Author: abbyt

abbyt

In CKVC Works

EEOC Issues Guidance on Mental Health in the Workplace

by abbyt

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a resource document explaining workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA). The ADA is a federal statute that prohibits discrimination on the basis of an actual or perceived disability. The ADA also requires employers to provide reasonable accommodations to their disabled employees, identified via an interactive process, so that those employees can perform their job duties.

This resource document, titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights” covers a number of important topics focused on the numerous issues that arise in this context.

First, the guidance makes it clear that an employer cannot fire or discipline an employee because that employee has a mental health condition, stressing that an employer cannot rely on myths or stereotypes about mental health conditions when making employment decisions.

Second, the guidance provides that employees may keep their mental condition private, as is often their preference in these situations, unless (1) the employee has asked for a reasonable accommodation, (2) the employer has made a job offer, but employment has not commenced, (3) the employer is engaging in an affirmative action program to hire individuals with disabilities, or (4) there is objective evidence that the employee cannot perform his/her job or that he/she poses a direct safety threat.

Third, the guidance identifies reasonable accommodations that may be appropriate for individuals with mental health conditions, including (1) altered break and work schedules to allow for attendance at therapy appointments, (2) quiet office space, (3) changes in supervisory methods, (4) specific shift assignments, or (5) permission to work from home.

Fourth, the guidance reiterates that a condition need not be ‘permanent’ or ‘severe’ to be a covered disability. Instead, a condition may qualify as an ADA-protected disability if it makes activities more difficult or time-consuming to perform compared to the way most people perform them.

Fifth, the guidance identifies the following as disabilities that are likely protected and notes that they can be disabilities even if the symptoms come and go: major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD).

Sixth, the guidance makes clear that the ADA prohibits harassment based upon an employee’s disability. According to the guidance, employees who are being harassed because of a disability should notify their supervisors and should follow the employer’s reporting procedures. Employers are legally required to take action to prevent this type of harassment.

In light of this new guidance, employers should (1) train their supervisors on the ADA-mandated interactive process and how to handle internal complaints of harassment and (2) review their internal policies to insure they are ADA compliant.  If you have any questions about disability law or the interactive process, please feel free to contact us.

In CKVC Works

Texas Court Enjoins DOL Regulations

by abbyt

As we wrote about, as of December 1, 2016, new Department of Labor Regulations were to have gone into effect that would have resulted in approximately 4.2 million more workers being entitled to overtime.   As we wrote about 21 states brought suit in a Texas federal court to stop the implementation of those new regulations.  Yesterday, a Texas District Court Judge, who happened to have been appointed by President Obama, granted a nationwide preliminary injunction blocking implementation of the rule that doubled the required salary level to qualify for the Fair Labor Standards Act’s “white collar exemptions.”  As a result, the salary required to be paid to an employee to be treated as “white collar exempt” will remain at $455/week and will not be increased to $913/week.

Many employers had already prepared for the new regulations by identifying workers affected by the new rule and determining how to address the change.  Many employers gave employees raises to new salary level, hired new employees to limit overtime worked, and implemented the fluctuating workweek method of overtime calculation.  If an employer has already communicated those changes, it will be difficult to undo them. 

Employers who did not plan for the change can breathe a sigh of relief.  That relief, however, may be temporary as the Department of Labor is likely to appeal the decision to the Fifth Circuit Court of Appeals.  If the decision is reversed by the Fifth Circuit, and the employer is not in compliance with the new regulations, a difficult scenario arises:  does the reversal of the injunction mean the effective date of the regulations will be made retroactive to December 1, 2016? 

In CKVC Works

What Does Legal Marijuana Mean for Massachusetts Employers?

by abbyt

Yesterday, Massachusetts voters approved a law permitting recreational use of marijuana by a margin of 53.6 percent to 46.4 percent.   Numerous employers have asked how this impacts the workplace.  Are employees entitled to utilize recreational marijuana at work or on a break?  Do employers have to allow for marijuana use as an accommodation to a disability?  Can employers no longer enforce drug/alcohol-free workplace policies as they relate to marijuana?

Thankfully, the 12-page statute provides clarity for employers wondering how this affects the workplace in Section 2(e):

(e) This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter (i.e. the use of recreational marijuana) in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.    

This section makes clear that employers will not have to allow marijuana use in the workplace and will still be able to enforce a drug-use policy that restricts the consumption of marijuana by employees. 

Employers who do not have a drug/alcohol-free workplace policy should have one.  Employers who have not updated their policies since the 2012 legislation legalizing medical marijuana should do so.  Please contact us if you would like assistance in drafting or reviewing workplace policies to be sure they comply with these laws.    

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Christopher Hennessey recent won a Panel decision

by abbyt

Chris Hennessey recently won a panel decision with the World Intellectual Property Organization on behalf of a local organization in a trademark infringement dispute. A foreign company was operating a website under an infringing domain name. Based on the evidence we presented, the panel ruled in favor of our client and ordered the transfer of the infringing site.

In CKVC Works

Obesity as a Disability – The Debate Continues 

by abbyt

According to the Americans with Disabilities Act and M.G.L. ch. 151B, employees are entitled to protections associated with mental or physical impairments if they rise to the level of a “disability,” a question resolved by determining whether the condition substantially impairs one or major life activities.  If someone meets the statutory definition of “disabled,” they are entitled to important workplace protections, including those prohibiting harassment and discrimination, as well as those requiring employers to engage in an interactive process to determine if reasonable accommodations must be provided to the employee to mitigate the impacts the disability has on work performance.   In 2008, the Americans with Disabilities Act was amended in a number of important ways, including in ways that greatly expanded the definition of “disability.”  As a result, numerous conditions (cancer, diabetes, etc.) are clearly considered “disabilities.” 

The status of obesity as a “disability,” however, is not clear.   Some courts have said “maybe,” others have said “no,” and others have said “yes, but only if it results from an underlying physiological disorder.”  On September 21, 2016, the Massachusetts Commission Against Discrimination joined the debate, finding that an employee who suffered from morbid obesity was disabled and that the employer’s refusal to grant him a leave of absence violated its obligation to provide the employee a reasonable accommodation. 

Please feel free to contact us if you have questions about disability discrimination, the interactive process, or workplace accommodations.    

In CKVC Works

Time for Vermont Employers to Prepare for New Sick Leave Law

by abbyt

As of January 1, 2017, Vermont will become the fifth state to have a paid sick leave law.  Employers with five or fewer employees who are employed for an average of 30 hours or more per week will not be subject to the law until January 1, 2018.

According to this new law, employees who work an average of 18 hours or more per week are eligible to accrue one hour of paid sick leave for every 52 hours worked.  The law generally requires employees to be entitled to carryover unused sick time from year-to-year, but limits an employee’s use of accrued sick time to 24 or 40 hours in any 12-month period, depending on the year in which it was accrued.   Employers may implement a one-year waiting period prior to allowing employees to utilize paid sick leave.  During the waiting period, however, employees will accrue paid sick time. 

The new law allows employees to utilize paid sick leave to (1) care for their own or a family member’s illness or need for medical care, (2) obtain services or care associated with domestic violence, sexual assault, or stalking suffered by the employee or a family member, and (3) to care for a family member because the school or business they attend is closed for public health or safety reasons. 

Employers with Vermont employees should review and revise their leave policies in advance of the new law’s implementation.  If you have any questions about this proposed law or any other employment issue, please feel free to contact us. 

In CKVC Works

Action Underway to Stop Implementation of the New DOL Regulations

by abbyt

Beginning December 1, 2016, any employee paid less than $913.00 per week will not be capable of qualifying for the exemptions from overtime known as the “white collar exemptions.”  According to the Department of Labor, this change will result in an estimated 4.2 million additional employees becoming eligible for overtime.  You can read more about this change here. 

Not surprisingly, action is underway to stop the implementation, including a September 20th suit brought by 21 states against the federal government to block the new overtime rule and declare it unlawful.  According to these 21 states, the final rule threatens their budgets, represents an encroachment upon the rights of states, and violates the 10th Amendment.  The 21 states named as plaintiffs in the suit are:  Nevada, Texas, Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, Utah, Wisconsin, Kentucky, Iowa, Maine, New Mexico, Mississippi, and Michigan. 

Also, on September 28, the United States House of Representatives passed a measure that would delay implementation of the new rule by six months.   The following day, lawmakers introduced a bill that would phase implementation of the new rule across five years and would require an “independent government watchdog” to study the new rule after its first year of implementation.   

If you have any questions about this proposed law or any other employment issue, please feel free to contact us.  Click here to register for our Labor Law Seminar where we will be discussing the new DOL rule and strategies to minimize its impact. 

In CKVC Works

Massachusetts Senate Passes Bill Requiring Paid Medical Leave

by abbyt

Last night the Massachusetts Senate passed H.4531, a bill designed to provide family medical leave and temporary leave insurance to employees. The entire bill can be found here: BillH4351. This proposed act applies to all employers with one or more employees and provides the following: 

  • Employees are entitled to leave if they have worked 1250 hours and at least 9 months, whichever occurs later.   
  • Qualified employees are entitled to 12 weeks of family medical leave.
  • Absent special circumstances, employees who take leave under this act are entitled to be restored to the same or similar job after the leave ends.
  • Taking leave does not affect right to receive accrued vacation time, sick leave, bonuses, or other employment benefits.
  • The leave is paid.
  • Violations of the section requiring payment of benefits are subject the Wage Act’s penalties, including treble damages and attorneys’ fees.    
  • Anti-retaliation provisions that appear to incorporate Wage Act’s penalties, including treble damages and attorneys’ fees.
  • Leave taken under this Act will run concurrently with leave taken under the Massachusetts Parental Leave Law and the Family Medical Leave Act.

If passed by the House and signed by the Governor, this law would dramatically impact the workplace.  If you have any questions about this proposed law or any other employment issue, please feel free to contact us.    

In CKVC Works

EEOC Issues New Guidance Regarding ADA Leave

by abbyt

The Equal Employment Opportunity Commission recently issued new guidance regarding employer leave policies and the American with Disabilities Act.   The intersection of the ADA and employee leave is one of the most difficult areas of employment and, not surprisingly, one of its most litigated.  Importantly, this new guidance expresses the EEOC’s view that employer policies that cap maximum leave time at a certain amount of days likely run afoul of the ADA as they indicate an employer’s unwillingness to engage in a fact-sensitive inquiry in connection with each employee’s request for leave.  The new guidance also expresses the EEOC’s view that 100% healed polices are likely to lead to violations of the ADA because they result in employer’s refusal to grant reasonable accommodations.  The guidance also contains helpful scenarios regarding an employee’s right to leave and what length of leave is considered reasonable.  The entire guidance is available here on the EEOC’s website.   

 In light of this new guidance, employers should (1) review their internal policies to insure ADA compliance and (2) train their managers and supervisors on the ADA-mandated interactive process.  If you have any questions about disability law or the interactive process, please feel free to contact us.   

In CKVC Works

Governor Signs Pay Equity Act

by abbyt

Last week, Massachusetts Governor Charlie Baker signed into law S.2119, an act referred to as the Pay Equity Act. The Act contains the following prohibitions and important remedies.

  • Employers are prohibited from paying employees differently because of their gender for comparable work. Employers who violate this provision must pay double the disparity and attorneys’ fees to the impacted employee. Employers can avoid liability by establishing that they have conducted a good-faith audit within the three years preceding the claim and that they have made reasonable efforts to eliminate pay disparity.
  • Employers cannot (1) force employees to refrain from discussing or disclosing information regarding their own wages or other employees’ wages; (2) screen candidates based upon their wage history; (3) require applicants to disclose wage history as a condition of being interviewed or as a condition of continuing to be considered for an offer of employment; (4) seek the salary history of any prospective employee without their authorization; and (5) retaliate against anyone for exercising these rights. Employers who violate one or more of these five prohibitions must pay the impacted employee an amount equal to double his or her lost wages and attorneys’ fees.
  • The Act defines “comparable work” as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” Variations in compensation and benefits may be permitted under certain specific circumstances, including a bona fide seniority or merit system; a system under which earnings are measured by quantity or quality of production or sales; geographic location; education; training; and experience. These factors, however, must be reasonably related to the job and consistent with business necessity.

This law does not go into effect until January 1, 2018, so there is an opportunity to plan ahead to comply with its provisions. We suspect that the attorney general will issue regulations interpreting this Act. For updates on those regulations and on any changes to the law’s provisions and requirements, please contact the lawyers in our employment group.