation supporting the need for leave, such as a police report, copy of an application for an order for protection, an affidavit from an organization which provides services to victims of domestic violence or documentation from a physician.

“Family or household member” means a: (1) Spouse; (2) Domestic partner; (3) Minor child; (4) Parent; (5) other adult person who is related within the first degree of consanguinity or affinity to the employee; or (6) other adult person who is or was actually residing with the employee at the time of the act which constitutes domestic violence.

The law also requires Nevada employers to make reasonable accommodation(s) to employees who are victims of domestic violence or whose family or household member is a victim of domestic violence.  Accommodations may include transfer or reassignment; a modified schedule; a new telephone number for work; or any other reasonable accommodations which will not create an undue hardship deemed necessary to ensure the safety of the employee, the workplace, the employer or other employees. 

The Nevada bill protects employees from adverse employment actions based on taking leave as permitted by the act.

Employers are required to maintain records of leave taken for 2 years and to post a notice of employee rights. The Nevada Department of Labor is working on a form of notice for employers to post.

To read the full text of the Nevada law, click here: https://legiscan.com/NV/text/SB361/id/1628891

Domestic violence leaves in other states

With this law Nevada joins the following states that have similar domestic violence leave laws (although they vary in details by state):  California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, New Jersey, New Mexico, North Carolina, and Oregon.

In addition to these specific “personal protection” leaves, virtually all states have laws that provide job protection for victims or witnesses for time spent testifying in court or assisting prosecuting attorneys with respect to various crimes, not just crimes relating to domestic violence.  These laws generally do not have any employee eligibility requirements, notice requirements, or duration limitation.

Reminder:  California employers must start providing notice of domestic violence leave rights July 1

California law requires employers to provide leave of absence rights for victims of domestic violence, sexual assault, and stalking.  Leave reasons including taking time off from work to get help to protect the employee’s and employee’s children’s health, safety or welfare, including time off to get a restraining order or other court order.  The text of the law can be viewed at this link.

Effective July 1, 2017, employers must provide a notice of employee rights under the law to all new workers upon hire and to other employees upon request.  The Labor Commissioner has developed and posted a form that employers may use to comply with the notice requirements.

Pings for employers.   Employers should copy the form and distribute it to all current employees and add it to their new-hire packets.  In addition, although the law does not specifically require this, a great extra step is to post the notice on bulletin boards in employee break rooms and wherever other employment-related notices are posted.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

California Risks Reputation as Leading Leave Haven

Posted on: October 10, 2016 0

By Marti Cardi, VP Product Compliance

full_mod_vetoCalifornia is often commended – or condemned? – as the nation’s leader in rights for the state’s workers. Indeed, in late September California Governor Jerry Brown signed a bill requiring employers to give notice to California employees of their rights if they are a victim of domestic violence, sexual assault, or stalking.

However, at the same time he vetoed two bills that would have expanded the rights of employees under the California Family Rights Act (CFRA).  What, you say?  In California?  Yes, apparently there are limits.

Enacted:  Mandatory Notice to Employees of Leave Rights. Effective January 1, 2017, employers with 25 or more employees must inform each employee in writing of his or her rights established under the two Labor Code sections cited below. The information must be provided to new employees upon hire and to other employees upon request. However, the law also directs the Labor Commissioner to develop by July 1, 2017, a sample form that employers can use to comply with the new notice requirement.  Employers are not required to comply until the Labor Commissioner posts the form on the Commissioner’s website.

The new law amends two current laws (CA Labor Code §§ 230 and 230.1), which allow victim employees to take time off from work for the following purposes:

  • To seek medical attention for injuries caused by domestic violence or sexual assault.
  • To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence or sexual assault.
  • To obtain psychological counseling related to an experience of domestic violence or sexual assault.
  • To participate in safety planning and take other actions to increase safety from future domestic violence or sexual assault, including temporary or permanent relocation.
  • To obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.

The current laws also make it unlawful for employers to discharge, threaten with discharge, demote, suspend, or in any manner discriminate or retaliate against victims of such crimes in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes.  Leave for the first four reasons listed above is limited to the 12 weeks provided by the federal Family and Medical Leave Act (FMLA) even if the leave reason is not covered by FMLA.  For example, if an employee has already taken 9 weeks of FMLA time, he or she will be limited to 3 more weeks of leave for the first four reasons above in the specific leave year.  Leave for the reasons described in the last bulleted paragraph (obtaining protective court orders) is not similarly limited.

Also in late September, California Governor Brown vetoed 2 bills that would have expanded employees’ rights under the California Family Rights Act (CFRA).

Vetoed:  Parental leave for employees of smaller employees.  Governor Brown vetoed SB 654, which would have provided up to 6 weeks of job-protected unpaid parental leave to eligible workers employed by companies with 25-49 employees.  Currently the California Family Rights Act (CFRA) requires companies with 50 or more employees to provide up to 12 weeks of job-protected unpaid leave to eligible employees.  The proposed law would also have required the continuation of health care benefits during the leave.

Vetoed:  Expanded CFRA definition of “family member.”  Another bill vetoed by Governor Brown (SB 406) would have amended CFRA by expanding the definition of “family member” for which California employees can take leave when the family member has a serious health condition.  The bill would have added leave rights to care for the employee’s grandparent, grandchild, sibling, domestic partner, or parent-in-law.  The bill also would have removed the age restriction on the definition of “child” so that employees could take CFRA time to care for an adult child with a serious health condition even if the adult child does not have a disability.

None of these relationships is covered under the FMLA.  As a result, an eligible employee would be able to take up to 24 weeks of leave per year in some circumstances.  For example, when leave is first taken to care for a family member not covered under FMLA such as a sibling or grandparent, the leave would not count against the employee’s 12 weeks of FMLA entitlement, which would still be available for use if the employee meets the eligibility requirements at the beginning of the requested leave.

A few states with family and medical leave laws allow this anomaly to occur due to their broader definition of a “family member” for whom an employee can take leave:

  • California: by regulation, includes domestic partner in the definition of spouse
  • Colorado: provides for FMLA-like leave rights to care for a civil union partner with a serious health condition
  • District of Columbia: family member includes a person to whom the employee is related by blood, legal custody, or marriage; and a person with whom the employee shares or has shared, within the last year, a mutual residence and with whom the employee maintains a committed relationship (thus, covering many more family and personal relationships than the FMLA)
  • Hawaii: civil union partners, reciprocal beneficiaries, parents-in-law, grandparents (including grandparents-in-laws)
  • Maine: siblings (when mutually committed to supporting one another), domestic partners; no age limit on “child”
  • New Jersey: civil union or domestic partners
  • Oregon: civil union or domestic partners, parents-in-law, grandparents, grandchildren
  • Rhode Island: civil union partners, parents-in-law; no age limit on “child”
  • Vermont: civil union partners
  • Washington:   civil union partners, parents-in-law, grandparents
  • Wisconsin: domestic partners, parents-in-law (including the parent of a domestic partner)

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

No Bones About It – Donor Leave Laws Continue to Increase

Posted on: June 24, 2016 0

Wisconsin Supports Its Donor Employees

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law

RG with donor cardNext week Wisconsin joins the growing list of states with laws mandating leave of absence for employees to donate organs, bone marrow, blood, and other types of human tissue.

The state’s Bone Marrow and Organ Donation Leave law goes into effect on July 1, 2016.   Here is a summary of the law’s significant provisions.

(Also: see our handy state donor leaves chart below.)

New Wisconsin Donor Leave Law: Significant Provisions

Covered Employers 50 or more permanent employees
Eligible Employees •  More than 52 consecutive weeks of service and
•  At least 1,000 hours worked in the previous 52 weeks
Leave Reasons To serve as a bone marrow or organ donor
Leave Entitlement Up to 6 weeks in a 12-month period
Leave Year Calculation Measured forward from first date of donor leave
Paid/Unpaid Donor leave is unpaid; but employee may choose to substitute available paid leave
Interaction with Wisconsin Family /Medical Leave Act Not specified but appears to be a separate leave right in addition to leave rights under the WI FMLA.

 

Analysis:   This is a new leave law, not just an additional leave reason under the WI FMLA. This suggests legislative intent for this leave to be independent of, and in addition to, any leave right the employee may have under the WFLA.  Our discussion with a representative of the Wisconsin Department of Workforce Development (DWD) supports this interpretation.

Employee Notice Advance notice in a “reasonable and practicable manner”

•  No requirement that notice be in writing

Scheduling Employee must make a reasonable effort to schedule procedure so that it does not unduly disrupt employer’s operations

•  But scheduling is subject to approval of donee’s provider

Certification Employer may require a certification from donee’s or employee’s health care provider:

•  That the donee has a serious health condition that necessitates a bone marrow or organ transplant;

•  That the employee is eligible for and has agreed to serve as a bone marrow or organ donor for the donee; and

•  The amount of expected leave time for the procedure and employee’s recovery

Restoration Rights Upon Return from Leave Restoration to:

•  Employee’s previous position if vacant; or

•  A position equivalent in terms of compensation, benefits, shifts, hours of employment and other terms and conditions of employment

Group Health Insurance Coverage Employer required to maintain coverage during leave under the same conditions that applied before leave
Nondiscrimination Employees who request, or take, WI bone marrow and organ donation leave are protected from discharge and other adverse employment actions based on their exercise of leave rights
Discrimination Complaints Must be filed with the DWD within 30 days after the violation occurs
Civil Right of Action Private right of action within 60 days after completion of the administrative process before the DWD, but no later than 12 months after the violation occurred
Employer posting requirements Employers must post in one or more conspicuous places where employee notices are customarily posted:

•  All employers:  a notice, to be created by the DWD, of the employee’s rights

•  Employers with 25 or more employees: a copy of the employer’s policy regarding donor leave

Note:  These posting requirements seem at odds with the fact that the law only applies to employers with 50 or more permanent employees.

States with Donor Leaves

Wisconsin joins a number of other states with bone marrow and organ donation leave laws. Here is a snapshot of the states with such laws for private employers.

State Employee Eligibility Covered Employers Leave Reasons Length /Frequency of Leave Paid/
Unpaid
Arkansas

Ark. Code Annot. §11-3-205, et. seq

 

All employees All employers Bone marrow or organ donation Up to 90 days Unpaid (but state tax credit available for employers who provide paid leave)
California

Cal. Lab. Code § 1508 et seq.

90 days of service 15 or more employees Bone marrow or organ donation •  Organ donation:  up to 30 business days
•  Bone marrow donation: up to 5 business days
•  In a 12-month period.
Paid, but employer can require employees to substitute up to 2 weeks of paid leave benefits (employer pays remainder).
Connecticut

C.G.S. §31-51ll(a)(2)(E)

•  12 months of service
•  1000 hours of service during that 12 month period
75 or more employees Organ or bone marrow donation 16 workweeks in a 24-month period
•  Shared with other leave reasons under CT FMLA
Unpaid

•  Employer may require, or employee may elect, to substitute accrued paid leave benefits

Hawaii

H.S.A. §398a-3

20 or more hours per week 20 or more employees Donation of bone marrow, peripheral stem cells, or organ •  Organ donation:  up to 30 days
•  Bone marrow or peripheral stem cells:  up to 7 days
Unpaid

•  Employers can require employees to use up to 2 weeks (organ donation) or 3 days (other donation) of sick or other time off during donor leave

Illinois

820 ILCS 149

6 months of employment 51 or more employees Blood donation 1 hour every 56 days Paid
Louisiana Louisiana Rev. Stats. §40: 1299.124

 

 

 

20 or more hours per week

 

 

20 or more employees at one location Bone marrow donation Up to 40 hours Paid
Maine

26  M.R.S.A.
§§843, 844

12 consecutive months of employment 15 or more employees at one location Organ donation Up to 10 weeks every 2 years
•  Shared with other leave reasons under ME FMLR
Unpaid
Minnesota

M.S.A. §181.945

20 or more hours per week 20 or more employees at one location Bone marrow donation Up to 40 hours Paid
New York

NY Labor Law §202-a

 

20 or more hours per week 20 or more employees at one location Blood or bone marrow donation •  Blood donation:  3 hours
•  Bone marrow donation: 24 hours
Unpaid
Oregon

Ore. Rev. Stat. §659A.312

 

20 or more hours per week All Bone marrow donation Amount of paid time off employee has accrued or 40 hours, whichever is less Employee required to use his or her accrued paid leave
South Carolina

SC §44-43-80

 

20 or more hours per week 20 or more employees at one location Bone marrow donation Up to 40 hours Paid
Wisconsin

Wisc. Stat. §103.11

•  More than 52 consecutive weeks of service and
•  At least 1,000 hours worked in the previous 52 weeks
50 or more permanent employees Bone marrow or organ donation Up to 6 weeks in a 12-month period Unpaid
•  Employee may choose to substitute available paid leave

And finally, Nebraska – in an abundance of employee support – “encourages” employers to grant paid leaves of absence to employees who seek to undergo a medical procedure to donate bone marrow.  Neb. Rev. Stat. §71-4820.

MATRIX CAN HELPMatrix Absence Management will be ready to manage the new Wisconsin donor leave law effective July 1.  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and will post periodic updates in this blog.  In addition, our clients receive Matrix’s monthly Legislative Update, which pulls together developments in the world of leave laws and accommodations in a concise and timely format.  With the passage of each new leave law Matrix assesses employer needs and industry demands to determine whether administration of the new law should be added to Matrix’s suite of services.

Contact Matrix at 1-800-866-2301 to learn more about our services for complete management of leaves of absence, disability plans (state and private), and ADA accommodations, including leave.

 

Still More on Leave of Absence as an ADA Accommodation – Jeff Nowak and EEOC Commissioner Feldblum to Co-Star

Posted on: May 26, 2016 1

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law

The absence management world has been abuzz lately due to the release by the EEOC of a new resource document, Employer-Provided Leave and the Americans with Disabilities Act.  I wrote about this document and the latest EEOC consent decree – $8.6 million against Lowe’s due to its maximum leave policies – here and here.

Now, in an industry coup, my friend and fellow blogger Jeff Nowak will present a webinar on the new EEOC resource and leave as an ADA accommodation together with guest star, EEOC Commissioner Chai Feldblum.  For those of you who haven’t had the experience of hearing Commissioner Feldblum speak, you are in for a treat.  She is extremely knowledgeable, frank, and outspoken.  Jeff invites us to send our toughest ADA leave accommodation questions for the Commissioner to him at jsn@franczek.com.

Visit Jeff at FMLA Insights to learn more about the webinar and register, or you can register through the link below.

When: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)
Online registration: Click here.

toastYou’re toast!  And if you still aren’t taking this issue seriously, let me tell a little story from the recent Disability Management Employer Coalition compliance conference held in April.  One speaker was Sharon Rennert, Senior Attorney Advisor on ADA policy for the EEOC.  An attendee asked Ms. Rennert a question about his company’s maximum leave policy that was based on exhaustion of 12 weeks of FMLA leave.  An employee needed only a few additional days of leave but the company did not want to make an exception to its policy.  Ms. Rennert stopped his question by saying, “You’re toast!”  The poor guy tried to continue his question and to justify his company’s policy but again got the response from Ms. Rennert, “You’re toast!”  Now, she wasn’t being rude, but was simply trying to make it ever-so-clear that an employer’s application of an automatic cap on leave without engaging in an individualized assessment of the employee’s situation may violate the ADA, because it does not allow for consideration of more leave or some other accommodation(s) to enable the employee to perform his essential functions.  So, attend and learn from Jeff’s webinar, and don’t be toast!

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.