October Updates

New Process Speeds up Federal Whistleblower Complaints in the West

Effective August 1, 2016, the U.S. Department of Labor (“DOL”) launched a new pilot process in the West—affecting American Samoa, Arizona, California, Guam, Hawaii, Nevada, and the Northern Mariana Islands—which speeds up the process for certain federal whistleblower complaints.  This expedited process allows the Occupational Safety and Health Administration (“OSHA”) to, in certain cases, stop investigations and issue findings for the DOL’s Office of Administrative Law Judges to consider.

This expedited process is intended to speed up resolution of whistleblower and related retaliation claims. Employers in these areas should therefore be aware that more claims may now go to the DOL’s administrative law judges.  For more information on the new pilot process, employers can review the DOL’s new release here.

EEOC Issues Guidance on Retaliation and Related Issues

The Equal Employment Opportunity Commission recently issued the final Enforcement Guidance on Retaliation and Related Issues, a publication intended to help employers reduce claims of retaliation for harassment, discrimination, and other related workplace claims.  The guidance includes examples and promising practices.  In addition, the EEOC also published two more condensed publications: a question-and-answer page and a Small Business Fact Sheet, both of which summarize important points included in the guidance.  Employers should take the time to review these publications and ensure that managers and supervisors are aware of best practices for handling workplace issues.

Eighth Circuit: Extension on FMLA Leave is not a Reasonable ADA Accommodation

In Scruggs v. Pulaski County, the Eighth Circuit stated that an employee’s request for additional unpaid leave after FMLA leave expired, is not a reasonable ADA accommodation.  There, an employee was placed on continuous FMLA leave due to her physical disability and her doctor’s certified work restrictions, and she requested additional time beyond her expired FMLA leave to obtain a certification from another doctor that she could perform the duties of the position.  No such certification was produced by the employee, and the employer ultimately declined the request and terminated the employee after the FMLA leave expired.  The employee claimed discrimination and retaliation in court.

The court stated the requested extension, after her FLMA leave had expired, was not a reasonable accommodation under the ADA, and the employee did not show that she was able to perform the essential job duties either before or after the FMLA leave.  Further, the court stated that the employer was not required to accept a subsequent doctor’s FMLA certification (lifting work restrictions) after having received a prior doctor’s FMLA certification (imposing work restrictions).  Specifically, “[i]t is not reasonable to expect an employer to disregard an employee’s treating physician’s opinion expressly imposing physical restrictions.”

Notwithstanding this recent case, employers should consult with legal counsel if an employee requests ADA accommodations, and ensure that job descriptions are periodically reviewed and up to date on physical requirements and essential functions of the position.

California: Court of Appeals Comments Again on “Associational” Disability Discrimination

We previously reported on a California Court of Appeal’s decision in Castro-Ramirez v. Dependable Highway Express, in which the Court stated that employers have a duty to reasonably accommodate employees who are associated with a disabled person.  Recently, the Court of Appeals reheard the case.

The Court stated that, at this time, it did not need to decide if California requires employers to reasonably accommodate employees who are not themselves disabled, but are instead associated with a disabled individual, as the plaintiff abandoned his failure to accommodate claim.  However, the Court still stated that California recognizes claims for associational disability discrimination, and the facts of the case were strongly suggested that Castro-Ramirez’s termination was influenced by his supervisor’s desire to avoid accommodating Castro-Ramirez’s disabled son.  For that reason, the Court stated it upheld the reversal of summary judgment in favor of the employer.

This case is suspected to head for review before the California Supreme Court.  Until then, employers should still tread carefully in cases where accommodations for disabled family members are requested, and should consider consulting legal counsel for guidance on handling such requests.

California: Continuing to Lead the Nation in Inclusive Restroom Laws

Effective March 2017, all California business establishments, places of public accommodation, or government agencies must identify their single-occupancy restrooms as “all gender” and make them universally accessible.  This regulation applies only to restrooms that have no more than one water closet and one urinal with a locking mechanism controlled by the single occupant.  Public inspectors or building officials may check for compliance during any inspection.  All California employers and establishment owners should thus be prepared to change the signage to ensure that the restroom is not designated as male or female-only.

California: Vehicle Code Amended to Re-Address Electronic Devices While Driving

California’s Governor recently signed AB 1765.  Effective January 1, 2017, California’s Vehicle Code will be amended to more specifically address electronic communication devices not pre-installed by the manufacturer as part of the vehicle. Key amendments include:

• A person cannot operate a handheld, wireless communication device (including smartphones) unless they are specifically designed and configured to allow voice-operated and hands-free operation, and are so used.
• A handheld, wireless communication device can be operated with the user’s hand while driving only if:
  • The device is mounted on the vehicle’s windshield in the same manner as a portable GPS, or is mounted/affixed to the dashboard or center console in such a way that it does not impede the driver’s view of the road; and
  • The hand used to operate the device can activate/deactivate a feature in a single swipe or tap of the driver’s finger.

Emergency services professionals are exempt from these regulations when operating an authorized emergency vehicle in the course and scope of their duties.  Employers should be sure to review these amended regulations with any employees who drive as part of their job duties.

Berkeley, CA: Minimum Wage Increased October 1, 2016

Effective October 1, 2016, Berkeley’s minimum wage increased to $12.53 per hour. No new posting is required; however, employers should already have displayed the Official Notice relaying the minimum wage.

Morristown, NJ: Paid Sick Time Law Passed (and then Delayed)

Morristown joins 12 other New Jersey municipalities to pass a paid sick time law. The following regulations were originally slated to go into effect October 4, 2016; however, Mayor Dougherty signed an executive order that makes the new effective date January 11, 2017:

• Eligibility: Any employee working at least 80 hours per calendar year for a private employer of any size in Morristown, NJ. Public employees and members of construction unions covered by a valid collective bargaining agreement are exempt.
• Accrual Rate: 1 hour per 30 hours worked.
• Accrual Cap: 24 hours per calendar year for businesses of 10 or fewer employees; 40 hours for larger businesses and all employees in the child care, home health care, or food services industries, regardless of headcount.
• Employee’s Notice: Employers may request employees to confirm in writing that paid sick time was used for a purpose authorized under the ordinance.  Employers can require employees to provide documentation of the paid sick time after three consecutive days or instances of paid sick time being used.  However, employers should take care not to inquire into the nature of the illness.
• Notice and Postings: Employers must:
  • Provide individual written notice to each employee about their rights under the ordinance.
  • Conspicuously display a poster containing notice of the ordinance in English and any other language that is the primary language of at least 10% of the workforce.

Morristown’s ordinance is very similar to the paid sick time ordinances already implemented in other New Jersey municipalities, so if a New Jersey employer already has multiple locations throughout the state, they may be better prepared to adopt the new regulations.  In either case, employers with workers in Morristown should ensure that their policies are in compliance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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