FMLA

Can an Employee Exposed to Pandemic Flu Take FMLA Leave?
Excerpt:"Not necessarily. FMLA protection requires that the employee experience a serious health condition -- compliance with the employer's swine flu policy is not enough."(Wolters Kluwer)

[Guidance Overview] The Ohio Military Family Leave Act Is in Effect as of July 2, 2010
Excerpt:"This Act applies to both public and private employers with 50 or more employees and allows eligible employees to take up to 10 days or 80 hours, whichever is less, of unpaid leave when a family member who is a member of the uniformed services is called to active duty or is injured, wounded or hospitalized while serving on active duty."(Littler Mendelson P.C.)

California Proposition 8 Barring Same-Sex Marriage Ruled Unconstitutional: What the Ruling Means for Employers
Excerpt:"The court's ruling is likely to have limited effect on employers so long as federal law does not recognize same-sex marriage. California law already extends the same rights and obligations to registered domestic partners as to spouses, including, for example, the right to take family leave due to the serious illness of a domestic partner."(Littler Mendelson P.C.)

[Guidance Overview] Key Issues and Emerging Trends in Parental&Medical Leave Law in New York
60 pages. (Vedder Price)

DOL to Gather More Information About Employers'Family Leave Policies and How Workers Use Leave to Deal with Family Issues
Excerpt:"[The DOL Secretary] announced in a news release that the agency's Wage and Hour Division will conduct a Family and Medical Leave Act survey in 2011 to provide a baseline data collection of current family workplace policies and practices, as well as information on regulatory changes."(PLANSPONSOR.com)

DOL to Issue New Proposed FMLA Regulations by November
Excerpt:"The proposed regulations will provide guidance on two new provisions of the FMLA relating to military leave rights and leave for airlines'flight crews, which were signed into law last year: the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act."(Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.)

Should a Small Business Offer Paid Maternity Leave?
Excerpt:"[T]he Society for Human Resource Management released a survey last week showing that just 12% of U.S. employers with fewer than 100 workers offer paid maternity leave. And among businesses of all sizes, 7% said they plan to reduce or eliminate the benefit within the next 12 months."(Wall Street Journal)

[Guidance Overview] DOL's'Game-Changing'FMLA Revisions
Excerpt:"Last week, the U.S. Department of Labor expanded the definition of'son and daughter'under the Family and Medical Leave Act (FMLA). The result could be a game changer for employers on a few levels."(Human Resource Executive Online)

[Guidance Overview] Ohio Supreme Court Rules Neutral Leave Policy Not Direct Evidence of Sex Discrimination
Excerpt:"The court's decision rejects the Ohio Civil Rights Commission's long-held position that Ohio's civil rights laws mandate employers provide maternity leave even where leave would not be available to employees who are not pregnant."(Littler Mendelson P.C.)

[Guidance Overview] Ohio Supreme Court Decision Allows Employers to Refuse Maternity Leave and Terminate Employees who Have Not Met Length of Service Requirements
Excerpt:"The Court held that pregnant employees must only be treated the same as all other employees under an employer???s leave policy and can be terminated while on a pregnancy-related leave pursuant to a neutral policy."(Porter Wright Morris&Arthur LLP)

Health Insurance Benefits Protection for Employees with Disabilities: The Role of FMLA
Excerpt:"This paper reviews earlier research with respect to how important a role health insurance continuation under the FMLA is for employees with disabilities."(Urban Institute)

[Guidance Overview] Employees with No Legal or Biological Ties to a Child Still May Qualify for FMLA
Excerpt:"Interpretation No. 2010-3 thus clarifies the definition of ???son or daughter??? under FMLA Sec. 101(12) as it applies to an employee standing ???in loco parentis??? to a child."(Wolters Kluwer)

[Guidance Overview] DOL Clarification of Who May Take FMLA Leave for the Birth, Bonding or Care of a ???Son or Daughter???
Excerpt:"The DOL???s interpretation describes several situations where the definition of in loco parentis may apply to permit an employee who is not a biological parent of a child to take FMLA leave, even if the situation does not lead to a legal relationship with the child such as through adoption."(Michael Best&Friedrich LLP)

[Guidance Overview] DOL's New Interpretation of FMLA
Excerpt:"The new interpretation will have widespread implications for blended families and same-sex couples, and will direct employers to be more discerning in determining ???quasi parental??? status for those that may qualify for FMLA."(Employee Benefit News; free registration required)

[Guidance Overview] DOL'Interpretation'of FMLA Rules Expands Protections for Non-Traditional Families
Excerpt:"The U.S. Department of Labor has issued an Administrator's Interpretation of the FMLA Regulation that includes'in loco parentis'relationships as part of the FMLA's definition of'son'or'daughter'. [The document provides links within the text to source documents.]"(Jackson Lewis LLP)

[Guidance Overview] DOL Interprets the FMLA Broadly and Expands Leave Protections for Those Who Stand In Loco Parentis to a Child (PDF)
3 pages. Excerpt:"The Interpretation departs from a literal reading of the regulation's conjunctive rule. Instead, it states that either day-to-day care or financial support may establish an in loco parentis relationship."(Paul, Hastings, Janofsky&Walker LLP)

[Guidance Overview] DOL Clarifies the FMLA's Definition of'Son or Daughter'
Excerpt:"The Administrator's Interpretation states that'where an employer has questions about whether an employee's relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or [a] statement of the family relationship."(Gray Plant Mooty)

Labor Depart. to Expand Family Leave Benefits to Gay Workers
Excerpt:"Labor Secretary Hilda Solis is expected to announce on Wednesday a reinterpretation of the 1993 Family and Medical Leave Act that will allow gay employees working for large employers -- including the federal government -- to take leave to care for their partner's children."(GovernmentExecutive.com)

Gay Workers Will Get Leave to Care for Partner's Sick Child
Excerpt:"The ruling, in a formal opinion letter, tackles a question not explicitly addressed in the 1993 law. It is one of many actions taken by the Obama administration to respond to the concerns of gay men and lesbians within the constraints of the Defense of Marriage Act . . . ."(The New York Times; free registration required)

[Guidance Overview] OPM Final Regulations Extend Leave Benefits for Domestic Partners of Federal Employees
Excerpt:"EBIA Comment: Interestingly, OPM confirms in the preamble that'it has always been appropriate to consider same-sex domestic partners as a family relationship'for the purposes covered under these regulations, but that agencies have not been consistent in their interpretation."(Employee Benefits Institute of America)

Federal Employees Get Time Off to Care for Domestic Partners, But Not Pets
Excerpt:"OPM nixed a suggestion to include pets in the definition of family members, noting,'while we agree that a person may have a close bond with his or her pet,'employees still must use annual leave or leave without pay to stay home with sick pets."(GovernmentExecutive.com)

Changes in Federal Workers'Leave Benefits Extended to Heterosexual Partners and Grandparents
Excerpt:"Federal workers may use sick leave or funeral leave in cases of ailing or deceased domestic partners starting July 14, the Office of Personnel Management said . . . . Unlike other recent changes to federal personnel policies that apply only to same-sex partners, the new orders also apply to opposite-sex domestic partners."(The Washington Post; free registration required)

Connecticut's Family Violence Leave Law
Excerpt:"Connecticut Governor Jodi Rell has signed a new law that entitles employees who are victims of family violence to take leave from work."(Jackson Lewis LLP)

Federal Employees and Families Lack Paid Parental Leave Benefits
Excerpt:"[O]ne potential benefit that Congress still is haggling over is paid parental leave. The House approved paid parental leave for federal employees last June; legislation has stalled, however, in the Senate."(GovernmentExecutive.com)

Managing Intermittent FMLA Leave
Excerpt:"These administrative tools for managing intermittent FMLA leave will not serve as a panacea for the problems caused by such leaves, but judicious use of such tools can deter and mitigate some of the abuses that employers frequently encounter."(Human Resource Executive Online)

Audio and Text: Obama Budget Pushes Paid Leave Programs
Excerpt:"The Obama administration's budget includes $50 million to help states with start-up costs for family leave programs -- not for costs associated with the leave days. It would pay for things like computers and administration, which Washington state estimates would cost $10 million the first year."(Morning Edition via National Public Radio)

Brief Overview of What New Hampshire Employers Should Know About Same-Sex Marriage
Excerpt:"Given the conflict with federal law, employers should understand that not all benefits available to married heterosexual employees will be available to married homosexual employees."(SeacoastOnline.com)

[Guidance Overview] Who Decides Whether an Employee Is Sick Enough for FMLA Leave?
Excerpt:"An employee may be entitled to a protected leave of absence under the FMLA when she has a serious'medical condition'during a'period of incapacity.'Who decides whether the employee is incapacitated? A doctor? The employee? A recent case titled Schaar v. Lehigh Valley Health Services, Inc. wrestled with this issue."(Barker Olmsted&Barnier)

[Guidance Overview] Eleventh Circuit Rules That Employer's Absence of Knowledge Causes Employee's Claims of FMLA Retaliation and Interference and ERISA Inteference to Fail
Excerpt:"In Krutzig v. Pulte Home Corporation, No. 09-12512 (11th Circuit 2010), the plaintiff had been terminated from employment with her employer, the defendant, and had claimed that the termination was an act of retaliation and interference with her rights under the Family and Medical Leave Act ('FMLA') to take FMLA leave, and an act of interference with her request under ERISA for short-term disability benefits. The district court had entered summary judgment on those claims in favor of the defendant."(Stanley D. Baum of Fellheimer&Eichen LLP)

[Guidance Overview] Is Your Company's Maternity Leave Policy Legal? The EEOC May Not Think So
Excerpt:"Under Title VII of the Civil Rights Act of 1964, employers are permitted to provide women with leave specifically for the period that they are incapacitated because of pregnancy, childbirth, and related medical conditions. Employers, however, may not treat females more favorably than males with respect to other kinds of leave, including leave for childcare purposes, under Title VII. Indeed, according to the Equal Employment Opportunity Commission (EEOC), employers who grant more liberal leave to new mothers than to new fathers without tying that leave to a pregnancy-related disability may be guilty of sex discrimination."(Troutman Sanders LLP)

Secretary of Labor Asks Court to Overturn Exelon Excessive Fee Case Decision
Excerpt:"Secretary of Labor Hilda L. Solis has filed an amicus brief asking the 7th U.S. Circuit Court of Appeals to overturn a trial court's dismissal of a class action against Exelon Corp. The class action alleged Exelon Corp. breached its fiduciary duties by selecting retirement plan investment options that charged fees that were excessive. U.S. District Judge John W. Darrah of the U.S. District Court for the Northern District of Illinois compared allegations in the Exelon case to those in Hecker v. Deere&Co. and found they were nearly identical . . . ."(PLANSPONSOR.com)

[Guidance Overview] Trouble Brewing for Employers as New York City Council Reintroduces Paid Sick Leave Law
Excerpt:"If passed, New York private-sector employers would join San Francisco, California, and Washington, D.C., employers and be mandated to provide employees a minimum number of paid sick days each year. The proposed bill's effect would be far reaching, affecting the lives of up to 1 million workers in the City."(Jackson Lewis)

[Guidance Overview] Third Circuit Says Lay and Medical Evidence Sufficient to Show a'Serious Health Condition'Under FMLA
Excerpt:"A federal appeals court in Philadelphia has ruled that an employee may use a combination of lay and medical testimony to establish that she has a'serious health condition'under the Family and Medical Leave Act, even though lay testimony alone (her own) would not suffice to establish that such condition resulted in her incapacitation. Schaar v. Lehigh Valley Health Servs. Inc., No. 09-1635 (3d Cir. Mar. 11, 2010)."(Jackson Lewis LLP)

Paid Sick Leave in the United States (PDF)
4 pages. Excerpt:"This issue of Program Perspectives takes a closer look at paid sick leave benefits, including both the percentage of employees with access to paid sick leave benefits and employer costs for sick leave.Short-term disability plans are also discussed."(U.S. Bureau of Labor Statistics)

[Guidance Overview] Claim for Failure to Provide COBRA Notice Should Have Been Brought Under PHSA, Not ERISA
Excerpt:"EBIA Comment: Because the PHSA's enforcement provision is narrower than ERISA's, the employee in this case may receive less relief than anticipated. Note also that the FMLA prohibits employers from discriminating or retaliating against employees or prospective employees for exercising their FMLA rights. For example, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions."(Employee Benefits Institute of America)

[Guidance Overview] Appeals Court Holds that an Employee's Self-Diagnosis Can Establish Ongoing Medical Condition Under FMLA
Excerpt:"Brace yourself for yet another twist in the ever-evolving standards governing an employee's leave under the Family Medical Leave Act (FMLA). On March 11, 2010, the U.S. Court of Appeals for the 3rd Circuit joined the 8th Circuit Court of Appeals in holding a combination of expert and lay testimony can establish that an employee was medically incapacitated for more than three days, thereby triggering FMLA protection. Schaar v. Lehigh Valley Health Services. At issue in Schaar was whether an employee was entitled to FMLA protection when she relied, in part, on her own diagnosis that she was incapacitated for more than three days, thus triggering FMLA protection."(Fisher&Phillips LLP)

[Guidance Overview] Employee's Own Testimony Can Help Prove FMLA Eligibility
Excerpt:"A federal appellate court has ruled that an employee's own testimony can be used in conjunction with medical evidence to prove eligibility for Family and Medical Leave Act (FMLA) leave. Setting its precedent, the 3rd U.S. Circuit Court of Appeals noted the regulation at issue in this case provides that the ambiguous statutory language'continuing treatment by a health care provider,'can be satisfied by showing at least three days of incapacitation, but does not speak to whether medical testimony is required."(PLANSPONSOR.com)

[Guidance Overview] Employees Have FMLA Retaliation Protections Before They Are Eligible to Take FMLA Leave
Excerpt:"A recent decision from the United States District Court for the District of South Carolina clarified that an employee may make an FMLA retaliation claim based on employment actions occurring before the employee is eligible to take FMLA leave. In Gleaton v. Monumental Life Ins. Co., the plaintiff alleged she became seriously ill in October 2007 and told her employer she would need FMLA beginning in November 2007. The plaintiff had not worked for the employer for 12 months as of October 2007 and was not, therefore, eligible to take FMLA leave [until] November 2007."(Poyner Spruill LLP)

Think Tank Proposal for Mandatory Workplace Flexibility, Limits on Overtime, Paid Family Leave
Excerpt:"[T]he Center for American Progress issued a comprehensive set of recommendations that address'the needs of today's workers and families as they really are, not as we imagine them to be,'including broadening Social Security to include paid FMLA. On the premise that women now make up half of all workers, with mothers being the'primary breadwinners'in four in ten families, the report makes a number of recommendations . . . ."(HR Policy Association)

[Guidance Overview] California Supreme Court Limits Kin Care Law
Excerpt:"California has a leave law known as'kin care.'It allows employees to use one-half of their annual sick leave entitlement to attend to the illness of a child, parent, spouse or domestic partner. What if a company does not offer an accrued sick leave benefit, but instead offers sickness absence policy, which provides for an uncapped number of paid days off for illness? The California Supreme Court addressed this question . . . ."(Barker Olmsted&Barnier)

[Guidance Overview] Federal Judge in Pennsylvania OKs FMLA Claims Against Individuals
Excerpt:"[The judge] refused to follow decisions from federal courts in Utah, Minnesota and Kansas that said FMLA's individual liability provisions apply only to corporate officers. . . . In a ruling that defines the scope of individual liability under the Family and Medical Leave Act, a federal judge has refused to dismiss claims against a trio of human resources executives and a manager who allegedly set out to find a reason to fire a worker soon after learning that he needed to schedule a leave for a surgery."(Law.com)

Towers Perrin U.S. Legislative Tracking Chart -- Human Resources (PDF)
11 pages. Updated February 25, 2010. (Towers Perrin)

Assessing Leave Donation Programs
Excerpt:"Leave-donation programs -- which allow workers to donate paid leave to coworkers -- had been rising steadily until last year. Employers that offer them tend to employ large numbers of working mothers. One expert says more companies than ever are looking into them."(Human Resource Executive Online)

California Supreme Court Rules That Uncapped Sick Leave Policies Are Not Covered By California's'Kin Care'Law
Excerpt:"The California Supreme Court has issued a significant ruling on the scope of California's'kin care'law, Labor Code ? 233, which entitles employees in certain circumstances to use paid sick leave to care for ill family members. The Court held that when an employer's sick leave policy does not provide a measurable, banked number of paid sick days in a calendar year, the kin care law does not apply."(Paul Hastings)

Milwaukee, Wisconsin, Paid Sick Leave Case Referred to State Supreme Court
Excerpt:"On February 18, 2010, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to take up the constitutionality of Milwaukee's paid sick leave mandate."(Wolters Kluwer)

[Guidance Overview] Banking Kin Care: Employer Kin Care Leave Obligations Arise Only When Policies Provide Accrual-Based Sick Leave
Excerpt:"California has a'kin care'statute, Labor Code section 233, which requires that employees entitled to accrued sick leave can use some of it to care for ill relatives.On February 18, 2010, in McCarther v. Pacific Telesis Group, the California Supreme Court ruled that section 233 does not apply to paid sick leave policies that provide for an uncapped number of compensated days off. In other words, the Court concluded that the kin care statute does not apply to all forms of compensated time off for illness, but only to'sick leave'as defined by the statute."(Seyfarth Shaw LLP)

[Guidance Overview] California Supreme Court Holds'Kin Care'Law Does Not Apply to Unlimited Sick Leave Policies
Excerpt:"Interpreting the reach of California's'kin care'law, the California Supreme Court has held that the law does not apply to all sick leave policies. The court held the law does not cover policies providing for an uncapped, or unlimited, amount of paid days off. Employers with such policies are not obligated to allow employees to use paid sick leave to provide'kin care'to family members. The decision in McCarther v. Pacific Telesis Group was unanimous."(Nixon Peabody LLP)

[Guidance Overview] New Military Leave Guidance Under the HEART Act
Excerpt:"The Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART Act) requires employers to provide certain retirement and welfare benefits for returning military personnel and their beneficiaries. On January 20, 2010, the Internal Revenue Service (IRS) issued Notice 2010-15, which provides long-awaited guidance in the form of questions and answers on several HEART Act provisions, including survivor benefits, benefit accruals, differential pay and distributions."(McDermott Will&Emery)

[Guidance Overview] Can't Keep Up with the FMLA-Military Amendments? Apparently, Neither Can the DOL
Excerpt:"The DOL website does not mention the latest amendments to the FMLA, and the mandatory FMLA poster doesn't comply. More importantly, the recommended certification forms for military caregiver or qualifying exigency leave have not been updated to conform with the latest amendments, and reliance upon the forms that are currently in use could cause an employer to unknowingly violate the law by denying leave to an employee who is entitled to leave."(Constangy, Brooks&Smith, LLP)

The Costs to American Workers of Staying Home Sick
Excerpt:"The New York Times'Economix has a post by economist Nancy Folbre today on the costs of not having sick leave. . . . According to Folbre:'The United States stands out as one of the few rich nations in the world that doesn't mandate any form of paid sick leave. About 40 percent of private-sector workers lack coverage from their employer. This means they will lose pay and even risk losing their jobs if they call in sick.'"(Workplace Prof Blog)

[Guidance Overview] Trip Abroad with Ill Husband for Faith Healing Was Not FMLA-Protected Leave, District Court Rules
Excerpt:"An employee's seven-week trip to the Philippines with her husband (who indisputably suffered from a serious health condition), ostensibly so that he could participate in a faith healing event at a Catholic'Pilgrimage of Healing Ministry,'was not protected under the FMLA, a federal district court in Massachusetts has ruled."(Wolters Kluwer)

[Guidance Overview] Podcast: When Does Additional Leave Beyond FMLA Need to be Granted?
Excerpt:"In the January FMLA Insights podcast, one of the most common inquiries they receive from their clients is how they should handle a situation where an employee has exhausted 12 weeks of FMLA leave and now seeks additional leave (or where his/her return date is still uncertain). [The firm of Franczek Radelet] advises employers to individually assess the employee's need for leave and any return to work issues before deciding to terminate employment. In the podcast, they offer practical tips on how to handle these situations."(Workplace Prof Blog)

[Guidance Overview] Washington State's Domestic Partnership Law Complicates Employee Benefits
Excerpt:"For employers, this means that employment-related benefits must be extended to the registered domestic partners of employees on the same basis as spouses -- that is, unless the benefit is governed exclusively by federal law. FMLA is one such law; ERISA is another. This means that employers subject to FMLA and the corresponding state leave laws (the Washington Family Leave Act, state pregnancy disability laws, and state military leave laws) cannot count against an employee's annual FMLA entitlement any leave that is covered by state law but not FMLA."(OregonReport)

Business, Advocates Spar Over Proposal for Mandatory Paid Sick
Excerpt:"Lawmakers heard hours of heated and conflicting testimony on [January 14] on a proposal to make Maine the first state in the nation to require businesses to offer employees paid sick days."(Bangor Daily News)

First Lady Michelle Obama Promotes Work/Life Balance in Visit to Labor Department
Excerpt:"First lady Michelle Obama urged companies to implement policies that will help their employees better balance work and family obligations during an appearance at the Department of Labor on Thursday, January 14. In an address to about 400 Labor Department employees, Obama also promoted legislation that would guarantee paid sick leave, a measure that has generated concern among HR organizations in Washington."(Workforce Management; free registration required)

Paid Sick Leave at Top of the Agenda After Health Care Reform
Excerpt:"After imposing new costs on employers through the health care legislation, many will question the wisdom of Congress even considering inflicting additional costs with new leave mandates. However, pressure will be brought on several fronts for so-called'family-friendly'initiatives in an election year."(HR Policy Association)

[Opinion] Paid Sick Days Benefit Employees and Employers
Excerpt:"There's something wrong when workers have to choose between keeping a job and taking care of themselves or their families when someone gets sick. There's something wrong when going to a routine medical appointment or other preventative care could result in a pink slip. There's something wrong when a domestic violence survivor seeking help or services is punished with the loss of her job."(Chillicothe Gazette)

Airline Flight Crews Now Eligible to Take Leave Under the Family and Medical Leave Act
Excerpt:"[The Airline Flight Crew Technical Corrections Act, recently signed into law by President Obama,] makes a flight attendant or pilot eligible for leave under the FMLA if he or she has been paid for or worked a minimum of 504 hours a year and at least 60 percent of the employer's full-time schedule -- called a monthly guarantee -- or the equivalent in the 12 months preceding the leave."(Wolters Kluwer)

Proposed Federal Laws Would Mandate Paid Sick Leave for Employees with H1N1
Excerpt:"Proposed federal laws would require employers to provide paid sick leave to employees infected with flu-like or contagious illnesses, such as the H1N1 virus. Both of the laws, if passed, would take effect 15 days after enactment and would end after two years. There is also pending legislation to require paid vacation."(Poyner Spruill LLP)

[Guidance Overview] Legal Issues Regarding Employee Leave in an H1N1 Pandemic (PDF)
Excerpt:"Employers hit by an H1N1 pandemic could face complex or novel legal issues as employees who contract the illness -- or those who seek to avoid it -- stay home from work. Attorneys . . . analyze questions presented by state and federal laws, including workers'compensation statutesand the Family and Medical Leave Act.[Reproduced by McDermott Will&Emery with permission from Workplace Law Report, 7 WLR 1670, 12/18/2009. Copyright ? 2009 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com]"(The Bureau of National Affairs, Inc. via McDermott Will&Emery)