WHCA Fall Conference Hot Topics In Employment Law for ...
Transcript of WHCA Fall Conference Hot Topics In Employment Law for ...
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Hot Topics In Employment Law for Senior Living & Long Term Care Employers
Krista Hardwick
[email protected] / 206.223.7270
Lane Powell PC
1©2017 Lane Powell PC
October 3, 2017
DISCLAIMER
This presentation reflects the views of its author, which are not necessarily the views of Washington Health Care Association or Lane Powell PC.
It is intended to provide general information only.
It is not intended to provide any legal opinions or advice applicable to any particular situation, and does not create an attorney‐client relationship with any attendee or reader.
If you would like more information regarding whether we may assist you in any particular matter, please contact one of our attorneys, using care not to provide us any confidential information until we have notified you in writing that there are no conflicts of interest and that we have agreed to represent you on the specific matter that is the subject of your inquiry.
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AGENDA
Top 10 Things Senior Living Employers in Washington Need to Know
WA Paid Family & Medical Leave Insurance
WA Statewide Paid Sick Leave
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YEAR IN REVIEW:
TOP 10 THING SENIOR LIVING AND LONG-TERM CARE
EMPLOYERS NEED TO KNOW
Sneak Peek
Paging Dr. Mari Juana
#3 Dealing With Marijuana In The Workplace
Duty to Accommodate?
Yes, you can still have drug free policies (for now)
Yes can fire employees for using MJ
But don’t make a knee jerk decision; some legal medications (like Marinol) may cause a positive cannabis drug test
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Be Supportive
#4 How To Support Your Transgendered Employees
• Remember state and local law protections
• Allow employees to choose
• Honor employee’s preferences
• Prepare a plan
• Update handbooks
• Train co-workers and manager
Preparing for Compensation Discrimination
Check state and local law
Oregon Pay Equity Act
Monitor pending legislation
Train your managers
Consider an audit
Consult with counsel
#5 Pay Equity
#6 Pregnancy Accommodations
What Employers Should Know About WA’s Healthy Starts Act:
Employers with 15+ employees
Limits on undue hardship defense
Restrictions on written certification requests
Enforcement
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#7 What Employers Should Know About the DOL’s Overtime Rule
Indefinite hold
$23,660 minimum salary threshold remains in place
Be ready for change -- anything is possible
Holding!
Talking Politics
#8 Managing Politicsat the Office
Set boundaries
Apply rules consistently
Ban all political posts
Consider state and local laws
#9 When Was the Last Time Your Handbook had a Check
Up?
Routine review
Monitor state and local law
Apply consistently and document
Handbook Wellness Check
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Continuing Investigations
#10 Reminders About EEOC Investigations:
• Right to sue letter may not end an EEOC investigation
• Summary judgment may not end an EEOC investigation
• Your agreements should recognize this
THE CHECK UP CHECK LIST
WASHINGTON PAID FAMILY & MEDICAL LEAVE
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LEGISLATURE’S INTENT
To balance the demands of the workplace and families to promote family stability and economic security
Health benefits of paid leave
ARE YOU A COVERED EMPLOYER?
Any person or business that employs at least one employee in the State of Washington
Does not include the federal government
WHICH EMPLOYEES ARE ELIGIBLE TO TAKE PAID FAMILY AND MEDICAL LEAVE?
Any person employed by an employer in the State of Washington
Excluded: Self‐employed individuals (may elect coverage)
Independent contractors
Employees of the federal government
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REASON #1 FOR PAID FAMILY LEAVE
To care for a family member with a serious health condition
WHAT IS A SERIOUS HEALTH CONDITION?
An illness, injury, impairment, or physical or mental condition that involves:
Inpatient care in a hospital or hospice‐or‐
Continuing treatment by a health care provider plus (1) a period of incapacity of more than 3 consecutive calendar days, (2) any period of incapacity due to pregnancy, or for prenatal care, (3) any period of incapacity or treatment due to a chronic serious health condition.
‐or‐
A period of incapacity which is permanent or long term due to a condition for which treatment may not be effective (e.g. Alzheimer’s, severe stroke, terminal stages of a disease);
‐or‐
WHAT IS A SERIOUS HEALTH CONDITION?(CONTINUED)
Any period of absence to receive multiple treatments for restorative surgery after an accident/injury, or a condition that would likely result in a period of incapacity of more than 3 consecutive days in the absence of treatment (e.g. cancer, severe arthritis, or kidney disease);
‐or‐
Subsequent treatment related to original serious health condition that involves treatment 2 or more times within 30 days of the first day of incapacity, or treatment by a health care provider one time which results in a regimen of continuing treatment (e.g. prescription).
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WHAT IS NOT A SERIOUS HEALTH CONDITION?
Common cold, flu, ear aches, upset stomach, minor ulcers, headaches (other than migraines), routine dental or orthodontia problems, and periodontal disease
Paid family/medical leave is not permissible for these conditions
WHAT IS NOT CONSIDERED TREATMENT BY A HEALTH CARE PROVIDER?
Routine physicals, eye exams, or dental exams
WHAT ABOUT COSMETIC SURGERY?
Conditions for which cosmetic treatments are administered (e.g. acne, plastic surgery) are not serious health conditions unless inpatient care is required or complications develop.
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SUBSTANCE ABUSE
May be a serious health condition if the requirements are met
Leave may only be taken for treatment by a health care provider or a licensed substance abuse treatment provider
Absence due to use of illegal drugs does not qualify for leave
Treatment for substance abuse does not prevent employer from taking employment action against employee for violation of substance abuse policy
MENTAL ILLNESS
Mental illness due to stress or allergies may be a serious health condition if the requirements are met.
WHAT IS A CHRONIC SERIOUS HEALTH CONDITION?
A condition which:
requires visits to a health care provider at least twice a year; and
continues over an extended period of time; and
may cause episodic rather than continuous incapacity such as asthma, diabetes, or epilepsy.
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WHO IS A FAMILY MEMBER
• Child – Biological, adopted, foster, stepchild, or “in loco parentis”• Parent – Biological, adoptive, foster, step‐parent, legal guardian, de facto, “in loco parentis”
• Grandchild• Grandparent• Sibling• Spouse – Husband, wife, or state registered domestic partner
REASON #2 FOR PAID FAMILY LEAVE
Bonding with the employee’s child during the first year after childbirth or the first year after placement of a child under 18 years of age with the employee
REASON #3 FOR PAID FAMILY LEAVE
Includes – issues relating to short‐notice deployment, attending military events/activities, arranging for childcare, making financial/legal arrangements, attending counseling, and spending time with military member who is on short term leave during deployment
Qualifying exigency under the federal FMLA
May arise when employee’s spouse, son, daughter, or parent who is a member of the Armed Forces is on covered active duty, or has been notified of impending call to covered active duty
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REASON #4 FOR PAID FAMILY LEAVE
Military caregiver leave under the federal FMLA
Allows eligible employee who is the spouse, son, daughter, parent, or “next of kin” of a covered veteran with a serious injury or illness to take leave to provide care to the veteran
PAID MEDICAL LEAVE
Paid medical leave may be used for reasons relating to an employee’s own serious health condition
LEAVE ENTITLEMENT EXPIRATION
Bonding leave: At end of 12‐month period beginning on date of birth/placement
Other types of family leave: end of 12‐month period beginning on date employee files application for family leave benefits
Medical leave: end of 12‐month period beginning on the date employee files application for medical leave benefits
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WAITING PERIOD
First 7 calendar days of leave
Exception: no waiting period for birth or placement of a child
ELIGIBILITY
820 hours of work for any Washington employer
During the qualifying period (first four of the last five completed calendar quarters)
BENEFIT AMOUNTS
Administered by state
Percentage of employee’s average weekly wage
Low income = higher percentage of wage is benefits
Minimum weekly benefit = $100 per week
Cap of $1,000/week; will be adjusted each year to equal 90% of state’s average weekly wage
Prorated based on % of hours on leave compared to typical workweek hours
Minimum claim amount = 8 hours of leave
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CALCULATING BENEFITS:
Determine employee’s average weekly wage:
If 50% or less than state average weekly wage, benefit is 90% of employee’s average weekly wage (unless employee’s average weekly wage is less than $100; benefit will be 100% of wages)
If more than 50% of state average weekly wage, benefits are the sum of:
90% the employee’s average weekly wage (up to 50% of state average weekly wage
‐plus‐
50% of the employee’s average weekly wage that is greater than 50% of the state’s average weekly wage
PAYMENT OF BENEFITS
First payment will be 14 days after application is received
Subsequent payments will be at
least biweekly
CONTESTING BENEFIT APPLICATION
Employers may contest application by notifying department within 18 days of receiving notice from department of employee’s filing application for benefits
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PREMIUMS
Funded by employers and employees through payroll tax
Total tax = 0.4% of wages
Employers pay 37%
Employees pay 63% (but employers can elect to pay this)
Employee share must be collective through payroll deductions
Delinquent premium payments accrue interest at 1% per month
EXEMPTIONS FROM PREMIUM PAYMENTS
• Self‐employed individuals may elect coverage and pay only employee share of premiums (see next slide)
• Employers with 50 or fewer employees in Washington are exempt from paying employer share of premiums; may elect to pay premiums and will be eligible for small business assistance
SMALL BUSINESS ASSISTANCE
Employers with 150 or fewer employees and employers with 50 or fewer employees who elect to pay employer share of premiums are eligible for assistance
May apply for grant. Can get either (but not both): $3,000 if employer hires temp to replace employee on paid family/medical leave $1,000 as reimbursement for significant additional wage‐related costs due to employee’s leave
May apply for grants 10 times per calendar year
No more than one grant for each employee on leave
Must provide written documentation of hiring temp employee or significant wage‐related costs that were incurred
If grant is approved, employers with less than 50 employees must pay employer premiums for next three years
Employers with voluntary paid family/medical leave plans not eligible for grants
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ELECTIVE COVERAGE
Self‐employed, independent contractors, sole proprietors, partners, or joint venturers
Initial period is three years
Must pay employee premiums
Must file notice of election in writing
Eligible for benefits after working 820 hours in Washington during qualifying period following date of filing notice of election
OPT OUT
Employers who offer voluntary leave plan may opt out
Mandatory $250 fee to have voluntary leave plan approved by department; must be reapproved every year for first three years and thereafter if employer makes changes to plan
Employees covered by voluntary employer leave plan are not eligible for state leave benefits
WHAT IS AN EQUIVALENT VOLUNTARY LEAVE PLAN?
Benefits offered to employees must be at least equivalent to benefits they are entitled to as part of state leave program, including duration of leave
Employer must offer at least ½ of the length of leave with pay, and provide monetary payment in an amount equal to or higher than the total amount of benefits the employee would receive as part of state leave program
Sick leave under Washington paid sick leave law is in addition to employer‐provided benefits and is in addition to any paid family/medical leave benefits
Payroll deductions for voluntary plan cannot exceed maximum payroll deduction for state leave benefits
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WHAT IS AN EQUIVALENT VOLUNTARY LEAVE PLAN?(CONTINUED)
All employee contributions must be kept in trust in separate account from employer’s assets
Employer must make payroll deductions and remit to the state for any portions not collected for the voluntary plan
Employer must give notice of withdrawal to stop voluntary plan; upon withdrawal, must remit to state all payroll deductions that exceeded plan costs
Voluntary plan must provide that employee is eligible after working 340 hours for the employer during 12 months immediately preceding date leave will commence (must also meet 820 hours requirement)
WHAT IS AN EQUIVALENT VOLUNTARY LEAVE PLAN?(CONTINUED)
Employees who were eligible under former’ employer’s voluntary plan are immediately eligible for benefits under new employer’s voluntary plan
Voluntary plan must provide job protection if employee has worked at least 9 months for employer and at least 965 hours in 12 months preceding leave
Employee must maintain existing health benefits during leave
Successor employers must continue voluntary plan unless they file request to withdraw within 90 days of acquisition
OUT OF STATE WAIVERS
Employer may file application for waiver of premium payments for any employee who is:
Physically based out of the state; and
Employed in Washington only on a limited or temporary basis; and
Not expected to be employed in the state for 820 hours or more in the qualifying period
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ACCRUED VACATION, SICK OR PTO
Employer may allow employee to choose between paid time off or paid family/medical leave benefits
LIMITATIONS AND DISQUALIFICATIONS
Willful intention of employee to bring about injury or sickness
Injury or sickness sustained in perpetration of illegal act
Leave that commences before employee becomes qualified for benefits
Employee who is on suspension from employment
Any day in which care recipient works at least part of that day for remuneration during the same or substantially similar working hours as those of employer from which benefits are claimed
Knowingly and willfully made a false statement or failed to report a material fact to obtain benefits (penalties also apply for overpaid benefits)
NOTICE TO EMPLOYER
Birth or placement of a child: at least 30 days’ notice
Employee’s or family member’s serious health condition:
If foreseeable – Must schedule treatment so as not to disrupt operations (if possible) and must provide at least 30 days’ notice (unless treatment begins in less than 30 days, then notice as soon as practicable)
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EMPLOYMENT PROTECTIONS
Job restoration to same position or equivalent position (may require certification from health care provider that employee is able to resume work)
No loss of employment benefits accrued at start of leave
Only applies to employers with 50 or more employees and employees who have been employed by current employer for 12 months or more and have worked at least 1,250 hours in the preceding 12 months for the current employer
OTHER BENEFITS/LEAVES
Paid family/medical leave runs concurrently with FMLA
Paid family/medical leave is in addition to leave for disability because of pregnancy or childbirth
Paid family/medical leave is in addition to leave during which benefits are paid pursuant to Washington’s workers comp laws
If employee is eligible to receive benefits under federal or state law for industrial injuries, unemployment, or disability insurance, the employee is disqualified from receiving family/medical leave benefits
Employer must maintain existing health insurance benefits for duration of paid family/medical leave if required under FMLA. Employee remains responsible for employee‐share of the cost.
NOTICE TO EMPLOYEES
Must provide written statement of employee’s right to paid family/medical leave if employee is absent to provide family leave or take medical leave for more than 7 consecutive days
Must be provided within 5 business days after 7th consecutive day of absence
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POSTING
Must post official poster in
conspicuous places on the
premises where employee notices
are posted
Commissioner
to provide poster
$100 penalty
for violation
NO RETALIATION
Right to take leave
Right to oppose unlawful practices
Right to file a complaint
Right to participate
in investigation
Right to testify
REMEDIES
Lost wages, salary,
employment benefits
Actual monetary losses (e.g. cost of providing
care)
Interest
Liquidated damages (double
damages) for willful violations
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COLLECTIVE BARGAINING
CBAs in effect on effective date of law not required to comply
Must comply when CBA is reopened or renegotiated
EFFECTIVE DATES
Premium payments 1/1/2019
Paid leave benefits 1/1/2020
KEY TAKE‐AWAYS:
Review paid time off policies to determine whether to opt out
Reconcile this law with the other state and local paid sick leave laws, including the statewide paid sick leave law that becomes effective on January 1, 2018.
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WASHINGTON STATEWIDE PAID SICK LEAVE
Beginning January 1, 2018, every employer in Washingtonwill be required to provide their employees with paid sick leave
NEW: WASHINGTON PAID SICK LEAVE LAW
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ALL EMPLOYEES COVERED BY WASHINGTON MINIMUM WAGE ACT
EXEMPT EMPLOYEES
Employees who are exempt from minimum wage/overtime are exempt from Washington
paid sick leave
ACCRUAL
•One hour of paid sick leave for every 40 hours worked•No caps on accrual or usage
ACCRUAL
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FRONT LOADINGFRONTLOADING
CARRYOVER
• Up to 40 hours of accrued, unused paid sick leave
USE OF PAID SICK LEAVE
• 90th day of employment
•Normal hourly rate• Piece Rate• Commissions• Tips
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REASONS FOR LEAVE
• Employee’s or family member’s illness, injury or health condition
• Closure of employee’s place of business, child’s school, or daycare for public health emergencies
• Reasons related to domestic violence
• Child• Parent• Spouse• Registered Domestic Partner
•Grandparent•Grandchild• Sibling
WHO IS A FAMILY MEMBER? IS A FAMILY MEMBER?
EMPLOYER NOTICE
• Must notify each employee of entitlement to sick leave, rate of accrual, authorized purposes and that retaliation is not permitted
• Written or electronic format
• New hires – provide at start of employment
• Current employees – notice due by March 1, 2018
• Monthly notice detailing amount of paid sick leave accrued and used since last monthly notice (can include on paystub)
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EMPLOYEE NOTICE TO EMPLOYER
• Can require reasonable notice of need for paid sick leave
• Cannot require more than 14 days’ notice for foreseeable leave
•Notice as soon as practicable for unforeseeable leave
MEDICAL VERIFICATION
• Okay for absences exceeding 3 days
May not require employee to search for or find a replacement worker to cover the hours the employee will be
on leave
REPLACEMENT WORKERS CEMENT WORKERS
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CASH OUT
• Not required to cash out unused, accrued paid sick leave at termination of employment
• May cash out on mutual agreement of employer and employee
REHIRE
If employee is rehired within 12 months of separation from employment, previously accrued paid sick leave must be reinstated unless it was
cashed out
Unlawful Practices
•Attendance policy that counts use of paid sick leave as “occurrence” or absence that may lead to discipline
•Discrimination
• Retaliation
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PTO POLICIES
CITY ORDINANCES STILL IN EFFECT (SEATTLE, SPOKANE, TACOMA, SEATAC)
•Must meet requirements of all applicable paid sick leave laws/ordinances
• Example: Seattle employers must meet requirements of Washington and Seattle PSL
• Spokane sunset
THANK YOU…
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Krista [email protected]