State Family Leave | Family Member Eviction | Job Duties

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New York One-Ups The FMLA With Paid Leave

New York One-Ups The FMLA With Paid Leave

By now, most employers in New York know about the newly enacted “New York Paid Family Leave Law” (the “PFLL”), which — unlike its federal counterpart, the “Family Medical Leave Act” (FMLA) — provides wage replacement for eligible employees to bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service. This program is financed almost exclusively through modest payroll
deductions from all employees, depending on salary, with the maximum weekly deduction currently being $1.65. Like its federal counterpart, the PFLL guarantees employees can continue their health insurance during leave, and return to their job upon its conclusion.

Under the PFLL, the benefits for eligible employees are being phased-in beginning in January 2018, providing employees with 50% of their weekly salary or the average weekly State wage — whichever is lower — for eight weeks, and maxing out in January 2021 with 67% of an employee’s weekly salary or the average weekly State wage — whichever is lower — for twelve full weeks. Employers subject to PFLL can begin collecting advance premiums July 1, for the impending January 1, 2018 effective date.

The question then is: Am I an “employer” subject to PFLL? If you are a private employer, the answer is almost without exception, “yes.” If you are a public employer, the answer is, “maybe” and “if you want to be.” Under the PFLL, the definition of “Employer” specifically exempts “the state, a municipal corporation, local governmental agency, other political subdivisions or public authority.” However, the legislature enacted a specific section of the Law for public employers. In pertinent part, it states:

(a) An employee organization may, pursuant to collective bargaining, opt into paid family leave benefits on behalf of those public employees it is either certified or recognized to represent, within the meaning of article fourteen of the civil service law. Nothing in this section shall prohibit an agreement to opt in to paid family leave between the employee organization and any public employer. An employee organization that has opted in to paid family leave benefits may, pursuant to collective bargaining, opt out of it as is mutually agreed upon between the employee organization and any public employer.

(b) For public employees who are not represented by an employee organization, the public employer may opt-in to paid family leave benefits within ninety days’ notice to such public employees. Following opt-in by a public employer for public employees not represented by an employee organization, the public employer may opt-out of paid family leave benefits with twelve months’ notice to those public employees.

PFLL § 212-b(3)(a), (b).

Thus, if your employees are organized, i.e, unionized, then it will require a provision in a new collective bargaining agreement, or an amendment to an existing collective bargaining agreement to opt-in to PFLL. If your employees are not organized, then you can opt-in to PFLL unilaterally by providing the required notice to the employees. But until one of those two things happen, your employees will not have access to the PFLL benefits (or payroll deductions). It is noted that where both are applicable the PFLL will run concurrently with the FMLA — it does not provide employees with an additional 8 weeks of leave.

All private employers, and public employers who decide to either collectively bargain and opt-in, or unilaterally opt in, as provided above, are required to amend their employee handbooks to detail the rules surrounding, and benefits provided by the new Paid Family Leave law. Employers required to provide such benefits are encouraged to speak with their insurance representative about obtaining an adequate policy.

Adult Family Members May Be Subject to a Summary Eviction Proceeding

New Law on “Exhibition” in Post-Foreclosure Action

In Heckman v. Heckman, the Appellate Term reversed a decision of the District Court of Suffolk County, which had dismissed the petition in a holdover summary proceeding on what many Courts have considered to be the so-called “familial exception” to eviction by summary proceeding. Some lower District Courts routinely dismissed summary proceedings commenced by a spouse against a spouse, unmarried co-habitants and between close adult family members (parents against adult children, for example). The Appellate Term recently clarified the exception.

According to the decision, petitioner, the daughter of the deceased former owner of the premises and the trustee of a trust which is now the current owner of the premises, brought a holdover summary proceeding in her capacity as trustee, pursuant to the Real Property Actions and Proceedings Law (“RPAPL”) alleging that the occupant, the daughter-in-law of the deceased former owner, is a licensee whose license had been revoked. Following a non-jury trial, the District Court dismissed the petition, finding that the occupant is a licensee, but that occupant had established the applicability of the so-called “familial exception” to eviction by summary proceeding. Absent her appeal, the petitioner would have been relegated to a plenary action in ejectment — which takes much longer — because a summary proceeding under the RPAPL was no longer available.

New York recognizes a difference between a lease of property that creates a landlord-tenant relationship and a mere license to use or occupy property. According to our State’s highest Court, a license “is a personal, revocable and non-assignable privileged, conferred either by writing or parole, to do one or more acts upon land without possessing any interest therein.” In other words, it is the “authority to do a particular act or series of acts upon another’s land, which would amount to a trespass without such permission.” A lease, on the other hand, is the transfer of an estate or interest in a designated portion of real estate, whereby the landlord yields up to the tenant exclusive possession of such designated portion of real estate for a specific term.” The biggest difference is that in a lease the owner “surrenders absolute possession and control” of the property to another for an agreed-upon rental, thereby creating an interest or estate in the land. A license is not an interest or estate in the land. Under the State statute, a license is revocable, even if a consideration is paid for the license, at the option of the licensor, on 10 days’ notice to quit.

Here, the Appellate Term recognized that a summary proceeding may be maintained only where authorized by statute, and that RPAPL 713 is the statutory source for summary proceedings where there is no “landlord-tenant relationship” between the parties. RPAPL 713(7)(b) permits a summary proceeding against persons who are in occupancy of real property pursuant to a “license which has been revoked.” Here, the District Court, while finding that occupant is a licensee, nevertheless refused to allow petitioner, in her capacity as trustee to a summary eviction, invoking the so-called “familial exception.”

The Appellate Term reversed that decision finding that “the relevant appellate case law provides no basis for a court, upon determining that an individual falls within a category of respondents that are subject to eviction pursuant to RPAPL 713 (or for that matter RPAPL 711), to dismiss the petition because of a “familial exception.”

The Appellate Term’s analysis began with an Appellate Division decision from 1963 in Rosenstiel v. Rosenstiel, in which that Court held a summary proceeding by a husband against a wife did not lie in a situation where “possession of the premises exists because of special rights incidental to the marriage contract and relationship,” and not by virtue of a license or any other special arrangement with her husband. The Appellate Division’s determination that the respondent could not be found to be a licensee, as the Appellate Term reasoned, “[w]as based upon the existence of a support obligation, which obligation is recognized to extend to either spouse and to minor children.” The Appellate Term stated, however, “[i]nsituations in which such an obligation did not exist or had been fully satisfied, appellate courts have found the existence of a license and allowed the maintenance of summary proceedings by a husband against his wife.” “Despite these appellate cases, some lower courts began to rely on Rosenstiel, even in the absence of legal support obligations, to hold that a summary proceeding against an unmarried cohabitant did not lie because ‘unmarried occupants who reside together as husband and wife acquire some rights with respect to continued occupancy of the apartment they shared not unlike those acquired by a spouse,’” thus creating what became known as the “familial exception” to the maintenance of a summary proceeding brought pursuant to RPAPL 713 (7).

The Appellate Term concluded that there is no bar to the maintenance of a licensee proceeding in situations in which the occupant can properly be held to be a licensee, while recognizing that there are familial relationships that will prevent an occupant from fitting into a category of respondent subject to eviction pursuant to RPAPL 713.

The final judgment was reversed and the matter was remitted to the District Court for the entry of a final judgment awarding possession to petitioner.

Pharmacist’s “Fear Of Needles” Challenge Was In Vain

Pharmacist’s “Fear Of Needles” Challenge Was In Vain

In Stevens v. Rite Aid Corporation, a pharmacist who suffered from trypanophobia, or fear of needles, brought action against his former employer under the Americans with Disabilities Act (ADA) and similar state laws, after he was discharged because he could not comply with company policy that required pharmacists to administer immunization injections to customers. Following a trial, the jury awarded substantial damages to the employee on his claims of wrongful termination, retaliation, and failure to accommodate. The employer moved for judgment as a matter of law or, in the alternative, for new trial, and employee moved to amend the judgment to add pre-and post-verdict interest. The United States District Court for the Northern District of New York entered an order dismissing the employee’s failure-to-accommodate claim and denying the employer judgment as a matter of law on the wrongful discharge and retaliation claims. Both parties appealed to the Second Circuit Court of Appeals.

According to the Second Circuit, in 2011, the employer, “Rite Aid, and other large pharmacy chains, started requiring pharmacists to perform immunizations in order to fill an unmet need for vaccinations in the healthcare market. In April 2011, Rite Aid revised its job description to require pharmacists to hold a valid immunization certificate and included a reference to immunizations in the list of ‘essential duties and responsibilities’ for pharmacists.”

Before his termination in August 2011, the employee, Stevens, “worked in upstate New York as a full-time pharmacist for Rite Aid and its predecessor pharmacies for 34 years. He was responsible for handling medications and counseling customers regarding their medications. In March 2011, Stevens received an e-mail from his district manager, William Spink, informing him that Rite Aid was going to require all pharmacists to give immunization injections to customers.”

Stevens submitted a note from his treating physician stating that he is “needle phobic and cannot administer immunization by injection.” Stevens explained that his trypanophobia causes him to experience “lightheadedness, paleness, and a feeling that I may faint” and that, as a result he “would never even consider trying to become an immunizing pharmacist.” He also claimed that he believed his condition was a covered disability under the ADA, and requested that Rite Aid provide him with a reasonable accommodation.

Rite Aid officials told Stevens that the “ADA did not apply to trypanophobia, that Rite Aid was not required to accommodate Stevens, and that Stevens would lose his job unless he successfully completed  immunization training.” Stevens later told Rite Aid that he would not be able to complete the training. On August 23, 2011, a Rite Aid official gave Stevens a termination letter, informing him that he was being terminated for refusing to perform customer immunizations, which were an essential function of his job.

In its decision, the Second Circuit explained that the “ADA prohibits discrimination in employment against ‘a qualified individual on the basis of disability.’ A ‘qualified individual’ is defined as one who, ‘with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.’ In other words, employers may not discriminate against people with disabilities that do not prevent job performance, but when a disability renders a person unable to perform the essential functions of the job, that disability renders him or her unqualified. Accordingly, one of the elements of a claim under the ADA is that an employee was ‘qualified to perform the essential functions of his job, with or without reasonable accommodation.’”

The Court further explained that in evaluating whether a particular job function is “essential,” it “considers ‘the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.’ Courts ‘must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position,’ but ‘no one listed factor will be dispositive.’ Courts must conduct ‘a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice.’”

Based on this, the Second Circuit concluded that the evidence “compels a finding that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination. Rite Aid personnel testified, without contradiction, that the company made a business decision to start requiring pharmacists to perform immunizations in 2011. The evidence established that the company carried out this policy by revising its job description for pharmacists to require immunization certification and licensure, as necessary depending on the state where the pharmacy is located, and including immunizations in the list of ‘essential duties and responsibilities’ for Rite Aid pharmacists. Rite Aid’s in-house counsel testified that Rite Aid terminated another pharmacist with needle phobia because, like Stevens, he failed to undergo Rite Aid’s immunization training program, further demonstrating that the company deemed administering immunizations to be an essential function of its pharmacists.”

As for the jury award, the Court recognized it was “understandable that the jury had sympathy for Stevens, afflicted as he was with an unusual phobia. Nevertheless, his inability to perform an essential function of his job as a pharmacist is the only reasonable conclusion that could be drawn from the evidence.”

With respect to whether there was a reasonable accommodation that would have enabled Stevens to perform the essential job function of administering immunization injections, the Court explained that the “issue is whether a reasonable accommodation would have enabled him to perform that essential function, not whether, as some of Stevens’ arguments appear to suggest, he could perform his other duties as a pharmacist. ‘A reasonable accommodation can never involve the elimination of an essential function of a job.’”

The Court explained that a “reasonable accommodation may include ‘job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.’” “Because performing immunization injections was an essential job requirement and Stevens presented no evidence of a reasonable accommodation that would have allowed him to perform immunizations at the time of his dismissal, no juror could reasonably conclude that Stevens was ‘qualified to perform the essential functions of his job, with or without reasonable accommodation.’”

Thus the Second Circuit reversed the District Court’s denial of Rite Aid’s motion for judgment as a matter of law on Stevens’ federal and state law wrongful termination and retaliation claims, and affirmed the District Court’s conclusion that Stevens “failed to prove that a reasonable accommodation existed at the time he was terminated, or that he would have accepted an identified accommodation if offered.” Simply, the termination did not violate the ADA.

This case shows the importance of employers having a comprehensive written job description.

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