Even Planned Surgery May Be “Unforeseeable” Under the FMLA

Posted in Employment Litigation, Medical & Other Leaves

Employees seeking leave under the Family and Medical Leave Act are supposed to give 30 days’ notice if the need for leave is “foreseeable,” but what does “foreseeable” mean? Based on a recent 11th Circuit Court of Appeals decision, even elective surgery which could be planned far in advance, if “relatively urgent,” would not be foreseeable and thus not require 30 days’ advance notice of the need for leave. Continue Reading

EEOC Encouraged to Address Social Media and “But-for” Causation in Revising Guidance on Retaliation

Posted in Employment Discrimination Harassment & Retaliation

At a meeting of the U.S. Equal Employment Opportunity Commission, convened to address the explosive growth of retaliation charges last week, witnesses made a variety of recommendations, including that the agency revise its retaliation guidance in its Compliance Manual to embrace the Supreme Court’s “but-for” causation standard and to address the impact of social media in the workplace. Continue Reading

Pregnancy Discrimination Prohibition To Be Included in Florida Civil Rights Act

Posted in Employment Discrimination Harassment & Retaliation

In April 2014, the Florida Supreme Court held in Delva v. The Continental Group, Inc. that pregnancy discrimination was encompassed within “sex” discrimination as protected in the then-enacted version of the Florida Civil Rights Act (the “FCRA”), even though it was not explicitly mentioned in the FCRA. In response to this holding, the Florida legislature has now passed Senate Bill 982, which expressly makes pregnancy a protected class under the Florida Civil Rights Act. The bill was approved by the governor on May 21, 2015, and it becomes effective on July 1, 2015. Continue Reading

Glitch in State Department Systems Causing Worldwide Visa Issuance Delays

Posted in Immigration Planning & Compliance

U.S. embassies and consulates abroad recently suspended issuing any U.S. visas as a result of worldwide technical issues with State Department computer systems. These technical problems cause considerable delays to foreign nationals waiting for their visa to be issued prior to traveling to the United States. The suspension is global, and does not apply to any specific visa category or nationality.

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Even In Colorado, Employees May Be Terminated for Medical Marijuana Use In Violation of Company Drug Policy

Posted in Employee Handbooks & Policies, Employment Litigation

In Coats v. Dish Network, LLC, the Supreme Court of Colorado upheld an employer’s decision to terminate the employment of a quadriplegic employee who worked as a customer service representative and who held a state-issued license to consume medical marijuana. Coats, who had been confined to a wheelchair since his teenage years, tested positive for marijuana during a random drug testing conducted by Dish Network, and although he disclosed that he held a state license to consume the drug, Dish Network terminated his employment for violating the company’s drug policy. Coats argued that the termination of his employment was unlawful, where Colorado law prohibits discriminatory personnel actions for lawful off-duty conduct pursuant to the state’s “lawful activities statute,” Colo. Rev. Stat.  § 24-34-402.5. Continue Reading

Second Circuit Confirms That Providing “Effective” Reasonable Accommodation Sufficient Under ADA and NYS Law

Posted in Disability, Employment Discrimination Harassment & Retaliation, Employment Litigation

In Noll v. Int’l Bus. Machs. Corp., 13-cv-4096 (2d Cir May 21, 2015), the Second Circuit Court of Appeals addressed the extent to which, under the ADA and New York State law, an employee must be provided with the precise accommodation he or she requests and whether, if the employer offers a different type of accommodation, its failure to engage in a further interactive process suffices to establish a disability discrimination claim. In Noll, the Court found the employer (IBM) did not have a duty to provide the most effective accommodation, but rather simply an effective one, and, given that it offered a reasonable accommodation, did not have a duty to engage in a further interactive process. Continue Reading

OSHA Publishes Guide to Restroom Access for Transgender Workers

Posted in Workplace Safety & OSHA

All employees, including transgender employees, should have access to restrooms that correspond to their gender identity. That’s the takeaway from the Department of Labor’s Occupational Safety and Health Administration’s (“OSHA”) recently published guidance to employers on best practices regarding restroom access for transgender workers.

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Court Addresses FMLA’s Overnight Stay Requirement

Posted in Medical & Other Leaves

In order to satisfy the Family and Medical Leave Act’s “overnight stay” requirement, an employee must be in the hospital “for a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge,” according to the federal Third Circuit Court of Appeals. The Court also noted, but did not rule, that at least eight hours would have been an appropriate amount of time under the circumstances to meet the “substantial period of time” requirement. Bonkowski v. Oberg Indus., Inc., No. 14-1239, 2015 WL 2444503 (3d Cir. May 22, 2015). Continue Reading

Supreme Court Rules Against Employer on Religious Accommodation Standard for Job Applicant

Posted in Employment Discrimination Harassment & Retaliation

The U.S. Supreme Court has held that to prevail in a Title VII disparate-treatment (i.e., intentional discrimination) claim, a job applicant need only show that his need for a religious accommodation was a motivating factor in the employer’s decision. An applicant does not need to show that the employer had knowledge of his need for the religious accommodation. EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (June 1, 2015). Continue Reading

DOL Issues New FMLA Forms

Posted in Genetic Information Nondiscrimination Act, Medical & Other Leaves

The Department of Labor has finally issued new FMLA forms. These forms (WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385, and WH-385V) may be accessed from the DOL’s website.

The prior FMLA forms expired well before the new ones were issued this past weekend. The new forms contain the Genetic Information Nondiscrimination Act (GINA) disclosure language that directs medical providers not to provide information about genetic tests, genetic services, or the manifestation of disease or disorder in the employee’s family members. Similar language now exists in other medical certification forms issued by the DOL as well.

The new forms are set to expire 5/31/2018.