The importance of training supervisors on how to recognize and deal with employee leave issues cannot be overstated. And here’s a painful example of why…

Grace, an employee at a group home where she provided support to residents with mental impairments, was unexpectedly hospitalized due to a mental health condition. Grace had her son call her employer to tell them that she was in the hospital and could not report to work. Grace’s son called the employer at least four times over the next week to advise that his mother was still in the hospital. He spoke with Grace’s direct supervisor, as well as the program manager and the HR department. Such notifications should have sounded alarm bells that Grace might have a “serious health condition” and may be entitled to leave under the FMLA. Which it did – sort of; an HR department staff person prepared an FMLA packet acknowledging that the employer had been informed Grace was on a medical leave. However, when Grace’s son informed her supervisor that Grace was able to speak, the supervisor became angry and said it was inappropriate for him to be calling on his mother’s behalf and told him not to call again. The supervisor did not ask the son any questions regarding Grace’s condition or whether there was something preventing Grace from calling herself. Continue Reading FMLA: A Painful Reminder of the Importance of Supervisor Training

UPS recently agreed to pay a $2M to settle a disability discrimination suit brought by the EEOC relative to its maximum leave policy. The company’s policy required “administrative separation” if an employee was unable to return to work after 12 months.  The EEOC said this inflexible leave policy violated the ADA. In addition to the $2M, UPS agreed to update its policies on reasonable accommodation to include extended leaves of absence; improve implementation of its interactive process; conduct ADA training for management; and submit reports regarding its compliance for 3 years. Continue Reading Maximum Leave Policies Can Cost Employers – Big Time

In response to Hurricane Harvey’s destruction in Texas and Louisiana, employees may wish to take time off from work to participate in the cleanup efforts.  Employers may wonder what their obligations are when faced with requests for leave.

Public Sector

State employees who are certified disaster service volunteers with the American Red Cross may, with approval of the employee’s supervisor, serve for up to 15 days per year without loss of pay or paid time off.  Municipal employees have a similar opportunity for leave, with an allowance for 14 days per year with approval of the legislative body of the municipality.  Notably, the statutes authorizing this service limit it to the American Red Cross upon the agency’s request, and this leave is available only to certified disaster service volunteers. Continue Reading Responding to Requests for Employee Leave for Disaster Relief Efforts

Starting September 18, 2017, all employers will be required to use a new I-9 Form, the form used to verify an employee’s eligibility to work in the United States.  The most recent change to the I-9 was less than a year ago, so it is important to ensure that you are using the edition dated 7/17/17.  The date appears in the lower left-hand corner of the form.

I-9s must be completed on all new hires who will perform work in the United States.  Employers may switch to the new form now or may continue using the old one until September 18.  The new form is available at https://www.uscis.gov/i-9.  (The Spanish form is available as an aid, but outside of Puerto Rico, the English form is the one that must be completed.)

The changes to the form are technical in nature.  The only change of consequence for employers is that the Consular Report of Birth Abroad was added to List C, meaning that it can be used to establish an employee’s identity.

The following is a basic explanation of the I-9 process, which is not changed by the issuance of this new form. Continue Reading Employers Must Update Their New-Hire Paperwork By September 18th – Again

Just before the end of the legislative session, Public Act 17-118: An Act Concerning Pregnant Women in the Workplace, passed and is expected to be signed by the Governor.  Effective October 1st, this Bill amends Connecticut’s existing Pregnancy Discrimination Statute, Conn. Gen. Stat. § 46a-60 by expanding the employment protections provided to pregnant women and requiring employers to provide a reasonable workplace accommodations unless the employer demonstrates that the accommodation would be an undue hardship. The bill also prohibits employers from (1) limiting, segregating, or classifying an employee in a way that would deprive her of employment opportunities due to her pregnancy or (2) forcing a pregnant employee or applicant to accept a reasonable accommodation if she does not need one. It also eliminates certain employment protection provisions related to transfers to temporary positions for pregnant workers. Continue Reading Legislature Expands Pregnancy Protections, Malloy Set To Sign

A pharmacist was terminated after he claimed he was unable to administer vaccinations to customers.  Christopher Stevens sued Rite Aid for discrimination, retaliation and failure to accommodate under the Americans with Disabilities Act (ADA) and other state non-discrimination laws.  The jury awarded him $2.6 million, including $900,000 in non-economic damages.

By way of background, Rite Aid revised the job description for its pharmacists to require an immunization certification and made administering vaccinations an essential function of the job. Stevens, who suffers from trypanophobia (fear of needles), claimed he was disabled under the ADA and requested a reasonable accommodation excusing him from giving injections.  Rite Aid determined that Stevens was not disabled under the ADA, and therefore, it was not required to offer him reasonable accommodation. Instead, Rite Aid informed Stevens that if he did not comply with the vaccination requirement, he would be terminated. Stevens was thereafter discharged for refusing to perform an essential function of his job. For full text of decision click here. Continue Reading 2d Circuit Court of Appeals reverses $2.6 million jury verdict in disability discrimination case

What is an Oxford comma? The Oxford comma is an optional comma before the word ‘and’ at the end of a list: for example, “lions, and tigers, and bears… (oh my)”.  While use of the Oxford comma has long been the subject of debate, the First Circuit Court of Appeals in Boston has determined its absence was critical in resolving the appeal in favor of a group of truck drivers in a class action suit in Maine.  The drivers sued the company, Oakhurst Dairy, claiming the company had improperly denied them several years of overtime pay. The company claimed the drivers were exempt from overtime under state statute.  The District Court agreed with the company and granted its motion for summary judgment.  The drivers appealed to the 1st Circuit Court of Appeals.

The sole issue on appeal hinged on whether the phrase “packing for shipment or distribution of” foods referred to a single activity involving packing or two separate activities – packing for shipment and packing for distribution.  The statute in question excluded from overtime “the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” Continue Reading The importance of punctuation: Missing Oxford comma benefits drivers in overtime case

A recent judgment awarded $250,000 in compensatory damages (including emotional distress) resulting from an employer’s inaction against a customer who for more than a year engaged in a pattern of harassment including inappropriately touching the employee and stalking.

In EEOC v. Costco, the EEOC proved that Costco failed to take steps to protect an employee from a customer who engaged in a pattern of harassing behavior.  The EEOC noted that as evidence of Costco’s inaction, it took them more than a year to even ban the customer despite the employees’ repeated protestations.  Because of Costco’s inaction, the employee was left with no choice but to go to the police and obtain an order of protection against the customer on her own.

Based on the company’s inaction, the EEOC argued Costco created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.   As the EEOC Lead Trial Attorney noted: “An employer should not wait until an employee is so fearful that she resorts to seeking a restraining order before intervening against a customer.  Employers should work diligently to ensure that all of its employees have a safe, harassment-free workplace.”

This case is a reminder that under Title VII employers needs to have plans in place to handle complaints by employees against customers, vendors, contractors or even friends of employees.  If an employee complains of harassment from a third-party, the manager or supervisor must treat the complaint as they would any other harassment complaint on the worksite.  This includes promptly investigating the issue and correcting the problem if the complaint can be sustained.  Training for supervisors to address and respond to these matters is also essential to ensure the employer does not run afoul of Title VII or similar state anti-discrimination laws.

Our team of attorneys has decades of experience in drafting harassment policies and training management on responding to complaints.  Providing these services is the first step in avoiding costly litigation and ensuring compliance with the various state and federal statutes.

This election, seven states and the District of Columbia passed expansive marijuana laws that permitted the recreational use of marijuana or cannabinoids.    This means that within these states and the District of Columbia people can openly smoke or ingest cannabis with no criminal repercussions.

While Connecticut has not embraced this libertine attitude toward marijuana use, Connecticut’s Palliative Use of Marijuana Statute (Conn. Gen. Stat. § 21a-408 et seq.) permits the use of marijuana by qualifying patients to treat certain medical conditions.  This statute also prohibits an employer from refusing to hire, disciplining, or discharging an employee because of their status as a qualifying patient or primary caregiver.  Conn. Gen. Stat. § 21-408p(3).

However, this issue can be problematic for private employers who conduct reasonable suspicion or random drug tests pursuant to Conn. Gen. Stat. § 31-51t et seq. or through a collective bargaining agreement for municipal employers.  It also raises questions about what an employer should do if an employee comes and/or returns to work under the influence of medical marijuana.

For starters: employers can still restrict employees from coming to work under the influence of drugs even if those drugs are medically required. Having a drug use policy that lays out what is prohibited as well as explaining what action will be taken for violations is imperative.  This policy should be provided to employees or posted in a highly visible area to put employees on notice.

In addition, drug testing may still be used especially if the business falls under federal regulations (which still prohibit the use of marijuana as a class 1 narcotic).  These businesses may employ CDL drivers; drivers whose occupation is considered “safety sensitive”; or who otherwise fall under the regulations of the Federal Motor Carrier Safety Administration.  In addition businesses who receive federal grants or who are considered a federal contractor may be required under the Federal Drug Free Workplace Act to have a policy that prohibits the “unlawful manufacture, distribution, dispensation, possession or use of a controlled substance” as well language explaining what remedial action that will be taken for violations.  If a federal regulation does require drug testing, it is important to ensure your drug testing policy includes all required provisions of the regulation or else civil fines (and in some cases debarment from federal contracts) can ensue.

Because this issue is evolving, and medical marijuana may open the door to a number of other issues (including the Americans with Disabilities Act and the State and Federal Family and Medical Leave Act) it is best to speak with an attorney about drafting a drug use policy and/or a drug testing policy.  Our attorneys are well versed in this facet of the law and have decades of experience drafting drug use and testing policies as well as advising employers on best practices.

Election Day is rapidly approaching and voter turnout is expected to be particularly high.  While many states have laws providing time off for employees to vote, Connecticut is not one of them.  How should employers handle requests for time off to vote?

Polls in Connecticut are open from 6 a.m. until 8 p.m.  A voter only needs to be in line by the time the polls close in order to be permitted to vote.  In most cases, the hours should be sufficient to allow employees to vote either before or after work.

However, in some cases an employee will not have sufficient time to vote before or after work.  Many states are addressing these issues by allowing “early voting,” where voters can vote on days other than Election Day, reducing wait times and allowing more flexibility if time off is needed.  Early voting is not an option in Connecticut.  One option available to Connecticut voters is to register for an absentee ballot.  The deadline to request an absentee ballot is November 7, 2016.  Absentee voting is permitted for a variety of reasons, such as illness, service in the military, etc.  A voter can receive an absentee ballot because of his or her absence from the town in which he or she is registered to vote for all hours of voting on Election Day.  Employees working in the same town in which they vote would not be eligible for an absentee ballot on this basis, even if they are working a shift that covers all hours.

Many employers choose to provide flexibility for employees who need to come in late, leave early, or take an extended lunch break in order to vote.  However, this is not a legal requirement.  Non-exempt employees who take time off can be required to use paid time off or to take the time unpaid.  However, in the case of an exempt employee, partial day deductions from pay are not allowed in this circumstance, but can require an exempt employee to use paid time off to cover the partial absence.

In deciding whether to allow time off to vote, employers should consider operational needs, employee morale issues, collective bargaining agreements (including past practices), and the anticipated time employees will need at the polls.  Employers should also remember that employees may spend a great deal of time talking about the election and that political speech in the workplace is generally protected in Connecticut.

Our team of labor and employment attorneys can assist you in all aspects of labor-management relations in the public and private sectors.