Policymakers have been putting employers’ absence-management rules in a blender in the past few years.
The Disability Management Employer Coalition (DMEC) has given human resource managers and their benefits advisors a chance to grasp the magnitude of the changes by posting the written presentations for a human resources compliance conference it is holding this week in Washington online.
The conference focuses on compliance with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
For a look at some highlights from the sessions, read on.
1. More jurisdictions are requiring at least some employers to offer paid sick leave.
Geoffrey Simpson, Teri Weber and Mike Soltis provided a map showing that paid sick-leave laws affected employers in scattered communities on the West Coast and the Northeast a year ago, and now affect employers throughout California and many more communities in the Northeast.
The number of local communities with paid sick-leave laws has increased to 18, from seven a year ago, the speakers said.
Today, the speakers said, 48 percent of workers at establishments with fewer than 100 workers, and 18 percent of workers at bigger employers, have no paid sick leave.
2. Employers in some states have to think hard about marijuana.
In the past, some employers have tested employees regularly for use of marijuana and other illegal drugs, and disciplined or fired employees found to be using marijuana.
Now, in some states, using marijuana is no longer a state-law crime.
Francis Alvarez, a lawyer at Jackson Lewis, talked about the labor law implications of marijuana decriminalization in FMLA regulatory update.
He noted, for example, that California, Colorado, Michigan, Montana, Oregon and Washington state have allowed medical marijuana use but do not require employers to accommodate medical use of marijuana.
Alaska, Hawaii, Massachusetts, New Hampshire, New Jersey, Rhode Island and Vermont allow medical use of marijuana, but they say employers need not accommodate medical use of marijuana at work.
Maryland, New Mexico and the District of Columbia allow medical use of marijuana and have not addressed employment issues related to marijuana use, Alvarez said.
3. Some health care providers send in what, to an employer, may look like absurd requests for accommodations.
Rachel Shaw, a human resources consultant, ran a session on “putting reasonable back in reasonable accommodations” in which she talked about employer efforts to wrestle with the ADAAA.
She gave one real example of a request in which a provider stated that an employee had a condition that made her unable to arrive at work at a specified time.
She gave another example of request for an employee who was feeling stress. The provider asked the employer to let the worker “avoid any work activities requiring complete/sustained mood stability or concentration in order to avoid injury to himself or others” and added that, “He would be recommended to avoid working with Tom or Chris.”
Although providers can submit those kinds of requests, in the real world, federal courts have held that an employee’s inability to work with another employee does not meet the Americans with Disabilities Act (ADA) definition of disability, and that “reasonable accommodation” does not include increasing an employee’s distance from another employee, Shaw said.
She suggested that human resources managers use a methodical, interactive process for analyzing requests for accommodations.