On the other hand, an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience (e.g., touring the United States or caring for an ill relative) or because they are unable to work (e.g., maternity leave or an automobile accident that temporarily incapacitates the nonimmigrant) due to a reason that is not directly work related and required by the employer. Of course, per 20 CFR 655.731(c)(7)(ii), the employer would still have to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (FMLA) (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (ADA) (42 U.S.C. 12101 et seq.).2. Can an employer furlough, bench, or otherwise render an H-1B employee non-productive and stop offering the required wage if the employee is not able to work from home during a COVID-19 pandemic initiated shelter in place order from federal, state, or municipal government authorities?Generally, this is not permissible given that the conditions are not created by the employee.

Dear Name*,This is in response to your request for clarification regarding the application of the medical certification provisions of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. You state you understand that an employee who qualifies for FMLA leave for his or her own serious health condition may be asked to provide a new medical certification, not just a recertification, for his or her first FMLA-absence in a new leave year.

tinue to enjoy employment benefits and other anti-discrimination protections as they have since Obergefell. In addition to being protected from discrimination and harassment based on sexual orientation and gender identity under Title VII of the Civil Rights Act of 19648 and applicable state and local laws, employees in same-sex marriages are also extended leave protections under the federal Family and Medical Leave Act9 and certain state and local unpaid and paid leave laws. As we approach a new calendar year, employers should review their handbooks and other employment policies, especially those relating to anti-discrimination, paid and unpaid leave entitlements, and other benefits offerings to ensure compliance with applicable federal, state, and local laws. 1 H.R. 8404, 117th Cong., 2d Sess. (2022).2 597 U.S. __ (2022).3 410 U.S. 113 (1973). 4 United States v. Windsor, 570 U.S. 744 (2013).5 28 U.S.C. § 1738C. 6 576 U.S. 644 (2015).7 388 U.S. 1 (1967).8 42 U.S.C. §§ 2000e-2000e17. 9 29 U.S.C. §§ 2601-2654.

[15] Many psychological conditions are seldom covered by workers’ compensation, and some states prohibit mental health claims unless the employee can establish a direct connection to a physical workplace injury that was the cause of the mental injury.[16] 42 U.S.C. § 2000(e).[17] 29 U.S.C. § 623[18] 29 U.S.C. § 2601.[19] Families First Coronavirus Response Act, Pub. L. 116-127.[20] 29 U.S.C. § 660(c) (providing protections for employees who raise a health or safety complaint with OSHA).[21] 29 U.S.C. § 158(a); see also Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276 (March 30, 2020) (noting that healthcare workers who are terminated for publicly raising concerns about working conditions in healthcare facilities may have a claim under the NLRA).[22] For example, a nurse in Chicago filed a whistleblower complaint in Cook County Circuit Court against Northwestern Memorial Hospital in March, alleging retaliatory discharge, violation of the Illinois whistleblower statute, and respondeat superior.

Salary Reductions or Layoffs for H-1B WorkersDOL regulations require employers to pay the wage set forth in the Labor Condition Application approved and filed along with the H-1B petition. In response to the ongoing COVID-19 outbreak, employers are weighing options regarding whether to reduce the hours or salaries of some or all of their employees, including some H-1B workers.H-1B regulations require employers to pay H-1B workers at the wage level specified in the H-1B petition and for the number of hours per week set forth in the H-1B petition unless:the worker is granted a leave of absence that is unpaid or partially paid due to the request of the employee or under statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.) nonetheless per 20 CFR 655.731(c)(7)(ii).

Finally, although the FFCRA’s paid leave provisions do not cover those who are self-employed, those individuals would be eligible to receive tax credits of up to two weeks of EPSL at their average pay and 12 weeks of PHEL at two-thirds their normal rate.As federal, state, and local governments continue to address the evolving COVID-19 pandemic, K&L Gates LLP will provide critical updates along with practical guidance to assist with compliance.Notes:[1] 29 U.S.C. 2601, et seq.

Dividend Hous. Ass'n v. Beasley, 71 F. Supp. 3d 715, 730-31 (E.D. Mich. 2014) (not reasonable accommodation under Fair Housing Act or Rehabilitation Act).19 29 U.S.C. §§ 2601 et seq.20 The Drug Free Workplace Act of 1988 requires those working with the federal government to adopt zero-tolerance workplace drug policies. See 41 U.S.C. § 8102.

Those keeping count will note that at least five sets of Massachusetts laws affecting employee leave (i.e., those pertaining to parental leave, sick leave, domestic abuse leave, Veterans Day leave, and now pregnancy or pregnancy-related conditions leave) have been created or changed in roughly the last three years. Employers therefore may find the following chart useful, because it depicts nineteen (19) sets of laws applicable in Massachusetts that can create a leave entitlement, and it provides at least a starting point for ensuring that employee leave practices are compliant.2--> Scroll to see full table dataSource of leave entitlementNumber of employees triggering leave entitlementAuthorized reasons for leaveOther criteria to be met by employee to qualify for leaveAmount of leave authorizedPaid leave required?FMLA (Family & Medical Leave Act, 29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825). 50 within 75 miles of employee’s worksite.

And although some of the rules are complex,1 employers may find the following survey chart useful, at least as a starting point for ensuring that their leave policies are adequate.Source of leave entitlementNumber of employees required to trigger leave entitlementAuthorized reasons for leaveCriteria to be met by employee to qualify for leaveAmount of leave authorizedPaid leave required? Family & Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825. 50 within 75 miles of employee’s worksite.

In addition, employees are prohibited from collecting disability and paid family leave benefits concurrently. In addition to paid leave, this legislation contains a provision for the continuation of health benefits which provides as follows: “In accordance with the Family and Medical Leave Act (29 U.S.C. §§ 2601-2654), during any period of family leave the employer shall maintain any existing health benefits of the employee in force for the duration of such leave as if the employee had continued to work from the date he or she commenced family leave until the date he or she returns to employment.” Lastly, employees who take paid family leave must be restored to their current position or to a comparable position with equivalent pay, benefits, and other terms and conditions of employment.