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An Unreasonable Accommodation Just Became Reasonable

On January 1st, 2018, New Yorkers woke up hungover, hungry for brunch, and the proud owners of the country's most generous and progressive Paid Family Leave policy. Mazel Tov! My cozy lil state is always competing against California and Massachusetts to be the Most Difficult State in Which to Do Business (But Also Kindest to Employees), and this is a big step in that direction. 

Let's leave aside whether this is a good thing or a bad thing, because in my recent work page I have a talk about gender wage gap and leave laws you can check out, I'd like to talk about unintended consequences. In the lawmaking process, there are (hopefully) a lot of experts involved in the process to help you understand the implications of the words you're putting on paper. There's a lot of legal jargon that seems silly, but is carefully written to ensure you don't accidentally make corporations pay hundreds of millions of dollars in taxes because you left out a word or two

So, like any responsible HR professional, when the new Paid Family Leave law came out in New York, I set about reading it. Let's see here...multi-year phase in...state average weekly wage...middle middle middle...can run concurrently with FMLA but not disability. Okay, sounds pretty good. One thing stood out to me, however. The paid family leave can run concurrently with FMLA (expected) but not disability (unexpected).

Let's use a hypothetical scenario so I can further illustrate this for you. Let's say you have an employee in New York (and yes, this law applies to you even if you have a sole employee in New York and 5,000 employees in Texas). That employee is pregnant and would like to begin planning their leave of absence. A good HR practitioner wants to ensure that the person is not out for longer than their allotted time. In a business that is required to comply with the Family and Medical Leave Act, that means no longer than 12 weeks. This is a special marker: if you allow someone to linger longer than the twelve weeks, all of a sudden you're getting into murky territory. You can't do for one and not others. On the other hand, what if they only need an extra two weeks? According to the Americans with Disabilities Act, that would be a reasonable accommodation, under most circumstances. You're starting to see why I'm paid so well...

There's a limit, though, to how much accommodating a business can be expected to do, and that's generally been a month. After that, it's unreasonable to hold someone's job open any longer. A good HR practitioner carefully manages the communication to the employee, a collaborative process with that individual, to try to make a successful return for that person to work, if possible. If not possible, they must manage that person's separation from employment carefully without running afoul of discriminatory practices. It's a delicate dance. If, by past precedent, any of these factors are not adhered to, the dance falls apart.

Back to our pregnant employee. She elects FMLA (12 weeks) and New York State disability (let's say she gets six weeks). These leaves are concurrent. She is also entitled to elect (in 2018) eight weeks of Paid Family Leave to bond with her new baby, which runs concurrently with FMLA, but because this leave protects both her job and her pay, she doesn't need FMLA to be running to continue her leave. When her FMLA runs out, it means nothing, because she still has two weeks of PFL left. This is going to be a matter of course for the business. Let's make a chart!

So, if the business is regularly giving some people fourteen weeks of job-protected leave and it's not a hardship to the business, it would be difficult to argue that anyone else that's entitled to an FMLA absence for a disability wouldn't also be able to take up to fourteen weeks, if they needed it. Now, that's not so bad, because prior case precedent had already provided us some guidance that up to a month was still considered a reasonable accommodation. But bear in mind - when the law is fully implemented, that PFL will be twelve weeks, not eight. Some deliveries get approved for eight weeks of disability, not six. It's entirely possible for women to be approved for twenty weeks of job-protected, paid leave (although not well paid, mind you) and the business cannot say no. So how do they then fail to protect the job of a different person later? All of a sudden, what was unreasonable before January 1, 2018 just because a matter of course.

I'm certainly open to hearing others' thoughts! But this was mine. I tagged Governor Cuomo in one of my posts, but I don't think he's a regular reader, so I'm not sure I'll hear from him. But attorneys, HR practitioners and business owners - I'd love to hear from you!

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