Saluck, Halper & LehrmanSaluck, Halper & Lehrman2023-11-28T09:15:00Zhttps://www.employ-law.com/feed/atom/WordPress/wp-content/uploads/sites/1402749/2022/06/cropped-favicon-1-32x32.jpgOn Behalf of Saluck, Halper & Lehrmanhttps://www.employ-law.com/?p=463262022-08-22T14:54:36Z2022-06-27T06:50:17ZHow can I return to work if I have young children to take care of who are not going to school every day, if at all? Will I get paid if I get sick from Coronavirus and cannot work for an extended period of time?What happens if I need to stay home to care for a family member who has Covid?Do I have to use my accrued sick days in order to get paid if I need to stop working because of Covid?Can I be terminated if I need to stop working because of Covid?Is my job protected if I need to or want to stay home and not return to the workplace because of Covid?Can my job be replaced by someone if I need to stop working because of Covid?
These are just some of the many questions that have been swirling around in our collective heads. Thankfully, the FFCRA provides some answers and clarity here. To summarize, FFCRA provides rights to employees essentially entitling them to paid sick leave and FMLA leave for Coronavirus related absences. It is crucial that employees understand their new rights under this law, and that employers, and their HR departments, understand their obligations under this law in order to ensure full compliance. These are some of the key provisions that govern your rights to paid sick leave and FMLA:
Paid Sick/Medical Leave:
If you are a full time employee, you are entitled to 80 hours of paid sick leave. If you are a part time employee, your leave is equivalent to your average hours worked in a two-week period.
If you are taking leave for your own sickness, you must be paid you usual wages. If you are taking time off to care for family members, you must be paid at 2/3 your usual pay.
Sick leave pay is capped at $522 per day and $5,110 in the aggregate for employees who are sick and capped at $200/$2000 for employees taking sick leave to care for family.
Wages paid under this act will not be subject to social security payroll tax.
Paid sick time will not carry over from year to year.
This new paid sick time leave will replace any existing paid sick leave policy.
Your employer cannot require you to use any other available paid leave before using the paid sick time.
Your employer cannot discriminate against you or retaliate against you for requesting or taking this leave. This means that you cannot be terminated because of requesting or taking this leave.
You are entitled to immediate sick leave. You are not subject to wait based on what is convenient or what might be a hardship for the employer.
This new law does NOT apply to certain health care and emergency responder employees
Emergency Family Leave:
You are entitled to 12 weeks of FMLA leave if you work in the private sector, have been on the job for at least 30 days, and are unable to work or telework because you have to care for a minor child if the child’s school or place of care has been closed, or if the child care provider of that child is unavailable due to a coronavirus emergency.
Private sector employers in the Health care or emergency responder sectors, with fewer than 500 employees may elect to exclude employees from the emergency family leave provisions.
The first 10 days of leave can be unpaid (you may opt to use accrued vacation days or other available paid leave for those days). For subsequent days of leave, you are entitled to receive a benefit from your employer equal to at least two-thirds of your normal pay rate. The paid leave is capped at $200 per day and $10,000 in the aggregate.
After your leave, you must be restored to your prior position (i.e. job protection); however, this requirement does not apply to employers with fewer than 25 employees if the position held by the employee on leave no longer exists due to economic conditions or other changes in the employer’s operating conditions caused by the coronavirus pandemic, and the employer makes reasonable efforts to restore the employee to an equivalent position.
Wages paid under the emergency family leave provisions will not be subject to the social security payroll tax.
WHAT EMPLOYERS NEED TO KNOW:
You may be entitled to certain employer tax credits related to the benefits provided to your employees under this new law.
You must act swiftly to amend your policies and procedures to comply with this law.
You must train employees, particularly your HR department and/or Payroll department about the policies and procedures required under this law.
You may be liable for damages if you violate this law and breach your employees’ rights under this law.
You are required to post a notice containing information regarding this law. The Labor Department is quickly working to create a model notice for you to use.
This new law does not relieve you of your regular FMLA duties and laws not related to Coronavirus.
Feel free to contact this office if you are an employee or an employer who requires guidance or counsel regarding these new laws, or any legal employment matter you might be experiencing. We are drafting comprehensive, yet easy to follow return to work policies for our employer and company clients. Saluck, Halper & Lehrman are here to help and can be reached at 1-800-961-7884This blog is informational in nature and is not a substitute for legal research, a consultation or counsel on your specific matter(s). Due to the dynamic nature of legal doctrines and statutes, what might be accurate one day may be inaccurate the next, particularly in the ever changing landscape of statutes and regulations related to the current pandemic.]]>On Behalf of Saluck, Halper & Lehrmanhttps://www.employ-law.com/?p=463302022-07-14T15:35:26Z2022-06-27T06:49:14Z1 Under the ADA, discrimination includes, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”2
What qualifies as a disability during the COVID-19 pandemic?
The U.S. Equal Employment Opportunity Commission (EEOC) has issued a series of instructions, statements, and guidance to help employers navigate the impact COVID-19 in the workplace. The EEOC’s recent guidance broadens ADA protections to cover an individual with a pre-existing medical condition, even if such condition would not have qualified as a “disability” prior to the COVID-19 pandemic.
In its recently issued guidance, the EEOC confirmed that employees may request reasonable accommodations if the U.S. Centers for Disease Control and Prevention (CDC) deems them “higher risk” for severe illness from COVID-19. According to the U.S. Centers for Disease Control and Prevention (CDC), people aged 65 years and older and people of any age who have serious underlying medical conditions may be at higher risk for severe illness from COVID-19. Serious medical conditions include the following: chronic lung disease, asthma, heart conditions, immune deficiencies, cancer, HIV or AIDS, severe obesity, diabetes, kidney disease, and liver disease.
The interactive process
Under the ADA, as well as a number of state laws, an employer is required to engage in an interactive process whenever employee or applicant requests an accommodation for a disability, or when the employer becomes aware of a need for accommodation. The ADA makes it unlawful for an employer to fail to provide a reasonable accommodation, unless doing would create undue hardship. Moreover, if an employee requests assistance in identifying vacant positions, “even a request as generic as ‘I want to keep working for you—do you have any suggestions?’—then the employer has a duty under the ADA to ascertain whether he has some job that the employee might be able to fill.”3 The EEOC lists the following examples of questions that the employer might ask the employee;
how the disability creates a limitation,
how the requested accommodation will effectively address the limitation,
whether another form of accommodation could effectively address the issue, and
how a proposed accommodation will enable the employee to continue performing the “essential functions” of his or her position (that is, the fundamental job duties).
An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” If a particular accommodation poses an undue hardship, employers and employees must work together to determine whether there is an alternative accommodation that does not pose such problems. An employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by the pandemic.
Telework as a “reasonable accommodation”
The EEOC recommends flexibility by both employers and employees in determining if a particular accommodation is possible in the circumstances. Consideration should be given to any option that would permit an employee with a disability to perform the essential functions of his or her job while reducing exposure to unsafe conditions, including; temporary job restructuring of marginal job duties, temporary transfers to a different position, modifying a work schedule or shift assignment, or telework.
On September 8, 2020, the EEOC issued updated guidance clarifying employer responsibilities with regard to granting continued telework as an accommodation. The EEOC explained that any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer is not obligated to provide telework as an accommodation. Additionally, if there is a disability-related limitation that can be addressed effectively with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework. To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request to continue telework after the workplace reopens does not have to be granted if it requires continuing to excuse the employee from performing an essential function.
However, the EEOC cautioned that the determination as to whether a teleworking arrangement makes sense must be made on a case-by-case basis. According to EEOC guidance, an employee’s ability to satisfactorily perform all essential functions of his or her job while working remotely during the pandemic may be a factor considered in the ultimate decision as to whether such an arrangement is reasonable. Even prior to the COVID-19 pandemic, courts in most jurisdictions took into account past instances of telecommuting to determine whether an employee could be reasonably accommodated via working from home. In Henry v. Pro Act, LLC, an employer refused to permit an employee to work from home during his recovery from surgery. In determining that the employer could have made a reasonable accommodation available, the Court relied on the fact that the employer had previously allowed the employee to work from home after prior surgeries.5 In one of the few cases decided to date in the context of the COVID-19 pandemic, a Massachusetts court granted a preliminary injunction to prevent an employer from terminating an employee with asthma after she had requested permission to work remotely for the duration of the COVID-19 pandemic. The Court reasoned, “[t]here can be little dispute that Plaintiff requested to telework as a reasonable accommodation… Plaintiff is entitled to telework as a reasonable accommodation pursuant to the ADA and Chapter 151B”.6 The large-scale shift to telework during the COVID-19 pandemic could make it more difficult in the future for an employer to justify denying the request of a disabled employee to work from home on a permanent basis.
Conclusion
As new situations emerge with employees returning to work, the EEOC will continue to update its guidance with regard to reasonable accommodations under the ADA. Saluck, Halper and Lehrman offers counsel to employees navigating their return to the workplace, as well as business looking to ensure that their employment policies comply with the latest laws and regulations.
42 U.S.C. § 12112(a)
Scalera v. Electrograph Sys., Inc., 848 F. Supp. 2d 352, 360 (E.D.N.Y. 2012)
Fisher v. Nissan N. Am., Inc., No. 18-5847, at *10 (6th Cir. Feb. 27, 2020) (internal quotations omitted)
Henry v. Pro Act, LLC, 2014 WL 12567144, at *8 (C.D. Cal. Dec. 30, 2014) (unpublished)
Rezvan v. Philips Elecs. N. Am. Corp, 2016 WL 8193160, at *4 (N.D. Cal. Dec. 15, 2016)
Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144-KAR, at *8, 13 (D. Mass. Sep. 16, 2020)
]]>On Behalf of Saluck, Halper & Lehrmanhttps://www.employ-law.com/?p=463242022-07-14T15:32:20Z2022-06-27T06:44:22ZJill Saluck..]]>On Behalf of Saluck, Halper & Lehrmanhttps://www.employ-law.com/?p=463232022-07-14T15:30:36Z2022-06-27T06:43:40ZYour Employer Just Placed You on a PIP- What Now???
By the time you’re placed on a Performance Improvement Plan, chances are that your employer has already decided to terminate you. In this case, the goal isn’t really to improve your work, but to create a paper trail demonstrating poor performance in order to justify firing you. Generally speaking, an “at-will” employee can be terminated at any time for any reason, except an illegal one (discrimination, retaliation, etc.), or for no reason. However, in order to minimize the possibility of being sued for wrongful termination, a company will often try to document a history of poor performance in order to demonstrate the legitimacy of an employee’s termination. One of the most commonly used methods of showing poor performance is to place the employee on a Performance Improvement Plan (“PIP”). Regardless of the circumstances, if you’ve been placed on a PIP, you should consult with an employment lawyer right away. An experienced employment attorney can advise you on how to best navigate the PIP process.
So, how do you determine whether your employer is using a PIP as a means to fire you?
Theoretically, a PIP is supposed to give you a fair chance to improve your job performance. But in reality, that’s rarely the case. Review the PIP itself for certain telltale signs that improvement of your performance is not the true objective, including:
Failure to identify any specific performance deficits in need of improvement.
Unrealistic goals, the achievement of which are outside your reasonable control with regard to time, resources, general scope of duties, etc.
Goals that are so vague or ill-defined that regardless of your efforts, your employer could easily claim that you failed to meet them.
An experienced employment attorney can go through the PIP with you point by point to help shed light on your employer’s possible motives.
What should you do if you suspect that you’ve been placed on a PIP as a means to pave the way for your termination?
Despite the fact that you’re likely hurt and angry at being treated unfairly, try to remain as rational and strategic as possible. If you’re asked to sign a notice, first review the PIP carefully with your attorney, adding your own comments. Note each point you wish to clarify or rebut with your supervisor:
Document any misleading accounts of your past work performance, noting why they are inaccurate, and ask for modification.
Ask for clarification on any vague or ill-defined objective, or propose a more concrete goal.
Document and ask about any goal that appears to be outside the scope of your regular job duties.
Wherever possible, suggest goals that are objective and quantifiable.
Where you believe a goal is unrealistic or not reasonably obtainable, explain why.
Where a goal depends on factors beyond your control, explain these circumstances.
If you need additional resources or help in achieving the goals in the PIP, ask for them.
Ask for a frequent feedback schedule (weekly or monthly) on your performance under the PIP.
Be sure to return a copy of the PIP with your notes and comments to your supervisor AND to HR, requesting that it be kept in your personnel file.
Try your best to complete the PIP successfully
Even if you believe the writing’s on the wall that you’re inevitably going to be terminated at the end of your PIP, you still need to do everything possible to show that your job performance had nothing to do with the decision.
Document everything! Your employer is relying on the PIP as part of the paper trail that will be used to fire you. But you can protect yourself by creating your own paper trail. An experienced employment attorney can advise you on how to best document what happens during the PIP period. Such advice may include the following:
After each feedback session, email your supervisor and HR with a recap of what happened. Make sure to rebut any feedback with which you disagree.
Document each step you take to comply with the PIP. Also note whether you’re getting the feedback, resources, or other help that you’ve been promised.
Document any positive feedback you receive, no matter how minor. If the feedback is in an email, print and save it. If it’s verbal, write it down.
Email regular reports to your supervisor and to HR, documenting your achievement of each goal set forth in your PIP.
Evaluate your case. So, if it has nothing to do with your performance, what is the real reason your employer placed you on a PIP? The critical question is whether there is any evidence that the real reason for your PIP is illegal. Do you suspect that the PIP is just an excuse to get rid of you because of your race, age, disability, filing a worker’s comp or whistleblower claim, complaining about harassment or some other unlawful reason? As experienced employment attorneys, Saluck, Halper and Lehrman can help you assess the situation, navigate your PIP and determine your legal options. If you’ve been placed on a PIP, contact us immediately for a free consultation by calling (800) 961-7884 or emailing us at info@employ-law.com.]]>