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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

Advocate-General’s opinion may have significant implications for holiday law in Germany

June 1, 2018

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Under German law, employees generally apply for holiday during the holiday year so that their claims can be fulfilled. If they fail to do so, their entitlement lapses at the end of the year. When employees leave their firms, they cannot claim compensation for unused holiday. A recent Advocate-General’s opinion has now thrown doubt on this practice.

This area has been under scrutiny, as several Regional Labour Courts have granted employee claims for compensation in the form of a substitute holiday (or compensation) specifically in cases where the employee has not applied for holiday during the year. Up to now, the question of whether the employee is also entitled to compensation after failing to submit the appropriate holiday request was unresolved because the German Federal Holiday Act does not contain a corresponding provision.

Two cases on this issue presented by the Federal Labour Court and by the Higher Administrative Court of Berlin-Brandenburg (Case Nos.: C-619/16 and C-684/16) are currently being considered by the European Court of Justice (ECJ). In one, an employee sued a former employer for damages for untaken holiday although the employee had not applied for leave during the relevant calendar year. The claim was upheld by the Regional Labour Court. However, on appeal the German Federal Labour Court had its doubts and asked the ECJ to consider whether a holiday request is required before an employee is entitled to be compensated for untaken holiday at the end of the period under consideration.

Advocate-General Yves Bot presented his

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

Temps in Tenth Circuit Face Stricter Scrutiny When Seeking Time Off as Reasonable Accommodation

On July 6, 2017, a three-judge panel of the United States Court of Appeals for the Tenth Circuit reiterated that physical attendance in the workplace is an essential function of most jobs and emphasized this is particularly true for temporary workers filling short-term vacancies.

In Punt v. Kelly Services, the plaintiff, Kristin Punt, was a temporary worker assigned to work for GE Controls Solutions (“GE”) as a receptionist.  The essential functions of that job included being “physically present at the lobby/reception desk during business hours.”  However, during her six weeks in the position, Ms. Punt was absent or tardy on multiple occasions, often due to medical appointments related to a recent diagnosis of breast cancer.  GE terminated her assignment after she informed GE on a Monday morning that she planned to be absent the entire week and would need unspecified additional time off for “some appointments and tests” and “five times of radiation.”

Ms. Punt filed suit under the Americans with Disabilities Act, alleging failure to accommodate a disability.  In the Tenth Circuit, the plaintiff must make a prima facie showing that (1) she is disabled, (2) she is “otherwise qualified,” and (3) she requested a plausibly reasonable accommodation.  The burden of production then shifts to the employer to present evidence either (1) conclusively rebutting one or more elements of the prima facie case, or (2) establishing one of the affirmative defenses, such as undue hardship.  The Tenth Circuit affirmed summary judgment for GE, concluding as a matter of law

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

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