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.    

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 10^th 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. 

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.    

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.   

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.