In a decision issued March 25, 2015, the U.S. Supreme Court decided that the Pregnancy Discrimination Act mandated that employers must provide accommodations to pregnant employees when needed if the employer provides accommodations to other employees with similar work restrictions. Young v. United Parcel Service, No. 12-1226 (Mar. 25, 2015).
In the underlying case, Ms. Young was a part-time driver for United Parcel Service (UPS) who was advised by her doctor, when she became pregnant, that she could not lift more than 20 pounds. UPS required drivers to be able to lift up to 70 pounds. UPS informed Ms. Young that she could not work while under a lifting restriction, and refused to provide Ms. Young with an accommodation for her pregnancy-related lifting restriction. Ms. Young consequently stayed home without pay during most of her pregnancy, eventually lost her employee medical coverage, and sued UPS alleging violations of the Pregnancy Discrimination Act.
The U.S. Supreme Court, though sending the case back to the trial court, held that policies may have the effect of discriminating against pregnant workers if the policies treat pregnant women different than similarly situated non-pregnant workers. For example, if a policy only permits on-the-job injured workers with accommodations, but does not provide pregnant workers with accommodations even though the pregnant workers have the same restrictions, the policy will run afoul of the Pregnancy Discrimination Act. Employers should be cautious when applying policy to ensure that the effects of the policy are not discriminatory towards pregnant workers.
This decision should be read in conjunction with the Equal Employment Opportunity Commission’s guidance regarding pregnant employees that was released on July 14, 2014. This guidance was discussed in Ennis Britton’s September 2014 School Law Review Newsletter. Together, the U.S. Supreme Court’s decision and the Guidance from the EEOC serve as reminders to employers that pregnancy conditions may be protected, and employers may be required to provide reasonable accommodations for pregnancy-related conditions.
On February 25, 2015, the U.S. Department of Labor issued a Final Rule changing the Family and Medical Leave Act of 1993 (“FMLA”) definition of “spouse.” Effective March 27, 2015, spouses in same-sex marriages shall have the same opportunity as spouses of heterosexual marriages to exercise FMLA rights regardless of where they live. Therefore, even though Ohio prohibits same-sex marriage, if a couple was legally married outside of Ohio in a state that recognizes same-sex marriage, the same-sex spouse(s) must receive the protections of FMLA.
The U.S. Department of Labor issued this new rule in the wake of the United States Supreme Court decision in U.S. v. Windsor where the Court deemed the federal Defense of Marriage Act’s definition of spouse and marriage, which was limited to heterosexual marriages, unconstitutional.
The Final Rule modifies the definition of “spouse” in several ways.
- The definition of “spouse” will use a “place of celebration” rule rather than a “state of residence” rule. This means that the same-sex spouses who reside in a state that does not recognize same-sex marriage, but were legally married in a state that does, will be considered spouses under FMLA.
- The definition of “spouse” will expressly include persons in lawfully recognized same-sex and common law marriages, as well as marriages that were validly entered into outside of the United States, so long as those marriages could have been entered into in at least one state.
This change is intended to create a consistent application of FMLA rights across the country, even when different states have different laws regarding the underlying marriages. Further, this definitional change means that eligible employees, including those in a same-sex marriage, regardless of where they live, will be able to: take FMLA leave to care for their spouse with a serious health condition; take qualifying exigency leave due to their spouse’s covered military service; or take military caregiver leave for their spouse so long as the couple was legally married in a state that recognized the marriage.
Another change within this Final Rule entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the in loco parentis requirement of providing day-to-day care or financial support for the child is met. This Final Rule also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.
Therefore, effective March 27, 2015, employers covered by FMLA must follow the Final Rule changes promulgated by the U.S. Department of Labor, including this new definition of “spouse.” Currently, this change will only have FMLA implications, and will not impact other employment aspects for Ohio school districts (i.e. sick leave policies, benefits, etc.). However, by the end of June 2015, the U.S. Supreme Court should decide on whether state same-sex marriage bans are constitutional. If the U.S. Supreme Court decides that state same-sex marriage bans are unconstitutional, same-sex married couples will be entitled to all benefits received by heterosexual married couples.
USDHHS Center for Medicare & Medicaid Services recently withdrew its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide. Under CMS’s new guidance, Medicaid reimbursement is available for covered services under the approved state plan regardless of whether there is any charge for the services to the beneficiary or the community at large. Also under CMS’s new guidance, schools are not considered to be legally liable third parties to the extent schools act to ensure that students receive needed medical services to access a free appropriate public education consistent with federal law. The guidance also states that even if a state determines that schools are legally liable third parties, the Medicare statute contains an exception which requires that Medicaid serve as the primary payer to schools and providers of services in an IEP under IDEA; noting that nothing in IDEA permits states to reduce medical or other assistance available.