On June 1, 2015, the Occupational Safety and Health Administration (“OSHA”) published a “Guide to Restroom Access for Transgender Workers.” A copy of the Guide can be found here. Under OSHA’s standards, employers are required to provide their employees prompt access to sanitary restroom facilities.
As gender identity is an intrinsic part of every person’s life, employees must be allowed “to work in a manner consistent with how they live the rest of their lives, based on their gender identity.” The Guide provides employers with best practices on policies that address the issue of bathroom access for transgender employees. “The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity.”
The U.S. Department of Labor (“DOL”) recently issued new model notices and medical certification forms for employers to use in administering Family and Medical Leave Act (“FMLA”) leave. The new forms—which expire on May 31, 2018—largely mirror the previous versions except for references to the Genetic Information Nondiscrimination Act (“GINA”).
In particular, the WH-380-E, 380-F, 385, and 385-V medical certification forms instruct health care providers not to provide information about “genetic tests,” “genetic services,” or “the manifestation of disease or disorder in the employee’s family members” pursuant to GINA regulations. This addition is important, as GINA regulations state that if an employer includes a safe harbor notice with a request for medical certification, the receipt of genetic information by the employer in response to the request will not violate GINA.
The new FMLA forms can be accessed from the DOL’s website or in PDF format below:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility and Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency for Military Family Leave
- WH-385 Certification for Serious Injury of Illness of Current Servicemember – for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
For assistance with creating a FMLA policy, handling FMLA issues in the workplace, or any other labor and employment issue, please do not hesitate to contact any member of our Labor and Employment Department.
Peggy Young was a part-time UPS driver at the time she became pregnant. Her physician directed that she could not lift more than 20 pounds in the first 20 weeks of her pregnancy, and not more than 10 pounds thereafter. UPS drivers, however, are required to lift up to 70 pounds. Due to these lifting restrictions, UPS did not permit Young to work while she was pregnant. Young filed suit alleging “UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction,” and in support of her position, Young pointed to other drivers who were “similar in their …inability to work” for whom UPS provided accommodations. Specifically, UPS provided accommodations for three categories of employees: those drivers who became disabled on the job, those who had lost their DOT certifications, and those who suffered from a disability under the ADA. UPS contended that since Young did not fall into one of these categories, it had not discriminated against her.
In Young v. United Parcel Service, Inc., the U.S. Supreme Court considered the Pregnancy Discrimination Act (“PDA”) in the context of employer policies that provide reasonable accommodations for pregnant employees. The PDA “makes clear that Title VII’s prohibition against sex discrimination applies to discrimination based on pregnancy.” The PDA requires that “employers must treat ‘women affected by pregnancy…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.’” Read the rest of this entry »
Since its passage twenty-five years ago, the Americans With Disabilities Act (“ADA”) has had a sizable impact on businesses both large and small. Although businesses are well-versed in the employment discrimination provisions of the ADA, which are contained in Title I, they must also be aware of the ADA’s accessibility requirements set forth in Title III.
Title III of the ADA applies to commercial facilities (e.g., factories, office buildings, and warehouses), private entities that offer certain examinations or courses related to educational and occupational certification, and, most notably, public accommodations. “Public accommodations” are private entities that own, operate, lease, or lease to places of public accommodation. The law includes twelve categories of “places of public accommodation,” which encompass virtually all businesses that serve the public.
The ADA regulations enumerate the accessibility requirements that businesses must follow to comply with Title III. These regulations address features both outside of a business (e.g., parking lots, curbs, ramps) and inside of a business (e.g., restrooms, doorways, counters). All new construction—including modifications or alterations—must be fully compliant with the regulations. Businesses also have a continuing obligation to remove non-compliant architectural barriers in existing facilities if the removal is readily achievable. Barrier removal is “readily achievable” if it is “easily accomplishable without much difficulty or expense.” Whether removal is readily achievable depends upon a business’s size and resources.
As many of you know, compliance with the Patient Protection and Affordable Care Act is becoming an increasing focus of the federal government. While 2015 has been characterized as a “transition year” for certain Affordable Care Act purposes, there are still many compliance issues that need to be addressed by employers this year. In addition, employers and group health insurance plan sponsors need to commence planning for the 2016 reporting requirements.
Recently, I had an opportunity to discuss some of these ongoing compliance matters with a representative of The Metropolitan Corporate Counsel. For your reference and information, I enclose a link to a copy of my interview “Affordable Care Act – What Employers Need to Know in 2015,” which appears in the February edition of the publication.
If you should have any questions concerning the article or any issues regarding compliance under the Affordable Care Act, please feel free to contact me at firstname.lastname@example.org.
Just as a friendly reminder, on March 1, 2015, the New Jersey Opportunity to Compete Act, signed into law by Governor Christie several months ago, will go into effect. The “Ban the Box Law,” as it has come to be known, restricts the ability of employers with 15 or more employees to conduct criminal background checks on potential new employees or current employees applying for new positions within the company. Some exceptions are built into this law, and employers should determine if the Ban the Box law covers them. A copy of the law can be found here. If covered, employers should immediately review (and revise, if necessary) their recruitment and hiring practices and documents for compliance.
Definition of “Spouse” Under the Family and Medical Leave Act, Expanded to Include Same-Sex Marriages
The U.S. Department of Labor (“DOL”) announced that on February 25, 2015, it will issue a Final Rule that revises and expands the definition of “spouse” under the Family and Medical Leave Act (“FMLA”). Under the revised definition, “spouse” will include all individuals in legal marriages, including husband and wife, and individuals in same-sex and common-law marriages. This change was made in light of the U.S. Supreme Court’s 2013 decision in United States v. Windsor, 570 U.S.___, 133 S. Ct. 2675 (2013), which struck down that portion of the Defense of Marriage Act that interpreted “marriage” and “spouse” as being limited to opposite-sex marriages. The Final Rule is set to go into effect on March 27, 2015.
The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces federal laws prohibiting employment discrimination. Each year, the EEOC provides statistical data summarizing the charges of employment discrimination, and resolutions of those charges, under each of the anti-discrimination laws it enforced during the previous fiscal year. Earlier this month, the EEOC released its FY2014 Enforcement and Litigation Data, reporting on the compiled data for the fiscal year which ran from October 1, 2013, to September 30, 2014. The EEOC’s press release can be found on the EEOC website, or by clicking here, and it contains links to the various data tables that include historical data as well.
The New Jersey Supreme Court’s New Decision On Harassment In The Workplace – What Employers Need To Know
On February 11, 2015, the New Jersey Supreme Court rendered the decision in Aguas v. State of New Jersey, _N.J._, No. 072467 (2015), in which the Court addressed two significant issues that frequently arise in hostile work environment sexual harassment claims: (1) what impact does an employer’s anti-harassment policy have on such claims, and (2) what is the definition of a “supervisor” in these cases? While the Court’s lengthy decision provides a history of the law on sexual harassment at both the New Jersey and the federal level, there is really only one significant take away for employers. An employer who fails to implement a detailed anti-harassment policy, reinforced through employee training and constant endorsement from upper management, will have no defense when confronted with a hostile work environment sexual harassment claim.
The United States Supreme Court recently ruled that silence in a collective bargaining agreement (“CBA”) regarding the duration of retiree healthcare benefits does not automatically mean that such benefits vest for life. The Court’s decision in M&G Polymers USA, LLC v. Tackett is welcome news for employers with CBAs that include such benefits. Read the rest of this entry »