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

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

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

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

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,

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
  

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

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

After surviving a legal challenge rejected by the Arizona Supreme Court, Arizona’s $10 minimum wage enacted under Proposition 206 is already in effect, and the sick leave portion of the law takes effect in July. For many companies, this will require new paid time off and sick leave policies, or at least revisions to their existing policies.

With enactment of Proposition 206, Arizona joins other states with sick leave laws, including Illinois, California, Oregon, Washington, Massachusetts, Vermont, and Washington, D.C. As previously reported by the Bryan Cave Retail Law blog, the Illinois law took effect in January 2017.

The Arizona law generally applies to all Arizona employees; it makes no distinction between salaried, hourly, full-time, part-time, temporary or seasonal employees. All employees must accrue one hour of paid sick time for every 30 hours worked.

Paid sick leave can be used for medical care of a mental or physical illness,

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

• General Guidance materials (such as FAQs and separate employee and employer guides);
• Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);

• E-Tools (interactive online tools and presentations about the FMLA);

• Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);

• Forms (consider making it