6/29/2015

A New Season for Family Matters

Legal developments that will impact how employers deal with certain employees on family-related issues.

By Matthew Bakota , Stephen Watring

In the 90s sitcom, Family Matters, police officer Carl Winslow had his hands full with one family issue after another. Luckily for Carl, many of the issues resolved in just half an hour, subject of course to a few commercial interruptions and regular interference by the world’s most annoying neighbor, Steve Urkel.

Just like Carl Winslow, many in the workforce encounter one family-related challenge after another when they’re off the clock. Unfortunately, most of these real-world family matters aren’t wrapped up in just 30 minutes with a big family hug and a one-liner from Urkel to close things out. In the real world, family issues are constant and bleed into the workplace. Family matters can be very delicate territory for employers, and the law surrounding such issues is continuing to change and evolve, particularly in the current political climate.

Already in 2015, we have seen noteworthy developments that will impact how employers deal with certain employees on some important family-related issues.

Pregnancy Discrimination

In March, the U.S. Supreme Court’s decision in UPS v. Young impacted employers that provide light-duty positions to certain categories of workers, such as workers’ compensation claimants, but do not make the same accommodations available to pregnant women. Such policies have been used fairly commonly by organizations as a way to try to control costs associated with workers’ compensation claims. Their effectiveness, however, depends in large part upon employers actually being able to limit eligibility for the positions.

In the past, a policy like the one described above would have been considered pregnancy neutral and, therefore, nondiscriminatory. That likely would have been the case even if the option made available to pregnant workers was unpaid leave. Now, after UPS v. Young, employers that have such a policy may be subject to a discrimination claim under the Pregnancy Discrimination Act if their policy imposes a significant burden on pregnant workers without a sufficiently strong justification for doing so.

The court’s decision suggests that it will be difficult for employers to show a strong justification simply by claiming that it is more expensive or less convenient to add pregnant women to the list of employees that can be accommodated. Additionally, where the employer has a history of accommodating a large number of employees under the policy, courts probably will be skeptical of claims that pregnant women cannot also be included with those already being accommodated under the policy. In analyzing the UPS policy at issue, one justice asked, “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?” 

UPS actually revised its own policy during the course of the litigation, and now other employers must consider whether they, too, should amend their own light-duty policies (and perhaps others) to treat pregnant workers the same as other workers who are similar in their ability to work. In addition to mitigating the risk of a pregnancy discrimination claim, a revised approach may be necessary to help employers comply with disability antidiscrimination laws, too. Amendments to the Americans with Disabilities Act in 2008 already had established a framework under which employers should have been analyzing accommodations for women with pregnancy-related conditions that meet that act’s definition of a “disability.”

That notwithstanding, there are traps for unwary employers that go too far in attempting to cater to pregnant workers. Much like Urkel seemed to pop up whenever Carl sat down to relax, other issues can arise just when an employer thinks it has gone above and beyond in doing the “right” thing.

Pregnancy discrimination also can occur when employers make assumptions about what pregnant workers can and can’t—or should and shouldn’t—do when it comes to physical activity in the workplace. While it is important for employers to properly respond to requests for accommodations, employers should avoid imposing their own limitations on pregnant workers who haven’t asked for them. Employers also should continue to avoid making other employment-related decisions—such as promotion, demotion, or transfer—based on pregnancy.

Expansion of FMLA

In March, new U.S. Department of Labor (DOL) regulations went into effect to redefine the term “spouse” for purposes of the Family and Medical Leave Act (FMLA). Under the regulations, “spouse” now includes individuals within same-sex marriages.

Prior to the enactment of these regulations, some employers in states that do not recognize same-sex marriage may have been offering FMLA benefits to employees in same-sex marriages without being legally required to do so. Now, such a requirement exists, according to the new DOL regulations.

A handful of states have challenged these regulations, however. Just before the regulations went into effect, Texas, Arkansas, Louisiana, and Nebraska filed suit in a Texas federal court seeking an injunction to prevent the regulations from being enforced because they conflicted with those states’ marriage laws. The Texas federal court issued the requested injunction, and at this time, the DOL seems to be waiting for the outcome of this and certain other lawsuits before it seeks to enforce the regulations in these four states.

Employers should be aware of these new FMLA regulations because the DOL will be enforcing them in the other states. Additionally, employers should continue to be on the lookout for further developments along these lines from active federal agencies that are making sexual orientation an area of focus.

For employers, these are sensitive issues indeed. There is every reason to expect that we could be in for even more news as days go by in the second half of 2015. So be sure to stay tuned because, when it comes to labor and employment law, family issues most certainly matter.  



Matthew Bakota, JD, PHR, is an attorney in the labor and employment group at CLM Member Firm Dunlevey Mahan & Furry. He can be reached at mjb@dmfdayton.com, www.dmfdayton.com.

Stephen Watring is an attorney in the labor and employment group at CLM Member Firm Dunlevey Mahan & Furry. He can be reached at saw@dmfdayton.com, www.dmfdayton.com.

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