On July 5, 2017 Washington became the latest state to enact some form of paid family and medical leave. The new law goes into effect in January 2020 and will provide employees with up to twelve (12) weeks per year of paid family leave for the following purposes:

• The employee’s own serious health condition;
• Care of a family member with a serious health condition;
• Care of a child new to the family following birth, adoption or placement in foster care; or
• For qualifying exigencies due to a family member’s deployment to active duty in the US Armed Forces. Continue Reading Washington State is Latest to Enact Paid Family Leave Legislation

Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)
Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)

One of the most problematic areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to tread on entitlement to Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”) protections.  Intermittent and unforeseeable absences are at the top of the list of challenges, and one particularly challenging issue is migraine headaches.

Individuals who suffer from migraines know they are usually 1) unpredictable and 2) debilitating.  They often result in employees calling in at the last minute, leaving work midday or being out for days at a time without notice. Continue Reading Are Employee Absences Giving You A Headache?

Photo: Day Donaldson via Flickr (CC by 2.0)
Photo: Day Donaldson via Flickr (CC by 2.0)

The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently.  The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America.   More than a dozen states have reported cases of the virus.  Due to the possibility of risk of birth defects if pregnant women are infected, even female members of the U.S. Olympic Team are expressing concern about travel to Brazil this summer.

Employers are asking what precautions they can and should take to protect employees, especially those who travel to foreign locations as part of their jobs.  The warnings are certainly of concern, especially to women of child-bearing age, but it is important that employers not panic and overreact.

As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees.  Laws of particular import include the following:

  • Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
  • Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury.  The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant.  Employees may therefore not be reasonable in asking not to be sent to affected countries.  A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
  • Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel.  The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.

The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until  more is known about the virus, its genesis and its long term affects.

Recently, the U.S. Department of Labor published new FMLA forms with the new expiration date of May 31, 2018. The new forms remain essentially the same as the previous forms. The only notable change is that a reference to the Genetic Information Nondiscrimination Act (“GINA”) was included in all certification forms except the certification form for qualifying exigency for military family leave.

Title II of GINA prohibits discrimination against employees, applicants, and former employees on the basis of their genetic information in all aspects of employment. That means that it is unlawful for an employer to consider an employee, applicant, or former employee’s genetic information when making employment decisions. GINA also makes it unlawful for employers to acquire genetic information of an individual or family member of the individual with certain exceptions. EEOC’s guidance explains the exceptions to this prohibition as follows:

  • Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
  • Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
  • Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
  • Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
  • Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
  • Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes such as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

The term “genetic information” means information about:

  1. An individual’s genetic tests;
  2. The genetic tests of that individual’s family members;
  3. The manifestation of disease or disorder in family members of the individual (family medical history);
  4. An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
  5. The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Among others, an employer with 15 or more employees is covered by GINA. Employers must treat genetic information as a confidential medical record and keep genetic information in a separate medical file. Lastly, employers are required to display a notice regarding GINA in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.

Photo Credit: Kelly Schott via Flickr (CC by ND 2.0)

Headlines about Ray Rice and the NFL remind us all that domestic violence does not stop at the door of an employee’s home.  It is a serious crime and one that has lasting impacts on those affected by it.  This post provides guidance and information on what employers should know about domestic violence.

Domestic violence can happen to anyone, regardless of age, gender, marital status, socio-economic status, sexual orientation, or ethnicity/race.  It is a pattern of coercive behavior by one person over another.  It may include physical or sexual violence, stalking, or verbal, psychological, or economic abuse.  NH law protects persons who are victims of domestic violence.  There are also stalking and harassment laws.

When dealing with victims of domestic violence, employers should be flexible in allowing time off from work for medical treatment or court appearances.  NH requires leave for victims of crimes under the Crime Victim Leave Act, RSA 275:61-65.  Under this law, a victim of a crime may leave work to attend court or other legal or investigative proceedings associated with the prosecution of the crime.  A victim is broadly defined and includes the immediate family of any victim who is a minor or who is incompetent or the immediate family of a homicide victim.  The Act applies to employers with 25 or more employees.

Other laws may also be implicated when it comes to employees who are victims of domestic violence, such as reasonable accommodations due to a disability under the Americans with Disabilities Act (ADA) or the New Hampshire Law Against Discrimination.   (see guidance from EEOC)   Leave or intermittent leave under the Family Medical Leave Act (FMLA) may also be required.  (see guidance from US Department of Labor)  Also know that employers have a general duty to provide employees with a safe work environment and should have practices and policies in place consistent with this obligation.

No workplace is immune from the potential for workplace violence.  To be effective, companies should have a domestic violence policy, must develop a safety plan, be aware of studies of violence and domestic violence, and implement comprehensive training and educational programs for both management and employees.  Companies, on a regular basis, can make efforts to educate employees and make them aware of domestic violence.  Companies can put up posters in break or lunch rooms to let employees know where they or someone they know can reach out and seek help.  Referral to an EAP program is also an option.

An appropriate policy should include a policy statement regarding the company’s stance on domestic violence and should offer employees resources to increase their awareness of domestic violence to further reduce the impacts on the workplace.  The policy should also include a statement that violence of any kind in the workplace will not be tolerated and can lead to immediate disciplinary action up to and including termination.   Additionally, requiring an employee to inform the company when he or she obtains a retraining order from a court allows an employer to take steps to keep everyone in the workplace safe.

For organizations that do not currently have a policy addressing workplace violence prevention, more information is available through the Federal Government’s Office of Personnel Management, or for smaller businesses, through the U.S. Chamber’s Small Business Center.

Sample policies addressing domestic violence are available at the Corporate Alliance to End Partner Violence.  The NH Coalition & Crisis Management also has helpful information, which includes a list of crisis centers.  Information can also be found at the Department of Justice’s Violence Against Women division.