On July 20, 2017, the New York Workers Compensation Board adopted the final regulation for implementation of the New York Paid Family Leave Law (NYPFLL). This is significant because the federal counterpart, the Family and Medical Leave Act (FMLA), does not obligate an employer to provide paid leave. In order to qualify to take paid leave in New York, an employee must be employed by a covered employer at the time they apply for the PFL. Additionally, if the employee works at least 20 or more hours per week, they become eligible after 26 weeks of employment. Alternatively, if an employee works less than 20 hours per week, they become eligible after 175 days worked.
An employee will be permitted to use paid leave if they are a new parent; have a serious health condition; or is called to active military duty. A serious health condition includes illness, injury, impairment, or mental condition.
An employee can apply for paid leave and once effective, the length of the maximum available leave varies based on the year. Each January 1 from now until 2021, the percentage of payment required to be paid to an employee for paid family leave will increase based on what the employee receives weekly. This January the PFL requires an employee to be given 8 weeks of paid leave at 50% of the employee’s weekly wage or the state average weekly wage, whichever is less. By 2021, the paid leave rate will increase to 12 weeks paid at 67% of the employee’s weekly wage or the state average weekly wage, whichever is less.
For more information on how on how an employee can claim Paid Family Leave and how an employer can prepare for the new regulation, call Gilbert Law Group at 631-630-0100.
Submitted by: Alexander Gilbert
Back on July 19, 2017, the United States Court of Appeals for the Second Circuit lowered the causation standard that an employee has to meet in order to bring a retaliation claim against an employer under the FMLA (Family and Medical Leave Act). The Second Circuit explained that FMLA retaliation claims should be analyzed through a “motivating factor” causation standard as opposed to a “but for” causation standard. With the usage of this standard, all an employee has to do in order to bring a viable claim for retaliation against an employer in the Second Circuit is to simply prove that their employer, in correlation with an adverse employment action, viewed an employee’s utilization of the FMLA, in a negative light. The Second Circuit now joins the Third Circuit in using this causation standard.
The Second Circuit expressed its intent to adopt this plaintiff-friendly causation standard going forward in the case, Woods v. START Treatment & Recovery Centers, Inc. This case involved plaintiff Cassandra Woods, who was employed as a substance abuse counselor for START, a nonprofit and one of the largest non-hospital health providers in New York state, from 2007 until she was fired in 2012. Starting in 2011, Woods found herself at the center of much criticism at work as she received multiple warnings regarding her poor performance and was placed on probation eventually because of it. Over the course of this time, Woods was dealing with numerous health problems including severe anemia. Woods alleges that she had requested time off under the FMLA to deal with these detrimental health conditions on multiple occasions over the course of her employment with START but was always denied this requested leave. Woods was eventually hospitalized for a week as a result of her condition in April of 2012; a period that START admitted was protected under the FMLA. Woods was terminated shortly after her return from the hospital due to what START claimed was because of her alleged incompetent work performance.
Going forward, it will be much less burdensome for employees within the Second Circuit, which consists of those in Connecticut, New York and Vermont, to succeed on FMLA retaliation claims. So long as a plaintiff is able to show that the usage of his or her FMLA rights was merely part of the reason their employer took an adverse employment action against them. Additionally, the adoption of this standard by the Second Circuit will also likely result in an uptick in the amount of FMLA retaliation cases that get past summary judgment and proceed to trial. Employers within the Second Circuit will now have to be more careful when terminating employees because although they may have legitimate business reasons for terminating an employee, they still may find themselves in legal trouble if it can be shown that they viewed an employee’s usage of FMLA provided leave as a motivating factor in making the decision to terminate them.
Should you have questions regarding FMLA and/or FMLA retaliation, call Gilbert Law Group today at (631) 630-0100.
Contributed by: Richard (RJ) Cherpak
The Supreme Court will decide whether UPS violated the Pregnancy Discrimination Act (PDA) when it refused to provide a temporary light duty assignment to Peggy Young when she was pregnant 7 years ago before giving birth to her daughter, Triniti. The assignment would have allowed Young to work but avoid lifting heavy packages, as her physician had ordered. The issue is whether UPS violated the law by its policy of providing temporary light duty only to employees who had on-the-job injuries, were disabled under the Americans with Disabilities Act, or lost their federal driver certification.
It is well-settled that drawing a distinction between pregnant and nonpregnant employees in the workplace is generally unlawful, unless there is a legitimate business reason to justify the distinction. In 1978, Congress passed the PDA in response to the Supreme Court ruling that workplace rules that excluded pregnant workers from disability benefits and insurance coverage were not sex discrimination under Title VII of the Civil Rights Act of 1964. In this case UPS argues that unless Young can show that it intentionally discriminated against her, she has no case. Young contends that UPS “told me basically to go home and come back when I was no longer pregnant.” Young is now 42 and it has taken 7 years to get before the Court.
The Obama administration and 120 Democrats in Congress have submitted a brief supporting Young’s position. Moreover, the EEOC has updated guidance to employers to clarify that they should accommodate workers like Young. Likewise, UPS has since changed its policy so that pregnant employees are eligible for the light duty assignment.
Nonetheless, the Court’s decision is expected to have far-reaching impact in workforces across the nation as 75% of women entering the workforce today will become pregnant at least once while employed, and many will be forced to work throughout their pregnancies, or face possible termination during their pregnancies or upon their return. Stay tuned for the decision.
For workplace issues, such as pregnancy, sex discrimination, light duty or leave policies, contact the Gilbert Law Group at 631.630.0100.