Trends in employment law for public sector employersnc-ipma.org/resources/Pictures/Employment Law...

A wider lens on workplace law

Trends in employment law for

public sector employersNC International Public Management

Association Conference

March 15, 2017

Robin E. Shea, Esq.

CONSTANGY, BROOKS, SMITH & PROPHETE, LLP

Winston-Salem

[email protected]

336-721-6854


Overview

• Family and Medical Leave Act/ADA coordination

• LGBT rights

• Wage and hour

• How the new administration may change things

• Q&A


FMLA/ADA coordination


FMLA/ADA coordination

• One of the biggest problems for all employers,

including public-sector employers

• FMLA requirements are highly technical; a lot of

“jumping through hoops”

• ADA is more flexible, but with fewer clear-cut rules

• Must keep BOTH laws in mind when dealing with

employees who need time off and

accommodations at work


Quickie overview

• FMLA requires employers to grant up to 12 weeks of unpaid leave for new baby, serious health condition of employee or employee’s family member, and for military “qualifying exigency” (26 weeks is available for “military caregiver” leave)• Administered by U.S. Department of Labor, Wage and

Hour Division

• ADA prohibits discrimination against qualified individuals with disabilities and requires reasonable accommodation in many circumstances• Administered by U.S. Equal Employment Opportunity

Commission


Red flags

• Work-related injuries or illnesses

• Non-work-related injuries or illnesses that may

qualify for short-term or long-term disability

• Pregnancy-related conditions, including prenatal

care and requests for maternity leave

• Employee requests time off for any medical

reason

• Employee is out of work for any medical reason,

even if FMLA leave/reasonable accommodation

has not been specifically requested.


Example

• You hear through the grapevine that Melvin was in a very bad motorcycle accident over the weekend and is in the ICU at the medical center in Chapel Hill. Neither Melvin nor a family member has contacted you.• Based on what you know so far, you should treat this as a

possible FMLA event.

• By no means should Melvin be terminated for no-call/no-show or attendance until you have more information.

• Assuming the rumors are true, you can contact a family member and provide FMLA paperwork, and grant Melvin FMLA leave retroactive to the first work day after the accident.

• After Melvin returns to work, you may have to make ADA reasonable accommodations for him when he returns to work.


WARNING!

• If Melvin is out of work for more than the 12-week

FMLA period, then you can quit worrying about

the FMLA.

• BUT ADA issues will remain:

• UNLAWFUL to require Melvin to be “100 percent

recovered” before he can return to work

• UNLAWFUL to automatically terminate Melvin when he exhausts all available leaves of absence

• You MUST engage in the ADA “interactive process” with

Melvin and make good-faith attempts to reasonably

accommodate him before you give up.


“100 percent recovered” policies

• EEOC says they are unlawful

• If the employee can do the job with a reasonable

accommodation, then you have to bring him

back to work with accommodations

• If the employee’s restrictions are so severe that he

cannot be accommodated, then you could

continue leaving him out on another approved

leave until he is able to return.


Light duty versus reasonable accommodation

• “Light duty” is often make-work, designed

primarily to keep workers’ compensation

premiums down

• “Reasonable accommodation” is real work, with

adjustments to accommodate an individual’s

disability


EXAMPLES OF REASONABLE ACCOMMODATION

• Job restructuring

• Elimination of “marginal” job duties

• Reassignment to a vacant position

• Modifications of the work space

• Exceptions to policies

• Reserved parking

• Adjustments to work schedule

• Reader or interpreter

• And much more!


What is NOT a reasonable accommodation?

• Displacement of a current employee

• “Super-seniority”

• Promotion

• Permanent “make work”

• Creation of a new job

• Any accommodation that does not allow the employee

to perform the essential functions of the job


• When an employer becomes aware of the need for

reasonable accommodation, it is supposed to engage

in the “interactive process” with the employee

• The “interactive process” is nothing more than a

brainstorming dialogue between the employer and the

employee to discuss reasonable accommodation

options

• If employee is on leave, interactive process can take

place over the phone, or by email (but in-person is best

if possible)

What is the “interactive process”?


Top Ten Reasonable Accommodation Mistakes

1. Inaccurate or incomplete job descriptions

2. Failure to engage in the interactive process

3. Refusing to engage in the interactive process until

you receive medical documentation or proof

4. Failing to accommodate an employee who is not

currently substantially limited in a major life activity

(e.g., employee whose cancer is in remission but

needs time off for treatment or evaluation)


Top Ten Mistakes (continued)

5. Not consulting with front-line supervisors to know how jobs are actually performed

6. Not documenting the interactive process and the process by which you develop reasonable accommodation

7. Being too quick to suggest a leave of absence

8. Being afraid to consult with employee’s physician

9. Being afraid to request a second opinion if request for accommodation seems suspect

10.Confusing FMLA limitations with ADA issues


Boy, did this employer mess up!

• Jodie works at the desk in the Tax Department. A

very severe ear infection left her with a hearing

impairment that makes it difficult for her to

communicate with taxpayers (who are already

angry enough about their taxes!). After the

umpteenth complaint from a citizen, you decide

that she can’t do the job any more, so you

administratively terminate her employment.


After you get sued, you find out that . . .

• A new type of hearing aid was available that

would have allowed Jodie to function normally, if

only she’d known to ask her doctor about it

before she was terminated.

• There were several vacant positions in the Tax

Department and other county departments that

involved data entry, filing, and other tasks that did

not require interaction with the public, and Jodie

was qualified to perform any of them. Her hearing

impairment would not have been an issue in any

of these jobs.


Did this employer do better?

• Janie had a heart attack. She exhausted her FMLA leave, and then she exhausted her short-term disability leave.

• Before you terminate her employment and encourage her to apply for long-term disability, you call her in for a meeting. You, Janie’s supervisor, and Janie discuss her current status and her prognosis. She tells you that she is not currently capable of working. You ask her whether there are any jobs you have available that she could perform. She reviews the list and says, “No way.” You ask her whether she or her doctor thinks there is any possibility that she will be able to return to work in the foreseeable future. She says, “No, I really don’t.”


Did this employer do better? (continued)

• You then start talking with Janie about other options, including LTD or Social Security Disability. You offer to help her apply for these benefits, although you make it clear that whether she qualifies would be up to the carrier/Social Security. You explain administrative termination to her. Janie thanks you and leaves. You follow up with a letter to Janie, explaining everything that was discussed in the meeting. Meanwhile, you leave her on MLOA status and help her qualify for disability. Once she qualifies, you administratively terminate her employment.


Protocol

• Grant FMLA leave and let that time run out (if the employee needs that much time)

• Grant other non-FMLA leaves that you offer if the employee is still unable to return

• When things reach a critical point (either because the employee wants to return to work or because he is due to be terminated under your policies), schedule a meeting to discuss the situation and explore possible reasonable accommodation options.

• Don’t insist that the employee stay out of work until he’s back at “100 percent.”


Throwin’ a new wrinkle at ya!

• Pregnancy and related conditions should be

treated essentially the same as ADA-disabling

conditions, in light of the Supreme Court’s 2015

ruling in Young v. UPS.


LGBT rights


Where we are now

• Obama Administration was very aggressive in expanding LGBT rights in the workplace

• Trump Administration seems to be scaling back in some respects, but perhaps not entirely

• North Carolina does not prohibit discrimination based on LGBT status

• However, federal agencies must comply with EEOC rules, which do protect LGBT rights

• In any event, we recommend that your EEO policy include sexual orientation and gender identity as protected categories

• If an employee complains of being harassed or mistreated because of LGBT status, we recommend that you treat that complaint the same way you would treat any other “EEO harassment” complaint


Example

• June (formerly John) is a transgender woman. Co-

workers continue to deliberately call her John,

and they address her using male pronouns or

calling her a “shim.” June comes to you and

complains about this treatment.

How do you handle?


Wage and hour


Wage and hour

• Employers dodged a bullet with the FLSA white-

collar overtime exemption rule

• Does that mean employers can relax? No!

• Plenty of “old-fashioned” violations

• Misclassification of “exempt” employees

• “Independent contractors” who really aren’t

• Off-clock work


Off-clock work red flags (non-exempt only)

• Performing work before the start of the official work day or after the end of it

• Work-related calls while on commute to and from work

• Checking and responding to emails after hours or early in the morning

• If you allow telecommuting, that’s fine, but be sure that telecommuters are accounting for all of their time – and are actually getting their work done!

• And watch out for “dedicated” employees.


Example

• Dick is a diligent non-exempt employee who lives an

hour away from his office. To make good use of his

commuting time, he calls into the office and gets his

work assignments for the day, and then he calls clients

and starts setting up meetings. On the way home, he

does follow-up related to the meetings. These business

calls typically last about 20 minutes on just about every

commute.

Although commuting time is normally non-compensable

under the Portal to Portal Act, Dick’s phone calls may

make his commuting time compensable.


How the new administration may change things


Changes a’coming?

• Less emphasis on LGBT rights and the dreaded

“bathroom issue”

• More emphasis on “traditional” employment

issues, such as workplace harassment, race

discrimination, etc.

• National Labor Relations Board should become

more moderate, but it will take a while

• Overtime rule is almost dead, but there are plenty

of “old-fashioned” wage and hour issues for

employers to worry about


We like Trump’s employment-related appointees

so far

• Victoria Lipnic (Acting Chair of EEOC)

• Philip Miscimarra (Acting Chairman of NLRB)

• Alexander Acosta (nominee for Secretary of Labor

- his confirmation hearing is today)


Overall outlook

• Generally, we expect the employment law legal

climate to become more hospitable to employers in

the private sector, and in state-local public sector,

because the Trump Administration seems to be

moderating some of the most problematic labor and

employment positions taken by the Obama

Administration.

• Not sure the outlook is as good for federal employees,

since POTUS has said that he wants to reduce federal

regulation in some areas (e.g., environmental, climate

change, public broadcasting), which could result in

layoffs of federal employees.


Thank you!


Thank you!

Robin Shea counsels and defends employers in

most areas of labor and employment law, and

blogs and provides commentary about labor and

employment issues.

• Subscribe to Robin’s blog (it’s free):

www.employmentandlaborinsider.com

• Follow Robin on Twitter: @RobinEShea

• Subscribe to ConstangyTV: Close-Up on

Workplace Law on YouTube (it’s free, too)

Trends in employment law for public sector employersnc-ipma.org/resources/Pictures/Employment Law...

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