Watch that Frown: Mere Discouragement Enough to Violate the FMLA

Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

There has never been a better time for employers to train managers on the basics of Family and Medical Leave Act (FMLA) rights and appropriate responses to FMLA requests. Believe it or not, FMLA rights can be violated even if no FMLA leave is denied. That’s the law as affirmed by the Seventh Circuit’s recent decision in Ziccarelli v. Thomas J. Dart, et al. In that case, the plaintiff had worked in the Cook County Sheriff’s Office for 27 years, during which he periodically took FMLA leave. The plaintiff wanted to take more time off. A conversation with the office’s FMLA manager discouraged him from doing so, he claimed, and forced him to retire. The plaintiff filed suit, arguing, among other things, a violation of the FMLA’s anti-interference provision. Under that section, it is unlawful for an employer to “interfere with” the exercise of FMLA rights. The Court of Appeals concluded there was sufficient evidence to defeat summary judgment on the FMLA interference claim. The Court emphasized that “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without denying an FMLA leave request.” In other words, mere discouragement can constitute unlawful FMLA interference. Another court considered a supervisor’s body language (he was “visibly perturbed”) in denying summary judgment on an FMLA claim. Now more than ever, training managers on appropriate responses to FMLA leave requests is essential to prevent interference claims. Continue Reading

ALERT! Your COVID-19 Policies and Procedures Need a BOOSTER!

Posted in Employment Counseling & Workplace Claims Prevention, Genetic Information Nondiscrimination Act, Labor Relations

Employers who are conducting automatic COVID-19 testing of employees or gathering test results of employees’ families should beware: the Equal Employ­ment Opportunity Commission (“EEOC”) has issued new guidance limiting the former and has penalized a healthcare practice recently for doing the latter.

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Service and Support Animals: What Businesses Can and Cannot Do

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

We have all seen it. The unruly lap dog brought into a restaurant, yipping away, or the big dog running through a store dragging along its owner who, of course, claims it is a “service animal,” even though it clearly is not. Many individuals need and have legitimate service animals, while others need and have emotional support animals. But the two are not the same and are not accorded the same level of protection.

Abuse of the concept of service animals is widespread, so much so that U.S. Department of Transportation (DOT) adopted new more restrictive rules in December 2020 for traveling with them by air. Airlines are permitted to treat emotional therapy animals as pets, rather than service animals, and to require passengers with a disability traveling with a service animal to complete and submit to the airline a DOT form, in advance, attesting to the animal’s training, good behavior, and health, but businesses don’t have that option. Businesses faced with employees or customers seeking to pass off pets as service animals face a tough dilemma and need to know two things: what animals are protected, and what can they do when a customer and/or employee wants to bring an animal onto their premises?

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Employers: Prepare Now for Recession-Based Layoffs

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

With many economic experts predicting that the U.S. will enter a recession in the near future, employers are preparing for the possibility of significant layoffs. Before making cuts, companies – especially those with remote workers – should be aware of the potential pitfalls and legal ramifications of layoffs, and be prepared to adjust the timing and criteria for layoffs based on applicable federal, state, and local laws. Continue Reading

Prepare NOW to Manage Your Workforce Through a Cyberattack

Posted in Privacy, Wage & Hour

It is every employer’s worst nightmare: an unsuspecting employee receives an email in the early morning from an individual claiming to be his supervisor. The email asks him to follow up on an urgent work assignment that needs his immediate attention. With multiple deadlines fast approaching, he does not think twice. He opens the email and attached file, and prepares to work. Within minutes, the entire system—including all confidential and proprietary data, timekeeping records, and payroll records stored in it—becomes inoperable and shuts down. The attacker delivers a single message to the employer: pay the ransom in exchange for the data or risk losing all the files.

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Employers Concerned about State Abortion Access Restrictions Weigh Options for Medical Travel Reimbursements

Posted in Employee Benefits, Employee Handbooks & Policies

There has never been an ERISA requirement to include elective abortion medical coverage in ERISA group health plans. Even so, many nationwide employers choose to offer it alongside non-elective abortion medical coverage.  Among those employer plan sponsors, there is new concern about how plan participants can practically access this covered medical care, if expensive travel to other states becomes necessary. Between concerns raised by the Supreme Court’s ruling in the Dobbs v. Jackson case (holding that the United States Constitution does not confer a right to abortion) and a sharp increase in state legislation restricting abortion care, growing numbers of these employers want to proactively address new geographic gaps in healthcare access. As employers continue to consider design options, they will need to evaluate a number of factors, including:

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Checking Applicant Backgrounds? Be Careful!

Posted in Employment Counseling & Workplace Claims Prevention, Privacy

Background checks are a great idea—unless you fail to do them correctly. Mistakes can be costly. One online retailer paid $5 million to settle a class action filed by 454,000 job applicants alleging violations of the Fair Credit Reporting Act (FCRA), a key federal law governing the conduct of background checks. The number of such lawsuits continues to rise: it doubled between 2009 and 2018, and every year since then has marked a new high. There were 5,406 FCRA lawsuits filed in 2021 alone and, based on the 1,500 filed in the first three months of 2022, this year there will be even more. Accordingly, now is the time to take a careful look at your company’s hiring documents and the way you screen potential employees.

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Biden Administration Signals MHPAEA Enforcement a Priority with Fiscal 2023 Budget

Posted in Employee Benefits

The Biden Administration’s proposed budget for fiscal year 2023 serves as a warning to all plan issuers and administrators that enforcement of the Mental Health Parity and Addiction Equity Act (MHPAEA) is a top priority for the federal government. The proposed budget reflects a substantial and sustained commitment to ramp up enforcement efforts, with specific funding for MHPAEA audit activity, including $275 million for the Department of Labor (DOL) over a 10-year period and $125 million for state grants to support their MHPAEA enforcement efforts. The Biden Administration has also proposed that Congress: (1) grant the DOL the ability to pursue civil monetary penalties against entities that provide administrative services to group health plans and do not comply with the MHPAEA; and (2) amend ERISA to allow participants and beneficiaries to recover losses due to parity violations through private rights of action. Plan issuers and administrators should take heed of these developments to get ahead of enforcement efforts and review their procedures, documents, and activities to ensure they meet the government’s stringent requirements.

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COVID’s Impact on Mental Health Prompts New Agency Guidance

Posted in Medical & Other Leaves

The peak of COVID-19 infections may have passed, but the mental health effects of the pandemic continue to be felt, and government agencies are taking note. The U.S. Department of Labor (DOL) issued new guidance during Mental Health Awareness Month in May, reminding employees with mental health issues of their rights under the Family and Medical Leave Act (FMLA). And the Equal Employment Opportunity Commission (EEOC) last December added a section to its COVID-19 Technical Assistance, expressly noting that COVID may qualify as a disability under the Americans with Disabilities Act.

There is plenty of evidence to support their concerns about mental health issues being on the rise. A March 2022 study by the World Health Organization indicated that the pandemic has led to an increase in mental health problems, including widespread depression and anxiety. It also noted that before COVID-19, only a minority of people with mental health problems received treatment, and that the pandemic has further widened the treatment gap. In issuing its May guidance, the DOL also focused on the treatment gap, noting that “many people coping with mental illness may face barriers to treatment including social stigmas, a lack of available services or financial resources.” The DOL cited reports by the National Institute of Health estimating that nearly one in five U.S. adults live with a mental illness, with only about half receiving the help needed.

Government agencies are taking note, and so should employers.

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Employers: Take Steps Now to Prevent Workplace Violence and Protect Employees

Posted in Workplace Safety & OSHA

There have been over 240 mass shootings nationwide in 2022 so far – more shootings than days of the year. Many of these shootings involve workplace violence. For instance, four of the victims in the recent Buffalo shooting were employees of the grocery store where the attack occurred, and two teachers were among the victims in the recent school shooting in Texas. These are only the latest; among many others in recent years, there was a shooting in Milwaukee in which a brewery employee killed five people; a shooting in which a railyard employee in Northern California killed nine people; a shooting at the Santa Clara Valley Transportation Authority in which an employee killed nine people and then himself; and a shooting in Texas in which an employee killed one person and wounded five others in a cabinet manufacturing facility.

The rise in workplace violence, and violence in general, should prompt employers to consider what they can and should do to protect their employees, customers, and business. It is especially important to do so now, as more and more employers are requiring their employees to return to work in person following the pandemic.

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