One of the most difficult tasks for human resource and return to work professionals is keeping up with state and local laws. Below is a summary of some of the latest developments.
The California Fair Employment and Housing Council has amended its regulations to clarify the California Family Rights Act (CFRA). The amendments will be effective July 1, 2015. In general the amendments are consistent with the federal Family and Medical Leave Act. The amendments clarify how certain situations are to be handled under the CFRA. The regulations clarify that for employees with no fixed worksite, such as employees who work from home, their worksite is the location to which they are assigned as their home base, the location from which their work is assigned or the location to which they report. The regulations also clarify that an employee who was not eligible for CFRA leave when a leave began can become eligible for CFRA leave while on leave if the employee reaches 12 months of employment while on leave. Only the portion of the leave after the employee has met the 12-month service requirement can be designated as CFRA leave. The regulations specify that joint employers both need to count the same employee when determining CFRA eligibility. Under the new regulations, employers must have a good faith, objective reason to doubt the validity of a medical certification of the need for leave. The new regulations also prohibit employers from contacting doctors, except to authenticate a medical certification. The regulations include a sample health care certification. The sample certification includes a reminder that employers cannot request genetic information under the California Genetic Information Nondiscrimination Act of 2011 (CalGINA).
In a webinar hosted by the California Department of Industrial Relations, a representative of the agency said that requiring employees to submit documentation as a condition of payment for sick leave might be construed to interfere with employee rights under California’s new paid sick leave law. The webinar was for information purposes and is not legally binding; however, the comments mean that employers in California should be cautious when implementing the new law. Requiring medical certifications, such as notes from doctors is a common practice. Unlike most paid sick leave laws, California’s does not explicitly allow employers to seek documentation. Because the law itself is silent on documentation, one possible interpretation is that there are no restrictions on employers seeking to prevent or identify abuse. As part of its rationale for not adopting this approach, the agency representative cited the new law’s anti-retaliation and discrimination provision, which expressly prohibits employers from denying an employee the right to use accrued sick days. Employers seeking to require documentation of the need for paid sick leave in California should consult legal counsel.
District of Columbia
The District of Columbia Office of Human Rights has updated its workplace posters for Equal Employment Opportunity, the D.C. Family and Medical Leave Act and the D.C. Parental Leave Act.
The Massachusetts Attorney General has issued proposed regulations implementing the new earned sick time law, which will be effective July 1, 2015. The new law applies to employers with more than 10 employees; the regulations clarify that all employees are counted, so only one employee needs to be in Massachusetts in order for the law to apply, if there are at least 10 other employees elsewhere. The proposed regulations also clarify that employees may accrue and use earned sick time based on all hours worked, including hours worked outside of Massachusetts, if the employee’s primary place of work is in Massachusetts. The regulations also clarify that part-time, temporary and seasonal employees can earn sick time under the law. The proposed regulations would allow employers to define their own “year” for purposes of accrual and use of sick time. The regulations define the rate that must be paid to salaried employees as an hourly rate determined by dividing total earnings by hours worked in the previous pay period. Even though the law requires that employers allow employees to take earned sick time in hourly increments or smaller increments allowed by the employer’s payroll system, the proposed regulations would allow employers to require employees to use a full shift of earned sick time if the absence required the employer to hire a replacement for the shift. The regulations would allow employers to payout up to 40 hours of earned paid sick time at the end of each calendar year, as long as the employee would still have at least 16 hours of previously accrued sick time.
The governor of Nebraska has signed legislation amending the Nebraska Fair Employment Practices Act to provide protections for pregnant employees. The new law defines reasonable accommodations for pregnant employees. It will go into effect three months after the current legislative session adjourns.
The governor of North Dakota has signed legislation providing protections for pregnant employees. Employers will have to make reasonable accommodations for pregnant employees. The law will go into effect on August 1, 2015.
The City of Oakland, California has enacted a paid sick leave ordinance that was effective March 2, 2015. The Oakland ordinance is very similar to the San Francisco ordinance and employers must comply with both the new state paid sick leave law and local ordinances where they are more generous to employees.
The governor of Utah has signed legislation amending the Utah Antidiscrimination Act to protect breastfeeding mothers from discrimination related to breastfeeding or medical conditions related to breastfeeding.
The governor of Wyoming has signed legislation amending the state’s identity theft and breach notification laws. The new law makes the definitions of personal identifying information the same under both laws. The law will go into effect on July 1, 2015.