Earlier this year, we posted a checklist outlining key issues and action items for compliance in 2015. With the first quarter coming to a close, we want to remind you of a few important items from that checklist that required changes to your policies and practices, as well as alert you to a new item that requires immediate action.
Change FMLA policy to reflect same-sex spouses.
Effective March 27, 2015, the definition of “spouse” under the FMLA will be amended so that an eligible employee in a legal same-sex marriage will be allowed to take FMLA leave for his or her spouse. Make sure that you change your FMLA policies and practices to reflect this new definition.
Confirm employment applications and processes comply with “Ban the Box.”
As of the first of this year, Illinois employers must wait until an interview has been granted (or, if no interview, until a conditional offer of employment has been made) before asking about criminal history. New Jersey’s new law, effective earlier this month, requires companies to wait even longer. Employers hiring in these states — as well as in other states with similar laws — should ensure that employment applications do not contain criminal background questions and that questions regarding criminal background are not asked until it’s legal to do so.
Comply with new Illinois pregnancy accommodation rules and notice requirements.
As of January 1st, Employers in Illinois are required to provide reasonable accommodations to pregnant employees and applicants who ask for them, to post a notice in the workplace regarding pregnancy accommodation rights, and to include language relating to such rights in their handbooks. Make sure your team is aware of these requirements and that any necessary changes to policies and practices have been made.
President Barack Obama announced today that he is directing the Department of Labor to propose a rule making legally married, same-sex couples eligible for benefits under the Family and Medical Leave Act in all fifty states regardless of whether they live in a state that recognizes their marital status.
The Family and Medical Leave Act allows employees to take unpaid, job-protected leave for family and medical purposes. Without the regulatory changes, gay couples cannot receive federal benefits in states that do not recognize their marriages. Same-sex marriage is currently legal in nineteen states and the District of Columbia.
Obama’s announcement comes as a precursor to the Justice Department’s announcement this afternoon of findings from their yearlong review of how the landmark 2013 Supreme Court Windsor decision (that held that the survivor of a same-sex couple could claim the federal estate tax exemption for surviving spouses) affects federal rights and obligations linked to marriage and spousal rights and benefits. It is expected that, in almost all instances, same-sex married couples will receive the same federal benefits and obligations as their heterosexual counterparts, regardless of where they live. The two exceptions are Social Security and veterans benefits, which are determined by the law where the couples live. Obama, and gay and civil rights groups, are pressing lawmakers to extend these federal benefits to same-sex couples too.
On Friday, the EEOC filed suit against AutoZone, alleging that the car repair company violated the Americans With Disabilities Act by applying its attendance policy in a way that failed to accommodate certain disability-related absences. This is the EEOC’s fourth disability discrimination case against AutoZone in the last 5 years.
Under AutoZone’s policy, employees received points for absences, with 12 points resulting in termination. According to the EEOC, the policy did not make any allowances for disability-related absences (such as early departures by a diabetic employee who had insulin reactions), which the EEOC has alleged constituted a failure to accommodate.
Employers often — wrongly — assume that the fact that an employee doesn’t qualify for (or has exhausted) FMLA leave means that he can be terminated for his absences. However, if the reason for the absence relates to the employee’s medical condition, it’s critical that the absence be considered under an ADA reasonable accommodation analysis as well.
Ever since the Supreme Court’s decision in U.S. v. Windsor striking down the federal Defense of Marriage Act (DOMA), employment lawyers have struggled to keep up with the implications of the ruling for various federal and state employment laws. For example, under the Family and Medical Leave Act (FMLA), same-sex spouses prior to the Windsor ruling did not have all of the same leave rights as opposite-sex spouses because federal law did not recognize same-sex marriages. Now that the DOMA has been overturned, the Department of Labor (DOL) has issued updated FMLA guidance remedying this situation, at least for some same-sex couples. Fact Sheet 28F issued by the DOL in August clarifies that “spouse” for purposes of qualifying leave under the FMLA means “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” As a result, same-sex spouses who reside in one of the states recognizing same-sex marriage should now be entitled to the same leave rights as opposite-sex spouses. Unfortunately, same-sex spouses who move to a state that does not recognize such marriages will not benefit from this guidance. Many commentators believe that help for same-sex spouses falling in this second category will only come through a formal change to the FMLA regulations by the DOL.