Employee Leave Trends

Transcription

1 Employee Leave Trends Paid Sick, Domestic Violence, Parental Leave 2017 SafetyWorks Expo Bobbie Fox, Associate General Counsel CopperPoint Mutual Insurance 2017 CopperPoint Mutual Insurance Company Safety Works 2017

2 Leave Rights FMLA (Family Medical Leave Act) ADA (Americans with Disabilities Act) Rehabilitation Act (federal employee, contractors) WC (Workers Compensation Act)

3 New Leave Trends Paid Sick Leave Domestic Violence Leave Parental Leave Other Trends Ban the Box, Ban the Salary Questions Predictable Scheduling

4 FMLA, ADA, WC - What s the Difference? ADA- prohibits discrimination, harassment, retaliation against disabled applicants and employees. FMLA requires minimum leave standards for employees who have a serious health condition, or who are caring for a family member with a serious health condition. WC provides compensation and health benefits to employees who are injured on the job. Minimizes employer liability.

5 FMLA, ADA, WC What s the Difference? FMLA worked at least 12 months and 1250 hours prior to start of leave and works at jobsite of 50 or more employees within a 75 mile radius ADA disabled (as defined) qualified for position and can perform the essential functions of the job with or without a reasonable accommodation. 15 or more employees WC employee injured arising out of or in the course of employment All employers

6 Paid Sick Leave in Arizona Prop. 206 Fair wages and Healthy Families increased minimum wage effective Jan. 1, 2017 earned paid sick leave effective July 1, Applies to - All employers, All employees part-time, seasonal, interns, temporary. No small employer exception Amount of leave less if under 15 employees

7 Quiz for the Know It All How Many Other States Have Paid Sick Laws? A. 7 B. 9 C. 4

8 Quiz for the Know It All How Many Other States Have Paid Sick Laws? A. 7 B. 9 C. 4

9 Paid Sick Leave it s not just Arizona DC Connecticut typically 1hr for every 30 hours worked; Az, Conn 1/40 California Massachusetts Oregon Vermont Washington Federal Bills Healthy Family Act

10 Paid Sick Leave its not just State Law Cities with Paid Sick Days Laws San Francisco, San Diego, Oakland, Santa Monica, Emeryville Philadelphia, Pittsburgh Seattle, Tacoma, Spokane NYC Jersey City, New Brunswick, NJ LA Chicago, Cook County Resource:

11 Arizona s Paid Sick Leave PSL accrues 1 hour for every 30 hours worked 15 employees or more minimum accrual is 40 hours per year Under 15 employees minimum accrual is at least 24 hours per year Grant method or Accrual Method Grant: provide 40 hours at beginning of year, then pay out unused PSL at the end of the year and grant it again the next year for immediate use. Must pay out at end of year. For use in 90 days after hire (or earlier). Can project hours that he will work and true up if he worked more Use: Yearly use maximum is 40 hours/24 if small employer. You can give more if you wish in policy. Accrual maximum: 80 hours per ICA guidance.

12 Arizona PSL Accrual Method: track hours worked, and accrue at the rate of 1 hour PSL for every 30 hours worked. Must roll over unused PSL for use next year. Can prorate for 2017 Use: Yearly use maximum is 40 hours/24 if small employer. You can give more if you wish in policy. Accrual maximum: 80 hours per ICA. Select Benefit Year. Can be calendar, fiscal, anniversary, or other. If benefit year is NOT July 1, 2017, ICA permits pro rata accrual for 2017 only. I.e. July to Dec = 184 days/365 = x 40 =20.2 hours pro rata accrual and use max. Then new benefit year begins Jan. 1, 2018.

13 PSL Details Exempt employees assumed to work 40 hrs/week for accrual Overtime not considered in accrual Hours can be used as they are accrued New hires accrue immediately but can have them wait 90 days to use PSL (in your policy) Employee can take PSL time in the smallest increments that your system will allow. ICA defines as smallest time you use in policy or practice.

14 AZ PSL Hourly Rate PSL must be paid at the same hourly rate and with same benefits, including health care benefits as employee normally earns during hours worked. A.R.S (D). ICA Employer can designate leave it believes is PSL (good faith) ICA includes shift differentials and premiums (i.e. hazard pay, night shift) does not include holiday pay, bonus, overtime, incentive pay, tips, gifts. Commissioned: agree upon hourly rate (not less than minimum) Use wages if known Use reasonable estimation Use weighted average of previous 90 days -Multiple Hourly rate

15 More PSL Details Leaving and returning employees if within 9 months, reinstate accrued PSL. If paid out at separation, do not have to reinstate. (ICA) Post Notice (ICA website Pay check stub on check or attached, must state amount PSL used in year/ amount available/total pay received from PSL No Retaliation presumption of retaliation if adverse action taken within 90 days of PSL use. Need clear and convincing evidence to rebut this. Tip: Put No Retaliation in your policy and who to complain to. Protected activity includes: asserting claim or right Taking or requesting PSL; denying PSL Assisting others ICA or court complaint; informing others about rights, violation, investigation or proceeding.

16 When can you use PSL Employees can use PSL hours for themselves or family members for these situations: Mental or physical illness, injury or health condition Need for medical diagnosis Care or treatment of mental or physical illness, injury or health condition Preventative medical care

17 School Closure/Public Health Closure of employee s workplace by order of public health official To care for a child, whose school or place of care has been closed by order of public health official To care for self or family member when health authority or provider determines their presence in community may jeopardize the health of others because of exposure to a communicable disease

18 Use PSL for DV Situation Absence due to domestic violence, sexual violence, abuse or stalking to allow the employee or his or her family member to obtain medical attention, psychological or other counseling services from a domestic or sexual violence program or victim services relocation or taking steps to secure an existing home due to domestic violence, sexual violence, abuse or stalking legal services related to domestic violence, sexual violence, abuse or stalking

19 Being Sued Legal Action: employee can file administrative complaint with ICA (online) within 1 year of violation occurring or when knew or should have known. Can file suit in court. Suit can also be filed by AG, city atty, county atty, town atty within 2 yrs of violation or 3 yrs if willful. May go back further if continuing violation. Damages: at least $250 for first violation and at least $1000 for each subsequent violation or willful. Balance of PSL owned plus interest and liquidated damages (2 or 3x). $150 day for retaliation or more. Attorney fees and costs. Cannot waive rights under PSL. Recordkeeping: 4 years

20 Know It All Quiz PSL can be used to care for self or family, for illness, injury or health condition, diagnosis, care or treatment, preventative medical care. You cannot use PSL for which Family members? A. Grandpa B. Aunt C. Mom - the woman who raised me but who is not related to me by blood. D. Adopted daughter

21 PSL Use for Family Who is Family? Broadly defined to include nearly every relative and even those who are not related but whose close association with the employee is the equivalent of a family relationship.

22 The Fine Print: Family Biological, adopted or foster child, stepchild or legal ward, a child of a domestic partner, a child to whom the employee stands in loco parentis, or an individual to whom the employee stood in loco parentis when the child was a minor. (A person is standing in loco parentis when he or she assumes the obligations of a parent to a child). Parent, foster, step or adoptive parent or legal guardian of an employee or his or her spouse or DP, or a person who stood in loco parentis when the employee or his or her spouse or DP was a minor child. A spouse or registered domestic partner (DP) Grandparent, grandchild, sibling of employee or of his or her spouse or DP (includes biological, foster, adopted or step). Any other person related by blood or affinity whose close association with the employee is equivalent of a family relationship.

23 Notice of Time Off Employee s Notice of Use of PSL In advance if foreseeable For example, surgery is coming up so can schedule PSL If not foreseeable (i.e. flu, cold, injury) require call to supervisor/manager as soon as possible by calling in each day or as directed. Put details in your Attendance Policy

24 Note from Health Care Provider If Less than 3 Days No note needed, however employee must pre-plan or call in to report absence. If 3 Days or More of Consecutive PSL Manager may request employee to provide documentation from a health care provider. FMLA - if hospitalized, or continuing treatment (if has 3 consecutive days) for serious health condition for self or family member, can require medical documentation for leave and return to work.

25 What s in the Note? Note states: I need to use paid sick leave. TIP: If you require a doctor note for a single day absence, you need to change that practice. Domestic Violence Documentation types: Police report, court order, Domestic Violence services, statement from employee, attorney, clergy, doctor. Put it in your Leave Policy DV/Victim Leave - AZ statute allows unpaid leave for victim of a crime, or to get injunction, attend proceeding. A.R.S (50 or more employees; notice). AZ Constitution protects crime victims Bill of Rights

26 Putting it all together Q texts her manager M at midnight, So sick. Not coming in. (Puking emoj) Q. The next 2 days, Q texts need PSL. On day 4 she texts in hospital. She returns to work on day 6 and explains to M that she had mixed up her meds and got all whacked out. But now she is better, except for her anxiety, which is still going on of course and she needs some days off for that later. M exclaims And this is why I love HR! and sends Q to HR to let them deal with her. YOU are HR. Q only has 6 hours of PSL, and 2 days of PTO. What do you do, considering PSL, FMLA and ADA?

27 Can you Discipline for Attendance? Yes if have Attendance Policy & Paid Sick Leave Policy Cannot discipline for using approved PSL Do not count PSL against employee when disciplining for attendance Do not count FMLA, ADA medical leave when disciplining for attendance Can discipline if violate attendance policy but: 1. Document type and frequency of leave used PSL, PTO, FMLA, ADA, other 2. Document reasons, notice, and whether prior approval was given. Ensure count only absences that can be counted for discipline. To prevent any claim of discrimination or retaliation.

28 Prevent Discrimination and Retaliation Written Policy who to notify of PSL; be careful not to impose strict time requirements (i.e. notice as soon as practicable) Treat employees the same under similar circumstances Communicate the reasons for discipline clearly If an issue is raised of unfair treatment, consult HR/look into it Follow the process for discipline i.e. Warning Steps Documentation Is Your Friend. Keep Medical Info confidential, even if employee shares it. Separate file (not personnel file) Do not share it need to know.

29 Know It All Quiz- Parental Leave 1. True or False: It is considered discrimination to offer leave to a mother after her baby is born but not offer leave to a father after his baby is born.

30 EEOC says Distinguish between leave related to any physical limitations imposed by pregnancy or childbirth and leave for purposes of bonding with a child and/or providing care for a child (Title VII) Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. Parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers to bond with and/or care for the baby, it must provide an equivalent amount of leave to new fathers for the same purpose. EXAMPLE - Pregnancy-Related Medical Leave and Parental Leave Policy - No Disparate Treatment An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. EXAMPLE - Discriminatory Parental Leave Policy In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.

31 Know It All Quiz 2 2. The best place in America to have a baby (the most paid leave time) is: -A. New York City -B. San Diego -C. San Francisco -D. Chicago

32 Hello Parental Leave California 6 weeks family leave New Jersey 6 weeks Rhode Island 4 weeks New York 8 weeks in 2018; 10 in 2019; 12 in 2021 DC 8 weeks parental; 6 weeks family Washington 12 weeks family (All have time off for own disability)

33 Parental Leave - It s Here. Example: Calif law - paid 55% of weekly wages to bond with new child or care for ill family member with state disability insurance SDI. SF Ordinance: employers pay for the remaining 45% of weekly wages for parental leave. (baby bonding purposes) NY 12 week, 2/3 wages leave program in 2018 Company perk -Twitter: offers 20 weeks paid parent leave - Facebook 16 weeks Currently, only 13% of U.S. workers in the private sector have access to any sort of paid family leave says DOL. E & Y survey: millennials cite parental leave as important Other Countries - 35 weeks Canada/45 weeks in Germany

34 Know It All Quiz The U.S. does not have a national paid leave policy for parents. Which country has the highest amount of parental leave? -A. Japan -B. Bulgaria -C. Germany -D. Turkey

35 Paternity answers Japan (dad over 30.4 weeks) Bulgaria (410 days for mom; dad 15 days) Hungary (24 weeks at 70% for mom), Germany (dad 5.7 weeks) Turkey (dad 5 days)

36 Trend Worker Rights, Fair Hiring Ban the Box (28 states; 150 cities, counties) Ban the Previous Salary questions SF ordinance eff. 7/1/18 so no prior salary questions asked of applicant. (equal pay) States: Delaware, Massachusetts, Oregon Cities: NYC, Philadelphia, SF *all in effect at a later date Predictable Scheduling Laws i.e. good faith estimate of work hours 14 days in advance Seattle, SF, NY, Oregon