Family Medical Leave Act

On July 29, 2016, Governor Bruce Ratnor signed the Child Bereavement Act into law.  The Act requires employers with 50 or more employees to provide up to 10 working days of unpaid leave to employees to:

  1. attend the funeral or alternative to a funeral of a child;
  2. make arrangements necessitated by the death of the child; or
  3. grieve the death of the child.

37323216 - single or divorced woman alone missing a boyfriend while swinging on the beach at sunset

Bereavement leave must be completed within 60 days after the date on which the employee receives notice of the death of the child.   Further, employees requiring leave must provide employers with at least 48 hours’ advance notice of the employee’s intention to take bereavement leave, unless providing such notice is not reasonable and practicable.

The law defines employer as it is defined under the Federal Family and Medical Leave Act, which provides that employers are covered employers if they have 50 employees located anywhere in the U.S.  However, the law also defines eligible employees as is defined in the FMLA.  Thus, in order to be eligible for leave employees must have worked at least 12 months for the employer, worked at least 1250 hours in the last 12 months, and work in a location with 50 or more employees within a 75-mile radius.

The law does not define “child” as the FMLA does so employees will be able to take this leave regardless of the age of their children.

Employers may require reasonable documentation to demonstrate the need for leave.  Such documentation can include a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

If an employee tragically suffers the death of more than one child in a 12-month period, an employee is entitled to up to a total of 6 weeks of bereavement leave during the 12-month period. Although the Act provides for unpaid leave, if an employee has paid leave (including family, medical, sick, annual, personal, or similar leave) from employment, the employee may elect to use paid leave for bereavement leave.

Finally, the law provides that it is not meant to increase the total amount of unpaid leave the employee can take under the FMLA.  This seems to mean that if an employee has exhausted his or her 12 week FMLA entitlement, that he or she will not be permitted to take bereavement leave.

The law was effective immediately so, if employers have not already updated their leave policies, we encourage you to do so.

Employee leave issues can be exceedingly complicated given the interplay between local, state and federal laws.  If you have questions, hopefully, I can help.  I will be giving a webinar through Lorman on June 23rd at 1 pm EST entitled “Legal and Practical Solutions for Accommodating Employees with Serious Illnesses.”

17568955_sI am pleased to be able to offer you a 50% discount off the normal prices.  To register, click the above link and put in the following discount codes.

Discount code: B5513783
Priority code: 15999

Hopefully, you can join me on Thursday.

 

10337425_sThe Department of Labor has issued guidance for employers on the FMLA.  The Employer’s Guide to the Family and Medical Leave Act attempts to walk employers through the FMLA process, starting with determining who is a covered employer and going through employer obligations when employees request leave.  The Guide should be a valuable resource for employers.  One of the most helpful items in the guide is the “roadmap.”

I deal with a lot of questions about the FMLA from employers on a daily basis.  In many cases, employers have jumped ahead to trying to grant the leave before first determining eligibility of the employee for leave.  The roadmap is a reminder to go through the process first of determining if the employer is a covered employer and second if the employee is actually eligible for leave. Employers are often confused whether the employee needs leave for a qualifying reason.  However, there are times that employers do not realize that an employee is not eligible for leave because the employee has not worked enough hours or does not work in a covered location.

The FMLA is definitely not easy to understand, so hopefully, this guide will help.  Of course, when in doubt, employers should consult with legal counsel.

The DOL also announced that soon employers will be required to display a new FMLA poster.  The poster has not been issued yet but according to the DOL is not really new information; rather it is supposedly a more “user friendly” version.  We will update you when the poster is issued.

My colleagues will often joke of my mildly-paranoid nature when giving legal advice.  Although not an untrue assessment, such paranoia is not unfounded, and decisions such as the Second Circuit’s decision several days ago in Graziadio v. Culinary Institute of America, No. 15-888-cv (2d Cir. Mar. 17, 2016) reaffirm for me that a healthy level of paranoia can be helpful in this profession.

In Graziadio, the Second Circuit revived several claims brought by a former employee against the Culinary Institute of America (CIA) that it violated the Family and Medical Leave Act (FMLA), the federal law covering unpaid leaves of absence for medical and family care.  In sum, communications broke down between CIA and the Plaintiff after multiple discussions over several months regarding her requests for FMLA protected leave to care for her two children, ultimately resulting in her termination for job abandonment.  The Graziadio decision first serves to reaffirm what many human resources professionals already know; the FMLA’s regulations are technical, unforgiving, and to be followed to the letter in order to avoid a potential FMLA interference and/or retaliation claim.  The court delves deep into the facts presented to conduct a detailed analysis of whether each of CIA’s multiple requests for meetings, medical certifications, responsive communications, and a scheduled return to work date were in accordance with and satisfied the FMLA’s regulations.  Ultimately, the court found CIA’s actions were deficient under the statute, or at least required an expensive trial.

Bell TollsThis broad overview of the FMLA’s technical requirements is scary enough.  However, the decision in Graziadio is particularly notable because, for the first time, the Second Circuit (which oversees all federal courts in New York, Connecticut, and Vermont) explored the contours of individual liability under the FMLA. The Graziadio court found that the FMLA mirrors the Fair Labor Standards Act (FLSA), which in many aspects tends to be one of the broadest statutes around, with respect to individual liability and held that the human resources director involved could be found personally liable under the statute.

The Second Circuit analyzed the “economic reality” factors commonly reviewed in FLSA cases and found that, although traditional hire and fire authority rested with a vice president at CIA, the human resources director had been given effective control over the plaintiff’s employment by overseeing her FMLA leave requests. The human resources director also arguably exercised control over the Plaintiff’s schedule and conditions of employment by controlling the terms of her FMLA leave, handling all leave related communications, and ultimately communicating her termination.  Therefore, the human resources director could be held individually liable given this level of control.

The Graziadio decision is a great refresher on the common pitfalls lurking under the FMLA.  In addition, it is a clear reminder to human resources professionals to proceed with caution, because a mishandled FMLA leave request could put you personally on the hook even if the mistake was an honest one. Taking a step back and thoroughly analyzing any FMLA or other leave request is a necessity.

Moreover, please also remember that in addition to the FMLA, various state and local leave laws may also apply, and these statutes can be much more protective of an employee’s ability to take unpaid (or even paid) leave.  As a result, consultation with a local attorney who specializes in employment law is always advised.

As I was getting ready for work this morning, the Today Show had a profile of Marissa Mayer, CEO of Yahoo, who announced that she was expecting twins.  The profile noted that when Mayer had her first child, she declined Yahoo’s (rather generous) Maternity Leave Policy and took only one week off from work.  The panel on the show debated whether a company’s chief executive was setting a poor example for new moms in her employ by declining a maternity leave.

I had a interesting perspective on the issue as I watched the segment with my wife, a junior management employee at a Fortune 500 company who is currently on maternity leave with our own 7 week old twins.  My better half harshly criticized Mayer, saying that her decision would have a chilling effect on Yahoo employees.  Would they get a message though their CEO’s actions that taking maternity leave is bad for their career?

Maybe yes, maybe no. Listen, companies cannot force new moms to take their full maternity leave.  It is an employee benefit that, like all benefits, can be accepted or declined.  But what companies can do is reinforce the message that new mothers (and dads) availing themselves of a paid leave policy will not be subject to retaliation or any other adverse employment actions.  This can be easily outlined in an employee handbook or, if applicable, at an exit interview before the leave.  Conversely, it should similarly be stressed that declining a postnatal leave is not the avenue to advancement in the company.

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Feel free to contact our Labor and Employment Department if you wish to have your Policies and Procedures reviewed on this or any other issue.

19425076_sThis morning I was prepared to draft a post reminding you that as of today the new DOL rule regarding same-sex spouses would go into effect.  Under the old FMLA rule, a spouse was defined as someone lawfully married in the state in which the employee resides.  This rule meant that even with the striking down of the Defense of Marriage Act, a same-sex couple who were lawfully married but lived in a state where same-sex marriage was not recognized, would not be spouses for purposes of the FMLA.

The Department of Labor issued a new “place of celebration” rule that would mean that as long as a couple were lawfully married in a state or foreign country where same-sex marriage was legal, then they would still be spouses for purposes of FMLA even if they resided in a state that did not recognize same-sex marriage.

In an action filed by the Texas Attorney General, a federal court judge has enjoined the application of the rule insofar as it would require employers in those states where same-sex was not legal to choose between violating federal or state law.

So, for now, employers will still need to follow the “place of residence” rule when determining whether a same-sex spouse is a spouse for FMLA purposes.

Small WorldThe recent measles outbreak making headlines at Disney properties in California has been unnerving, to say the least. As any parent can attest, a visit to Disney is likely to be on someone’s wishlist at some point (as my two small children have already made clear!). Beyond planning a visit to see Mickey and Minnie, managers and HR professionals should also be cognizant of the disease’s spread, recently to New York, and be savvy to their obligations and restrictions vis-à-vis vaccinations and medical leave.

Must an employer require their employees to be vaccinated against measles? Generally, no, absent some specific health or safety regulation that may govern a particular industry in a particular jurisdiction (e.g. healthcare workers/first responders). For most employers, this is not an issue.

May an employer require employees to be vaccinated against measles? This is where things get tricky. There is nothing that would per se prevent requiring employees to be vaccinated against measles in order to work. However, dangers abound. Federal, state and local anti-discrimination provisions may require exceptions, primarily for religious and/or medical reasons. If the employee is in a high risk occupation, such as emergency medical services, the law provides more leeway, however each employer’s situation needs to be analyzed on a case-by-case basis.

A concerned employer could, alternatively, offer voluntary measles vaccinations, free of cost, which would provide employees some level of so called “herd immunity.” However, remember, you generally cannot ask about or disclose an employee’s vaccination status due to various privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA). Proper consent forms should also be obtained through an authorized vaccination provider.

If an employee does contract measles, it may be reasonable and/or required to force an employee to stay home (preferably on paid leave) until they are healthy to avoid its spread in the workplace. Depending on the employer’s size, Family and Medical Leave Act (FMLA) protected leave must also be offered and appropriate FMLA notices given. Confidentiality regarding the employee’s medical status must also be maintained and any discriminatory employment actions avoided.

As always, we recommend giving your friendly local labor and employment attorney a call to discuss the complexities of any particular issues you may have.

On December 10, 2012, we reported on a Northern District of Illinois case that held that the Family and Medical Leave Act may have covered an employee’s vacation to Las Vegas with her terminally ill mother.  More details about the case can be found in that post.

A 7th Circuit Appeals panel has just unanimously confirmed the lower court’s decision in Ballard v. Chicago Park District.  In holding that the trial court correctly ruled that such a trip could be covered under the FMLA’s provisions that allow employees to care for seriously ill family members, the 7th Circuit noted that the FMLA is to be broadly interpreted.  The Court also specifically noted that Ms. Ballard’s mother needed physical assistance for her daily health care due to her congestive heart failure and the Ms. Ballard continued to provide that care while on vacation. 

As we cautioned last year when the trial decision came out, employers cannot reject out of hand an employee’s request to accompany an ill family member on a vacation as that may be a losing play under the FMLA.

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When the U.S. Supreme Court struck down the Defense of Marriage Act (“DOMA”) in U.S. v. Windsor, we advised that there would be sweeping implications to employers from everything from benefits enrollment to FMLA entitlements.  (See DOMA posts from June 26thJune 28th — Immigration Issues and June 28th — Employee Benefits Issues).

The DOL has updated its FMLA Fact Sheet #28F to specifically provide that in states where same sex marriages are legal, the definition of spouse for purposes of FMLA leave includes same-sex spouses. 

It is important to note that the FMLA still does not allow for leave to care for a domestic or civil union partner as the statutory language refers to “spouse.”  Employers can, of course, choose to grant leave to employees who wish to care for a domestic or civil union partner, but cannot count that time against the employee’s FMLA leave entitlement.

According to Freedom to Marry, 13 states allow same sex marriage and 6 others either recognize civil unions or domestic partnerships or out-of-state same sex marriages. Employers in those states with same-sex marriage need to immediately insure that FMLA leave which is necessary to care for a spouse with a serious health condition or to provide care for a covered servicemember is granted to same-sex spouses. To the extent that policies may also need to be revised, that should also be immediately undertaken.

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