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New Administrator’s Interpretation Could Expand FMLA Coverage
Under the Family Medical Leave Act (“FMLA”), eligible employees are provided up to twelve weeks of unpaid, job-protected leave per year. Eligible employees can take FMLA leave for, among other things, the birth and care of a newborn child. Although the FMLA broadly defines a “son or daughter” under this provision to include a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis”, it does not expressly confirm whether employees may take leave to care for a son or daughter over the age of eighteen.
In reality, many parents remain the responsible caregiver to an adult child who cannot care for themselves due to a mental or physical disability. For these parents, the age of eighteen does not signal the end of their care duties; indeed, the care they provide may continue for many more decades.
The Department of Labor (“DOL”) recently issued an Administrator’s Interpretation wherein it clarified that FMLA leave may be available for adult sons and daughters. In order to qualify for FMLA leave to care for an adult child, the adult child must; (1) have a disability as defined by the Americans with Disabilities Act (“ADA”), (2) have a serious health condition, (3) be incapable of self care due to his or her disability, and (4) be in need of care due to their health condition.
Prior to issuing this interpretation there was significant debate as to whether the adult child’s disability must have developed before the child reached age 18. The Administrator’s Interpretation now clarifies that the age of onset of the disability is irrelevant. Additionally, the Interpretation reinforces that the ADA, as amended in 2008, must be used to when defining “disability.”
The Administrator’s Interpretation will certainly lead to more leave requests for employees seeking time off to care for adult children with special needs and employers should be prepared to accommodate employees under the new Interpretation. Accordingly, employers would be well-served to review this Administrative Interpretation and to update policies and manuals as necessary to become compliant. In particular, employers should give special attention to ensure that the adult child triggers all four elements before a leave is approved.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Sick of Sick Employees? Can You Send Them Home?
At this time of the year when the flu, strep throat and other illnesses are making their way through our children, friends and society in general, it is good for employers to be mindful of their options, but more importantly to plan ahead for employees who come to work visibly ill. While many people want to “tough it out” through an illness, the reality is that by toughing it out an employee may in fact be compromising the health of others and decreasing the productivity of an entire workplace. The time to ask what to do about such an employee is not when the employee sits down at his/her desk at the start of the work day or takes his/her place on the assembly line. Rather, the best time to consider how to handle these inevitable situations is well before they occur.
The best time to address the issue of sick employees is when the employer sits down and adopts its employee handbook and its policies and procedures which will govern the workplace. An employer should have clear policies and procedures as to how to deal with illness and ensure that its policies comply with applicable state and federal laws regarding illness. In general, employer policies regarding illness and sick leave should be clear, and they should be consistently applied so that one’s employees know what to expect. Many employers chose to address this issue by permitting their employees a number of sick days in addition to their normal paid time off. If an employee has sick days, then if that employee comes to work ill, the response should be clear. That employee should be allowed to use their sick days, within the confines of the company policy. It is not improper to have an employee use their sick time for its intended purpose.
In larger employers such policies naturally bleed over into Family Medical Leave Act (“FMLA”) issues. The FMLA permits eligible employees to take extended periods of time off work to address qualifying conditions. In the case of illness, FMLA leave is an option, provided other eligibility requirements are met, in situation where the employee has “a serious health condition that makes the employee unable to perform the essential functions of his or her job.” In such instances an employee may take up to 12 workweeks of leave in a 12-month period. Employers can require employees to use up any accrued paid time off time they have to cover time taken off under the FMLA. Additionally, the FMLA permits employees to take intermittent leave to address long term health conditions as they arise, and intermittent leave creates additional issues which are not addressed herein. But for short-term conditions such as bronchitis, strep throat or even the flu, FMLA leave is usually not the issue due to the temporary nature of the illness. Rather the controlling factor is what the company’s internal policy is.
Additionally, in some industries the nature of an employee’s duty understandable determines what the policy must be. For example, an employee who comes to work sneezing and with a runny nose should not be allowed to take part in food preparation. If the employee needs the hours and the pay, then surely that employee can be allowed to switch their shifts with other employees or to make up their time later. Neither should a nurse with the flu be allowed to interact with at-risk patients. An employer can control the safety of its workplace and, in fact, is required to in certain instances by operation of OSHA and other applicable law.
So in conclusion, the best time to plan for a sick employee is before that employee is sick. If you have a plan in place and employees knows how his/her employer will handle illness then bouts of the flu, strep throat and the like should be able to be handled with minimal workplace disruption while working to ensure those employees who are not ill, stay that way.
Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780.
This article is intended as a summary of federal law and does not constitute legal advice.
New FMLA Poster Required in the Workplace
On February 4, 2013, the U.S. Department of Labor (“DOL”) marked the 20th anniversary of the signing of the Federal Medical Leave Act (“FMLA”) into law by issuing a final rule which implements two expansions of FMLA leave.
The new rule permits eligible workers to take up to 26 workweeks of leave to care for a current service member with a serious injury or illness. Congress also created a qualifying exigency leave, which permits eligible employees to take up to 12 workweeks of leave for qualifying exigencies arising out of active duty or call to active duty in support of a contingency operation of a family member serving in the National Guard or Reserve. The expansion will allow employees to spend more time with family members in the military, including when they are on leave from active duty service.
The rule also implements amendments clarifying the application of the FMLA to airline personnel and flight crews. Previously, the unique manner in which flight personnel and crews logged work hours prevented their eligibility for the FMLA. Now, they are qualified for enrollment.
From a practical standpoint, these regulations do not create any significant changes to the administration of FMLA benefits. However, the DOL has made revisions to its mandatory poster—Employee Rights and Responsibilities under the FMLA—to reflect these new regulations. Thus, if you are an employer covered by the FMLA you must act to stay compliant with poster requirements. Generally, the FMLA applies to all public agencies, including local, State, and Federal employers, and schools; and private sector employers with 50 or more employees.
If you are an FMLA employer, the DOL required the new FMLA poster to be displayed no later than March 8, 2013. If you have not already complied with the poster requirements, you can access the new poster on the DOL’s website; they are provided at no cost to employers. If you have any questions about what poster requirements apply to you as an employer, visit http://www.dol.gov/elaws/posters.htm for guidance or contact legal counsel. The attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC, are ready to answer your questions.
Preston Clark Worley, Esq.
Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.
This article is intended as a summary of state and federal law and does not constitute legal advice.
EEOC’s Focus on Pregnancy Discrimination
Earlier this week, we gave you an overview of the issues that, according to a recent draft of its Strategic Enforcement Plan (“SEP”), the EEOC is likely to target in the coming years. One of the emerging issues highlighted in that draft relates to pregnancy discrimination, specifically, situations which force women into unpaid pregnancy leave after being denied accommodations routinely provided to similarly situated employees. In lock step with the EEOC’s express priorities, the following relevant cases have emerged over just the last few months:
EEOC v. Bayou City Wing - Pursuant to a policy in its employee handbook, Bayou City Wings laid off eight female employees after the third month of their pregnancies. At least one employee was terminated despite providing a note from her doctor indicating that she could work up to the 36th week of her pregnancy without any restrictions. Bayou City Wings argued that keeping a pregnant employee pas the third month would “be irresponsible in respect to her child’s safety” and would jeopardize his position with the company “for not following procedures.” The EEOC seeks an injunction, back pay with pre-judgment interest, reinstatement or front pay, compensatory damages and punitive damages, in amounts to be determined at trial.
EEOC v. Quest Intelligence Group – Tabitha Feeney was fired from her security officer job after taking maternity leave. Feeney had worked as a security officer for Quest for nearly one year, prior to her leave. After her leave, she contacted Quest to return to work, and the employer told Feeney that there was no work available. Quest indicated to Feeney they would bring her back if any positions opened up, but they never called. The EEOC’s investigation showed that the company had solicited and hired several male employees after Feeney’s request to return to work. EEOC filed suit, seeking lost wages, damages for emotional distress, and punitive damages, as well as injunctive relief such as training for company managers and employees, and compliance monitoring by the EEOC.
EEOC v. J’s Seafood, Panama City, Florida – J’s seafood restaurant laid off two pregnant waitresses because, as alleged by the EEOC, “their pregnancies caused them to be a liability to the company.” Both employees were hired in June 2011, and fired in October 2011, after the restaurant became aware of their pregnancies. The EEOC filed suit in U.S. District Court for the Northern District of Florida, seeking monetary damages, including back pay, compensatory and punitive damages, reinstatement and injunctive relief.
EEOC v. Muskegone River Youth Home - The EEOC claims that the Muskegone River Youth Home policy requiring “employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing work” is a form of pregnancy discrimination that violates the Pregnancy Discrimination Act, a part of Title VII of the Civil Rights Act. The EEOC seeks an injunction prohibiting Muskegon from maintaining the relevant policy.
EEOC v. Chemcore - Settled on September 21, 2012,Chemcore Industries, Inc. agreed to pay employee Marie Simmons $30,000 after firing her within hours of learning she was pregnant. Beyond the monetary award, a consent decree included provisions for equal employment opportunity training, posting of anti-discrimination notices, and reporting of internal discrimination complaints.
In addition to the EEOC’s focus on pregnancy discrimination, legislation was proposed earlier this year in the U.S. Senate, which would require employers to reasonably accommodate pregnant employees and applicants. The Pregnant Workers Fairness Act, introduced by Sens. Bob Casey (D-PA) and Jeanne Shaheen (D-NH), would also require reasonable accommodations for those limited by childbirth or related medical conditions. The bill includes a hardship exception for employers. Additionally, the bill makes it unlawful to deny employment opportunities to a pregnant employee or applicant because of the required reasonable accommodation, or to require that a pregnant employee take leave if she can otherwise be reasonably accommodated during her pregnancy. The bill also reiterates that employers may not take adverse employment action based upon pregnancy or the taking of leave for pregnancy related reasons. The bill also specifically directs the EEOC to issue regulations that identify and clarify some reasonable accommodations related to pregnancy and childbirth. Currently employers are prohibited from taking adverse employment against an employee because she is pregnant, and there are also some protections available under the Americans with Disabilities Act for employees with pregnancy complications, but they are not currently required to reasonably accommodate employees with regular pregnancies.
Given the recent focus on the treatment of pregnant employees, it may be an important time to evaluate whether your employment policies and actual workplace practices – written or unwritten – adversely impact pregnant employees? If you aren’t sure, now may be a time to revisit your employment policies and management training procedures.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Pregnancy Discrimination
In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years. That, however, does not mean that the cause of action is dead. Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor. Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action. Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com
It’s a New Year—Time to Review Your Employment Policies
Happy New Year! In the spirit of out with the old and in with the new, now is a great time to review your employment policies and see if it’s time for an update. Depending on your business, any one of the policies may need to be drafted or updated:
- Sick, vacation and parental leave;
- Non-discrimination;
- Internet use and social media;
- Non-competition and non-disclosure; and
- Intellectual property use.
The need for and importance of each policy obviously varies depending on your particular business. For instance, sick, vacation and parental leave policies are particularly important if the Family and Medical Leave Act applies to your business.
Non-competition and non-disclosure agreements are particularly important for businesses with confidential customer lists or production processes, and must be assessed with a close eye to state law regarding enforceability of such agreements.
Intellectual property use policies are important for businesses holding patents, trademarks and copyrights. These issues can be complex to navigate where individual employees create intellectual property such as graphic designs on behalf of the employer and may wish to use those designs as part of a personal portfolio. While it may not be necessary to allow such use, allowing some limited use may be a good recruiting tool and may help your business recruit and maintain quality employees. A good intellectual property policy can protect the employer while allowing the employee certain limited uses at little risk to your business.
Internet use and social media policies are in the news on an almost daily basis, and the laws applicable to those policies are in flux. It’s important to review these policies on a routine basis to take into account both changes in laws and in technology.
One issue that bears watching with respect to social media is ownership of Twitter “handles” and follower lists. For instance, an employer in South Carolina recently filed a lawsuit against a former employee because of his Twitter account. The former employee had at one point (with the employer’s consent) incorporated the employer’s name in his Twitter “handle,” or name, and had broadcast tweets on behalf of his employer. After the employee left and went into competition with the former employer the employee changed his handle but kept the follower list that he had built up during his former employment. The employer now claims that the follower list was the functional equivalent of a protected customer list and that that the employer should be compensated for that list. While it’s not clear if the employer will win the lawsuit, the employer’s concern is understandable, and ownership of work-related Twitter handles and follower lists can be dealt with in a carefully-crafted policy.
The new year is a great time to take a look at your employment policies to see what may need to be added or updated. McBrayer, McGinnis, Leslie & Kirkland, PLLC can assist you with your policy review needs, whether as simple as reviewing existing policies or drafting all new ones.
Amy D. Cubbage, Of Counsel in our Louisville office, practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts, and employment litigation. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. Ms. Cubbage can be reached at (502) 327-5400 or acubbage@mmlk.com.
FMLA—Designating Leave and Employer Required Notices
A recent article of the Kentucky Employment Law Letter outlined several important provisions of the Family and Medical Leave Act (“FMLA”) regulations concerning notices which an employer must provide to an employee. Amongst those notices are the general notices which must be posted in a workplace and made part of any employee handbook. The general notices provide that “every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the [Act’s] provisions and providing information concerning the procedures for filing complaints of violations of the Act with the [federal] wage and hour division”, and also employers must “provide this general notice to each employee by including the notice in employee handbooks or other written guidance to employees… or by distributing a copy of the general notice to each new employee upon hiring.” These provisions for general notice regarding FMLA are easily complied with and very straight forward. Other notices can be a bit more difficult to keep up with in a busy day-to-day business setting.
One very important notice is the eligibility notice. The FMLA regulations state that “when an employee requests leave or when the employer acquires knowledge that an employee’s leave may be for an FMLA – qualifying reason, the employer must notify the employee of [his] eligibility to take FMLA leave within five (5) business days.” The purpose of this notice is to inform the employee that they are eligible to take FMLA leave as their reason for requiring such leave qualifies them to do so. In thinking about the requirement to provide the employee with notice that they are eligible for FMLA leave, another issue comes to mind. Whether the leave an employee has already begun taking should be designated as FMLA leave and what an employer’s responsibilities are in a situation where the facts and circumstances surrounding leave make the answer to that question unclear.
§825.301(a) of the FMLA regulations provides guidance for employers in this situation. It states, “Employer Responsibilities. The employer’s decision to designate leave as FMLA – qualifying must be based only on information received from the employee or the employee’s spokesperson (e.g., if the employee is incapacitated, the employee’s spouse, adult child, parent, doctor, etc.), may provide notice to the employer of the need to take FMLA leave.” In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA – qualifying. Once the employer has acquired knowledge that the leave is being taken for a FMLA – qualifying reason, the “employer must notify the employee as provided in §825.300(d) (the FMLA notice provision).”
Pursuant to this regulation, an employer should be diligent in communicating with an employee taking leave to properly designate the leave as FMLA qualifying and insuring that the reason for such leave is FMLA qualifying. Once an employer has determined that such leave is FMLA qualifying, the employer should be diligent to notify the employee that the leave will be designated as FMLA leave so that the employee can understand their rights and responsibilities associated therewith.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
