January 1st marks the birth of a new year and of many new laws. Two significant revisions to existing employment law – one to Illinois state employment law and one to federal employment law – become effective January 1, 2015.
In August 2014, Illinois enacted enhanced workplace rights for pregnant women and new mothers under the Illinois Human Rights Act, commonly referred to as the Pregnancy Fairness law. First, the definition of “pregnancy” is expanded to “pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth,” which now covers not only the condition of traditional pregnancy, but also after the child is born. 775 ILCS 5/2-103(L-5). Employers are now required to give more accommodations to pregnant employees such as longer and more frequent bathroom breaks, assistance with manual labor, increased rest breaks, private space for expressing breast milk and breastfeeding, and temporary transfer to a less strenuous or hazardous position, among others. 775 ILCS 5/2-102(J). If the employer can show that the requested accommodation presents an undue hardship on the ordinary operation of business, then the employer may avoid the accommodation requirement. 775 ILCS 5/2-102(J).
Second, the Pregnancy Fairness law applies to small and mid-size employers. This is unlike the Family Medical Leave Act (FMLA) which only covers employers with 50 or more employees. Many businesses previously exempt from the FMLA will now be subject to exposure under the new Illinois law. For example, because the Illinois law is more stringent, it supersedes the federal law requiring 12 weeks of leave under FMLA. The new Illinois law also disregards FMLA’s employer-size requirement.
Given this expansion in employee protections, all employers should review and consider supplementing their job descriptions. Care could be taken to emphasize and illustrate how the ordinary operation of business depends on performance of the job as described. Such transparency in the work relationship may prove helpful in triggering the “undue hardship” defense if necessary to defeat a claim of discrimination arising out of an inability to accommodate the employee. Small and mid-sized employers of less than 50 employees not only must review their job descriptions, but also must be aware that they are no longer exempt from providing job protection and leave for pregnant and new mothers.
Revisions to Fair Labor Standards Act
The Wage and Hour Division of the Federal Department of Labor finalized new regulations (29 CFR Part 552) concerning domestic service workers under the Fair Labor Standards Act (FLSA), applicable to the growing number of individuals who provide services as home health care workers. The changes bring more of these workers under the minimum wage and overtime protection requirements of the FLSA. The new rules make two major changes to the companionship exemption which previously precluded home health care workers from FLSA protections. The DOL changed the definition of “companionship services” which was previously exempt as part of “domestic services” under the FLSA. The DOL made the FLSA now applicable to persons employed by home health care companies or third-party agencies.
“Companionship services” applies to providing fellowship and protection to an elderly person or person with an illness, injury or disability, who requires assistance in caring for oneself. Under the new regulations, “companionship services” also includes provision of care if the care is provided in attendance to, and in conjunction with, the provision of fellowship and protection, if it does not exceed 20% of the total hours worked per person per workweek. “Fellowship” is defined as engaging in social, physical, and mental activities such as taking the person to appointments and social functions, conversing, and going for walks. “Care” is defined as providing assistance with daily living activities that allow the individual to live at home, including dressing, grooming, feeding, meal preparation, light household work, assisting with medication, and making medical appointments.
The definition of companionship services does not include provision of medically related services that are performed by medically trained and licensed personnel such as a CNA, LPN or RN. Performance of medically related tasks during a workweek results in the loss of the exemption and entitles the employee to minimum wage and overtime pay for that workweek. The performance of medically related services is the critical focus for the FLSA requirement, not the actual title of the person performing of the medical task.
What employers need to be cautious of with the new regulation changes is recordkeeping. Careful records are necessary to document what employees are doing as home health care providers. Employers will need to make determinations based on records kept by their employees of how many hours per day, and thus per week, are spent providing “companionship services” and whether that exceeds 20%. If it does exceed 20%, then the FLSA overtime regulations do not apply.
Laura Platt is an associate licensed to practice in Illinois and Wisconsin and works both in the firm's Libertyville and Milwaukee offices. She focuses her practice on medical malpractice defense, insurance defense and employment law.