Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: Employer is caught by WHD investigator instructing its employees to lie during interviews, and provides falsified records, containing whited-out and edited time records, in order to conform to the Federal Labor Standards Act standards.

In a recent opinion, the Tenth Circuit ruled that a restaurant chain instructed its employees to lie during interviews, and provided falsified “whited-out” and “edited” employee time records, impeding a Department of Labor investigation, and found that the violation was willful (Perez v. El Tequila, LLC, No. 16-5002 (10th Cir., February 7, 2017).

This case provides a rather stunning look at what, as an employer, you don’t want to do during an official government workplace investigation. In this case the employer edited and changed time records, and then he lied about it, and then directed his employees to lie about it. The Court found that “the records Mr. Aguirre provided during the … Investigation, known as middle sheets, were based on his false summaries of how many hours employees worked, rather than actual clock-in and clock-out times…. Mr. Aguirre withheld [the actual] time sheets during the … Investigation, and many time entries had been “whited-out” and edited to conform with the Federal Labor Standards Act (FLSA).”

In addition, “employees revealed that Mr. Aguirre instructed them to lie in their interviews during the … Investigation.” Subsequently,  “employees told the WHD investigator that they had been working from 60 to 70 hours per week and were paid a salary…. They said the time sheets were not accurate, and ‘that they were forced to sign’ them.” During the litigation, Mr. Aguirre admitted that the time sheets and middle sheets were not correct, and that he “told his employees what to say in their interviews.”

In its post-trial motion, the government argued that the owner willfully violated the FLSA by: (1) falsifying payroll records, (2) withholding records requested by the WHD investigator, (3) lying to the WHD investigator and instructing his employees to lie, (4) recklessly disregarding his duty to determine whether it was violating the FLSA, (5) recklessly disregarding FLSA requirements, (6) and recklessly disregarding his duty to keep accurate records.

The Court concluded that the “evidence indicates that Mr. Aguirre took affirmative steps to create the appearance that El Tequila complied with the FLSA, including adjusting records to suggest that workers were properly paid, withholding documents, misrepresenting how employees were paid, and instructing employees to do the same. A reasonable jury could not conclude El Tequila’s violations were negligent” but willful.

In light of this Circuit Court opinion, employers may wish to consider the ramifications of this case as they analyze their management systems, policies, procedures, and training systems. While this is an extreme case, to the extent that FLSA rules apply to your operations, make sure that all employees understand the requirements, and are following company policies and procedures to ensure FLSA compliance. (And don’t lie during a government agency’s interview – they really, really, don’t like that!)

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.

 

By Minh Vu

Seyfarth Synopsis:  An executive order from President Trump will likely halt the Justice Department’s public accommodations website rulemaking.

President Obama’s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018—eight years after the agency began its rulemaking process.  The likelihood of such a proposed regulation being issued now is virtually non-existent.

Among the flurry of executive orders President Trump signed this week was one entitled “Reducing Regulation and Controlling Regulatory Costs”.  This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration.

The EO directs all federal agencies to:

  • Identify at least two existing regulations to be repealed for each new regulation;
  • Ensure that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 be “no greater than zero;”
  • Offset any new incremental costs associated with new regulations by eliminating existing costs associated with at least two prior regulations.

The EO exempts regulations relating to: (1) military, national security, or foreign affairs functions of the United States; and (2) agency organization, management, or personnel.  It also vests the Director of the Office of Management and Budget with the authority to grant additional exemptions.  The stated purpose of this EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations”.  We therefore assume that the EO would not apply to regulations applicable to state and local governments that the DOJ has been working on and could issue under Title II of the ADA.  It is unclear what, if any, impact this EO may have on the Title II regulatory effort.

While our prediction may seem dire, we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost.  Though some may think that businesses are better off with no regulations on this subject, we disagree.  The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply.  This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.

Edited by Kristina Launey.

By Annette Tyman and Michael L. Childers

Seyfarth Synopsis: Federal Contractors should immediately update the Disability Self-ID Form to include the new expiration date.  The OFCCP is allowing a 10-day grace period, until February 10th to update the form.

Last week we updated contractors on OMB’s renewal of the disability self-identification form (see post here).  Note that there were no substantive changes to the form and that the only change was an update to the effective date from January 31, 2017 until January 31, 2020. Since that update, we have learned that the OFCCP is expecting contractors to “immediately” take steps to update the form to reflect the new effective date.  For those contractors who need additional time to update the expiration date, the National Office has implemented a 10-day “grace period.” For unexplained reasons, the OFCCP has not publicized this deadline on its website. Nonetheless, contractors should take immediate steps to update the disability self-ID form with the new effective date and implement the change by February 10th.

To ensure the updated form is in use, contractors should take the following steps: 

  • Update online application systems to ensure that they are displaying the self-ID form with the new effective date.
  • Update new hire onboarding systems to ensure that these materials include the updated form, including updating paper copies that may be utilized.
  • Ensure that the updated form is used in interim reminders to employees of their option to update their disability status.
  • Ensure that the updated form is used in any resurvey of the workforce.
  • For those contractors who are currently subject to a compliance review, ensure that you can demonstrate that you have implemented the updated form or readily show the steps that  you have taken to transition to the updated form.

The new form can be located using the following link:

https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf

Seyfarth Shaw’s OFCCP and Affirmative Action Compliance team leads the legal industry in thought leadership, affirmative action plan preparation, compliance review representation and employer advocacy on issues relating to contractor compliance.  We have a long track record of experience and we are ready to help assist with all of your affirmative action compliance needs.

By Benjamin J. Conley, Shad C. Fagerland, and Joy Sellstrom

Seyfarth Synopsis: Within hours of his inauguration, President Trump issued an Executive Order labeled “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal”.  As described in greater detail below, the immediate impact of this executive order is uncertain and affected parties would be best advised to await further guidance before reacting to the order. 

Executive Order and Impact

The Executive Order directs regulatory agencies to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”

The Order’s broad directive could be viewed in many ways as an extension of the President’s campaign promises to minimize the burden of ACA regulations pending the law’s ultimate repeal.

In some respects, the Order sows greater confusion than it provides clarification. Notably, unanswered questions include:

  • Does this directive imply a complete or partial enforcement hiatus?
  • Was the absence of reference to employers/businesses intentional or inadvertent?
  • How quickly can the relevant agencies (notably, HHS, IRS and DOL) react to this directive with more meaningful guidance, considering many of the incoming heads of those agencies will not be confirmed for several weeks?
  • Does the Order provide any relief to employers who are preparing Form 1094/1095-C tax filing forms due in roughly one month?

In the absence of more explicit agency guidance or Congressional action, the Order, in and of itself, does not appear to offer any specific relief from penalties to employers, individuals or other affected parties. So employers who decide to disregard existing agency guidance proceed at their own risk based on certain presumptions.

With regard to the most pressing issue for many employers — Form 1094/1095-C filing — we recommend that until official guidance from the IRS indicates otherwise, employers should assume that the current filing deadline continues to apply.

The Order may pave the way for future agency actions, such as non-enforcement policies, filing extensions, hardship waivers, etc. It is difficult to anticipate precisely what form such actions may take, but agencies are generally bound by the terms of the governing statute as well as the final regulations published through the notice-and-comment rulemaking process.  That said, there is precedent for use of discretion to announce a delay in enforcement (e.g., the unilateral delay of enforcement of the “employer mandate” from 2014 to 2015).

Patient Freedom Act of 2017

Earlier today, Senators Susan Collins (R-Maine) and Bill Cassidy (R-Louisiana) introduced one of what will likely be many “replacement” options for the Affordable Care Act. Sens. Collins and Cassidy were undoubtedly attempting to quell some of the concerns expressed both inside and outside of the Republican party that repealing (in whole or in part) the ACA without a replacement could have practical and political implications.

The details of the Patient Freedom Act are not yet immediately available, but the press briefing indicated states would be provided greater choice in implementing healthcare reform, generally through allowing states to choose among the following alternatives:

  • Retain the ACA
  • Create a new alternative
  • Adopt the Patient Freedom Act’s plan (which generally involves greater use of health savings accounts and automatic enrollment into a health policy with opt-out rights).

Seyfarth Shaw will continue to monitor developments and provide updates as more information becomes available.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Employee Benefits & Executive Compensation Team, Workplace Counseling & Solutions Team, or Workplace Policies and Handbooks Team.

 

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: These new regulations require federal agencies to be “model employers” of individuals with disabilities. As such, they now must take specific steps that are “reasonably designed” to gradually increase the number of employees who have a disability.

We had blogged previously about the Equal Employment Opportunity Commission’s Advance Notice of Proposed Rulemaking (ANPR), inviting the public to comment on how it should amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, and to clarify the federal government’s obligation to be a model employer of individuals with disabilities. 79 Fed. Reg. 27824 (May 15, 2014).

The regulations — which apply only to federal agencies — that previously implemented the Section 501 affirmative action requirement simply stated that the federal government shall be a “model employer of individuals with disabilities,” and that federal agencies shall “give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.”

While the “model employer” of individuals with disabilities provisions of Section 501 require affirmative action and non-discrimination in employment only by federal agencies, what the EEOC determines to be best practices for federal agencies may be a preview of how it will handle private sector disability claims and charges. The regulations imposed an obligation on federal agencies to be “model employers” of individuals with disabilities, but did not explain what federal agencies needed to do to comply with the obligation.

Now the Final Rule, 82 Reg. Reg. 654 (January 3, 2017), requires those federal agencies to take specific steps that are “reasonably designed to gradually increase the number of employees who have a disability as defined under Section 501, and the number of employees who have a ‘targeted disability,’ which is defined for purposes of this Rule to mean a disability that is either designated as ‘targeted disability or health condition’ on the Office of Personnel Management’s (OPM’s) Standard Form 256, or that falls under one of the first 12 categories of disability listed in Part A of Question 5 of the EEOC’s Demographic Information on Applicants form (Applicant Flow Form), until they meet specific goals set by the EEOC.”

Targeted disabilities are defined as “disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others.”

The EEOC indicates that the New Final Rule is similar to the approach taken by the DOL’s Office of Federal Contract Compliance Programs in regulations issued to implement the obligation of federal contractors to engage in affirmative action for individuals with disabilities pursuant to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. 793 (Section 503). See for instance, 41 CFR pt. 60-741.45(a), establishing a 7% utilization goal for employment of qualified individuals with disabilities in each job group in the contractor’s workforce.  According to the EEOC news release, the regulations “set goals for federal agency workforces of 12% representation for individuals with disabilities, and 2% for individuals with ‘targeted’ disabilities.”

In addition, this New Rule requires agencies to provide personal assistance services (PAS) to employees who, because of targeted disabilities, require assistance in order to be at work or participate in work-related travel. PAS are services that help individuals with disabilities are to perform activities of daily living, including assistance with removing and putting on clothing, eating, and using the restroom.

The EEOC has also published a question-and-answer document for the new regulations.

The Rule provides federal agencies one year to make any necessary changes in policy, staff, or other aspects of their operations. The Rule is effective on March 6, 2017, and applicable on January 3, 2018.

The Rule specifically applies to federal employers. However, as noted above, this may also impact the EEOC’s handling of disability claims generally. The EEOC continues to make protecting individuals with disabilities a top priority. Employers that work on or seek to contract for government projects should vigilantly review their policies, procedures and practices to ensure that they are also acting as a “model” employer as that has been defined by the agency.

If you have questions regarding this New Rule or the topic of this post, please contact the authors, a member of Seyfarth’s OFCCP & Affirmative Action Compliance Team, or your Seyfarth attorney.

By Michael Wahlander

Seyfarth Synopsis: Within the last few years, the California Legislature has amended laws related to an employee’s right to inspect personnel records, intending to ensure employees have access to those records. Since then, employers have seen more such requests, claims made before the Labor Commissioner, and even lawsuits over production of personnel files. We offer here some tips on how to comply.

What Is This Letter and What Do I Do About It?

Your company receives a letter from a former employee (or a lawyer) asking to inspect the personnel file or “employment records.” What (if anything) should you do in response?

How and when a California employer responds to these requests can have legal consequences. That’s right—employers can be sued (or even face criminal liability) over how they did, or did not, respond to personnel file requests.

The proper response depends, first, on what the employee is asking to inspect. In California, three principal statutes govern employee requests to inspect personnel records—Labor Code §§ 1198.5, 226, and 432. See below for details.

Labor Code § 1198.5

Section 1198.5 says that employees (and former employees) have the right to inspect personnel records maintained by the employer “related to the employee’s performance or to any grievance concerning the employee.” Employers must allow inspection or copying within thirty (30) days of the request, which can be made by the employee or their representative (often an attorney). That time period can be extended by five (5) days by mutual agreement.

Covered documents: Under the terms of the statute, it appears that documents such as performance reviews, commendation letters, disciplinary notices (“write-ups”), corrective action plans, and complaints about the employee would likely be covered.

The language in Section in 1198.5 is broad; it uses the terms “related to” and “concerning.” As a result, determining exactly what other documents might be covered can be a challenge. But the Labor Commissioner has issued some guidance on its website on what might be included in a “personnel file,” including, in addition to the above, things like an employment application, notices of leaves of absence or vacation, education and training notices, and attendance records. Unfortunately, there is no appellate case interpreting the scope of the current statutory language. So the overall scope of the statute still remains an open-ended question.

Nevertheless, the statute excludes certain files. For most employers, those files are (1) records about a criminal offense, (2) letters of reference, and (3) ratings, reports or records obtained before the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination. In addition, employers can redact the names of any non-supervisory employee mentioned in the requesting employee’s file.

There are also situations when the statute does not apply. For example, if an employee (or former employee) files a lawsuit that “relates to a personnel matter” against the employer, then the right to inspect or copy the records ceases during the pendency of the lawsuit. The inclusion of this provision strongly suggests that Section 1198.5 is not a replacement for broad civil discovery.

What happens if I forget to produce records in time? If the employer does not permit the inspection or copying of these records in time, the employee may bring an action to obtain a court order (injunction) for the employer to comply with the statute. Employees are also entitled to a statutory penalty of $750 AND an award of attorneys’ fees and costs for bringing the action. And failure to comply is a criminal infraction. Ouch!

Labor Code § 226

Section 226 requires California employers to furnish employees with itemized wage statements that show nine (9) specific categories of information, such as all hourly rates, hours worked, gross wages earned, etc. The employer must provide these wage statements at the time employees are paid or semi-monthly. The specific information required and the entire text of the statute can be found here.

Covered documents: The scope of this one is easier than Section 1198.5. In addition to requiring itemized wage statements, this section also requires the employer to produce those wage statements to employees on request or a computer-generated report that shows all nine (9) categories of information required. Employers must make the records available to the employee within twenty-one (21) days.

What happens if I forget to produce records in time? Section 226 has remedies similar to those available under Section 1198.5. Section 226 also authorizes the employee to sue for a court order requiring the employer to produce the information and also a penalty of $750, and employees can also recover attorneys’ fees for bringing the lawsuit. Violation of the statute is also a criminal infraction. But unlike Section 1198.5, there is no exception for pending litigation. Yikes!

Labor Code § 432

Section 432 applies to any document that an employee (or job applicant) “signs” that is related to obtaining or holding employment. Upon request, the employer must provide those documents. Fortunately, this statute is simpler than the others. There is no timeline for production and there is no private right of action to enforce compliance.

But that does not mean that employers should ignore requests under this statute. As a practical matter, documents covered by this section can also be covered by Section 1198.5 (i.e., signed performance reviews or signed disciplinary write-ups). More importantly, failure to comply with such a request is a misdemeanor. And there is also no exception for pending litigation. Wow!

Covered documents: As mentioned, Section 432 covers any document the employee signed related to “obtaining” or “holding” employment. Examples include job applications, handbook acknowledgments, arbitration agreements, job descriptions, and any signed policy acknowledgments (anti-harassment, retaliation, discrimination, at-will employment, meal/rest break polices, etc.).

Workplace Solutions

Employers often wonder if they have to produce “every” record about an employee in response to these requests. As the statutes indicate, the answer is “no”— only documents that fall within the categories requested need to be produced. Employers must also remember to protect other important rights. Indeed, personnel issues often implicate attorney-client privilege, attorney work-product, proprietary information, and privacy issues. As a result, responding to personnel file requests often requires a case-by-case approach.

If you would like assistance in ensuring your company’s compliance with a personnel file request, or if you have any questions raised in this post, then please do not hesitate to contact the author or any other member of Seyfarth’s Labor and Employment Group.

Edited by Coby M. Turner.

 

 

By Benjamin D. Briggs, Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Keep your holidays happy and safe. At this time of year, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace environment for employees and customers and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn bring liability onto the employer.

The holidays are a time to redouble your focus on workplace safety. At this time of year, people can be distracted or tired and may be teaming with people they do not ordinarily work with due to others taking time off. Working with someone new, especially at high risk jobs, may be a recipe for disaster. It is important to ensure all employees are properly trained and qualified for the tasks they are being asked to perform, especially if a task is not within their normal job activities.

In addition, with all of the joy, parties, and excitement the season brings, employers need to be especially vigilant to keep and maintain a safe workplace for employees, customers, and other third parties. A distracted or inebriated employee may be an employee at risk, which may in-turn, bring liability onto the employer. The holidays are a good time to remind employees of drug and alcohol policies and to be on the lookout for violations of those policies. See Eleventh Circuit Says “NO” to Drunk Driving, and President Declares “National Impaired Driving Prevention Month”.

The holidays are also a time when your employees may be at risk for workplace violence, both from within the company and from third parties. Many employees will be excited about the time spent with friends and family, but many others may not have those opportunities. Be aware of the signs of a distressed and potentially violent employee. See for instance, Wave of Shootings Puts Workplace Violence Back in the Spotlight, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers. We have also blogged about workplace safety risks from shoppers and third-parties. See Holiday Shopping and Crowd Management Safety Guidelines for Retailers,

In addition be on the lookout for other holiday workplace liability issues, especially at company holiday parties. For instance, in Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties, we suggested that employers consider these tips to minimize your organization’s exposure to legal liability and, more importantly, prevent an undesirable incident from occurring at your office holiday party:

  • Prior to the party, circulate a memo to reiterate your company’s policy against sexual and other forms of harassment. Remind employees in the memo that the policy applies to their conduct at company parties and other social events, and they should act in a professional manner at all times.
  • Set a tone of moderation by reminding employees of the company’s policy against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs.
  • Ensure your dress code prohibits any form of revealing or provocative attire, and remind employees that the policy applies at company-sponsored events.
  • If appropriate, allow employees to invite a spouse or their children to the party. Many employees might think twice about their actions if spouses and/or children are present.
  • Consider limiting the number of alcoholic drinks or the time during which alcohol will be served. In either case, stop serving alcohol well before the party ends.
  • Serve food at the party so employees are not consuming alcohol on an empty stomach and make sure there are plenty of non-alcoholic alternatives available.
  • Host the party at a restaurant or hire a caterer. Remind bartenders that they are not permitted to serve anyone who appears to be impaired or intoxicated and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example, and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated.
  • Anticipate the need for alternative transportation and don’t allow employees who have been drinking heavily to drive home. If an employee appears to be heavily intoxicated, have a manager drive the employee home or ride with the employee in a cab to ensure he/she gets home safely.
  • Check your insurance policies to ensure they cover the company adequately, including any accidents or injuries that arise out of a company party or event.
  • Promptly investigate any complaints that are made after the party, and take any necessary remedial action for conduct that violates company policy.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.

 

By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: Recently decided court case finds that motor vehicle carriers may lawfully require overweight drivers to submit to a medical examination testing for obstructive sleep apnea.

We had previously blogged about the U.S. Department of Transportation’s Advance Notice of Proposed Rulemaking on the “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” 47 Fed. Reg. 12642 (March 10, 2016).  The American Journal of Industrial Medicine, with the National Institute for Occupational Safety and Health (NIOSH), had found that U.S. long-haul truck drivers were twice as likely to be obese compared to the adult working population, as well as more likely to smoke and suffer from other risk factors for chronic disease. “Obesity and Other Risk Factors: The National Survey of U.S. Long-Haul Truck Driver Health and Injury” (Jan. 2014).

An interesting Eighth Circuit Court of Appeals case, Parker v. Crete Carrier Corp., et al., No. 16-1371 (8th Cir. Oct. 12, 2016), delves into the underlying issues related to these previous blogs. Notably, the oral argument in front of the Court is available for listening.

Crete Carrier Corporation (Crete) required its truck drivers with a Body Mass Index (BMI) of 35 or greater to submit to medical examinations to determine whether they had obstructive sleep apnea. Drivers found to have obstructive sleep apnea were placed in a treatment regimen. One driver, Robert J. Parker, refused to submit to the examination. In response, Crete stopped giving Parker work. Parker then sued Crete, alleging it violated the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. The District Court granted summary judgment to Crete. Parker appealed.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) requires commercial vehicle drivers to get medical examinations every two years to ensure they are physically qualified to operate commercial vehicles. The exam measures height and weight, assesses health history, tests vision, hearing, blood pressure and urine, and physically examines body systems.  Two advisory committees, the Medical Review Board and the Motor Carrier Safety Advisory Committee, have recommended that FMCSA amend its certification standards to reduce the risks from drivers who have obstructive sleep apnea.

When analyzing Parker’s claim against Crete, the court noted that an employer requiring a particular class of employees to get a medical exam must show that the exam is job-related and that it is a “business necessity.” To constitute a “business necessity,” there must be a reasonable basis for concluding that the class of drivers required to be examined poses a genuine safety risk. Moreover, the employer’s exam requirement must enable the employer to reduce that risk.

The Eighth Circuit concluded that Crete’s suspension of Parker was not a violation of the ADA because Parker refused to submit to a lawful medical examination. Crete factually established that “untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2- to 4.9-fold.”  Moreover, “a sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis.”  Because obesity and BMIs above 33 are closely linked to obstructive sleep apnea and seeking treatment for sleep apnea decreases the risk of motor vehicle accidents, the Court found that the sleep study requirement for overweight drivers was a business necessity.

In light of the findings on sleep apnea, employers in the long-haul trucking industry should pay attention for changes in the law related to enhanced driver testing requirements, and ensure that any driver testing policies for a subset of drivers would constitute a business necessity in the eyes of the courts.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team, the Workplace Counseling & Solutions Team, or the ADA Title III Team.

By Lucas Deloach

Seyfarth Synopsis: Recent research suggests employers will manage an increasing number of employee requests for caregiving leave.

The U.S. Department of Labor’s Chief Evaluation Office has issued research briefs discussing two commissioned studies that examined paid family leave programs in California, New Jersey, and Rhode Island. Those studies reveal trend lines in paid family leave and may assist employers in anticipating future compliance challenges.

Currently, requests for leave to care for infirm relatives (“caregiving leave”) pale in comparison to requests for leave to care for newborn children (“bonding leave”), but that could change. In one of the studies examining the use of paid family leave in caregiver and parental groups, the researchers found that “[u]tilization of paid family leave programs in both California and New Jersey has grown steadily since implementation,” but claims for bonding leave far outweighed claims for caregiving leave.  Russell Tisinger et al., L&M Policy Research, LLC, Understanding Attitudes on Paid Family Leave: Discussions with Parents and Caregivers in California, New Jersey and Rhode Island 8 (July 2016). For example, in 2014, 88 percent of claims in California were for bonding leave. Id. at 9.  However, in summarizing the second study — focused exclusively on the effect of paid family leave benefits on adult child caregivers — the researchers noted that one in five individuals will be 65 or older by 2030, foretelling an upswing in the percentage of workers who may find it necessary to take leave and care for an aging relative.  Brant Morefield et al., L&M Policy Research, LLC, Leaving it to the Family: the Effects of Paid Leave on Adult Child Caregivers 3 (July 2016).  Of course, any increase in such requests could be mitigated by employees who choose to forego or limit leave and request the services of paid caregivers.  In fact, the Bureau of Labor Statistics projects employment of home health aides will grow of 38 percent from 2014 to 2024 and notes “[a]s the baby-boom population ages and the elderly population grows, demand for the services of home health aides to provide assistance will continue to increase.”

Demographic shifts are not the only driver of the potential increase in requests for caregiving leave. Legislative and administrative action may also influence caregiving leave utilization rates, as well.  As we have discussed, California recently decided to increase the level of benefits provided to individuals in its Paid Family Leave program, and only days later, New York passed a Paid Family Leave law that will go into effect on January 1, 2018.  As paid family leave benefits expand into other jurisdictions, so may employees’ willingness to take leave and care for an infirm relative.  As the researchers note, “the most commonly cited reason for unmet leave was an inability to afford it.” Morefield et al., at 3.

Many employers, in jurisdictions with paid family leave or otherwise, have developed robust bonding leave policies and/or policies addressing unpaid leave pursuant to the Family and Medical Leave Act. However, due to its comparative infrequency, employers may not have devoted particular attention to caregiving leave.  For the reasons above, employers should scrutinize their policies related to paid time off, leaves of absence, and family and medical leave.  As noted in the aforementioned studies, there may be important practical differences between requests for bonding leave and leave for adult caregiving purposes, insofar as “[e]ldercare givers typically hold a different place in the earnings life cycle than new parents and face leave spells that likely differ from a maternity- or paternity-type leave.” Id. at 4.  Thus, caregiving leave requests likely require individualized attention and employers should evaluate their related procedures to ensure they reflect that reality.  Of course, policies and procedures should also be crafted in harmony with other employee benefits, should address the interplay between paid and unpaid leave, where applicable, and should satisfy the particular requirements of state or local law.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By Megan P. Toth

Seyfarth Synopsis: Illinois enacts child bereavement leave, requiring employers provide paid leave should an employee experience the loss of a child.

On July 29, 2016, Illinois became one of only two states (the other being Oregon) to require certain employers provide unpaid leave to employees who suffer the loss of a child. Under the Illinois Child Bereavement Leave Act (CBLA), Illinois employers with 50 or more employees must provide covered employees with up to two weeks (10 work days) of unpaid leave.

Who is Covered? The CBLA defines “employer” and “employee” in the same manner as the Family Medical Leave Act (FMLA). Therefore, any employer subject to the FMLA is covered by the CBLA and any employee eligible to take leave under the FMLA is eligible to take leave under the CBLA.

How Can Employees Use Bereavement Used? Employees must use CBLA leave within 60 days after the employee receives notice of the death of a child. “Child” is defined as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

Employees may use child bereavement leave for the following purposes: (1) to attend the funeral, or an alternative to a funeral, of a child; (2) to make arrangements necessitated by the death of the child; or (3) to grieve the death of the child.

Employees may elect to substitute paid leave for unpaid leave under the CBLA, but unlike the FMLA, employers may not require employees to do so. Employees are not entitled to more unpaid leave beyond what is available under the FMLA.  In other words, once an employee exhausts their 12 weeks of leave under the FMLA, they are not permitted to take an additional 10 days for the loss of a child (unless the employer opts to provide such additional leave).

If an employee loses more than one child in any 12-month period they are entitled to take up to six weeks of unpaid bereavement leave in that 12-month period.

What are the Employees’ Obligations? For leave under the CBLA, an employee must provide at least 48 hours’ notice of their intention to take leave under the CBLA, unless it is not reasonable and practicable.  An employer may require the employee requesting leave provide reasonable documentation, including a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

What Should You Do if You Are a Covered Employer?

  • Review and revise your employee handbooks and/or leave policies as necessary to ensure a child bereavement leave policy is included.
  • Notify employees that Illinois has enacted the Child Bereavement Leave Act, inform them of their rights and obligations under the CBLA, and tell them that if they lose a child that they should contact Human Resources for more information regarding the company’s child bereavement leave policy.
  • Ensure management-level employees should understand employees’ rights and obligations under the CBLA, as well as the company’s obligations, including the CBLA’s no-retaliation provision.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.