Arbitrating Attendance Developments in the Laws Protecting Absences from Work

1. Arbitrating AttendanceDevelopments in the Laws Protecting Absences from Work 38th Annual Labor-Management Conference National Academy of Arbitrators – Southwest/Rocky Mountain Region Carl C. Bosland

2. Disclaimer The views expressed in this presentation are those of Mr. Bosland in his private capacity and do not necessarily represent the views of, and should not be attributed to, the United States Postal Service.

3. Workplace Rules Governing Attendance • CBA • Regular and predictable attendance. • No fault attendance policies. • Just cause.

4. Leave • Permissible absence w/o penalty. • Employee benefit. • Approval management right/responsibility. • Types: maternity, disability, vacation, dependent care, family, bereavement, military, jury duty, religious, sick, personal, union. • Statutory mandates.

5. Lactation Breaks • Patient Protection and Affordable Care Act. • Amended Section 7 of the FLSA- OT Provisions. • Effective March 23, 2010. • Reasonable time for an employee to express milk for her nursing child during 1st year after child's birth. • Private place other than bathroom. • Only applies to nonexempt EEs. • All ERs w/ 50 or more EEs; all government ERs. • ERs with less than 50 EEs – unless undue hardship. • Unpaid, unless ER provides compensated breaks. • State laws.

6. Reasonable Accommodation of the Disabled • ADA/ADAAA/Rehabilitation Act/State laws • Regular and predictable attendance an essential job function. • Leave as a reasonable accommodation. • Reason for leave. • EE proof of reasonableness. • ER proof of undue hardship.

7. Leave as Reasonable Accommodation of the Disabled • Length of leave • Indefinite leave • Leave in excess of FMLA • ER leave caps • Return to work w/ no restrictions • EEOC Guidance- unfulfilled promise • State and local laws

8. Reasonable Accommodation under the Pregnancy Discrimination Act • Young v. UPS • 7-14-2014 EEOC Guidance • ERs must treat EEs temporarily unable to perform the functions of her job due to pregnancy as it treats others similarly unable to work, including disability leave and leave without pay. • Equal parental leave to bond/care for new child for men and women. • Lactation leave/breaks. • State/City Laws

9. Paid Sick Leave • President Obama 2015 Initiatives • Healthy Families Act – 7 days/year. • Federal employees up to 6 weeks of paid sick leave for a new child and to care for ill family members. • Included in 2015 budget support for state paid leave initiatives.

10. Paid Sick Leave: States • California • 7/15 effective • All ERs • CA employee 30 days or more/year • 1 hour for every 30 hours worked • Leave rolls over • For themselves or family member • Massachusetts • 11/14 voter initiative; effective 7/15 • 1 hour for every 30 hours worked; 40 hours cap • 11 or more EEs • Leave carryover

11. Paid Sick Leave: City • City Initiatives • NYC Earned Sick Time Act • Jersey City Paid Sick Leave Law • Portland Paid Sick Leave Law • 10 States Ban City Initiatives • GA, WI, LA, NC, TN, MS, KS, IN, FL, AZ

12. Federal Family Medical Leave • 4 Federal Variants. • Many similar state and local laws. • Basic annual entitlement • 12 weeks unpaid leave birth, adoption, foster care, serious health condition, qualifying military exigency leave • 26 weeks of unpaid military caregiver leave • Leave needed by EE or for covered family member • Right to return to same/equivalent position • ER Coverage • EE Eligibility • EE/ER notice requirements • Certification Requirements

13. Federal Family Medical Leave: Same Sex Marriage • U.S. v. Windsor, 123 S. Ct. 2675 (June 2013) • Defense of Marriage Act (DOMA). • DOL Notice of Proposed Rulemaking (June 27, 2014) • Where marriage entered into, not where EE resides • 36 States recognize same sex marriage. • 14 States ban same sex marriage. • 1/16/2015 U.S. Supreme Court agrees to hear decisions overruling state bans on same sex marriage.

14. Federal Family Medical Leave:More Generous Eligibility Requirements • Tilley v. Kalamazoo County Road Commission, No. 14-1679 (6th Cir. Jan. 26, 2015) • ER equitably stopped from denying EE was not eligible for FMLA leave where employee handbook did not include statutory 50/75 eligibility requirement.

15. Federal Family Medical Leave Act:Viva Las Vegas! • Beverly Chicago Park District, No. 13-1445 (7th Cir. Jan. 28, 2014) • Sarah's basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and Beverly continued to assist her with those needs during the trip. In fact, as the district court observed, Beverly's presence proved quite important indeed when a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of insulin and pain medicine. Thus, at the very least, Ballard requested leave in order to provide physical care. That, in turn, is enough to satisfy 29 U.S.C. § 2612(a)(1)(C)." • Split in Circuits.

16. Federal Family Medical Leave Act:Employer Notice • ER notices by Email not reliable • Gardner v. Detroit Entertainment LLC, No. 12-14870 (E.D. Mich. Oct. 15, 2014) • ER mailed notices not reliable • Lupyan v. Corinthian College, Inc., No. 13-1843 (3d Cir. Aug. 5, 2014)

17. Federal Family Medical Leave:Intermittent Leave & Drs. Notes • Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Ore. Feb. 19, 2014) • ER policy requiring Drs. note for every absence, including FMLA intermittent absences, violates the FMLA recertification procedures.

18. Religious Accommodation • 2014 EEOC Stats- 120% increase in religious discrimination claims since 1997. • Title VII • Prohibits religious discrimination. • Requires reasonable accommodation. • Undue hardship defense- de minimis standard.

19. Religious Accommodation: Prayer breaks • EEOC v. JBS USA, LLC, 8:10-CV318 (D. Neb. 10/13/2013) • Nebraska meatpacking plant. • Pattern & Practice suit on behalf of 153 Somali Muslim employees & individual claims. • Prayer breaks and mass meal at sunset. • ER established more than de minimis undue hardship defense: • Operational efficiency • Employee safety • Food safety

20. Religious Accommodation: Time off work • Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013) • Request by employee to travel to Nigeria to attend father’s funeral. • Emails referencing “funeral ceremony,” a “funeral rite,” that attendance was ”compulsory,” and that failure to attend would result in “spiritual death" sufficient notice that he was requesting religious accommodation.

21. Uniformed Services Employment and Reemployment Rights Act (USERRA) • 895,000 Guard and Reserve forces have served on operational active duty since 9-11. • Job protections including reinstatement rights to employees who participate in military service. • Broad ER coverage. • Prohibits discrimination b/c of military service. • Prohibits denial of employment benefits. • Reemployment rights & escalator principle. • Arbitration of USERRA claims.

22. USERRA:Leaves of Absence • Required to permit employee to satisfy military obligations. • Army, Navy, Air Force, Marines, Army National Guard, Air National Guard, FT National Guard duty, Commission corps of Public Health Service • Reasons for taking leave. • Active duty. • Active duty for training. • Initial active duty for training. • Inactive duty training. • FT National Guard duty; and • Absences for FFD exam for any of the above types of duty. • EE notice requirements • Duration – up to 5 cumulative years. • Benefits during leave. • Reinstatement.

23. Final Thoughts • Regular and predictable attendance is generally an essential job function. • Just cause principles apply. • Many federal, state, and local exceptions protecting workplace absences.

24. QUESTIONS?