Employer Law Report : Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

Even in the face of an undisputed national workforce reduction, in a recent decision (Cutcher v. Kmart), the Sixth Circuit found an issue of disputed fact existed as to whether Kmart’s termination of an hourly associate as part of a reduction in force interfered with and was in retaliation for that associate’s recent exercise of her FMLA rights.

Cutcher had been employed by Kmart for about 20 years. In the four years she had been evaluated by her then current supervisor, Cutcher had received either the highest or second-highest rating in Kmart’s appraisal system. While her supervisor did comment in certain appraisals that Cutcher had some challenges in the area of teamwork, the supervisor never documented Cutcher for any such episode and still rated her as a high performer. 

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On Monday, February 1, 2010, the U.S. Department of Labor (DOL) released its budget for the 2011 fiscal year. In a 95-page summary of the new budget, the DOL elaborated upon its plans for the approximately $14 billion it seeks in discretionary budget authority. According to the summary, the DOL will focus its efforts in 2011 on supporting reform of the Workforce Investment Act, rebuilding Worker Protection Programs, initiating a multi-agency legislative proposal to establish automatic workplace pensions, and boosting funds for unemployment insurance integrity efforts. From our perspective, however, the two most notable aspects of the 2011 budget are its provisions concerning employer misclassification of workers and paid family leave. 

The DOL proposes to devote $25 million to a joint Labor-Treasury Misclassification Initiative that will enable the agency to better detect, investigate, and prosecute employers who misclassify their workers, and to offer competitive grants to boost states’ incentives to address the problem. In addition, the DOL proposes to further limit the possibility of employer misclassification by:

1. requiring employers to demonstrate that their employees are classified correctly,
2. closing the safe harbor created by Section 530 of the Revenue Act of 1978, and
3. making misclassification of employees an explicit violation of the FLSA.  

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The much-publicized COBRA subsidy contained in the American Recovery and Reinvestment Act (ARRA), commonly known as the “stimulus bill,” has been extended and expanded by Congress through House Resolution 3326. Under ARRA, individuals who were involuntarily terminated and became eligible for COBRA benefits between September 1, 2008 and December 31, 2009 were eligible for 9 months of subsidized COBRA premiums. The government, through a payroll tax rebate to employers, paid 65% of an eligible employee’s COBRA premiums for 9 months. This meant that employees could pay just 35% of what they would ordinarily pay for COBRA benefits. (Please see our earlier blog posting relating to the original passage of ARRA.)

HR 3326 expands the eligibility period to include individuals involuntarily terminated before February 28, 2010. In addition, it extends the length of the subsidy period to 15 months (from 9 months). 

Individuals who were on COBRA coverage for the 9-month subsidy, may re-enroll in COBRA and receive benefits without any gap in coverage for the newly extended 15 months, less the 9 months they already received. The amendment gives employees a period of 60 days to re-enroll or, if later, 30 days after they receive notice of the extended subsidy. Employers are required to notify employees of the 15-month extended COBRA subsidy who were on COBRA on or after October 31, 2009 or who have a qualifying event on or after October 31, 2009. It is unclear how long of a COBRA coverage lapse can exist before an individual is no longer eligible to make up the premiums and re-enroll. We will be watching for further guidance form the DOL on this point and reporting further on the blog. Any employees who paid full COBRA premiums after expiration of their 9-month subsidy period who are now eligible for the new 15-month premium subsidy, will be given a refund of 65% of their premiums for any periods now covered by the extended subsidy. 

In addition, this amendment to ARRA conditions the eligibility for the subsidy on only the involuntary termination date. Thus, if the COBRA start date is deferred until after February 28, 2010 but the involuntary termination date was pre-February 28, the employee will still be eligible for the subsidy. All of the remaining rules for the COBRA subsidy set forth by the Department of Labor presumably remain in effect for this extension and expansion.

We will update you as more details become available on this COBRA subsidy extension from the Department of Labor. In the meantime, here are some action items to be thinking about:

• Identify all individuals who were on COBRA coverage on or after October 31, 2009 or had a COBRA qualifying event on or after October 31, 2009 and would be eligible for notice of the 15-month subsidy.
• Identify any individuals who allowed COBRA coverage to lapse after the termination of the 9-month COBRA subsidy.
• Identify any individuals who paid their full COBRA premiums because of the expiration of the subsidy and will now be eligible for a refund or credit on future premiums.
• Watch for new sample notices from the Department of Labor reflecting these changes. We will post a link to these notices when they are available.
• Informally notify employees who are involuntarily terminated between now and when the COBRA notices are distributed about the existence of the extended COBRA subsidy to avoid confusion in the interim.

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CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the insurance carrier, which acknowledges that it uses Facebook for investigation purposes, terminated her long-term disability benefits.

Though anecdotal news flashes like this one may embolden employers to use Facebook and other social media to investigate employee activity while they are on a medical leave of absence or workers' compensation leave, caution is still necessary. For instance, Manulife confirmed that ít "would not deny or terminate a valid claim solely based on information published on websites such as Facebook." Presumably, Manulife forwarded Ms. Blanchard's Facebook photos and perhaps other evidence to a medical professional for an opinion as to whether the photos evidenced Ms. Blanchard's ability to return to work. Similarly, employers should resist the urge to make their own medical judgments as to an employee's ability to work when they obtain this kind of photographic or video evidence.

In addition, Ms. Blanchard apparently contends that she kept her Facebook photos private and does not understand how the insurance carrier obtained them. As I have preached before on this blog, employers should not circumvent an employee's Facebook privacy settings in order to investigate alleged misconduct. In this instance, a co-worker or other Facebook "friend" of Ms. Blanchard likely dropped the dime on her. When faced with this kind of evidence, employers and their insurance carriers would be wise to consider the motivations of the person providing the evidence and to conduct its own investigation. If employers avoid the temptation to immediately jump to conclusions, they will find that Facebook can be their "friend" when conducting investigations of workers' compensation or medical leave fraud.

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The Family and Medical Leave Act has undergone yet another expansion. On October 27, 2009, President Obama signed H.R. 2647, known as the "Fiscal Year 2010 National Defense Authorization Act.” This new law comes on the heels of new FMLA rights that were just drafted at the end of 2008 for employees with family members serving in the military. 

As we described at the time in 2008 Final Regulations for the FMLA:  A Summary, the FMLA military leave provision effective at the beginning of 2009 originally extended the following protections:

(a) up to 12 weeks of leave for families of National Guard and Reserve personnel on active duty in order to manage activities associated with such service, known as “qualifying exigencies,” and 

(b) up to 26 weeks of leave for employees needed to care for family members in the military with a “serious injury or illness” that was incurred in the line of duty.

The new law expands both of these protections: 

(a) The 12-week “qualifying exigency” leave now applies to employees whose spouses, children or parents are on “regular” active military duty (i.e., not just National Guard and Reserve personnel) and are deployed to a foreign country. The prior language of the statute was ambiguous as to protection for families of regular military personnel.

(b)  Likewise, the 26-week “caregiver” leave now expressly extends to employees whose family members or next of kin have been discharged from the military (i.e., veterans) within five years before the need for treatment of a serious injury or illness. “Serious injury and illness” is now defined by the statute to include instances where a preexisting impairment merely has been aggravated by military service. 

These expansions of the FMLA went into effect upon signing. It seems likely that the U.S. Department of Labor will promulgate yet another set of recommended forms to cover these new circumstances in the near future. We will continue to monitor the issue and keep readers informed.

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As concerns about the potential scope of the H1N1 flu continue to grow, one question we keep hearing from clients is whether employees who believe they have contracted H1N1 in the workplace may have compensable workers' compensation claims. In the vast majority of cases, we believe the answer will be a resounding "No."

Ohio defines an occupational disease as:

"a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general."

Therefore, for instance, the office worker who contracts H1N1 because somebody in the next cubicle had it does not have a compensable claim. The situation is no different than the seasonal flu from year to year.

One likely exception to my general proposition come to mind:  healthcare workers, who by the nature of their work may be exposed to H1N1 in a greater and different manner than members of the general public. Childcare workers also may have an outside chance at establishing a viable claim. Even then, however, most healthcare and childcare workers will still have a difficult time proving actual causation; that is, that they actually contracted H1N1 as a result of their work rather than from a sick family member, at a restaurant or some other public place.

The H1N1 vaccine may also pose a potential risk if it ever becomes widely available. Workers who experience side effects from getting an H1N1 vaccine may claim they are entitled to workers' compensation benefits. In the absence of evidence that the employer actually required its employees to get vaccinated and demonstrated illness based on any known side effects, these claims should be rejected.

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I wanted to post a follow up to my earlier post - Ohio Fifth District Court of Appeals Decision Requires That Employers Provide a Reasonable Period of Time for Unpaid Maternity Leave Regardless of Length of Service or Leave Policy.

On July 29, 2009, the Ohio Supreme Court, with Justices Pfeifer and O'Donnell, dissenting, agreed to accept the defendant employer's appeal for review. We will keep you posted as this case proceeds to oral argument and decision.  For more details about this case, please read our earlier post.

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Concerns about H1N1 Influenza are beginning to creep back into everyone's consciousness as summer is drawing to a close. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at:

CDC Guidance for Businesses, Employers, and Workplaces to Plan and Respond to 2009 H1N1 Influenza

Preparing for the Flu: A Communication Toolkit for Businesses and Employers

Employers should be ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

1. Encourage workers who are sick to stay home (or go home if they've reported to work);
    
2. Encourage good hygiene in the workplace;
    
3. Prepare for increased numbers of employee absences due to illness in employees and their family members, and plan ways for essential business functions to continue;
    
4. Prepare for the possibility of school and daycare dismissal and closure; and
    
5. Encourage workers to get vaccinated.

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On May 18, 2009, Representative Rosa L. DeLauro, a Democrat from Connecticut, introduced the Healthy Families Act of 2009 (H.R. 2460) in the U.S. House of Representatives. The bill, which is largely the same as bills issued in prior sessions of Congress, would require employers with more than 15 employees to provide workers with up to 56 hours of paid sick leave each year. Under the bill, workers would accrue paid sick leave at the rate of one hour for every 30 hours worked, could begin using the paid sick leave after 60 days of employment, and could roll over unused sick leave into the next calendar year. Similar to the proposed Ohio legislation that was withdrawn before the 2008 November elections, employers would not be permitted to ask for written documentation of the need for leave until after the employee has missed three consecutive days.

Most of you will recall that last year's Ohio legislative proposal was withdrawn following political negotiations with Governor Strickland's office due to concern that the bill would devastate Ohio's business climate. While H.R. 2460 would not appear to disproportionately impact Ohio, it would impact more Ohio employers than the proposed Ohio legislation would have impacted since the Ohio law would not have required employers with 25 or fewer employees to provide paid sick leave. At a time when American businesses, particularly small businesses, are still reeling from the economic downturn, federally mandated paid sick leave -- while perhaps laudable in its intent -- looks like it will create more problems than it cures. The change in Presidential administrations and the make up of Congress, together with the concerns over the H1N1 flu virus, suggest that this might be the year that mandated paid sick leave passes. 

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On May 18, 2009, the Supreme Court of the United States issued its opinion in AT&T v. Hulteen. Reversing the Ninth Circuit’s decision, the Court held that AT&T did not violate the Pregnancy Discrimination Act of 1978 (PDA) by calculating the accrual of pension benefits in a way that gives less retirement credit to employees who took pregnancy leave before enactment of the PDA than to employees who took other kinds of medical leave.

AT&T offered pension benefits based on Net Credited Service, which was calculated based on an employee’s date of hire and adjusted for any time the employee was not working, i.e. not earning service credits. Before 1978 (and the enactment of the PDA), employees were credited a maximum of 30 days for pregnancy leave. In contrast, employees on regular temporary disability had no limit on the days they could remain off work while continuing to accrue service credits. This method of accrual was changed after the PDA went into effect, but not retroactively. As a result, the plaintiffs in Hulteen received smaller pensions than they otherwise would have received had they received full credit for pregnancy leave taken before enactment of the PDA.

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One of the underappreciated benefits for employers in the recent amendments to the FMLA regulations announced by the Department of Labor (DOL) effective January 2009 was clarification of an employee’s obligation to comply with the employer’s procedural requirements for requesting leave.  This employee obligation was further strengthened this month.

In Opinion Letter FMLA 2009-1-A, released on May 5, 2009, the DOL responded to an employer inquiry challenging the prior regulations and an earlier Opinion Letter, FMLA-101 (dated January 15, 1999).  Those earlier authorities had been widely interpreted as prohibiting employers from enforcing any internal call-in and no-call/no-show policies if employees eventually provided notice of the need for FMLA leave within two business days, regardless of whether the employees could have reasonably provided notice sooner. 

In the new Opinion Letter, which applies equally to both foreseeable leave under 29 C.F.R. § 825.302 and to unforeseeable leave under 29 C.F.R. § 825.303, the DOL expressly rescinds FMLA-101, meaning employees are no longer automatically entitled to two business days before having to provide notice of their need for FMLA leave.  Instead, the new Opinion Letter confirms that under the amended regulations:

[W]here an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.  

Consequently, in the absence of unusual circumstances, if an employee fails to comply with the employer’s usual and customary procedures for reporting an absence, the employee is subject to whatever discipline the employer’s rules provide for such a failure even where the absence is otherwise protected by the FMLA, and the employer may delay FMLA coverage until the employee complies with the employer’s rules. 

Although this is welcome news, employers should be mindful that, particularly with respect to unforeseeable leave, a court may view the individual facts and circumstances leniently in favor of the employee when determining what kind of notice was “practicable” for FMLA leave.  Employers should make sure that their call-in procedures are realistic, reasonable and understandable for all employees.

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Now that we have the first confirmed case of swine flu here in Ohio, it makes sense to dust off the guidance we received from the U.S. Department of Labor and the Center for Disease Control when the avian flu was prompting concerns about a pandemic flu in the United States. Thus far, the confirmed cases of swine flu in the United States appear to have been relatively mild, but employers nevertheless should prepare to do their part to reduce the threat of pandemic flu and to respond should their workplaces be hard hit.

Those employers who want to be ahead of the game if the outbreak becomes more widespread should review the attached handbook entitled Guidance for Preparing Workplaces for an Influenza Pandemic, which was prepared by OSHA back in 2007. The handbook contains common sense advice for all employers to help reduce the risk of spreading the disease. For most employers, the recommendations are not rocket science nor difficult to implement. They mostly involve encouraging sick employees to stay home, encouraging basic hygiene practices in the workplace, and encouraging "social distancing" (i.e. avoiding close contact and crowds of people). The handbook also sets forth more extreme recommendations for employers with a medium exposure risk because of frequent close employee contact with the general public and for employers with high exposure risk due to frequent close employee contact with infected individuals. For healthcare workers and employees, OSHA also issued a handbook in 2007, which can be accessed here.  If the CDC and/or OSHA issue any further guidance in light of this most recent flu outbreak, we will let you know.

Though, the risks of pandemic flu still are being downplayed at this point, employers may also want to revisit their disaster plans for continuing operations in case of widespread employee absences.

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On April 22, 2009, the EEOC issued a technical assistance document entitled "Employer Best Practices for Workers with Caregiving Responsibilities" which provides "suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity."  The guidance is designed to supplement the enforcement guidance it issued in 2007 on the "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities."   Among other things, the guidance encourages employers to adopt flexible work options, to provide reduced-time options, to reassign job duties that a worker cannot perform due to pregnancy or caregiving responsibilities, and to offer personal or sick leave to allow employees to engage in caregiving even if not required to do so by the FMLA.

Because the document admittedly suggests "proactive measures that go beyond federal non-discrimination requirements" an employer's decision not to embrace the EEOC's suggestions would not constitute a violation of law. On the other hand, to the extent employers adopt the EEOC's suggestions, they will have a better chance of avoiding liability for discrimination based on an employee's caregiver status. Employers adopting any of these recommended accommodations will want to ensure that their policies are uniform and consistently applied, regardless of gender. Any favoritism towards one gender or the other, especially if based on stereotypes, likely will be found to be a violation of state and federal sex discrimination laws.

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 The Ohio Fifth District Court of Appeals last week released an opinion in Nursing Care Mgmt. of Am., Inc. v. Ohio Civ. Rights Comm’n, that upheld the Ohio Civil Rights Commission’s determination that an employer unlawfully terminated an employee on the basis of pregnancy when the employer terminated the employee because she required pregnancy-related disability leave but had not met the minimum length of service requirements for maternity leave under the employer’s leave policy. In the decision, the Fifth District sets forth a rule requiring employers to provide maternity leave for a “reasonable period of time” and then reinstate the employees to their former positions—or positions of like status and pay—regardless of the employers’ policies on disability or maternity leave or whether the employees qualify for leave under the federal Family and Medical Leave Act (FMLA). 

Facts:

In Nursing Care, employee Tiffany McFee, who was already pregnant at the time of her hire, requested leave for a pregnancy-related medical disability after being employed only eight months. Under the policy of her employer, Pataskala Oaks, employees were eligible for 12 weeks of leave after one year of service. Employees with less than one year of service were not eligible for leave. Keep in mind as well that the FMLA only guarantees an employee 12 weeks of unpaid family or medical leave after an employee has 12 months of service—provided the FMLA applies to the employer and the other FMLA requirements are met. As a result, Pataskala Oaks terminated Ms. McFee’s employment because she did not qualify for leave. The termination came approximately one week after her request for leave and three days after she gave birth. 

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As reported previously, the new Family and Medical Leave Act regulations took effect on January 16, 2009. The new regulations included reference to new required notices to employees and a new required workplace poster. The Department of Labor (“DOL”) included as appendices to the regulations suggested prototype notices, new suggested medical certification forms, and the text for the new poster. (See earlier blog post.)

Not surprisingly, employers are already experiencing some confusion about how to use these new notices. The following is a brief “step-by-step” approach.
 

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If you missed our recent seminar:  "Understanding the Changes to the ADA and FMLA:  New Hurdles for Employers," which was held on Wednesday, January 14, 2009, we invite you to listen in to the audio from this panel discussion. We hope you find it helpful.

Seminar Audio Recording: 
Understanding the Changes to the ADA and FMLA:  New Hurdles for Employers.
(please note that this is a live recording of the two-hour presentation)

The FMLA portion of this panel discussion was presented by Brian Hall and Marc Fleischauer and the ADA portion was presented by Christy Pate and Dave Croall. 

A copy of the slides and handouts from this presentation are available here (PDF).

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With the FMLA Final Regulations going into effect on Friday, January 16, 2009, we thought it would be a good idea to provide our readers with a single easy place to locate all of the new and revised forms provided by the Department of Labor.

New and Revised Forms:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)

WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

WH-382 Designation Notice (PDF)

WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)

 These forms are also available at http://www.dol.gov/esa/whd/fmla/finalrule.htm

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As we noted Monday, the Department of Labor (DOL) published its long-awaited final regulations implementing the Family and Medical Leave Act (FMLA) last Friday. The new rules will become effective January 16, 2009.

Most of the changes in the new regulations were foreshadowed when the DOL first released a set of proposed amendments in February 2008. Although the final regulations differ in significant ways from the original regulations drafted in 1995 by the previous presidential administration, they have stayed pretty consistent with the amendments proposed earlier this year. There are a few new beneficial tools for employers, but there are some new obligations as well.

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On November 14, 2008, the Department of Labor (DOL) issued its new final regulations implementing the Family and Medical Leave Act of 1993 ("FMLA"). These regulations represent the first changes and additions to the regulations since they were first issued in 1995.

As previously noted in this space (see "Proposed FMLA Regulations Largely Disappointing for Employers"), the DOL had originally issued a set of proposed amended regulations on February 11, 2008, which had left the employment legal community wondering whether publication of final regulations could be completed before the end of the year. In a 752-page flourish (available in its entirety here: http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf), the DOL kept its promise.

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Many employers have been pulling their hair out attempting to address runaway intermittent leave under the FMLA. The Sixth Circuit’s decision in Davis v. Michigan Bell authorizes one creative solution – change your 12-month FMLA period to a calendar-year basis.

On September 24, 2004, – the first day she became eligible for FMLA leave after having worked for her employer since 1997 – Candice Davis was granted FMLA intermittent leave for chronic depression certified by her health care provider. Between September 24 and December 13, 2004, she took several discrete absences from work due to her depression and each absence was approved for FMLA. Beginning on December 13th, she began a more extended leave due to her depression but, despite her employer’s efforts, did not return her FMLA medical certification form for this period. Her employer did, however, initiate a short-term disability leave for her in accordance with the company’s benefits package. On January 7, 2005, Ms. Davis’s therapist informed her employer that she was no longer disabled and could have returned to work as early as January 3rd. As a result, Ms. Davis’s employer informed her that every absence after January 2nd would be considered an unexcused absence unless she sought and received FMLA leave to cover those days off. It also told her that she would be considered to have resigned if she did not report to work on January 14th. When January 14th passed without a return to work, she was suspended pending her dismissal.

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At a press conference this morning, the SEIU is announcing that it is withdrawing the paid sick leave mandate (Issue 4 -- the Ohio Healthy Families Act) from the November ballot. We will provide more information here as it becomes available.

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This afternoon, opponents of the Ohio Healthy Families were given a boost when Governor Strickland announced his opposition to the Ohio Healthy Families Act hours after discussions with business leaders and the SEIU failed(see article from today's Columbus Dispatch).

In his statement, Gov. Strickand states:

"While important members of the business community and SEIU participated in good faith discussions, it was, unfortunately, not possible to achieve a compromise acceptable to a sufficient portion of the business community and the proponents to cause its removal from the ballot. We regret that a reasonable compromise was not possible. This reality means that there will be a hard fought campaign centering on this initiative in the coming months. During that campaign, we call upon both sides to avoid portraying Ohio as unfriendly to business and economic development.

We also recognize it is important to make clear our thoughts on important public policy issues and today are announcing that we cannot support the paid sick-day ballot initiative. While we would hope that all Ohio businesses would make paid sick days available to their employees whenever possible, we believe that this initiative is unworkable, unwieldy and would be detrimental to Ohio's economy, and we will be opposing it and asking Ohioans to oppose it as a result."

In the coming months, we can expect an all out media blitz from both sides of this issue. As a result, the Ohio business community needs to understand how to legally and effectively communicate with their workforces so that they understand the detriments of this paid sick leave mandate. Just as important, because employers will not be able to reduce or eliminate other forms of leave in order to comply with the OHFA after enactment, all employers with at least 25 employees in Ohio need to begin the process of planning how they will comply with the OHFA, if it passes.

Check back here for any further developments. In addition, employers that are interested in joining the official statewide campaign against paid sick leave mandates should visit the Ohioans to Protect Jobs & Fair Benefits website.

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On August 8, 2008, the Los Angeles Times reported that a California bill that would have required employers to provide paid sick leave to their employees has been killed in the California legislature. The bill had met with significant opposition from the California business community for many of the same reasons that the paid sick leave mandate is bad for Ohio; specifically:

• The cost to small businesses that can't afford to provide paid sick leave, the disruptions caused by unplanned and unscheduled absences;
   
• The disruptions caused by unplanned and unscheduled absences;
   
• The disincentive that the law would cause for businesses to locate or expand operations in the state; and
   
• The lack of controls and safeguards to prevent abuse.

Unless Governor Strickland's office is able to obtain a compromise that keeps the mandate off the November ballot, it will be up to Ohio's business community to educate the voters on why the costs of the proposed Ohio mandated paid sick leave program far outweigh its benefits. We will keep you posted on any new developments as they occur.

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The employer in Vail v. Raybestos Products Company had received tips from other employees that the plaintiff was abusing her intermittent leave, which she allegedly was taking because of her migraine headaches. Specifically, the employees reported that the plaintiff was calling in sick with a migraine, then helping her husband with his yard care business during the day. The employer hired an off-duty police officer to investigate. The officer reported seeing the employee cutting the grass for several of her husband’s clients while absent from work because of an alleged migraine. Relying on this report, the employer refused to reinstate the employee upon her return from work and terminated her employment for fraud. 

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With each passing day, it appears more likely that Ohioans will be going to the polls on November 4, 2008 to vote on whether employers that employ at least 25 workers in Ohio will be required by law to provide workers with up to seven days of paid sick leave annually. Passage of this measure would be both costly and disruptive to Ohio businesses. As a result, Ohio’s business community must become more vocal in educating the voting public, particularly their employees, on the detriments of the so-called Ohio Healthy Families Act and, at the same time, begin taking steps to prepare for its potential enactment.

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The Columbus Dispatch reported this afternoon that the Strickland administration is sending letters to about 500 business leaders in a final attempt to reach a compromise that would keep the Ohio Healthy Families Act off the Nov. 4 ballot.

In the letter, Gov. Ted Strickland and Lt. Gov. Lee Fisher urge the business community to engage in compromise discussions with the proponents of this Act and the legislature. As the letter states, if compromise language can be reached, the compromise bill would need to be crafted, passed by the legislature, and signed into law by September 5 – the last day to get the issue off of the November 4 ballot.

According to The Dispatch, enclosed with the letter are two documents: “Why a Compromise and Why Now?,” which provides further information to business leaders promoting a compromise solution that would remove this issue from the ballot this November, and “Principles of a Paid Sick Leave Act,” which outlines the administration’s position on this controversial topic.

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Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

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Washington, D.C. City Council recently passed the Accrued Sick and Safe Leave Act, which requires all city businesses to provide paid sick leave for their employees. The Act does not become effective until the Mayor approves it and until a 30-day Congressional review period passes without Congress acting on the bill. If the Act becomes law, D.C. will become the second city in the United States to require employers to provide paid sick leave. San Francisco became the first in 2006. D.C. would become, however, the first jurisdiction to provide paid leave related to incidents of domestic or sexual violence. 

Under the Act, all business within the District must provide their qualifying employees with paid leave time that can be used in cases of physical or mental illness or injury, to care for a sick family member, for preventative medical care, or to cover certain absences associated with domestic or sexual violence. The number of paid leave days depends on company size, and certain employees are not covered by the Act. The Act also imposes obligations on employees who seek leave, including notification requirements for both foreseeable and unforeseeable leave and medical certifications in some instances. Finally, the Act makes it unlawful for employers to discriminate or retaliate against employees who use paid leave and requires employers to post in the workplace a notice outlining the provisions of the Act.

The D.C. Act is part of a growing movement – including the proposed Ohio Healthy Families Act (OHFA) – to push for paid sick leave laws. OHFA and the D.C. Act, which are similar in many respects, both would impose significant burdens on employers. Companies following this trend should continue to watch closely as D.C. and other jurisdictions, including Ohio, take action on paid sick leave legislation.

As for Ohio’s efforts to pass a paid sick leave law, progress on the proposed law seems to be at a standstill. After being sent to the General Assembly in early January, Ohio’s Healthy Families Act has received no formal attention by the legislature. Neither the House or Senate has taken any action on the proposal. It has not been given a number and has not been assigned to a committee. Ohio legislators have until early May to act. If they don’t, backers of the OHFA will have 90 days to collect a second set of different signatures to place the Act on the November 2008 general election ballot. 

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As we reported yesterday, the Department of Labor (DOL) issued new proposed regulations governing enforcement of the Family and Medical Leave Act (FMLA). Although there are some useful new provisions, the changes are largely disappointing for employers who were hoping that the new regulations would offer much-needed clarification and relief from administrative burdens. Despite the disappointment, employers must still take the time to understand the differences between the “old” 1995 regulations and these “new” 2008 proposed regulations. To that end, the most significant changes affecting employers are listed below.

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On January 28, 2008, President Bush signed into law the National Defense Authorization Act, which amends and expands the Family Medical Leave Act (FMLA) to provide leave rights to family members of those in the Armed Forces. The new amendment entitles employees to 12 weeks of leave due to any “qualifying exigency” arising out of the fact that an employee’s family member is on active duty or has been notified of an impending call to active duty in the Armed Forces. What constitutes a “qualifying exigency” will be determined when the Department of Labor (DOL) issues its implementing regulations.

The Act also entitles immediate family members and next of kin to 26 weeks of leave during a 12 month period to care for covered servicemembers. The term “covered servicemember” means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
 

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Secretary of State Jennifer Brunner announced that the Ohio Healthy Families Act (see previous post), which mandates seven paid sick days for employees at Ohio companies with 25 or more workers, easily had enough signatures to pass petition requirements. The petition had 154,693 valid signatures of Ohio registered voters and only 120,683 were required. The Act will now be passed on to the General Assembly for action.

Secretary Brunner's office also said the petition contains signatures equaling 1.5 percent of the ballots cast in the last gubernatorial election from 65 counties, exceeding the necessary 44 county threshold.

The General Assembly has 120 days to enact the requested legislation. If they don’t, the coalition can gather another 120,683 valid signatures to put the measure on the November 2008 ballot in the general election.

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Last month, the Ohio Civil Rights Commission (OCRC) approved new maternity leave regulations requiring all Ohio employers having 4 or more employees to give each pregnant employee up to 12 weeks paid or unpaid maternity leave, regardless of whether the employee is in her first year of employment and regardless of whether she has previously exhausted any other leave that might have been available to her for non-maternity purposes. On Monday, December 3, 2007, the Joint Committee on Agency Rule Review (JCARR) voted 9-1 to reject the Commission’s proposal.

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Employers take notice: the group “Ohioans for Healthy Families,” a union-led coalition, has been collecting signatures for a proposal that would mandate at least seven paid sick days annually for all full-time Ohio workers. They appear to have more signatures than they need to push the initiative forward. Tuesday the group submitted a petition with 250,000 voter signatures to the Secretary of State Jennifer Brunner. If the Secretary certifies that there are at least 120,683 valid signatures of registered voters, the proposed statute will be introduced in the General Assembly early next year. The General Assembly will then have 120 days to enact the requested legislation. If they don’t, the coalition can gather another 120,683 valid signatures to put the measure on the November 2008 ballot in the general election.

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