Hyderally & Associates, P.C. March 2018 Newsletter
LAD PROTECTIONS EXTENDED TO BREASTFEEDING WOMEN
On January 8, 2018, then-Governor Chris Christie signed into law an amendment to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (the “LAD”), adding “breastfeeding” as a protected category. Employers, as well as those engaged in real estate sales and leasing, lending, and various places of public accommodation, are now expressly prohibited from discriminating based upon breastfeeding.
This amendment follows the amendment to the LAD passed in 2014 which added pregnancy as a protected category and provided express protections for pregnant employees. That amendment provided as examples of accommodations for pregnant employees: “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work, for needs related to the pregnancy when the employee, based on the advice of her physician, requests the accommodation.” The new amendment adding breastfeeding as a protected category under the LAD includes additional specific examples which employers should provide to breastfeeding employees, such as: “reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.” The employer cannot refuse to provide such accommodations unless the employer can show that doing so would be an undue hardship on the employer’s business operations.
The new law also expands protections by broadly defining “pregnancy or breastfeeding” to include “pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, or childbirth, or breastfeeding, including recovery from childbirth.”
Although the new law expressly states that it does not increase or decrease an employee’s rights to paid or unpaid leave in connection with pregnancy or breastfeeding, the impact of the law may effectively increase a breastfeeding employee’s rights to leave under existing law in some situations, since reasonable accommodations under the LAD for protected classes may include a leave of absence. See Santiago v. County of Passaic, 2009 N.J. Super. Unpub. LEXIS 441, *13 (App. Div.) (observing that New Jersey courts have indicated that leave of absence may constitute reasonable accommodation under LAD). Prior to the passage of this amendment, breastfeeding itself was not a protected category for which an employee could claim the employer had any duty to reasonably accommodate the employee by way of leave time. However, now that breastfeeding has been defined as a protected category, a leave of absence for a breastfeeding employee may in some circumstances constitute a reasonable accommodation under the LAD. In addition, although the law presumably applies to breastfeeding mothers, as stated in the synopsis of the Act, there is no express language in the Act itself limiting the definition of breastfeeding women to mothers. Thus, arguments may be made that in addition to mothers, the law also covers women breastfeeding children other than their own, or expressing breast milk for others.
Francine Foner, Esq., Ty Hyderally, Esq.
Hyderally & Associates, P.C.
THE ADA EDUCATION AND REFORM ACT
For almost thirty years the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., has helped remove barriers for people with disabilities. On February 15, 2018, the House voted 225-192 to pass H.R. 620, “The ADA Education and Reform Act” (the “Act”). The Act is aimed at curbing lawsuits under the ADA that supporters claim are intended solely to extort settlements from businesses by threatening litigation, without actually seeking to improve access for people with disabilities.
Under the ADA, every business that serves the public must ensure that customers with disabilities have equal access. If businesses do not comply, they can be sued without warning. If the bill is enacted, the law would require that prior to filing a lawsuit, 60 days’ written notice be given to business owners detailing the alleged illegal barrier to access, along with 60 additional days to come up with a plan to address the complaints, and an additional 60 days to take action; only if the business does not comply within the respective time periods may the lawsuit then be filed.
Supporters of the bill believe that a goal of the ADA is to put businesses on notice, not to sue companies for violations they may not be aware of. Those favoring the bill’s passage assert that the policies underlying the Act are aimed at providing greater access to public places for people with disabilities, and to allow business owners to focus on making their properties handicap accessible, not defending themselves against unfounded claims. Many businesses currently deal with “drive-by” lawsuits, which involve allegedly injured plaintiffs who never actually intend on being a customer to the business, but merely drive from business to business collecting addresses and notating insignificant and technical ADA violations. This bill was passed to prevent such lawsuits.
The bill has encountered opposition from those who counter that, if enacted, it would undermine the goals of the ADA by eliminating any incentive for businesses to comply with the law, resulting in fewer accommodations for people with disabilities. Critics argue that the House is moving backwards in improving the lives of people with disabilities by making it more difficult, rather than easier, for people with disabilities to live independent lives. As of this writing, the future of the bill has yet to be determined in the Senate.
Francine Foner, Esq., Ty Hyderally, Esq., and Shamola Bonner
Hyderally & Associates, P.C.
PROPOSED PAID FAMILY LEAVE LAWS
The only federal protection families currently have for family and medical leave is through the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. The FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year following the birth of a child, a personal or family illness, or to take care of a sick family member. The current law only applies to companies with 50 or more employees. However, there is currently no federal law providing for paid family leave. Various bills have been introduced in the House and Senate to provide for compensation to employees taking family leave who work in states that do not have any laws providing for paid family leave, or state insurance coverage during periods of unpaid family leave. However, to date, such bills have yet to become law.
On February 7, 2017, democratic lawmakers introduced the Family and Medical Insurance Leave Act or “the Family Act,” in the House (H.R. 947) and Senate (S. 227). The bill would establish the Office of Paid Family and Medical Leave within the Social Security Administration. Under the Family Act, a family and medical leave insurance benefit payment would be available to individuals meeting specified criteria for up to 60 qualified caregiving days in a one-year period. However, since being introduced and referred to committee, no further action has been taken on this bill. (Congress.gov).
On July 28, 2017 and August 2, 2017, Republican lawmakers introduced the Strong Families Act in the House (H.R. 3595) and Senate (S. 1716), respectively. The Strong Families Act would: (1) allow certain employers a business-related tax credit for a specified percentage (not to exceed 25%) of the amount of wages paid to their employees during any period (not exceeding 12 weeks) in which such employees are on family and medical leave, (2) limit the allowable amount of such credit based upon actual services performed for the employer and the number of hours (or fraction thereof) for which family and medical leave is taken, and (3) terminate such credit five years after the enactment of the bill. The bill also proposes that the Government Accountability Office complete a study on the effectiveness of the tax credit for paid family and medical leave. Thus, this bill does not appear to compel an employer to provide any paid leave. Rather, it provides tax incentives to employers who voluntarily decide to provide paid leave to their employees. Nonetheless, since its introduction, nothing further has happened toward this bill’s enactment.( Congress.Gov).
More recently, the Trump Administration included one paragraph in its 160-page budget proposal for 2019 devoted to its plan for paid family leave for new parents. The proposal states only that it would provide six weeks of paid family leave to new mothers and fathers, including adoptive parents, to take time to recover from childbirth and bond with a new child, and that it would use the unemployment insurance system as a base to allow states to establish paid parental leave programs. The reference to family leave in the proposed 2019 budget of the U.S. Government neither provides any details nor explains how the benefit would work. Further, it is important to note that this purported program is for only six weeks, not the 12 weeks of leave provided under the FMLA, and only applies to new parents attending to children as a result of childbirth or adoption. Thus, those taking FMLA leave related to a family member’s or their own illness would not be covered under this plan.
Thus, it remains to be seen whether a federal paid family and medical leave law, which would provide universal access to paid family and medical leave, will come to pass any time in the near future. However, some states currently have laws which assist with compensating employees during unpaid family leave periods. For example, California, which was the first state to offer compensation for employees taking family leave through the creation of a temporary disability insurance program, provides up to six weeks of insurance coverage to new parents for a portion of their salary during the leave. As of January 1, 2018, New York’s Paid Family Leave law provides New Yorkers with job-protected, paid leave to care for a new child, a loved one with a serious health condition, or to help adjust to having a family member called to active duty abroad. New Jersey offers New Jersey Family Leave Insurance, which provides up to six weeks of coverage of two-thirds of an employee’s salary, up to a set amount, during a family leave under the FMLA or New Jersey Family Leave Act (“NJFLA”). However, job security for employees on family leave in New Jersey, whether under the FMLA or the NJFLA, continues to be limited to employees working for companies who employ 50 or more employees.
Francine Foner, Esq., Ty Hyderally, Esq., and Shamola Bonner
These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.