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Mintz 4th Annual Employment Law Summit – Managing the Increasingly Complex Web of Leave and Accommodation Requirements

On April 19, my colleague Andrew Bernstein and I will be discussing the increasingly complex web of federal, state, and local leave and accommodation laws that employers must navigate. As many companies are aware, the federal Family and Medical Leave Act provides up to 12 weeks (and in some cases, up to 26 weeks) of unpaid, job-protected leave to eligible employees and the Americans with Disabilities Act requires employers to provide reasonable accommodations, which may under some circumstances include flexible schedules and leaves of absence, to qualified individuals with disabilities.

Recently, many states and municipalities have passed laws broadening employee leave and accommodation rights by, for example, mandating paid sick leave, family and medical leave, flexible scheduling, and by formalizing the reasonable accommodation process, resulting in a complex patchwork of laws and compliance obligations of which all employers must be aware.  In New York State, for example, beginning on January 1, 2018, all employers with one or more employees are now required to provide up to 8 weeks of Paid Family Leave benefits to eligible employees. The New York Paid Family Leave law will be fully phased in over four years, granting eligible employees up to 12 weeks of partially-paid, job protected leave when fully implemented in 2021.

Another trend that has swept across the country and gained traction in many jurisdictions is requiring employers to provide paid sick leave.  New York City most recently expanded its sick leave law by granting employees the right to use paid sick leave time for purposes other than traditional sick leave, such as for “safe time” purposes. Safe time refers to activities related to obtaining services or relief for an employee or an employee’s family member who is a victim of domestic violence, sexual assault or stalking.

Leave as an accommodation can also present many challenges for employers, and keeping up with the ever-changing requirements in this arena is crucial as the law continues to develop across the board. One of the most difficult issues employers may face concerns the duration of leave that is considered reasonable. For example, if an employee exhausts their leave entitlement under FMLA, but requests additional leave as an accommodation under the ADA, what is an employer’s obligation? My colleague Jennifer Budoff recently wrote about the Supreme Court’s decision not to resolve a circuit split over that issue, a conclusion that left many employers scratching their heads in the absence of definitive guidance. As it currently stands, jurisdictions differ on the amount of leave that may be deemed a reasonable accommodation under the ADA. In New York, the Court of Appeals has ruled that a leave of indefinite duration is not a reasonable accommodation under New York State law, but that it may be a reasonable accommodation under the New York City Human Rights Law.

In addition to leaves that run consecutively, employers must also contend with and appropriately manage requests for intermittent leave, flexible scheduling, and break time – all of which may qualify as reasonable accommodations. For example, federal law requires employers to provide employees who are nursing mothers with reasonable break time to express breast milk, and many state and local laws impose additional requirements beyond the federal mandate. My colleague Emma Follansbee recently wrote about the Massachusetts Pregnant Workers Fairness Act, which took effect on April 1, 2018 and requires Massachusetts employers to provide a private, non-bathroom pumping space for the expression of breast milk as well as more frequent bathroom, food, or water breaks. The law explicitly provides that employers may not require documentation from employees before granting these accommodations.  Additionally, in New York City beginning on July 18, 2018, employers will be required to grant two temporary schedule changes per year to employees for qualifying personal events related to caregiving responsibilities.

Please join us on April 19th as we discuss these issues and many more as they relate to the ever-shifting landscape of workplace law. The entire agenda and registration is available here.

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Brie Kluytenaar

Associate

Brie Kluytenaar is a Mintz attorney who practices labor and employment law. She handles arbitrations, prepares witnesses, and counsels clients on legal strategies related to employment issues. Brie has represented clients in state and federal court as well as various administrative bodies.