Category Archives: Leaves of Absence

What Should Employers Know About Ebola?

The first known case of Ebola was diagnosed in the United States last week.  Although officials estimate that the chances of an outbreak are very low, here’s some information for employers about the disease and its potential legal implications:

What is Ebola?  According to the World Health Organization, Ebola is a virus characterized as a hemorrhagic fever, and it is frequently fatal.  In previous outbreaks, the fatality rate has ranged from 25% to 90%, but the average fatality rate is approximately 50%.

Where Is the Ebola Outbreak?  The current outbreak of Ebola is primarily affecting the Western African countries of Liberia, Guinea, Sierra Leone, and Nigeria.  Liberia has the largest outbreak.  Senegal and the United States have each reported one case.

How Is Ebola Transmitted?  Ebola is typically not transmitted through casual contact or through the air.  Rather, human-to-human transmission of Ebola generally occurs via direct contact with an infected person’s blood (e.g., through broken skin or mucous membranes), secretions, organs, or other bodily fluids.  It can also be transmitted through surfaces and materials contaminated with these fluids.  People with Ebola are generally not contagious until they begin showing symptoms.  Overall, Ebola is less contagious than many other diseases.

What Are the Symptoms of Ebola?  The initial symptoms of Ebola are fever, fatigue, muscle pain, headache, and sore throat.  As the disease progresses, additional symptoms include vomiting, diarrhea, rashes, impaired kidney and liver function, and in some cases, internal and external bleeding.

What Are the FMLA Implications of Ebola?  Ebola likely qualifies as a serious health condition for purposes of the Family and Medical Leave Act.  Employees who are diagnosed with Ebola or who have covered family members diagnosed with Ebola may be eligible for FMLA leave.

What Are the ADA Implications of Ebola?  Given its severity, Ebola likely qualifies as a disability under the Americans with Disabilities Act.  The most likely accommodation that the ADA might require for Ebola is a leave of absence because an employee diagnosed with Ebola will likely be too impaired to perform his or her job functions without posing a direct threat to the safety of his or her self or others.

Can Employers Ask Employees About For Medical Information Relating to Ebola?  The same rules that relate to other illnesses or injuries under the ADA and FMLA will also apply to Ebola.  In general, this means that any medical inquiries must be job-related and consistent with business necessity, and that any medical information that is provided by an employee must be maintained as confidential.  See 42 U.S.C. § 12112(d)(4).

Do Employers Have a Duty To Protect Employees From Ebola?  Employers have a general duty to protect employees from recognized hazards in the workplace.  The Occupational Health and Safety Act require employers to provide a place of employment which is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654.  For the vast majority of U.S. employers, protecting employees from Ebola in the workplace will likely not be a concern, but it’s possible that it could affect certain types of employers.

What Steps Can An Employer Take to Help Protect Its Staff:  Right now, most employers likely do not need to take any precautions.  If the number of reported cases grows and an employer deems that its workforce is at risk, however, those employers may want to consider taking some or all of the following steps, depending on their risk profile:

  • Educate employees about how Ebola is spread and best practices to avoid transmission;
  • Encourage employees to self-report any potential symptoms and to request PTO or a leave of absence if symptoms develop;
  • Establish an emergency preparedness plan or emergency response team;
  • Establish a plan for notifying employees and continuing work functions if an outbreak occurs;
  • Establish a plan for transporting sick employees to the hospital and disposing or cleaning infected materials;
  • Establish an isolation room; or
  • If an infected individual is in the workplace, establish a plan for identifying those employees with whom the individual came into contact so that they can be monitored for symptoms.

What precautions are necessary, if any, will vary significantly depending on factors including the nature of the employer’s business, its workforce, and its geographic location.

Takeaway:  At this time, Ebola should not be a major concern for most employers in the U.S.  Employers with the greatest risk likely include health care employers and employers with employees who travel frequently in Western Africa.

Minnesota Parenting Leave

In 2014, the Minnesota Parenting Leave Act (MPLA) was amended by the Women’s Economic Security Act. Here’s what employers need to know about the MPLA:

The MPLA May Apply When the FMLA Does Not: Even if an employee is not eligible for leave under the Family and Medical Leave Act (FMLA), the employee may still be eligible for a leave of absence for the birth or adoption of a child under the MPLA.

What Employers Are Subject to the MPLA? The MPLA applies to any employer that employs 21 or more employees at at least one site.  Minn. Stat. § 181.940, subd. 3.

What Employees Are Eligible For Parenting Leave Under the MPLA? To be eligible for leave under the MPLA, the employee must: (1) be employed for at least 12 months preceding the request; and (2) during the 12 month period immediately preceding the leave, the employee must have worked an average number of hours per week equal to one-half the full-time equivalent position in the employee’s job classification, as defined by the employer’s policies, practices, or any applicable collective bargaining agreement.  Minn. Stat. § 181.940, subd. 2.

What Leave Is Required By the MPLA? Under the MPLA, an employer must provide up to 12 weeks of unpaid leave to an eligible employee who is: (1) a biological or adoptive parent in conjunction with the birth or adoption of a child; or (2) a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions. The leave of absence must begin within 12 months after the birth or adoption of the child; however, if the child must remain in the hospital longer than the mother, the leave may begin within 12 months after the child leaves the hospital.  Minn. Stat. § 181.941, subd. 1.

How Much Notice Is Required? An employer may adopt reasonable policies governing the timing of requests for unpaid leave and may require an employee who plans to take a leave under the MPLA to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave.  Minn. Stat. § 181.941, subd. 2.

Continued Insurance Coverage During Parenting Leave: While an employee is on parenting leave, the employer must continue to make available any insurance or health care coverage offered by the employer to the employee and his or her dependants during the leave of absence, but the employer is not required to pay the costs of the insurance or health care coverage during the leave of absence.  Minn. Stat. § 181.941, subd. 4.

No Retribution: An employer may not retaliate against an employee for requesting or obtaining a leave of absence under the MPLA. Minn. Stat. § 181.941, subd. 3.

Will There Be a Women’s Economic Security Act 2.0?

It’s possible that during the next legislative session, the Minnesota legislature will pass additional provisions to expand on the Women’s Economic Security Act (WESA).

In May of 2014, the Minnesota Legislature passed WESA, which made a number of changes to employment law in Minnesota.  These changes included requiring accommodations for pregnant employees, requiring certain state contractors to obtain equal pay certificates, expanding parental leave under state law from 6 weeks to 12 weeks, and prohibiting discrimination on the basis of “familial status,” among other things.

Shortly after WESA became law in Minnesota, a summit was held in Duluth.  At the summit, House Speaker Paul Thissen and Senator Sandra Pappas, both supporters of WESA, discussed additional steps that may be taken during future legislative sessions.  With respect to employment law, these additional steps included:  (i) potentially requiring employers to offer paid sick leave to employees; and (ii) adding “family caregiver” as a protected status under the Minnesota Human Rights Act.

Takeaway:  The Minnesota legislature may attempt to pass laws to require paid sick leave or create new family caregiver protections during the next legislative session.  Employers who feel strongly about these potential changes, either for or against, may want to consider contacting their local representatives about these issues prior to the beginning of the next legislative session.

Is A Leave of Absence Longer Than Six Months Required As A Reasonable Accommodation?

According to the U.S. Court of Appeals for the Tenth Circuit, the answer to whether a leave of absence longer than six months is required as a reasonable accommodation is “almost always no.”

In Hwang v. Kansas State University, the Tenth Circuit addressed the question of whether an employer violated the Rehabilitation Act by denying an employee’s request for a leave of absence extending beyond six months. The Rehabilitation Act applies to employers who receive federal funding. Like the Americans with Disabilities Act (ADA), it prohibits disability discrimination and requires employers to provide reasonable accommodations to disabled employees, absent undue hardship. Because claims asserted under the Rehabilitation Act are subject to the same analysis as claims under the ADA, the court’s analysis in Hwang is relevant to the majority of employers.

The Hwang court held that a leave of absence of longer than six months is almost never a reasonable accommodation because it typically means that the employee cannot perform the essential functions of his or her job. The court explained its holding by stating that:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

In reaching this conclusion, the Hwang court rejected the argument that any inflexible leave policy – for example, a policy that never provides more than six months of leave – is a per se violation of the Rehabilitation Act or the ADA. The court explained that an employer only needs to modify a leave policy to provide a reasonable accommodation and that a leave of absence longer than six months would seldom, if ever, be reasonable. However, the court cautioned that inflexible leave policies that only authorize a short period of leave may still be subject to attack.

Takeaway: The Hwang decision helps provide some clarity for employers struggling with the often difficult question of how long is too long for a leave of absence to accommodate a disabled employee. Although individual consideration is still required whenever an employee requests an accommodation, the six-month rule endorsed by the Hwang court is a helpful rule of thumb for employers.

Changes to Minnesota’s Sick or Injured Child Care Leave Law Effective August 1, 2013

On August 1, 2013, Minnesota’s law (Minn. Stat. § 181.9413) on sick or injured child care leave is changing.

Under the old law, employees could use personal sick leave for absences due to the illness or injury to the employee’s child.  Under the new law, employees may also use personal sick leave for illness or injury to the employee’s adult child, spouse, sibling, parent, grandparent, or step-parent (i.e., “other family members”).  Sick leave for these reasons may be taken for reasonable periods of time as the employee’s attendance with their child or other family member may be necessary.  The new law is called “Sick Leave Benefits; Care of Relatives.

The new law has limits.  First, the law applies to employers who have at least 21 employees at one site.  Second, employers are allowed to cap the number of hours of personal sick leave an employee uses for the illness or injury of other family members.  This cap, however, must be no less than 160 hours of personal sick leave to care for other family members in any 12-month period.  Third, the law only applies to employees who have been employed for at least 12 consecutive months on at least a half-time basis (as defined by the employer’s personnel policies or practices, or a collective bargaining agreement).

Keep in mind that this law does not require an employer to provide sick leave at all.  It only provides requirements if the employer chooses to provide sick leave benefits to employees.  Also, an employer cannot cap the use of personal sick leave used to care for an employee’s child.

Takeaway:  The new Care of Relatives statute broadens the scope of an employee’s use of personal sick leave.  Employers should review their policies on sick leave to determine if revisions are necessary.

School Conference and Activities Leave

Under Minnesota law, an employer with at least one employee may be required to provide school conference and activities leave to eligible employees.  See Minn. Stat. § 181.9412.  Here’s what employers need to know about school conference and activities leave:

Leave Requirements:  An employer must grant an eligible employee up to 16 hours of leave during any 12-month period to attend school conferences or school-related activities related to the employee’s child (including a foster child), but only if the conferences or school-related activities cannot be scheduled during non-work hours.  In addition, if the employee’s child receives child care services, or attends a prekindergarten regular or special education program, the employee may use the leave time to attend a conference or activity related to the employee’s child, or to observe and monitor the services or program, but only if the conference, activity, or observation cannot be scheduled during non-work hours.

Employee Eligibility for Leave:  In order to be eligible for school conference and activities leave, an employee must have worked at least 12 consecutive months immediately preceding the request for leave.

Scheduling of Leave:  When the leave cannot be scheduled during non-work hours and the need for the leave is foreseeable, the employee must provide reasonable prior notice of the leave and make a reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer.

Unpaid Leave:  School conference and activities leave is unpaid under Minnesota law.  However, the statute states that an employee may substitute any accrued paid vacation leave or other appropriate paid leave.

Dillard’s Agrees to $2 Million Settlement for Class Action Disability Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently announced a $2 million settlement in its class action disability discrimination lawsuit against nationwide retailer Dillard’s.  The lawsuit was venued in the U.S. District Court for the Southern District of California and challenged two practices that the EEOC alleged violated the Americans with Disabilities Act (ADA).

Medical Documentation Policy:  The EEOC alleged that Dillard’s maintained a policy that required all employees to disclose the exact nature of their medical conditions in order to be approved for sick leave.  Under the policy, a simple verification from an employee’s doctor that an absence was due to a medical reason was insufficient.  Many employees felt uncomfortable disclosing the precise nature of their conditions in order to justify an absence.  The EEOC argued that the policy was inconsistent with the requirement under the ADA that employers can only make inquiries into the disabilities of their employees when doing so is job-related and necessary for the conduct of business.

Maximum Leave Policy:  The EEOC also alleged that Dillard’s enforced a maximum-leave policy, which limited the amount of health-related leave an employee could take.  In practice, Dillard’s did not regularly engage in the interactive process with employees to determine if more leave was allowed under the ADA as an accommodation for the employee’s disability.  The EEOC argued that this practice was inconsistent with the ADA’s reasonable accommodation requirements.

Under the terms of the settlement, Dillard’s agreed to pay $2 million to identified victims of the policy and to create a fund to compensate additional, unidentified victims.  Dillard’s also agreed to:  (i) hire a consultant with ADA experience to revise the company’s policies; (ii) post documentation related to the settlement; (iii) implement training for supervisors and staff on the ADA, with an emphasis on medical inquiries and maximum leave policies; and (iv) develop a centralized tracking system for employee complaints involving disability discrimination.

Takeaways:  Policies and practices that do not comply with the ADA expose employers to unnecessary risk.  The Dillard’s case presents a good opportunity for employers to review their medical documentation and maximum leave policies and practices to correct any potential problems before liability arises.

Don’t Forget Election-Related Employment Laws

The election is next Tuesday, November 6, 2012.  Employers in Minnesota need to be aware of Minnesota’s laws regarding voting leave and leave for election judges.

Leave for Election Judges Under Minnesota Law

Under Minnesota law, individuals who serve as election judges are entitled to be absent from work for the purpose of serving as an election judge without penalty.  See Minn. Stat. § 204B.195.  Here’s what employers need to know about leave for election judges:

How does an employee request election-judge leave?  The employee must provide his or her employer with at least 20 days advance written notice of his or her intent to be absent from work while serving as an election judge.  The written request must be accompanied by a certification from the appointing authority stating the hourly compensation to be paid to the employee for service as an election judge and the hours during which the employee will serve.

Do employees need to be paid for election-judge leave?  Yes, but an employer may reduce the salary or wages of an employee serving as an election judge by the amount paid to the election judge by the appointing authority during the time the employee is absent from the place of employment.

Can an employer limit the number of employees who serve as election judges?  Yes.  The statute provides that an employer may restrict the number of persons to be absent from work for the purpose of serving as an election judge to no more than 20% of the total work force at any single worksite.

Takeaway:  Employers who receive requests from employees for election-judge leave should ensure that employees provide the required notice and certification and that the employees are paid properly during their leave.  If necessary, employers should also utilize the 20% limit on election-judge leave to minimize potential business or productivity disruptions.

Voting Leave Under Minnesota Law

Under Minnesota law, “every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election…”  See Minn. Stat. § 204C.04.  The statute provides that an employer may not impose a “penalty or deduction from salary or wages because of the absence.”  An employer or other person “may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.”

Elections covered by Minnesota’s voting leave law include any “regularly scheduled state primary or general election, an election to fill a vacancy in the office of United States senator or United States representative, or an election to fill a vacancy in the office of state senator or state representative.”

Takeaway:  Because employees are entitled to voting leave in Minnesota, employers should plan ahead for elections, to the extent possible, to minimize the impact of potential business or productivity disruptions.

Leaves of Absence for Jury Duty

Under Minnesota law, “[a]n employer shall not deprive an employee of employment, or threaten or otherwise coerce the employee with respect thereto, because the employee receives a summons, responds thereto, serves as a juror, or attends court for prospective jury service.”  Minn. Stat. § 593.50, Subd. 1.  Violations of the statute constitute criminal contempt and upon conviction, may result in a fine of up to $700 and/or a 6-month jail term.

An employee unlawfully terminated is entitled to reinstatement along with lost wages incurred for a maximum of six weeks in addition to attorneys’ fees.

Takeaway:  While an employer is entitled to a copy of the summons for jury service to validate the need for the absence, the employer cannot not terminate the employee or take any action, which could be viewed as coercive or a threat to continued employment.

Leave for Immediate Family Members of Military Personnel Injured or Killed in Active Service

Under Minnesota law, an employer with one or more employees must grant up to ten working days of a leave of absence without pay to an employee whose immediate family member has been injured or killed while engaged in active service as a member of the United States armed forces.  The amount of leave may be reduced by any period of paid leave provided by the employer.  The employee must provide as much notice as practicable of the employee’s intent to use this type of leave.  See Minn. Stat. § 181.947.