Revised Definition of "Spouse" Under FMLA Incorporates Same-Sex Marriages

The Department of Labor has issued a final rule that amends its FMLA regulations and provides employees in same-sex marriages the right to take leave to care for a spouse with a serious medical condition.  The new rule, published on February 25, 2015, comes on the heels of the Supreme Court’s decision in United States v. Windsor, which declared as unconstitutional a provision of the Defense of Marriage Act limiting the definition of “spouse” to opposite-sex marriages.

The most significant aspect of the new rule is that spousal status is now determined based on the place where an employee entered into marriage, or the “place of celebration.”  Previously, the DOL had determined spousal status based on a “place of residence” rule, which effectively deprived same-sex employees from qualifying as a spouse if they lived in a jurisdiction where same-sex marriages were not recognized.  Under the new rule, and according to the DOL, the “place of celebration” rule will allow all legally married couples to have uniform rights regardless of where they live.

The DOL’s comments to the new rule suggest that employers should see a decrease in administrative burdens under the new rule.  To the extent this is true, it will probably be most apparent for multi-state employers, who will not have to “consider the employee’s state of residence and the laws of that State in determining the employee’s eligibility for FMLA leave.”

IMMIGRATION UPDATE: A Small Step in the Right Direction

Until recently, the U.S. Citizenship and Immigration Services (USCIS) did not allow the dependent spouses of H-1B (specialty occupation) visa holders to engage in any form of employment while living in the U.S.  H-4 visa holders were unable to obtain a Social Security number and were quite limited in the activities they could engage in over the course of their stay in the U.S.  By contrast, spouses of L-1 (intracompany transferee) visa holders have been allowed to obtain employment authorization from USCIS and work in the U.S. without limitation for many years.

As the result of new regulations proposed last year, effective May 26, 2015, USCIS will begin granting employment authorization to certain H-4 spouses of H-1B visa holders.   According to USCIS, this new employment eligibility is an important element of President Obama’s immigration executive actions and one of several initiatives underway to “modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.”

Not all H-4 visa holders will be eligible to work, however.   Employment authorization will be limited to H-4 spouses – not dependent children -- of H-1B nonimmigrants who are the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted H-1B status under the American Competitiveness in the 21st Century Act of 2000 (AC21), which permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six-year limit on their H-1B visa status.

To commence the process, eligible H-4 visa holders must file USCIS Form I-765, Application for Employment Authorization, with the required supporting evidence and the $380 filing fee. USCIS will begin accepting applications on May 26, 2015.  Upon approval of the Form I-765 and issuance of the EAD, the H-4 spouse may begin working in the U.S. in any capacity, for any employer.  These new H-4 EADs will have a duration of no more than three (3) years.

When they commence employment, these H-4 visa holders must rely on their EADs to satisfy the I-9 employment eligibility verification process.  Although employers need to closely track the expiration dates that appear on the corresponding EADs provided by their new hires to remain in compliance with I-9 obligations, it is the H-4 visa holder’s responsibility to ensure that they maintain their employment authorization without interruption.

Permissible Discrimination in Health Benefits

The intense regulation of health care benefits, especially with respect to the Affordable Care Act, has created much confusion among employers. As a result, many employers do not understand that they may offer different levels of coverage to different categories of employees.  Here are the rules.

First, employers cannot base eligibility for health benefits on the existence of a “health factor” that affects an employee or the employee’s dependents.  A health factor includes:

• Health status
• Medical condition, including both mental and physical illnesses
• Claims experience
• Receipt of health care
• Medical history
• Genetic information
• Evidence of insurability
• Disability, and
• Any other health status – related factor established by regulation

Thus, employers cannot refuse to offer health benefits because an employee or the employee’s dependents are, for example, diabetic, have a heart condition, have a history of mental illness, are genetically predisposed to disease, or are disabled.

This does not mean that an employer cannot make distinctions and offer different types of coverage to different categories of similarly situated employees. These distinctions must, however, be based on employment-based classifications that have been established in connection with the employer’s usual business practices.  If the employer classifies employees for reasons other than eligibility for health coverage ― for example, eligibility for non-health benefits or other terms of employment ― offering different levels of coverage is allowed so long as they are made in good faith and without the underlying intent to avoid offering coverage for health reasons. Permissible classifications include:

• Full-time versus part-time status
• Different geographic location
• Membership in a collective bargaining unit
• Date of hire
• Length of service
• Current employee versus former employee status, and
• Different occupations

Employers may, and often do, provide different benefits to salaried versus hourly employees, to skilled and unskilled workers, to employees at different work locations, and to new hires.  So long as the distinction created is not directed at individuals or is seen as a way to avoid the restrictions on discriminating on the basis of a health factor, employers have considerable leeway in providing different health benefits to differently situated employees.

White House Announces New Disability Resource Guide

A new resource guide for employers to use in working with individuals with disabilities is now available.  The new guide, available here and called Recruiting, Hiring, Retaining and Promoting People with Disabilities, was announced by the White House last week and is the product of a cross-agency initiative to increase equal employment opportunities for individuals with disabilities. Although authored primarily by the Equal Employment Opportunity Commission, the guide includes participation from the Departments of Education, Labor, Health and Human Services, Justice, and others.

As a quick reference tool, employers will likely find this guide helpful.  It provides answers to several frequently asked questions and suggests best practices for employers to use when hiring individuals with disabilities and maintaining those individuals over the course of the employment relationship. Perhaps most useful, however, the guide includes embedded links to other materials with additional information, including agency-specific materials produced by the EEOC and Department of Labor.

In announcing the new guide, the White House noted that 56.7 million Americans, or 19% of the American population, live with a disability.  Given the expanded definition of disability under the Americans with Disabilities Act Amendments Act of 2008, that number is not likely to decrease.  Employers may therefore find this guide a useful additional tool in their efforts to remain educated on disability-related employment issues.

NLRB Gives Employees the Right to Use Company Email for Protected Communications

Breaking new ground, the National Labor Relations Board ruled last week that employees have the right to use company email during non-working time to communicate about the terms and conditions of their employment. The Board’s decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014),  overturns its 2007 decision in Register Guard, which held that employees generally do not have a right to use company email for communications protected under Section 7 of the National Labor Relations Act. Our previous posts on the Purple Communications case are here and here.

At issue in Purple Communications was an electronic communications policy that prohibited employees from using their employer’s email system except for “business purposes.” The employees worked as interpreters at various call centers and used company-provided email accounts in the course of their work. The union representing the employees claimed that the business-only email policy was unlawful on its face because it interfered with the employees’ ability to engage in union organizing efforts.

Reversing its holding in Register Guard, the Board found that it had struck the wrong balance in that decision between the rights of employees to engage in Section 7 communications and the property rights of employers in their electronic communications systems. Striking a new balance, the Board held in Purple Communications that employees who have been given access to a company email system have a presumptive right to use the system to communicate about the terms and conditions of their employment during non-working time. According the Board, a company may rebut the presumption and justify a total ban on non-work email by showing that “special circumstances” make the ban necessary to maintain production or discipline. However, absent these special circumstances, employers may impose uniform controls over their systems only to the extent that the controls are needed to maintain production and discipline.

The Board’s decision in Purple Communications leaves a number of questions unanswered, including what showing will be required to demonstrate “special circumstances” justifying a total ban on non-work email use. In addition, because the decision is limited to employee use of company email systems, questions remain as to what restrictions may be permissible concerning the use of other electronic communications systems. What is clear, however, is that with the decision in Purple Communications, the Board is taking very seriously its responsibility to adapt the NLRA to what it has described as the “changing patterns of industrial life.”

Consent is Key for BYOD

With Black Friday behind us and holiday shopping still heating up, ‘tis the season when many of us will acquire new gadgets and technology to power our digitally-enhanced lives.  For businesses, this time of year also means thinking about how best to accommodate employees who want to use their personal smartphones, tablets, or other electronic devices to connect to company networks.

BYOD (“bring your own device”) programs offer benefits to both employers and employees.  Employers, for example, benefit from reduced IT costs associated with providing expensive technology to employees, while employees benefit from the freedom to choose their own devices for work and play.   Yet the ability to access both work and personal content on a single employee-owned device presents some challenges, particularly with respect to data security and privacy.  On occasion, an employer may need to access an employee’s personal device to protect company information, such as when the employee departs or the device is lost or stolen.  However, if the employer does not have explicit authorization from the employee to access the device, it may end up having not only a disgruntled employee, but potential liability as well.

As a case in point, last month a federal district court in Texas ruled on claims asserted by an employee that his former employer violated the federal Computer Fraud and Abuse Act (“CFAA”) and other federal and state laws when it remotely accessed his personal smartphone and deleted all data on the phone, including personal and professional data, without his consent.  The employee in the case, Rajaee v. Design Tech Homes, Ltd., claimed damages to the tune of $105,100 attributable to his lost passwords, contacts, and photographs.  In this case, the court found these damages were not compensable under the CFAA on the grounds that the act covers only losses associated with investigating or responding to a violation of the act.  Because Rajaee did not produce evidence of any costs incurred to investigate or respond to the deletion of his data, the court concluded he had no losses under the CFAA, and therefore no claim.  Of course, had Rajaee established that he did incur such costs, the result in this case may very well have been different.

So, what does this mean for employers implementing BYOD programs?  At a minimum, it means that employers providing BYOD access should have policies in place describing the circumstances under which it may be necessary to access personal content on an employee’s personal device.  To allay legitimate privacy concerns, the policy should provide specific examples of when such access may be necessary, including situations involving lost or stolen devices, or technical support.  With an effective BYOD policy in place, employers should then require employees to provide written consent to the policy.

Does a Request for Disability Benefits Qualify as a Request for an Accommodation of Leave Under the ADA?

Last month, the Sixth Circuit Court of Appeals answered this question in the negative and found that an employee’s request for long-term disability benefits did not amount to a request for a reasonable accommodation in the form of leave.  As a result, the Sixth Circuit held that the employee’s failure-to-accommodate claim under the ADA failed where he could not point to any other evidence showing that he actually requested leave as a reasonable accommodation.

The employee in this case, Judge v. Landscape Forms, Inc., injured his arm while working at home.  The injury required surgery and the employee, Judge, was told by his doctor that the recovery time would be approximately four to six months.  In May 2011, Judge requested and was approved for FMLA leave until early August 2011.   During his leave, he also applied and was approved for long-term disability benefits beginning in July 2011.

Shortly before he was due to return to work, Judge informed Landscape Forms that he could not yet use his arm and that he would need six weeks of therapy.  He provided Landscape Forms a set of work restrictions, but he did not follow up or return to work after Landscape Forms asked for more clarification regarding the restrictions.  In late September 2011, Landscape Forms contacted Judge seeking information on his work restrictions.  Judge responded by faxing a note from his doctor with new work restrictions, but the note did not include any information as to Judge’s estimated date of recovery.  After receiving the doctor’s note, Landscape Forms terminated Judge on the grounds that it needed to maintain staffing levels and could not leave his position open indefinitely.   Judge was subsequently cleared to return to work without restrictions in November 2011.

Judge claimed that Landscape Forms discriminated against him and failed to accommodate his disability by not granting him leave until mid-November 2011.  The key issue for the Sixth Circuit was whether Judge actually requested leave as an accommodation and, if he did, whether the request was reasonable.  The court acknowledged that there is no “bright-line” test to determine when an employee’s request is sufficiently clear to qualify as a request for an accommodation.  However, on the facts of this case, the court found there was no evidence that Judge had ever made any statement that could be construed as a request for leave until mid-November 2011.  Although Judge argued that his request for long-term disability benefits constituted a request for an accommodation of leave, the Sixth Circuit disagreed.  Because Judge’s disability claim was processed through a third-party, which did not provide any information to Landscape Forms about the claim other than its approval, the Sixth Circuit found the request was insufficient to put Landscape Forms on notice that he was requesting leave as a reasonable accommodation or that he was seeking leave until mid-November 2011.

Given its finding that Judge never actually asked for additional leave as an accommodation, the Sixth Circuit did not reach the issue of whether the request would have been reasonable if properly made.  Had it reached this issue, the court might have had an opportunity, like the Tenth Circuit’s recent decision in Hwang v. Kansas State University, to provide additional commentary on when a request for additional leave is reasonable under the ADA, and when it is not.  Obviously, this additional commentary will have to wait for another occasion.