June 3, 2015 - Labor & Employment Updates: Forms for Family and Leave Act; Transgender Rights; Religious Accommodation Requirements
UPDATED FORMS FOR FEDERAL FAMILY AND LEAVE ACT REQUESTS
Recently the Department of Labor updated the forms Employers can use for federal Family and Leave Act requests. The major change is a caution not to provide genetic information which could be a violation of GINA, the Genetic Information Nondiscrimination Act. Links to the new forms are below:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
- WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
- WH-382 Designation Notice (PDF)
- WH-384 Certification of Qualifying Exigency for Military Family Leave (PDF)
- WH-385 Certification for Serious Injury or Illness of Current Service Member-for Military Family Leave (PDF)
- WH-385-V Certification for Serious Inury or Illness of a Veteran for Military Caregiver Leave (PDF)
While the transgender workforce is quite small, the issue of transition has received a lot of publicity recently. Transgender issues usually come up in the context of bathroom use in the workplace. Both OSHA and the EEOC have weighed in on the issue in the past few months. Finding that Title VII protects transgender employees, and that the use of convenient toilet facilities is a basic health issue on the job, both agencies have found that employees should be allowed to use the bathroom facilities of the sex with which they identify. Employers may set up a temporary “unisex” “private” toilet facility, however they cannot mandate its use for anything more than a short time. The rule applies regardless of the employee’s physical sexual characteristics. Because employees may be uncomfortable with sharing a bathroom with a transgendered person with opposite physical sexual characteristics, the employer should work on educating those employees about the situation. Connecticut and Massachusetts state law, and likely federal Title VII, protects transgendered people from employment discrimination. Click here to view the OSHA rules.
REMEMBER RELIGIOUS ACCOMMODATION REQUIREMENTS
The U.S. Supreme Court recently decided that Abercrombie & Fitch violated the Civil Rights Act of 1964 by failing to hire a Muslim job applicant because she wore a head scarf to the job interview. The Supreme Court’s decision turned on a relatively opaque distinction between two different theories of discrimination – disparate treatment versus disparate impact – but the factual situation serves as a timely reminder to employers that federal law requires employer to make reasonable accommodations to their employees’ religious practices. If an employee fails to follow certain workplace rules – particularly with regard to dress or appearance, employers should consider whether the employee’s conduct may be a religious practice and, if so, whether a modification to the policy may be reasonable. Each case is different, and there is no general rule as to what may or may not be reasonable in particular circumstances, but an employer should consider the issue and discuss it with the employee before making a decision.