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DOL: Employers May Not Delay FMLA Designation, Even at Employee’s Request

It is not uncommon for employees to ask whether they can first use paid time off available under the employer’s leave policies and “save” their unpaid – and protected – Family and Medical Leave Act (FMLA) leave entitlement until later, in the event that they need additional leave.  Some employers permit this approach, perhaps out of a desire to be “generous” to employees with respect to leave, or sometimes inadvertently due to not realizing that paid leave and unpaid FMLA leave can run concurrently, or even because of a failure to recognize at the beginning of an employee’s leave that the FMLA applies.

In an opinion letter issued on March 14, 2019, the U.S. Department of Labor (DOL) took a firm stand against this practice, stating unequivocally that “the employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”  See FMLA2019-1-A.

In reaching this conclusion, the DOL relied heavily on the FMLA regulation precluding the waiver of FMLA rights, see 29 C.F.R. § 825.220(d), stating that, in light of the prohibition on such waivers, neither the employee nor the employer “may decline FMLA protection” for FMLA-qualifying leave.  The DOL also noted that delaying FMLA leave until after paid leave is exhausted would run afoul of the regulation that requires employers to provide the FMLA designation notice within five business days of having sufficient information to determine that leave is for an FMLA-qualifying reason.  See 29 C.F.R. § 825.300(d)(1).

Although

Does An Employer Have FMLA Obligations Even Before An Employee Satisfies the Eligibility Requirements For Taking FMLA Leave?

November 26, 2018

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In a word: Yes.  In fact, there are many.

The most notable obligation under the Family and Medical Leave Act – the obligation to provide protected leave for a qualifying reason – does not apply until the employee has become eligible for leave under the Act.  However, many other obligations apply even before an employee becomes FMLA-eligible:

  • Employers may not manipulate the size of a worksite or the number of work hours available to an employee in order to avoid employee eligibility for FMLA leave.
  • Employers may not induce an employee to waive prospective rights under the FMLA, such as inducing a pre-eligible employee to waive the right to take leave once the employee becomes eligible in exchange for some other employer-provided benefit.
  • Employers must not retaliate against an employee who, before becoming eligible for FMLA leave, requests leave that will begin after eligibility is achieved. See Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269 (11th Jan. 10, 2012) (holding that the FMLA prohibits an employer from harassing, criticizing the performance of, and terminating an employee in response to a pre-eligibility request for post-eligibility leave, because to hold otherwise would create “a loophole . . . whereby an employer has total freedom to terminate an employee before she can ever become eligible.  Such a situation is contrary to the basic concept of the FMLA”).
  • Employers must give accurate information to an employee about whether the employee is eligible for leave. When an employee is given inaccurate information

On or Off? What to Do with Email When the Employee Is on FMLA Leave.

September 21, 2018

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When an employee goes out on continuous (not intermittent) leave under the Family and Medical Leave Act (or analogous state law), the employer must decide whether to turn off the employee’s email access during the leave.  If the employer has a standard practice that applies to other comparable leaves of absence, then the employer should follow that practice for FMLA leave as well.  But if the employer has no existing practice, what practice should it adopt?

On the one hand, employees should not be expected to work while they are on FMLA leave and, generally, should not work.  Turning off the email access demonstrates the employer’s seriousness about compliance with this principle, precludes a one-off supervisor ignoring this principle and asking the employee to do something, and prevents the employee from ignoring this expectation and instead doing work (and making a claim later that he or she is entitled to pay and/or should not have had certain hours counted against the employee’s FMLA entitlement).

On the other hand, employers are permitted to communicate with employees while they are on leave, and may even ask employees on occasion to help briefly with something (like providing a summary of the status of a matter, or letting the employer know who the contact is for a project, or where to find a file) without violating the FMLA.  This is typically viewed as something akin to a professional courtesy and will not support an interference claim, so long as it does not cross the

FMLA-Related Updates from the DOL: New Opinion Letters and (Kind of) New Forms

The U.S. Department of Labor (“DOL”) recently released two new opinion letters relating to the Family and Medical Leave Act (“FMLA”), which provides eligible employees the right to unpaid, job-protected leave for certain family and medical reasons.  The DOL also issued “new” forms relating to FMLA leave, which should be used on a going-forward basis.

The full opinion letters are available here and here, and the new forms are available here.

Organ Donors

In the first opinion letter, the DOL addressed the question of whether leave resulting from organ donation, including post-operative treatment, could qualify for FMLA leave.  The brief answer:  Yes, so long as the need for leave meets the FMLA’s definition of serious health condition.  An employee’s organ donation can qualify as a serious health condition when it involves “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114, .115. And, since an organ donation would qualify as a serious health condition whenever it results in an overnight stay in a hospital – which is commonly involved in such donation – it is likely that the FMLA would apply.

Importantly, the reason for the organ donation – e.g., the fact that the organ donor is in good health before the donation or chooses to donate the organ solely to improve someone else’s health – played no bearing in the DOL’s response.  The takeaway:  The DOL is not going to delve into the reason someone has a serious health condition requiring leave (and neither should the

Paid Sick Leave to Take Effect in Maryland, Despite Governor’s Veto

Maryland has joined the growing ranks of states across the country mandating employee sick leave. Last year, the General Assembly passed the Healthy Working Families Act, requiring employers to allow employees to earn time off from work.  While Governor Larry Hogan vetoed the bill late last year, the General Assembly reconvened in January and overrode the veto. The Act takes effect on February 11, 2018, and employers should be prepared to implement changes quickly.

Coverage:

The Act applies to full-time, part-time, and temporary employees. However, it does not apply to any employee who works fewer than 12 hours per week, or employees under 18 years old.  Additionally, the Act contains other exceptions for certain categories of workers, including agricultural workers, construction industry employees that are covered by a collective bargaining agreement, and “as needed” shift employees in the healthcare industry.

Whether sick leave is paid or unpaid depends on the size of the employer. Employers with 15 or more employees must provide up 40 hours of paid sick leave per year.  Employers with 14 or fewer employees must provide employees the same amount of unpaid sick leave.

Accrual:

An employee begins accruing leave immediately upon starting work.  Employers must allow employees to accrue one hour of sick leave for every 30 hours worked, and the accrual rate is the same whether leave is paid or unpaid.  Additionally, employers must allow employees to carryover at least 40 hours of earned sick leave from one year to the next.  However, employers

California Enacts New Law Expanding Parental Leave to Small Employers

On Thursday, October 12, 2017, California Governor Jerry Brown signed legislation that extends twelve weeks of unpaid parental leave to California employees who work for small businesses.  The New Parent Leave Act applies generally to California employers with at least 20 and no more than 49 employees.  The practical effect of the Act is to expand the parental leave required under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) to smaller employers.  The new law takes effect on January 1, 2018.

Under the New Parent Leave Act, an employee may take up to twelve weeks of unpaid parental leave within one year of a child’s birth, adoption, or foster care placement, so long as the employee (1) works at a location where the employer has at least 20 employees within a 75 mile radius, (2) has at least twelve months of service with the employer, and (3) has worked at least 1,250 hours during the previous twelve months.  The new law requires the employer to maintain the employee’s health care coverage, but the employer can recover the premium paid if the employee fails to return from leave due to a reason other than a serious health condition or “other circumstances beyond the control of the employee.”

The law also creates a “parental leave mediation pilot program” that will last through January 1, 2020.  Under the “pilot” mediation program, if an employer requests mediation within 60 days of receiving a right to sue notice,

ADA Does Not Require Employers to Provide Multi-Month Leave Beyond Expiration of FMLA Leave – Seventh Circuit

This week the 7th Circuit Court of Appeals issued a decision helpful to employers grappling with whether they must extend an employee’s time off following the expiration of Family and Medical Leave Act (FMLA) leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  See Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir., Sept. 20, 2017).

In Severson, the court found that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  Plaintiff, Severson, had a physically demanding job working for a fabricator of retail display fixtures.  Severson took twelve weeks of FMLA leave due to serious back pain.  During his leave, he scheduled back surgery (to occur on the last day of his FMLA leave), and requested an additional three months of leave.  Defendant, Heartland, denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging disability discrimination.

In affirming summary judgment in favor of the employer, the 7th Circuit noted that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  Following its earlier decision in Byrne v. Avon Prods., 328 F.3d 379 (7th Cir. 2003), the court also stated that “an employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.”  In other words, “an extended leave of absence does not give a disabled individual the means

Investigate FMLA Fraud? Absolutely! But…

September 8, 2017

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Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

  • Have a solid basis for initiating an investigation. FMLA investigations should not be undertaken simply because an employee is using, or even exhausting, his or her FMLA leave.  Rather, an investigation is appropriate only if there is a reasonable basis for believing an employee is somehow misusing FMLA leave, such as lying about having a serious health condition or using leave for a purpose other than the purpose for which leave was certified (e.g., to cover absences for a planned trip when a vacation request is denied).  To avoid a perception that the investigation occurred simply to harass the employee and/or discourage the use of FMLA leave, an investigation should occur only

Think Your PTO Policy Complies With the Chicago or Cook County Paid Sick Leave Ordinances? Think Again.

The City of Chicago’s (the “City’s”) and Cook County’s (the “County’s”) paid sick leave (“PSL”) Ordinances took effect on July 1, 2017, generally requiring employers to provide employees in Chicago and non-opt out locations in Cook County with 40 hours of PSL per year, plus additional PSL for employers/employees covered by the U.S. Family and Medical Leave Act (“FMLA”). Based on “safe harbor” provisions in both Ordinances, many employers are assuming that their Paid Time Off (“PTO”) policies are sufficient – as written – to comply with these new PSL obligations. However, a careful reading of the Ordinances and their respective rules (“Rules”) leads to the inescapable conclusion that almost no traditional PTO policy satisfies the Ordinances’ burdensome and somewhat complex requirements.

Safe Harbor Provisions

Both Ordinances contain a “safe harbor” provision that essentially says that if the employer grants paid time off to employees in an amount and manner that meets the requirements for PSL under the Ordinance, the employer is not required to provide additional paid leave. The final Rules adopted by the City and the County include additional guidance with respect to this issue:

Chicago Safe Harbor Rule, MW 3.01

The Paid Sick Leave portion of the Ordinance has three main categories which must be complied with: (1) accrual / grant of hours of Paid Sick Leave; (2) carryover of Paid Sick Leave from one year to the next; and (3) usage of Paid Sick Leave. Grant of sufficient hours may exempt an Employer from carryover as

Georgia Enacts New Family Care Act That Broadens Permissible Uses Of Paid Sick Leave

Although Georgia still lags behind states that mandate paid sick leave, certain Georgia employees will now be able to use some of some of their paid sick leave to care for a qualifying family member without fear of reprisal.   Under Georgia’s new Family Care Act, which was signed into law on May 8, 2017 and goes into effect on July 1, 2017, employers with 25 or more employees that provide paid sick leave must allow employees who work at least 30 hours per week to use up to five days of their paid sick leave per calendar year to care for an immediate family member.  The Act defines immediate family members as an employee’s child, spouse, grandchild, grandparent, parent, or any dependent shown on the employee’s most recent tax return.

The Family Care Act does not mandate that employers provide paid sick leave nor does it require employers to allow employees to use sick leave until it has actually been earned.  In addition, an employer may still require employees to comply with the terms of its sick leave policy.  Although the State of Georgia and its political subdivisions are covered by this Act, employers that offer an employee stock ownership plan are excluded from coverage.  Only time will tell how effective the Family Care Act will be since it does not provide employees with a cause of action against employers, does not provide any enforcement provisions, and will be automatically repealed on July 1, 2020, unless the General Assembly chooses

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