On Thursday, February 25, 2016, the U.S. Department of Labor proposed new rules to implement Executive Order 13706, which requires certain federal contractors to provide qualifying employees with at least seven days of paid sick leave each year, including paid leave for family care. The Department of Labor intends to publish a final version of these rules by September 30, 2016, and employers who contract with the federal government should begin preparing for their implementation now.  Noncompliance could result in suspension of federal payments or even termination of a federal contract. Continue Reading New Mandatory Paid Sick Leave Rules Could Ensnare Unwary Federal Contractors

As of March 27, “spouse” under the Family and Medical Leave Act (FMLA) will include same-sex spouses for any legally recognized marriages based on the laws of the state of celebration. On February 25, as expected, the Department of Labor (DOL) published its final rules on the definition of spouse under the FMLA in light of the Supreme Court’s Windsor decision. Based on this final rule, the definition of spouse will be based upon the law of the jurisdiction where the marriage was entered into (place of celebration) rather than based on the law of the state of the employee’s residence (or work) “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.” Continue Reading DOL Issues Final Rule Revising the Definition of “Spouse” Under the FMLA

Some employers believe that an employee who is out on FMLA cannot be disciplined or terminated. More savvy employers know that such a broad application is not quite accurate, as an employee’s request for or taking FMLA leave does not give the employee any greater rights than if the employee were actively at work. This case, here, is a prime example.

What happened?  The employee requested leave for birth of her child, and the leave was granted. While on leave, however, the employee visited the employer’s premises. While there, she took home 6 cases of sample baby formula (yes, the employer produces baby formula), and doing so was a clear policy violation (think – stealing). A co-worker reported the misconduct, and an investigation resulted in the employee’s termination. The employee then sued, claiming that she was terminated while on FMLA leave and thus the termination was unlawful. Continue Reading Termination During FMLA Leave Not Unlawful

The Labor Department announced today its plans to propose new regulations on the definition of “spouse” under the FMLA.  The new definition of “spouse” will include a legally married same-sex spouse, regardless of the employee’s state of residence.  This rule, though not unexpected, is a change from an August 2013 “Fact Sheet” issued by the Labor Department that relied upon the definition of marriage in the employee’s state of residence.

By this rule, if adopted, employers in all states would be required to provide leave to legally married same-sex spouses even if the state of the employee’s residence or the state of the employer’s business does not recognize same-sex marriage.  It is worthy to note, however, given the Supreme Court’s highly publicized decision in Windsor, that the various federal challenges to the laws of those states not recognizing same-sex marriages will be successful to erode, and ultimately to eliminate, all of the state laws and regulations that do not recognize same-sex marriages.

The Supreme Court’s Defense of Marriage Act (“DOMA”) ruling will impact the “spouse” definition in the Family and Medical Leave Act (“FMLA”) (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.

It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do “in the meantime?” Continue Reading DOMA and the FMLA – What Should Employers Do “In the Meantime”?

The Department of Labor recently issued new FMLA regulations. The new regulations will take effect March 8, 2013. The regulations will have limited impact on most employers. However, the new regulations will require employers to obtain and post a new poster with the revised language contained in the regulations.

The other, more substantive impact is limited. The new regulations relate primarily to employees who are active military or retired. For a qualifying exigency leave, the definition of “active duty” is now “covered active duty” and will somewhat narrow coverage for eligible employees – the coverage will now extend only to those whose related service members are being deployed to a foreign country. On the other hand, military caregiver leave has been expanded. That leave – which provides for as much as 26 weeks of leave in 12 months – now includes eligible employees who are caring for covered veterans as well as covered service members. Covered veterans are those with a “serious injury or illness” who were discharged or released under conditions other than dishonorable within five years of an eligible employee’s initial request for leave (subject to certain exclusions extending the time for requesting leave). These and other new provisions are included on the revised FMLA Employee Rights and Responsibilities Poster (WH 1420). Employers should obtain new posters now for posting by March 8.

If you have questions about the new regulations and how they will affect your leave policies or would like assistance obtaining the revised poster, contact any of our Labor and Employment attorneys.

Under the Family and Medical Leave Act (“FMLA”), employers face significant challenges in understanding how much information from an employee is considered sufficient to trigger the employer’s duty to follow up. Courts have routinely found that minimal information will trigger an employer’s duty to ask if the employee needs leave and the corresponding duty to seek more information to determine if the FMLA applies. Knowledgeable employers know that an employee does not have to use any “magic language” and does not have to even mention the FMLA or even a need for “leave.” Rather, the employee must provide sufficient information “for an employer to reasonably determine whether the FMLA may apply.”

Some recent decisions address this important issue. In a recent case decided in Michigan, Byron v. St. Mary’s Medical Center, U.S. District Court – Eastern District Michigan, Sept 11, 2012, an employee’s telling her supervisor that she was “too sick to work” and was “going to the emergency room” were sufficient comments to put the employer on notice that the FMLA may be in play. Interestingly, the employer noted that although the employee had pancreatitis, her absences were never more than three consecutive days, meaning that the absences did not qualify anyway. However, the Court noted that given the condition, and the employer’s duty to gather more information, the employer would have learned that the condition was such that her not obtaining treatment would have led to absences in excess of the three-days requirement.

Continue Reading FMLA – What Information is Sufficient to Trigger Employer’s Duty to Follow Up

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave.  Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

Assume an employee asks for leave, to be taken in the future.  At the time of the request, the employee is not covered by the FMLA because the employee has not yet been employed for one year.  Later, the employee is terminated, and the termination occurs before the employee has been employed for a year.  Does the employee’s advance request for leave make the employee “protected” under the FMLA, even though the employee was never eligible for leave?

In a ruling on January 10, 2012, the 11th Circuit recently said yes.  The Court found that the FMLA “protects a pre-eligibility request for post-eligibility leave.”  The Court reversed the lower court’s dismissal of the case, explaining that the lower court’s ruling would allow an employer to terminate an employee to avoid having to provide rightful FMLA leave once the employee becomes eligible. Continue Reading Employee Not Yet Eligible for Leave Still Protected Under FMLA

A recent ruling reinforces that “how” an employer does what it does often is as important as what it does.  The case appeared relatively straightforward.  An employee missed a work shift and claimed intermittent FMLA leave.  One manager, who had been skeptical about some past intermittent leave use, saw the employee at a birthday party on the same day of the missed work shift.  The employer investigated.  There was evidence that the employee was at the party at the same time as some of the hours of her missed work shift.  The employee claimed she attended the party only after her shift would have ended, and that she was feeling better after resting for most of the day.

The employer terminated the employee, explaining it had an honestly-held belief that the employee had been at the party during her shift and was lying about it.  Rather than grant summary judgment to the employer, the Court ruled a jury trial was necessary.  Why?

Here are the reasons the Court did not defer to the employer’s claimed honestly-held belief under the “honest belief” rule: Continue Reading Employers Beware – “How” You Do Is Often As Material As “What” You Do