FMLA Archives - Page 3 of 4

Do You Have At Least 20 Employees in California?

Currently, if you are an employer with 50 or more employees within 75 miles, you are required, under the federal Family and Medical Act (FMLA) and the California Family Rights Act (CFRA), to provide an unpaid protected leave of absence of up to 12 weeks during any 12 month period to eligible employees for various reasons, including, for the birth or placement of a child for adoption or foster care; to care for an immediate family member with a serious health condition, or to take medical leave when the employee is unable to work because of a serious health condition.

A pending California Senate Bill (SB), if passed, would extend some of the benefits of the FMLA and CFRA to California employers with 20 to 49 employees. SB 63, aka Parental Leave, would add Section 12945.6 to the Government Code, and prohibit employers with 20 to 49 employees within a 75 miles radius from refusing to allow an employee with more than 12 months of service and at least 1,250 hours of service with the employer during the previous 12-month period, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.

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Illinois Employers Must Provide Qualifying Employees Two Weeks of Unpaid Child Bereavement Leave

Illinois is now the second state to require that employers provide unpaid bereavement leave to eligible employees under its Child Bereavement Leave Act. This Act provides that employers with at least 50 employees must provide two weeks (10 working days) of unpaid leave due to the loss of a child. In the event of death of more than one child in a 12-month period, an employee is eligible for up to six weeks of bereavement leave.

Coverage

The Act defines “employers” and “employees” in the same manner as they are defined under the Family Medical Leave Act (FMLA). Thus, an employee will be eligible for child bereavement leave under Illinois law if the employee has been employed by the employer for at least 12 months and has worked at least 1250 hours during the previous 12-month period. However, an employee who has exhausted his or her FMLA leave is not eligible for child bereavement leave under this Act.

While an employee’s eligibility for child bereavement leave is tied to the employee’s FMLA entitlement, the employee’s bereavement leave cannot be deducted from the employee’s available FMLA leave. In other words, an employee can take two weeks of bereavement leave and still be eligible for 12 weeks of FMLA leave for another qualifying event.

The Act defines “child” as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

Bereavement Leave

An employee may use bereavement leave to:

Attend the funeral or alternative to a funeral of a child;
Make arrangements necessitated by the death of the child; or
Grieve the death of the child.

Employees must take such leave within 60 days after the date on which they receive notice of the death of the child. Employees who wish to take bereavement leave must provide 48 hours’ advance to their employer, unless providing such notice is not reasonable and practicable.

Employers may require that an employee provide reasonable documentation, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

Substitution of Paid Leave

Under the Act, employees may elect to substitute paid leave, including family, medical, sick, annual, or personal leave, that is available pursuant to federal, state, or local law, a collective bargaining agreement, or employment policy. Unlike FMLA provisions, the right to substitute paid leave rests with the employee and the Act does not provide any right to the employer to require an employee to use available paid leave.

Retaliation and Enforcement

An employer may not retaliate or take any other adverse action against any employee who:

Exercises rights or attempts to exercise rights under this Act;
Opposes practices which such employee believes to be in violation of the Act; or
Supports the exercise of rights of another under this Act.

If an employee feels that his or her rights have been violated under this Act, he or she may file a complaint with the Illinois Department of Labor or file a civil action in court within 60 days after the date of the violation.

An employer who violates this Act is subject to a civil penalty not to exceed $500 for the first offense and not to exceed $1,000 for the second offense.

Continue reading “Illinois Employers Must Provide Qualifying Employees Two Weeks of Unpaid Child Bereavement Leave”

The Emergence of Paid Sick Leave Laws

In last week’s blog entry, Lynne Anne Anderson highlighted the increasing number of states that mandate employers to provide school related unpaid leave for parents. This week’s entry looks at another growing trend in the employee leave space, paid sick leave. An increasing number of states and localities now provide paid sick leave. It is important that both employers and employees are aware of this trend and whether these laws apply to their locality or state.

The following states (and District of Columbia) have paid sick leave laws:

Continue reading “The Emergence of Paid Sick Leave Laws”

New Jersey Expands Protections Against Pregnancy-Based Discrimination By Employers And Other Entities

Update 1/23/14 – On Wednesday, January 22, 2014, Governor Christie signed S2995 into law. LaborSphere’s original post on the legislation appears below.

New Jersey is on the precipice of expanding anti-discrimination protections to both pregnant women and new mothers and those recovering from childbirth. The State Senate and now the State Assembly have passed identical measures with only one dissenting vote in either legislative body. The expansive legislation now awaits the signature of Governor Chris Christie in order to become law.

Amendments to New Jersey Law Against Discrimination

In order to address the perceived vulnerability of pregnant women in the workplace as well as to foster the goal of healthier pregnancies and recovery from childbirth, the legislation passed by New Jersey’s legislature expands the anti-discrimination and anti-retaliation protections of New Jersey’s Law Against Discrimination (“NJLAD”). Should it pass, both pregnant women but also those who have recently given birth or have medical conditions related to pregnancy will be statutorily protected against disparate treatment and retaliation by employers, labor organizations, landlords, lending institutions as well as an array of other entities that offer public accommodations.

Further, not only does the pending legislation add “pregnancy” to the array of protected categories covered by the NJLAD. It also specifically requires employers to provide “reasonable accommodations,” such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules and temporary transfers to less strenuous or hazardous work.

The legislation implied but does not specifically state that any such requested accommodations will likely need to be based on the advice of a physician. As such, it appears that pregnant women and those who have recently given birth cannot merely demand that an accommodation is “reasonable” and necessary absent some input from her physician.

Further, employers are not obligated to agree to any requested accommodation, even if it is supported by a physician’s recommendation, if such an accommodation would impose an “undue burden” as defined by the statute. The proposed legislation provides specific factors to be utilized in determining whether an accommodation would impose undue hardship on the operation of an employer’s business. These include:

overall size of the employer’ business with respect to the number of employees;
number and type of facilities;
size of budget;
the type of the employer’s operations, including the composition and structure of the employer’s workforce;
the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions and outside funding; and
the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

New Protection To Employees Seeking Information About Claims

Perhaps the start of a new trend, among the proposed amendments to the NJLAD is also a provision that protects any employee against reprisals by employers for asking coworkers or former coworkers for information that is part of an investigation or in furtherance of a possible claim under the NJLAD. Such information may include requests for data regarding pay, compensation, bonuses or benefits. Significantly, this new protection extends beyond pregnant women and those who have recently given birth.

Impact of Amendments

If enacted, the amendments to the NJLAD would override the New Jersey Supreme Court’s 2005 ruling in Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005). In that case, New Jersey’s highest court held that the NJLAD does not protect against the firing of a female worker who exceeded the leave available under state and federal as well as the defendant-employer’s policy. Under the proposed amendments, it is likely that the accommodations requested in the Gerety case, by a plaintiff who had a difficult pregnancy with twins, would be considered reasonable and covered under the NJLAD.

More broadly, while the federal Family Medical Leave Act and New Jersey Family Leave Act each allow for a maximum of twelve weeks of pregnancy-related leave, under the proposed amendments, the amount of leave available to a woman who is pregnant or recovering from childbirth is not as clearly defined. To the extent a women seeks an accommodation – including additional leave or a reduced work schedule – because of pregnancy and childbirth-related conditions, an employer has, at the very least, an obligation to review and consider such requests.

Should the proposed amendments to the NJLAD be passed, we recommend a review of leave policies as well as training for managers to identify requests for accommodations. Each request for accommodation must be considered carefully and should it appear to impose an undue burden, then the statutorily defined factors must be taken into account.

Recorded Webinar – Impact of DOMA and Proposition 8 on California Employers

Members of Drinker Biddle’s newly formed “California HR” team, a cross-practice group featuring lawyers from our Employee Benefits & Executive Compensation and Labor & Employment practices, presented a webinar on the impact of the U.S. Supreme Court’s Defense of Marriage Act ruling and what it means for employers, especially in connection wtih Proposition 8.

The webinar focused specifically on the concerns of human resources professionals and in-house counsel of companies headquartered or doing business in California, including how DOMA will impact their policies and how it will affect benefit plans and retirement plans.

Other areas of discussion include:

Possible changes California employers need to make to welfare benefit and retirement plans.
How beneficiaries are now determined.
What documentation employers can require in confirming a domestic partnership or same sex marriage?
The intersection between DOMA and FMLA.
Marital status discrimination issues and other issues of concern to California employers.

To listen to a recording, please click here. It may take a moment to load.

FMLA Protected Leave Now Available To Same-Sex Spouses

United States Secretary of Labor, Thomas Perez, recently issued an internal memorandum to department staff outlining the Department of Labor’s plan to issue guidance documents which will, among other things, make protected leave available to same-sex couples under Family and Medical Leave Act (“FMLA”). This action comes as the Department prepares to implement the Supreme Court’s recent decision in U.S. v. Windsor, which struck down the provisions of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex spouses. Calling it a “historic step toward equality for all American families,” Secretary Perez noted that the Department of Labor will coordinate with other federal agencies to make these changes “as swiftly and smoothly as possible.”

Secretary Perez stated that guidance documents would be updated to remove references to DOMA and to “affirm the availability of spousal leave based on same-sex marriages under the FMLA. This change is of great consequence to same-sex spouses who previously were unable to access the job-protected leave provided under the FMLA. Now, eligible same-sex spouses will be able to take FMLA leave for certain specified family and medical reasons, including caring for a spouse with a serious health condition, and generally will be returned to their original position or another position with equivalent pay, benefits and status. The new interpretation reflected in the Department’s updated guidance documents will be effective immediately.

In the Department’s official blog, Modern Families and Worker Protections, Laura Fortman, the principal deputy administrator of the Wage and Hour Division, announced on August 13, 2013 that revisions had already been made to various FMLA guidance documents to reflect the changes necessitated by U.S. v. Windsor. Fortman clarified that the “changes are not regulatory, and they do not fundamentally change the FMLA.” They merely expand the universe of employees who are eligible for FMLA benefits by including legally married same- sex couples. The updated documents can be viewed at these links:

Fact Sheet 28F
FMLA PowerPoint (slide 12)
WHD Field Operations Handbook Chapter 39d03(d)(1) (p.23 of PDF)
WHD Opinion Letter FMLA 98 (header)

Although Secretary Perez did not specifically address the question, the updated guidance documents indicate that the Department only intends to expand FMLA benefits to same-sex spouses in the 13 states and the District of Columbia that have recognized same-sex marriage. As an example, Fact Sheet#28F, Qualifying Reasons for Leave Under the Family and Medical Leave Act, defines “spouse” for purposes of FMLA leave as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.” In contrast, the Office of Personnel Management announced on its website that benefits will be extended to Federal employees and annuitants who have “legally married a spouse of the same sex, regardless of the employee’s or annuitant’s state of residency.”

As initial steps to implementing these changes, employers should inform or train human resources personnel regarding the availability of FMLA leave to eligible employees under the specified definition of spouse; review internal procedures and leave documentation to ensure compliance, and finally, review employee handbooks and policies to include provisions for same-sex couples where appropriate.