Arbitrating AttendanceDevelopments in the Laws Protecting

Absences from Work

38th Annual Labor-Management ConferenceNational Academy of Arbitrators – Southwest/Rocky Mountain Region

Carl C. Bosland

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.

Workplace Rules Governing Attendance

CBA Regular and predictable

attendance. No fault attendance

policies. Just cause.

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.

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.

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.

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

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

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.

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

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

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

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.

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.

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.

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)

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.

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.

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

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.

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.

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.

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.

QUESTIONS?