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EEOC Clarifies Allowable COVID 19 Testing For Employees

Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) has continued to refine its past issued Guidances on what employers can do to safeguard employees from COVID-19 workplace exposure. One such measure that employers can utilize is mandating that all employees be tested for COVID-19.  But previously the EEOC never said what type of testing can be done. The EEOC has recently clarified precisely what kind of testing employers can now require of its employees.

As many know, there are now currently two types of available tests that can be utilized to detect COVID-19 exposure. The first is a diagnostic test that determines whether someone has the coronavirus at the time of the testing. The second kind is an antibody test that determines whether the individual from past exposure to coronavirus has developed any protective antibodies to the virus. When the EEOC announced its earlier Guidance that employee COVID-19 testing was permissible, employers thought that they had the option to require either type (or both) kinds of testing. That has changed with the EEOC’s latest Guidance.

Now, the only kind of testing allowable is diagnostic to determine whether the individual at the time of the testing has contracted COVID-19.  Antibody testing is not allowed-why?  The EEOC’s rationale for prohibiting such testing flows from recommendations from the Centers for Disease Control (“CDC”) which now states that antibody testing should not be used to return persons to the workplace. Deferring to the CDC’s conclusion about the use of antibody tests for returning employees, the EEOC Guidance now has determined that it is not an appropriate medical test that meets the job relatedness requirement for allowable examinations under the Americans with Disabilities Act.

As the EEOC’s recent modification to its Guidance shows, we are dealing with an ever evolving situation that could change literally overnight. Thus, employers must continue to stay on top of all developments on what can and cannot be done as many states continue their phased economic re-openings.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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COVID-19 and The High Risk Employee

With businesses reopening thanks to modifications of state stay at home orders, employers are beginning to contemplate what their new work environments will look like when employees return. Over the past several months, the Equal Employment Opportunity Commission (‘EEOC”) has provided guidance to employers regarding the ways that a company can safeguard its workplace in this new era of COVID-19. One hot question is whether employers, out of fear of legal liability from possible COVID-19 workplace exposure, can prevent high risk employees who suffer the greatest possible complications from COVID-19 from returning to work merely because of that possibility of greater harm. The EEOC says no, at least not automatically, just because of that high risk of possible complications.

According to the EEOC, employers cannot bar high risk employees from returning to work merely because of that high risk. Rather, before an employer can take such action, the employer must engage in the traditional interactive process required under the Americans with Disabilities Act (“ADA’) any time an employee with a disability needs a workplace accommodation. Since high risk employees have one or more underlying medical conditions that cause them to be high risk, the EEOC directs that employers engage in the interactive process to determine whether there are ways of minimizing that employee’s exposure to COVID-19 in the workplace. As part of that interactive process, the employer can assess whether the employee would pose a direct risk of harm to either themselves or others, but in making that assessment, there must be actual objective proof of possible harm.

Under this standard, a direct threat assessment cannot be based solely on an underlying condition being on the Center for Disease Control’s list of high risk factors. Rather, the determination must be an individualized assessment based on a reasonable medical judgment about a particular employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulations require an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. According to the EEOC, assessment of these factors should also include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his/her particular job duties. A determination of direct threat also should include an analysis of the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing or the wearing of face masks and gloves, also would be relevant in determining the possibility of a direct threat of harm. Thus, according to the EEOC, ultimately an employer may only bar an employee from the workplace only if, after going through all the foregoing steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself/herself that cannot be reduced or eliminated by reasonable accommodation.

In light of this EEOC directive, employers should not rush to judgment in deciding to bar a high risk employee from returning to the workplace due to COVID-19. Adherence to the traditional interactive process required by the ADA will enable an employer to navigate through this complicated issue and reduce the chances of significant legal harm arising from the mishandling of such fears during this continuingly evolving pandemic.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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EEOC Updates Guidance on COVID 19 Workplace Prevention

Last month, I wrote an article outlining the steps that employers may take to guard against coronavirus in their workplace. Thanks to a recent Guidance issued by the Equal Employment Opportunity Commission (“EEOC”), employers were able to implement several steps, such as taking employee temperatures and insisting that employees stay home if sick, to prevent COVID 19 spread in the workplace. Recently, the EEOC has expanded on this Guidance, and has added another tool for employers to use in their fight to prevent contagion of their workplace. Now, not only can employers require that previously positive COVID 19 employees provide medical documentation that they are fit to return to work, but employers can now also actually choose to administer COVID-19 testing themselves to all employees before they enter the workplace to determine if they have the virus. The one important question that the Guidance does not answer, however, is where employers will actually get those tests to administer given the well-publicized testing shortages that currently exist in fighting the on-going pandemic.

So, why is such testing permitted? Given the current pandemic, according to the EEOC, such testing is “job related and consistent with business necessity” because any employee who is COVID 19 positive poses a direct threat of harm to the safety of other employees, which is the standard applied for allowing such employee medical testing under the Americans with Disabilities Act. (“ADA”) The EEOC nevertheless cautions that, consistent with this ADA standard, employers should ensure that the tests are accurate and reliable. In this regard, Employers are urged to review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers are also advised to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, the Guidance further warns also that accurate testing only reveals if the virus is then currently present, and that a negative test does not mean the employee will not acquire the virus at some later juncture.

In the end, while allowing testing, the EEOC ultimately urges that employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other similar measures) in the workplace to prevent transmission of COVID-19 as recommended by the CDC and other federal and state health organizations.

So, if you are an employer lucky enough to have access to testing, you now have the green light from the EEOC to administer such testing across your workforce.  If you do decide to implement such testing measures, remember that, it being a medical test, ADA confidentiality and privacy rules apply to both the communication of (and maintenance of) results, and such sensitive private medical information should only be shared with others on a need to know basis.

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COVID-19: What Can An Employer Do?

As many businesses are temporarily shutting down due to Governor Murphy’s closure order here in New Jersey, what can those other employers do who remain open to help safeguard against COVID-19 infestation of its workplace. Well, the answer might surprise you thanks to a recent guidance from the Equal Employment Opportunity Commission (“EEOC”).

Under this EEOC Guidance document on the ADA and the COVID-19 virus, several measures are outlined that employers can use to protect its workplace. Along with stressing the need to follow good hygiene practices as recommended by the CDC, ADA-covered employers during a pandemic like ours may additionally ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must however maintain all information about employee illness as a confidential medical record in compliance with the ADA. Also, while generally measuring an employee’s body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19, and issued attendant precautions, employers may also measure employees’ body temperature without running afoul of any legal requirements. (However, note of caution: be aware that some people with COVID-19 do not have a fever.) Finally, you can also direct persons with symptoms of the virus to go home and leave work or just stay at home if they have any sickness at all.  The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. Significantly, the ADA does not interfere with employers following this advice, and many of my employer clients are regularly telling employees this to get that message out about staying home.

So, you can certainly be proactive in guarding your workplace consistent with the above guidelines. And given the serious public health crisis that now exists, I suspect even the New Jersey Department of Labor will have no issue with employers who follow this ADA guidance, so long as confidentiality is preserved relating to the receipt of employee medical information.

Please everyone out there be careful and stay safe during these trying times.  We will collectively get through this together if we just act smart and do all that can be done to keep our workplaces safe when continuing to operate.

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Be Warned About NJ WARN

Employers already know that, anytime a mass layoff or plant closing is contemplated, there are significant federal and New Jersey state law notice requirements. This past January, 2020, Governor Murphy signed into law a radical legislative amendment to the New Jersey WARN Law (known officially as the “Millville Dallas Airmotive Plant Job Loss Notification Act”) that makes it the most costly and burdensome reduction in force law soon to be in force in the United States.

Beginning on July 19, 2020, the following drastic changes will be effective under the newly revised New Jersey WARN Law.

  1. The New Jersey WARN Law will be triggered by a termination of 50 or more employees, regardless of employee tenure or hours worked, and with the aggregation of all terminations across the state, no matter where in the state the termination occurred.  Under this change, no longer will employers be able to ignore part-time employees in calculating the threshold number for coverage, and coverage is no longer limited by looking at only a single site of employment. The amendments also eliminate the previous requirement under the statute that a mass layoff would only occur if at least 33 percent of a workforce was affected.
  2. The required notice period under the NJ WARN Law will be 90, and not the current 60 days.
  3. Severance Pay will be automatic! This is the most radical of the changes made to the New Jersey WARN Law.  Under the current law, severance pay was only required if the employer failed to provide the necessary 60 days’ notice. When the revised New Jersey WARN Law is triggered, employers must pay employees one week of severance for each year of employment!  Where the employer has failed to meet the Law’s notice requirements, the severance obligation requires an additional payment of four more weeks on top of what is already statutorily required.
  4. Under the revised Law, the above required severance payments cannot be waived without state or court approval. So, any settlement of contested New Jersey WARN Law claims will need to receive either Court or state agency approval.
  5. The coverage of the New Jersey WARN Law has been expanded to include all employers with at least 100 employees, regardless of employee tenure or number of hours worked. Previously, employees with either less than six months of service, or who worked less than 20 hours per week, could be excluded from this threshold calculation.  No more. The part of the Law that requires that an employer be in operation for at least three years thankfully remains unchanged.

In light of these sweeping changes to the NJ WARN Law, employers will now need to proceed with even greater caution when contemplating a possible plant closing, mass layoff, or even just a significant layoff. Employers must be aware of and adhere to these new requirements, especially those involving the timing for issuing the required notice and the making of required severance payments. Special precautions must also be followed when seeking a release of claims in connection with any type of covered reduction in force. When the New Jersey WARN Law is applicable, the employer will now have to pay employees more than just the statutorily required amount of severance to obtain an effective release of claim. This is because, to obtain a legally effective release, the employee must be given something by the employer beyond what an employee is already legally entitled to receive.

So, you have now been warned about the amended New Jersey WARN law! Please take these precautionary words to heart!

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Pregnancy Discrimination Explained

In a recent New Jersey Appellate Division case, Delanoy v. Township of Ocean, No. A-2899-17T4 (App. Div. January 3, 2020), our state appellate court issued a significant new decision that explains what an employer’s legal obligations are to eliminate discrimination against (and provide reasonable accommodations to) its pregnant employees. This is the first published court opinion addressing these important legal issues for employers.

Back in 2013, the New Jersey Legislature amended the New Jersey Law Against Discrimination (“LAD”) through passage of the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA revised the LAD to expressly prohibit pregnancy-based discrimination in employment while imposing other legal requirements upon employers regarding how pregnant employees could be treated in the workplace. Among those other important legal requirements, the PWFA obligates employers, subject to an undue hardship exception, to afford reasonable accommodations in the workplace to pregnant women, when requested, and also to not penalize women due to their status of being pregnant.

The Plaintiff in Delanoy was employed as a police officer. When she became pregnant with her second child, she informed her supervisor that at the direction of her doctor she needed to be taken off her patrol duties and receive some sort of light duty position during the period of her pregnancy. As a result of her request, the employee was placed into a light duty non-patrol position pursuant to a “Maternity Assignment Standard Operating Procedure” that was a previously adopted policy by the employer. That policy enabled pregnant workers to work a different maternity job assignment, but in exchange for the modified assignment, the pregnant officer had to use all of her accrued paid leave time off (e.g. vacation, personal and holiday time) before going on that different work assignment. The police department employer also had a separate light duty assignment policy for non-pregnant injured officers who also needed a different temporary job assignment. Unlike the maternity reassignment policy, this light duty policy gave the police chief the authority to waive the condition of utilizing accrued leave time as a prerequisite for receiving the light duty assignment.

Plaintiff filed suit against her employer claiming that the maternity reassignment policy discriminated against pregnant employees since it was less favorable than the separate light duty non-pregnancy policy, which made provision for the waiver of the required exhaustion of paid leave time. Because of this disparity, the Plaintiff argued that the policy on its face discriminated against pregnant employees in violation of the PWFA because such employees were penalized in requesting an accommodation by losing their paid leave time as a condition for receiving the requested accommodation.  Reversing the trial court’s determination of no discrimination, the Appellate Division agreed with the Plaintiff that the maternity assignment policy discriminated against pregnant workers because unlike non-pregnant workers who could seek an exception to the paid leave use requirement under the light duty policy, the maternity reassignment policy allowed for no such exemption. In light of this finding, the court declared the policy to be illegal on its face and enjoined its further enforcement moving forward by the employer.

In light of the court’s ruling in Delanoy, employers need to familiarize themselves with the unique obligations owed to pregnant workers who may need a workplace accommodation under the PWFA.  Not only does that law prohibit discrimination against pregnant workers, but it also affords those employees with the opportunity to receive an accommodation because of their physical condition.

Hence, to assist employers in understanding that accommodation duty, the PWFA cites various examples of possible required accommodations, which could include “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedule, and temporary transfers to less strenuous or hazardous work….”  Of course, this accommodation duty is subject to application of an undue hardship exception, and the law likewise lays out various considerations for making that determination as well (i.e. size of employer, size of work facility, size of company budget, etc.).

In sum, the PWFA significantly changed the legal landscape for employers as it relates to its pregnant workforce, so employers must be ever cognizant of the law’s requirements and ensure that workplace policies do not treat non-pregnant workers better than pregnant workers, or punish such employees due to their condition, especially those policies and practices that impact upon available accommodations that an employer may be willing to make for its general workforce.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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New Jersey Bans Hair Discrimination

On December 19, 2019, New Jersey Governor Phil Murphy signed into law a bill which now makes it illegal to discriminate based upon hairstyles associated with race. The law, known as the “Create a Respectful and Open Workplace for Natural Hair Act” or “CROWN” for short, amends the New Jersey Law Against Discrimination (“LAD”)’s prohibitions to now bar discrimination based upon “traits historically associated with race,” including hair texture and “protective hairstyles,” defined under the law as styles such as dreadlocks, braids and twists. According to the Senate Judiciary Statement reporting favorably on the bill: “The change is intended to remove any confusion or ambiguity over the scope of the LAD and its applicability to race discrimination predicated on such traits.” With its passage, New Jersey becomes the third state in the country (along with California and New York) to ban such discrimination. The law was passed on the one year anniversary of a high school wrestling incident where a New Jersey African American student could not wrestle in a match unless his dreadlocks were either covered or cut.

In light of this new law, which takes effect immediately, employers should review their workplace personal appearance policies to ensure that their policies withstand legal scrutiny under these new requirements. One critical question left unanswered by the new act is whether restrictions can continue to be placed upon hair style or hair length for safety reasons, say when an employee works around heavy machinery or around food in the food industry. It therefore remains to be seen whether such previously acceptable limitations on hairstyles and length will still be permitted under the new law.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Employer Social Media Searches-Beware Of What You Wish For!

Thanks to the internet, employers have access to more and more information about their employees and prospective employees than ever before. And most employers love that so much information is now available to them to guide their hiring practices.

Recently, I have gotten multiple questions from clients asking whether it is a smart thing for them to incorporate social media searches into the scope of their usual background checks on employees and prospective employees. My repeated advice is that employers must proceed with caution in this area that, for a variety of reasons, is fraught with the potential for legal peril.

Initially, if planning to look at social media sites, employers must be aware that New Jersey has a law which prohibits employers from demanding from employees or prospective employees that they supply their passwords so that the employer/prospective employer can access password protected private social media areas. While such private social media areas are protected and off limits, publically accessible information on the internet is not, and the law says that employers/prospective employers can consider what is publically accessible in areas where password access is unnecessary. But, as discussed below, there are looming legal dangers lurking even in those publically accessible areas of the world wide-web.

Moreover, employers who do any sort of a background check on employees and /or prospective employees must also ensure that they comply with the Federal Fair Credit Reporting Act (“FCRA”).  Under the FCRA, an employer seeking to do a background check on an employee/prospective employment candidate must meet certain consent and disclosure requirements if the employer will be using an outside consumer reporting agency to conduct the search. Thus, if the employer uses an outside company to conduct the social media search, then compliance with the written consent and disclosure obligations of the FCRA will need to be followed. The outside consumer reporting agency will typically supply those necessary forms for the employer’s use to give to an employee/prospective employee before the search occurs, but I would recommend that a quick legal review of the paperwork be done by counsel to make sure the supplied documents are compliant with the FCRA.

Alternatively, if an employer plans to do a search of social media sites itself, it need not meet the requirements of the FCRA.

Nevertheless, whether utilizing either of the above referenced methods, doing searches of an employee/candidate’s social media sites can place an employer in a precarious situation.  For one thing, there is a lot of maliciously planted information about persons on the internet so the searcher must be very careful in sifting through what is truthful (and what is not truthful) information about a candidate.  Moreover, sometimes, the employer will learn things about a candidate on the internet that it is legally prohibited from knowing during the interview process, and this could lead to unexpected trouble for the employer.

For example, under the law, you cannot ask prospective employment candidates whether they either have a disability, or to disclose their age. By searching social media sites, the prospective employer can, even if not explicitly seeking such information, unwittingly gain knowledge of such prohibited information that should legally have no bearing on the hiring decision. The danger in that scenario lies in the following: if the prospective employee is ultimately denied employment, and learns that the employer found out things about him/her by doing a social media search that reveals legally off limits information like the above, the prospective employee might conclude that consideration of the prohibited information led to the adverse employment decision, even when it did not, and now the employer is embroiled in an unwanted failure to hire lawsuit. No employer would want to find itself in that type of situation ever.

Similarly, here is another common example of an employer web search that could also cause unexpected legal problems. While legally it might be appropriate for the employer to search for current and past civil law cases involving the candidate in a public area of the internet, if the employer decides to not hire the candidate because of a previous lawsuit filed under, say the New Jersey Law Against Discrimination (“NJLAD”), the employer now could be sued for retaliation for withholding a job offer because the prospective employee exercised a protected right to file suit under the NJLAD. Again, another unwanted (and unexpected) situation for an employer.

As these examples therefore show, any employer doing social media searches must do them carefully to avoid the possibility of this kind of unwanted legal peril. If an employer still wants to do social media searches despite knowledge of the above risks, here are some recommended guidelines.

First, access social media sites only after the candidate is interviewed and only if truly interested in that candidate.  Second, the employer must be consistent in conducting such searches-if you do it for one candidate, they have to be done for all candidates. Inconsistent and selective use of searches could otherwise give rise to discrimination claims.  Third, document what is considered (and by implication what was not considered.)  Fourth, the employer must verify the information obtained before using it, especially where the information comes from a third party site as opposed to the candidate’s own site. Finally, the search function itself should be centralized and performed as an integrated part of the overall background check.  In this regard, HR is the best positioned in the company to oversee such search activities. Furthermore, just as critically important, there should likewise be no searches conducted independently by hiring managers or anyone else so the employer has centralized control over the process.

Following the above guidelines should help in controlling the potential problems that could arise from the use of social media search efforts.  But, in the end, and as counterintuitive as it may seem, the most legally effective way of avoiding unwanted problems in this area may actually be fighting the employer’s pressing urge to want to  learn too much about a potential employee/prospective employee’s background.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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It’s Abuse (FMLA) I Tell You!

Since the Federal Family and Medical Leave Act (“FMLA”) was passed back in 1993, employers have frequently worried about one overarching issue: FMLA abuse and fraud.  Just recently I had a client ask: what can an employer do when it suspects that an employee is lying about the need for FMLA leave? I tell employers to fear not, and not fret, because there are in fact legal tools available to them to weed out FMLA fraud.

Under the FMLA, before an employee can get FMLA leave, the employee must obtain supporting medical information from a health care provider to justify the need for leave.  Typically, employers receive a signed medical health certification form from the health care provider, which is a form prescribed for such use by the US Department of Labor. This is the first place to look to detect fraud. Closely scrutinize the form to determine whether the health care provider actually provides support for the medical diagnosis for which the employee is seeking leave. Where there are discrepancies between what the health care provider indicates and what you are being told by the employee, the employer should follow what the health care provider notes in the form rather than what the employee is telling you. This way, the employer can weed out any misinformation being provided by the employee to justify a leave.

The second-place on the form that should be evaluated is the nature of the leave that the health care provider is prescribing for the employee. Look to see exactly how much time the health care provider believes the employee needs to be out of work, and when, especially if intermittent leave is sought by an employee. For example, where the employer finds that the employee is spending more time out of work on intermittent leave than what the health care provider has indicated is necessary on the form, this is a telltale sign of possible abuse. So, what can the employer do in such circumstance? For one thing, the employer can ask for a recertification form from that physician/health care provider if the pattern of use is different from what was previously prescribed. FMLA regulations provide this tool to the employer to control possible abuse by alerting the health care provider that the employee is using the leave in a way which is different than what was originally recommended and prescribed.

Another tool available in a suspected fraud situation is requesting a second opinion so that another health care provider paid by the employer can evaluate whether there is in fact the need at all for the FMLA leave. Where the second opinion differs from the original health care provider’s certification supporting the leave request, the FMLA statute and regulations provide for the obtaining of a third opinion, which is binding on both the employer and employee, and this becomes the final determination on whether leave is authorized. The final health care provider is chosen collectively by both the employee and employer. Clients of mine have used this method to stop potential FMLA fraud/abuse in its tracks where the employer reasonably suspected due to the circumstances presented that the requested leave was not needed by the employee.

Aside from the foregoing mechanisms, employee fraud has also actually been discovered through searches of the Internet and publicly available social media sites of the employee. Where an employer suspects fraud, taking a look on the Internet and conducting searches on the employee, especially on the publically accessible portions of social media site areas such as Facebook, can provide important information corroborating suspicions of fraud. In one reported case, an employee’s FMLA fraud was discovered from pictures posted by the employee on the Internet from a tropical island where the employee was vacationing at a time when he was out on FMLA leave. The employee tried to justify the vacation by arguing that his health care provider prescribed it to deal with the stress condition that prompted the request for FMLA leave, but the court did not buy that argument.

Sometimes, information about FMLA fraud will likewise come from co-employees who will report a violation because they too are upset that the employee is not at work. Similarly, I have had cases where an employee’s own relative reported the fraud in requesting FMLA to the employer so corrective action could be taken. In other extreme situations, private investigators can be used to monitor the daily activities of the employee to see whether the leave is truly needed.

The FMLA is very clear on this issue: fraud is not something that an employer must accept, and utilizing the tools available under the act will enable the employer to ferret out illegitimate requests for leave. Where fraud is discovered, employers have every right to take disciplinary action against the employee, including termination, as the employer did in the case involving the illicit vacation scenario mentioned above. So, if you are facing a situation where fraud is suspected, conduct an investigation, which sometimes will require that the employer directly confront the employee with the allegations. Employers will be amazed at how well you can guard against and remedy FMLA fraud by using the very mechanisms made available under the law and its accompanying regulations for combating such illegitimate practices.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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US Department of Labor Announces New Overtime Rules

Just a few years ago, employers were preparing to follow what were to become new overtime rules that were going into effect near the end of the Obama administration.  Those rules were sidetracked by an unexpected court ruling that struck the new rules down and declared them to be unenforceable. Since that time, employers have been waiting on what, if anything, the United States Department of Labor (“USDOL”) would do with this issue with a new administration in power in Washington, D.C. We received that answer this week on September 24, 2019 when the USDOL promulgated new final rules that will apply to overtime eligibility determinations starting in 2020.

The new provisions update the Fair Labor Standards Act’s (FLSA) regulations and minimum salary thresholds needed for executive, administrative, and professional employees to be exempt from overtime. These final rules will go into effect on January 1, 2020.

Here are the changes that are being made by the new rules:

  • The standard salary threshold for classifying an employee as exempt from overtime increases to $684 per week ($35,568 annually), up from $455 per week ($23,660 annually).
  • The minimum salary threshold for the Highly Compensated Employee (HCE) exemption increases to $107,432 annually, up from $100,000.
  • Nondiscretionary bonuses, incentive pay, and commissions, may make up to 10 percent of this standard income threshold, as long as they are paid at least annually.
  • Special salary levels for workers in United States territories and the motion picture industry will be revised.

So, what should employers do while waiting for the new rules to go into effect?  Like many employers did when the overtime rules were expected to change during the Obama administration, employers should conduct an audit of its workforce and determine how these regulations might affect your current payroll practices. It is believed by the USDOL that, due to these new regulations, an additional 1.3 million employees will be now eligible for overtime. Therefore, if you have employees who were classified as exempt because of their meeting the older salary test standard, employers will now need to decide if they want to raise what those employees are being paid to the higher 2020 salary level to maintain the exemption or reclassify those employees as non-exempt moving forward.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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