UPDATE: Nebraska Paid Sick Leave Initiative makes the November Ballot- Now What?

The petition requiring Nebraska employers to offer paid sick leave to their employees will officially appear on the November ballot. If passed, it will require employers to make some changes.

Currently, there is no federal law mandating paid sick leave for all employees. Employers' only requirement is to comply with other federal provisions that touch on sick leave found in other federal mandates (like the FFCRA or FMLA). Nebraska also does not, as of now, have a statewide paid sick leave policy. This means these policies are determined by each individual employer, and many of these employers may have to overhaul their sick leave policies to ensure compliance.

If the Initiative passes, below are some additional steps that employers can take to ensure a smooth transition.

1) Determine what category of employer you fall into. The requirements under the Initiative vary by the number of employees an employer has. There are different requirements for an employer who has 20 or more employees. If you are an employer who floats around the 20-person cutoff, be aware of any fluctuations in employee numbers to ensure continued compliance.

2) Look at policies and procedures drafted by states with similar initiatives. Many employers have been drafting their own policies surrounding sick leave, and it may not be easy to create policies that are compliant yet tailored to their business. The following states have similar laws: California, New York, New Jersey, Connecticut, Oregon, and Washington. While these states' paid sick leave laws vary and have unique requirements, their language and application can be a great starting point for any employer needing to redraft its policy.

3) Draft and post the notice of commencement. If the Initiative passes, employers will be required to give their employees written notice of the policies either when the employee begins working or by September 15, 2025, whichever is later. The notice must be provided in English and any language that is the first language spoken by at least five percent of the employer's workforce. Additionally, employees must display a poster containing the relevant information in Section 6.1 of the Initiative. Suppose an employer does not maintain a physical workspace. In that case, they are still required to provide notice either through electronic communication or a conspicuous online posting.

4) Look for notices or updates from the Department of Labor. The Department of Labor is responsible for implementing and enforcing the Initiative. In doing so, it may adopt or develop rules and regulations that it deems necessary to carry out the act. Employers must comply with these rules and regulations as well as with the Initiative generally.

If passed, employees will be entitled to paid sick time beginning October 1, 2025. Suppose an employer provides a more generous paid sick time policy than required under the Initiative. In that case, their policy will not be impacted.

For general information regarding the Nebraska Paid Sick Leave Initiative, please see Bonnie Boryca's article, which can be found here.

Navigating Diversity, Equity, and Inclusion Initiatives

Strategies for fostering an inclusive workplace culture while ensuring compliance with relevant laws and regulations.

The benefits of fostering a diverse work environment are undeniable: it can lead to higher productivity, greater financial success, and a better culture for employees overall. More companies are pushing policies and procedures that would increase the diversity of their workforce. However, the policies and procedures must be tailored to ensure compliance with non-discrimination laws. Below are a few strategies an employer can use to achieve the balance of fostering an inclusive environment while also adhering to legal requirements.

Understand the Legal Requirements

In order to effectively balance diversity, equity, and inclusion (“DEI”) policies that are compliant with relevant laws, it’s crucial to understand what exactly the laws require of employers. Laws impacting DEI include Equal Employment Opportunity (“EEO”) laws, anti-discrimination laws, and accessibility laws. While coming at them from different points of view, these laws each prevent various types of discrimination in the workplace, including the application/hiring process, actual employment, and termination of employees. More and more relevant statutes are being passed, so it’s empowering to stay up to date on legislation and have a clear understanding of what compliance looks like under the relevant authority.

Training and Education

Once the employer understands the legal requirements, it’s important that this knowledge is distributed throughout the organization. Providing regular training to employees and managers on not only the laws but also DEI principles will ensure compliance at each level. This step is vital for any employee at any level who participates in the hiring, promotion, or termination process. There are countless resources available to companies that provide instruction surrounding DEI compliance, including training developed by the Equal Employment Opportunity Commission (“EEOC”) with the goal of understanding, preventing, and correcting discrimination in the workplace.1

Developing Diverse Hiring Practices

One of the biggest arguments against DEI initiatives is that they promote hiring individuals based solely on their status of being in a protected class under the laws above.2 There are tangible ways to have diverse hiring practices that do not include hiring individuals solely based on their protected status. For instance, pay attention to the wording of the job posting and ensure it doesn’t use words that attract a specific type of applicant while excluding others, or take steps to ensure the job listing is put in places where diverse applicants will see it.3 There are numerous online forums dedicated to aiming jobs specifically at underrepresented groups.4 Another easy way is to celebrate the diversity that your company already has. If a potential applicant researches a company but finds the workplace lacks diversity, they are less likely to apply; studies have shown that 67% of people say that diversity in a workplace is an essential factor to them when considering a job opportunity, and failing to show that your work environment also values diversity may result in losing out on potential applicants.5

Continuing Growth

Once an employer has a policy in place, it’s important to understand that policy cannot be stagnant. Continuous growth is crucial to ensuring the ongoing fostering of a diverse environment while maintaining compliance. Employers/Companies should collect data on their workforce demographics, hiring practices, promotions, and other metrics to determine what’s working and what isn’t.4 Again, the laws surrounding this topic are constantly changing and various case laws are shaping its interpretation, so it’s important to work closely with legal experts, human resource professionals, and DEI specialists to ensure a continuing understanding of what’s required under the laws while still working towards a companies DEI goals. This collaborative approach allows for diverse perspectives and will help mitigate noncompliance or complacency risks.

Navigating DEI initiatives and relevant laws and regulations is no easy task, but by integrating DEI efforts with compliance with employment laws, organizations can mitigate legal risks and reap the benefits of a diverse and inclusive workforce, including enhanced innovation, creativity, and employee engagement. Ultimately, fostering an inclusive workplace requires a proactive and holistic approach that prioritizes both DEI goals and legal compliance.

---

1 https://www.eeoc.gov/newsroom/eeoc-launches-diversity-equity-inclusion-dei-workshop-series

2 https://www.economist.com/business/2023/10/02/americas-bosses-grapple-with-threats-to-diversity-policiesutm_medium=cpc.adword.pd&utm_source=google&ppccampaignID=17210591673&ppcadID=&utm_campaign=a.22brand_pmax&utm_content=conversion.direct-response.anonymous&gad_source=1&gclid=CjwKCAjw9cCyBhBzEiwAJTUWNXvcbb8XUlETqOrO-YNGGVsjUQJrzP1hSB-EXN3d3oHYkMB16CtsSBoCjBkQAvD_BwE&gclsrc=aw.ds

3 https://ideal.com/diversity-hiring/ iv https://www.bamboohr.com/blog/how-to-recruit-a-diverse-workforce

4 Id iii.

5 https://technologyadvice.com/blog/human-resources/dei-metrics/#recruitment

WHAT IS A “REASONABLE” ACCOMMODATION UNDER THE ADA?

Employers who employ more than 15 individuals are legally obligated to provide reasonable accommodations for an employee with a qualifying disability. However, many employers are often left wondering what a “reasonable accommodation” is. According to the EEOC, a reasonable accommodation is “any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process to perform the essential functions of a job or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.”[1] What this looks like will depend on multiple factors, such as the job requirements and the required level of accommodations. An employer is not required to provide a reasonable accommodation if it would cause an undue hardship. An undue hardship occurs when an accommodation is unduly costly, extensive, substantial or disruptive, or would fundamentally alter the operation of the business. Whether or not something amounts to an undue hardship will also depend on multiple factors, such as the accommodation cost, the employer’s size, and the employer’s financial resources.

When we take a closer look at what constitutes a “reasonable accommodation,” we can break them down into categories: (1) modifications or adjustments to a job application process, (2) modifications or adjustments to the work environment, or (3) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as enjoyed by other similarly situated employees without a disability.[2]  No matter what category the accommodation falls under, the modification or adjustment is reasonable if it appears reasonable on its face or is “feasible” or “plausible.” [3]

 Given that the above is primarily subjective, providing a few rules highlighting what is not considered a reasonable accommodation may be helpful. First, an employer is not required to eliminate an essential function of the job.[4] An employer is also not required to lower production standards.[5] Additionally, an employer does not need to provide personal use items needed for activities on and off the job, nor any personal use item that is not offered to employees without disabilities.[6]

What is clear from all the definitions above is that the level of reasonableness for every accommodation request will be unique to that circumstance. This is becoming increasingly apparent as employers attempt to navigate an accommodation that has become more popular in the last five years: allowing employees to work from home. 

Although increasing in popularity as an accommodation request since 2020, the conversation surrounding work from home as a reasonable accommodation stretches back well before COVID-19 and was addressed as early as 1999 in the Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.[7] Even over two decades ago, depending on the circumstances, working from home could be considered a reasonable accommodation. If the job cannot be performed from home, then no further analysis needs to be done and it’s not a reasonable accommodation. Still, if the job can be performed at home, an individual’s disability prevents them from performing the job on-site, then it will be viewed as a reasonable accommodation, barring any significant disability or expense. [8] This can be true even if the employer doesn’t currently have a work-from-home program; if no offered alternative is practical, an employer may be required to start a program to accommodate the individual.[9] Since the outbreak of COVID-19, the rate of employers winning in lawsuits where work-from-home requests were denied has decreased by ten percent.[10]

Suppose it’s determined that an employee working from home cannot complete all essential job functions. In that case, a reasonable accommodation may include allowing a hybrid work schedule- or some on-site and some at-home work. What amount of time should be allotted for each will be unique to each circumstance and should be determined by talking with the employee to coordinate their needs with the employers to accomplish their assigned tasks. Ultimately, an employer is only required to allow an employee to work from home to the extent the employee’s disability necessitates it.[11]

Whether it’s a request to work from home or any other requested accommodation, what is considered a “reasonable accommodation” is clearly never cut and dry. It will depend highly on the employee’s disability and what job that individual has been hired to perform. The best way to ensure that the accommodation being provided is reasonable is to use an interactive process between the employee and the employer to ensure that both party’s needs are being met.

[1] https://www.eeoc.gov/publications/ada-your-responsibilities-employer#:~:text=Reasonable%20accommodation%20is%20any%20change,equal%20to%20those%20enjoyed%20by

[2] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#intro

[3] US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

[4] If an accommodation requires that an essential function of the job be eliminated, the individual with a disability is not “qualified” under the ADA and reasonable accommodation is not required. See Sec 12111(8) https://www.eeoc.gov/statutes/titles-i-and-v-americans-disabilities-act-1990-ada

[5]  Supra at 2.

[6] Id.

[7] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada

[8] https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation

[9] Id.

[10] Employers have prevailed in 60% of federal court rulings in the past 2 years as opposed to a 70% win rate pre-pandemic. See https://news.bloomberglaw.com/daily-labor-report/covids-remote-work-experience-is-slowly-changing-disability-law

[11] Id.