by Erin Wessendorf-Wortman | Mar 17, 2015 | General, Labor and Employment
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.
by Pamela Leist | Mar 17, 2015 | General, Labor and Employment, Special Education
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.
by Pamela Leist | Jul 31, 2014 | Labor and Employment, School Management
As July comes to a close, schools across Ohio have begun to gear up for another school year. Yet just when you think you have put the chaos of staffing buildings and assigning students behind you, inevitably a teacher who would be very hard to replace at this juncture approaches the district and provides notice that he or she plans to resign to accept a position elsewhere. The question becomes whether the district must release the teacher from his contract. Before you agree to such a proposal, keep the following in mind.
Ohio law places strict limits on when a teacher may terminate a contract of employment absent consent from the board of education. Under ORC §3319.15, a teacher must provide a district with written notice that he or she wishes to terminate an employment contract each summer by July 10th. The law prohibits teachers from terminating a contract beyond that date, or at any point during the school year. The law also states a teacher must provide at least five days’ notice to the board before voluntarily terminating any agreement.
Interestingly enough, a board of education cannot seek an injunction in court to force a teacher to return to work if he or she attempts to resign beyond the narrow statutory window, or simply refuses to show up for work after the July 10th deadline. Such an injunction would violate the state and federal Constitutions’ prohibitions against involuntary servitude (U.S. Constitution, Amendment XIII, and Ohio Const. Art. I).
However, a district is not without some form of recourse. A school district can challenge violations of ORC §3319.15 through the Department of Education. The State Board of Education adopted the Licensure Code of Professional Conduct for Ohio Educators in 2008. Under the Code of Conduct, the State Board of Education may terminate or suspend a teacher’s license for abandonment of a contractual agreement without consent from the employing Board of Education. A teacher’s failure to comply with the law could thereafter have a significant impact on the individual’s future teaching career.
Questions? Contact your district’s legal counsel for more information.
by Pamela Leist | Jul 3, 2014 | Labor and Employment
The U.S. Supreme Court issued yet another precedent-setting decision this week for employers. In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. _____ (June 30, 2104), the Supreme Court held in a 5-4 decision that regulations which require employers to provide health insurance coverage for certain types of contraceptive drugs violate the religious rights of company owners who oppose the drugs for religious reasons.
The case was brought by three closely held for-profit corporations, Hobby Lobby, Mardel, and Conestoga Wood Specialties, to challenge an Affordable Care Act (“ACA”) regulation that required non-exempt employers to provide health insurance plans that covered twenty forms of oral contraception. Four of the twenty drugs prevented development of a fetus post-conception. The owners of the companies, all of whom espouse a Christian ideology, believed that termination of pregnancy post-conception violated their religious beliefs.
The companies initially filed requests for injunctions against the U.S. Department of Health and Human Services (“HHS”) to prevent enforcement of the ACA regulations, claiming the regulations violated the Religious Freedom Restoration Act of 1993 (“RFRA”). RFRA prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless the action constitutes the least restrictive means of serving a compelling government interest.
The Supreme Court first acknowledged that the owners of the companies have sincerely held religious objections to abortion, and the four contraceptive methods at issue are considered abortifacients. The Court next considered whether the regulations imposed a substantial burden on religious exercise. The Court held that they did because corporations were required to either comply or face penalties of up to $475 million per year. Finally, the Court concluded that while the regulations served a compelling government interest, they were not the least restrictive means by which the government could serve that interest. HHS had already created an alternative system that enabled religious nonprofits to exclude the contraceptives from employee health insurance cost-sharing benefits. Women who are covered by the system can still access the drugs, but their employers do not share the cost. The Court reasoned that for-profit corporations should also be able to participate in the alternative system.
The majority rejected the argument that corporations were not defined as “persons” under law, but instead expanded RFRA and potentially other federal protections to corporations now and in the future. They also disagreed with the claim that the plaintiffs could reduce the burden by electing to drop insurance coverage and thus reduce the penalties, citing the fact that employers would be a significant competitive disadvantage if they stopped offering health insurance to employees.
Justice Ginsberg, writing for the dissent, criticized the majority opinion and argued that the decision forced women who do not necessarily share the religious views of their employers to absorb the cost of contraception. Ginsberg cited a national study that concluded out of pocket expenses for women were as much as 68% higher than for men. Ginsberg also summarily disagreed with the majority’s conclusion that a for-profit corporation was a “person” covered by RFRA.
Ultimately, the Supreme Court decision in Burwell will force courts to reexamine the rights of corporations across the nation, and could have a potentially far-reaching impact on all employers in the near future.
by Erin Wessendorf-Wortman | Jun 30, 2014 | General, Labor and Employment
In a 5-4 decision, the U.S. Supreme Court ruled today that partial-public employees could not be required to pay fair-share fees when the only reason the partial-public employees were deemed to be “public” employees was solely for union formation and collection of dues. The case arose out of Illinois, where lawmakers classified home health care workers, paid by federal Medicaid dollars, as State employees. The home health care workers were then required to pay dues/fair-share fees to the Service Employees International Union. SEIU was the exclusive union to bargain with Illinois over wages, hours, working conditions, and other terms and conditions of employment.
However, and key to the Court’s decision in this case, the home health care workers were controlled by the customers they served, not the State of Illinois. The job duties of the home health care workers were set by customers and the customers’ physicians. Customers have complete discretion in hiring any home health care worker meeting the State’s criteria and qualifications. Customers control all supervision and evaluation(s) of the home health care workers, and the State has no power to enter a customer’s home to evaluate job performance. The customer had the sole authority of discharge of the home health care workers; the State could not discharge a home health care worker from a customer’s home for substandard performance.
In relying on the terms of their employment, the Court found the home health care workers to be partial-public employees, and therefore, different than public-school teachers or police officers who work directly for the government or a political subdivision. Because states often set wages for partial-public employees, like home health care workers, and because unions often do not conduct collective bargaining for them, the Court determined that the home health care workers could not be required to pay union fees.
The Court found that, except in the exceptional circumstances, “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”
For the full opinion click here.
by Pamela Leist | Jun 10, 2014 | Board Policy & Representation, General, Labor and Employment, School Management
Ohio legislators have once again modified the Ohio teacher evaluation system this month through passage of House Bill 362. The bill, which still awaits the Governor’s signature, reduces the frequency of evaluations for certain teachers and also creates an optional alternative evaluation framework that districts may elect to use as early as the 2014-2015 school year. Changes from the bill include the following.
First, HB 362 modified ORC 3319.111 by granting a board of education the discretionary authority to evaluate teachers who receive a rating of “Accomplished” on their most recent evaluations every three years. Likewise, Boards may also choose to evaluate “Skilled” teachers every two years. The law further specifies that in order to qualify for either of the above, a teacher must receive a student growth measure score of average or higher on the most recent evaluation (note that under the state-approved rubric, a teacher cannot receive a summative rating score of “Skilled” or “Accomplished” unless he or she received a SGM score that was average or higher). If a board elects either option, a credentialed evaluator must conduct at least one observation and hold at least one conference in each year that a teacher is not formally evaluated. The new law is silent as to whether a district must also gather student growth measure data in off years.
Additionally, the bill permits a board of education to elect not to evaluate teachers who have been on leave for at least fifty percent (50%) of the school year, and/or who have submitted a notice of retirement which has been accepted by the board no later than December 1st.
Finally, HB 362 establishes an alternative teacher evaluation framework under a new statute, ORC 3319.114. The alternative framework reduces the value of the teacher performance and student growth measure scores, and incorporates an additional measure derived from one of the following: student surveys, teacher self-evaluations, peer review evaluations, or student portfolios. The statute specifies that should a board elect to use the alternative framework for 2014-2015, a teacher’s final summative rating must be based on the following:
- 42.5% teacher performance rating;
- 42.5% student growth measure; and
- 15% from one of the additional measures listed above
For 2015-2016 and beyond, a school board has some discretion to determine the value of the three components. However, the teacher performance and student growth measures must each count for at least 42.5% of the score. And, the new law requires that an equal percentage of the final summative rating be allocated to teacher performance and student growth. The remaining percentage of the summative rating will be derived from the chosen alternative tool.
Under the new statute, the Ohio Department of Education must compile a list of approved instruments for districts to use with the alternative framework. School districts are required to select evaluation instruments from amongst that list.
As with previous OTES and OPES modifications, a number of questions remain about whether the changes will actually improve the process and ease the burden of evaluations for school administrators and teachers, or whether they will merely create additional traps that snare the unwary. One of the primary concerns is the fact that the bill will not become effective until mid-September, nearly one month after most districts begin the 2014-2015 school year. And, in order to roll out the new system by 2014-2015, the Department has only a few months to select alternative evaluation tools, and even less time to determine the validity of the data each tool captures. Finally, while the prospect of reducing the frequency of evaluations is enticing, this practice may weaken the validity of future evaluation results for teachers, which will ultimately impact a board of education’s ability to make solid employment decisions. For these reasons, districts should be cautious to embrace the new changes until additional analysis is conducted. In the least, districts should contact legal council before adopting evaluation policy changes for this upcoming school year.
To review HB 362 in its entirety, click here.
