Legal Update

New Federal Laws on Family and Medical Leave and Disability Accommodation, Novembver 2008

The U.S. Department of Labor has released its final regulations covering the federal Family and Medical Leave Act of which you should be aware.  These regulations may be found on the DOL’s website.  The new rules substantially change the process for requesting and granting FMLA leave.  Employers should take steps to update their policies and practices before the rules become effective in January 2009.

Serious Health Condition. Employers have long struggled over how to determine whether an employee qualifies for FMLA coverage. The new FMLA rules more clearly define how many doctor’s visits are needed to qualify as a serious health condition.

Limited Communications with Health Care Providers. If an employer still has doubt about whether an employee qualifies for leave, the new rules address how the employer should communicate with the employee’s health care provider. Importantly, the new rules bar the employee’s direct supervisor from communicating directly with the employee’s health care provider. However, the rules permit certain designated management representatives, including human resource professionals, to communicate directly with the health care provider, so long as privacy protections (including HIPAA) are met.

Military Family Leave. At long last, the rules address the FMLA’s military leave provisions passed by Congress in January 2008. Under the Military Family Leave amendments, an eligible employee may take 26 workweeks of leave to care for a covered service member with a serious injury or illness during a single 12-month period. The rules broadly define “next of kin” for caregiver leave.

Exigency Leave. The rules also address what is meant by “qualifying exigency leave.” The rules permit military family members to take exigency leave to participate with service members in military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-deployment activities. The rules also provide a catch-all category for granting exigency leave for “additional activities,” where the employer and employee mutually agree that the leave qualifies and both agree to the timing and duration of the leave. Given the breadth of the regulations, employers must immediately begin updating their FMLA policies and forms so that they are ready when the new rules go into effect on January 16, 2009.

Amendments to the ADA. In addition to getting ready for FMLA changes, employers must also prepare to comply with the recent amendments to the federal disability discrimination statute, the Americans with Disabilities Act (ADA). The ADA amendments become effective on January 1, 2009. The Washington Law Against Discrimination already provides broad protection to employees with disabilities under amendments adopted by the Washington Legislature in 2007. However, the new federal amendments provide even greater protections in some areas, particularly with regard to the accommodation process.

Practical Advice to Minimize Exposure:

• Update your handbook’s FMLA policy to provide guidance to employees on the new military family leave for exigencies and caregivers
• Train managers and supervisors about the new FMLA rules so that they properly refer questions involving disabilities or medical leave to Human Resources
• Train managers and supervisors about the new disability discrimination laws to avoid claims for discrimination in hiring, firing, and accommodating employees’ medical conditions
• Ensure that Human Resources has training, tools and updated forms and to comply with the new laws when they become effective in January 2009

These materials are for informational purposes only. If I can be of any further assistance to you or your clients, please do not hesitate to contact me. 

Changes in Washington Law on Independent Contractors, September 2008

I want to make you aware of a recent change in our state law on independent contractors.  This change became effective this past June and it may impact your business and/or that of your clients. 

As of June 12, 2008, changes were made in two specific areas.  First, the new law requires that all independent contractors have a current business registration with the state Department of Revenue.  Second, for construction contractors, the new law specifies that an independent contractor must have a current L&I construction contractor registration. The revised law includes a specific set of requirements just for the construction industry because of this one requirement. Otherwise, the requirements in the construction industry test are exactly the same as before and exactly the same as requirements for all other industries.

Those requirements for exemption are made up of a six-part test.  Specifically, a person is exempt from mandatory coverage for industrial insurance and unemployment coverage if all six parts of the following test are met.

1. He or she is free from control and direction over the performance of their services. 

Note:  You are not supervising if you are only scheduling and inspecting the work. You are supervising if you are telling your worker or a subcontractor’s workers how to do the job, assigning tasks, training, keeping time sheets, paying a wage or setting regular hours.

2. The service he or she provides is outside the usual course of your business or outside all the places you do business or the individual is responsible for the costs of the principle place of business from which the service is performed. 

Note:  A cell phone and a truck is not enough. You need to visit his or her place of business and make sure.

3.  He or she is engaged in an independently established trade of the same nature as your contract with him or her or the individual has a principle place of business eligible for IRS business declaration.  

Note:  Does the individual have an established, independent business that existed before you hired them? Evidence may include other customers or advertising.

4.  The individual is responsible for filing a schedule of expense and income with the IRS for the business, and

5.  On the effective date of contract or within a reasonable period, he or she has established required accounts with state agencies, and

6.  The individual maintains a separate set of books and records that reflect items of income and expense for the business. 

You can also find a step-by-step checklist for independent contractors on the L&I web site at: www.Lni.wa.gov/TradesLicensing/Contractors/HireCon/IndContractor/Q1.asp 

If you’re interested, you can also review changes in the law made by the Legislature at: apps.leg.wa.gov/billinfo/summary.aspx?bill=3122&year=2007.  

If an individual is improperly considered an independent contractor when they should be a covered employee, you can be subject to monetary penalties and back coverage payments. 

Practical Advice:  In the past, many employers have simply presumed that their contractors maintain the documents necessary to establish themselves as exempt.  Given this change in the law, I am now advising clients to require that their contractors provide them with copies of their current business registration with the State DOR and that they maintain those documents along with the applicable contract in their files.  As an alternative, you can confirm a contractor’s UBI number on line by checking Washington's DOR tax registration account: http://dor.wa.gov/content/doingbusiness/registermybusiness/brd/                                                  

These materials are for informational purposes only. If I can be of any further assistance to you or your clients, please do not hesitate to contact me. 

Washington State Family Leave Act In Line With The Feds, July 2006

Effective June 7, 2006, the legislature amended our state Family Care Act so that it is more closely aligned with the federal Family and Medical Leave Act ("FMLA").  On the employer-side, these changes reduce the minimum employee threshold from 100 to 50 employees.  From the employee's perspective, a qualifying employee now need only work 1,250 hours in the past 12 months as compared to the previously required 1,820.  If these threshold criteria are met, an employee is entitled to 12 weeks unpaid leave to care for (a) a newborn or newly adopted or foster child, (b) to recover from the employee's own serious health condition, or (c) to care for a child, spouse, or parent with a serious health condition.     Additionally, the legislature clarified what we have long suspected, that under the Washington state statute, women are entitled to their 12 weeks unpaid FMLA leave in addition to any period of disability due to pregnancy or childbirth.  An important little distinction to note is that, while neither Washington State nor federal law requires that employers pay employees who are out on such leave, the Washington State Family Care Act does allow workers who have available paid sick leave, or other accrued paid time off, to use that paid leave to care for a sick child with even a routine illness, a spouse, a parent, parent-in-law, or grandparent with a serious or emergency health condition, or an adult child with a disability.Additionally, and always, employers must remember that the Washington Law Against Discrimination mandates reasonable accommodation of all employees with disabilities.  As a result, obligations under the WLAD should always be carefully considered when assessing any disability-related leave.  Action Steps: Washington employers, including employers based in other states but with facilities in Washington, must review and revise their policies and practices regarding medical leave. Employers should also consider providing additional training in this area, to familiarize managers with the coverage of the new law.

These materials are for informational purposes only.

Washington Law Amended to Add Sexual Orientation, April 2006

The Washington State Legislature has amended Washington’s Law against Discrimination (WLAD), adding sexual orientation to the list of prohibited categories of discrimination in housing and employment. Gov. Christine Gregoire signed House Bill 2661, Jan. 31. The amendment will became effective 90 days thereafter, on May 1, 2006.

The law defines “sexual orientation” to include “heterosexuality, homosexuality, bisexuality, and gender expression or identity.”

“Gender expression or identity” is in turn defined as “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.”

This term, “gender expression and identity,” will certainly be the subject of future litigation. Prudence suggests it should be given a broad reading to include others, such as, for example, transsexuals. The new statute expressly does not address state marriage laws or issues such as same-sex marriage or civil unions.

Washington joins California and Oregon in its inclusion of sexual orientation as a protected class. A number of Washington cities and counties already had ordinances in place prohibiting discrimination on the basis of sexual orientation, including the cities of Seattle, Tacoma, and Spokane, and the counties of King, Snohomish and Pierce. None of these local jurisdictions, however, had established protections for “gender expression or identity” such as the amendment to the WLAD. This is a far broader category than had previously existed in any Washington jurisdiction.

It will be interesting to monitor how Washington will proceed in its application and interpretation of existing and potential future regulations as they related with the rights of domestic partners and sexual orientation protection.

Action Steps: Washington employers, including employers based in other states but with facilities in Washington, must review and revise their policies and practices, in particular their antidiscrimination and anti-harassment policies and practices, to bar discrimination on the basis of sexual orientation, including gender expression and identity. Employers should also consider providing additional training in this area, to familiarize all employees with the coverage of the new law.

These materials are for informational purposes only.