HR Practice Pointer: Can an Employer Require Employees to “Make-up” FMLA Leave?

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Published on Friday, 06 April 2012 17:36

An interesting article on www.fmlainsights.com reviews the question of whether an employer can maintain a policy that requires or even encourages an employee to “make-up” medical leave taken pursuant to the Family and Medical Leave Act (FMLA). As the article notes, although FMLA regulations do not provide clear guidance as to whether an employer can maintain such a “make-up” policy, the FMLA regulations (and several court decisions) make two important points: (1) employers cannot interfere with an employee’s ability to request or take FMLA leave; and (2) employers must offer the same privileges and benefits to employees who are on FMLA leave versus non-FMLA leave. Therefore, as the article highlights, employers must recognize that requiring employees to make-up FMLA leave could unlawfully interfere with their ability to take such leave, and consequently expose the employer to costly litigation. Read More.

U.S. Supreme Court Holds States Are Not Liable For Monetary Damages in FMLA Cases

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Published on Wednesday, 21 March 2012 17:51

The Family and Medical Leave Act of 1993 (FMLA) entitles an employee to take up to 12 work weeks of unpaid leave per year for: (1) baby bonding; (2) the adoption or foster-care placement of a child; (3) to care for a spouse, son, daughter, or parent with a serious medical condition; and (4) the employee’s own serious health condition. The FMLA also creates a private right of action for equitable relief and damages “against any employer (including a public agency) in any federal or state court.”  In a recent case, Coleman v. Court of Appeals of Maryland, David Coleman filed suit, alleging that his employer, the Maryland Court of Appeals, an instrumentality of the State, violated the FMLA by denying him “self-care” leave. The Federal District Court dismissed his lawsuit on sovereign immunity grounds. The 4th Circuit affirmed, holding that the “self-care provision” was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States. The case was appealed to the U.S. Supreme Court. In a 5-to-4 vote affirming the lower court’s decision, the Court held that on the basis of sovereign immunity grounds, state employees may not sue their employers for monetary damages based on a FMLA violation. However, lawsuits for monetary damages under the self-care provision are still permitted against private employers, and other types of actions remain available against state employers. Read More.

DOL Issues Notice of Proposed Rulemaking to Amend FMLA

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Published on Tuesday, 31 January 2012 05:18

Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor (DOL) is issuing a notice of proposed rulemaking to amend the Family and Medical Leave Act (FMLA) by expanding military family leave provisions and incorporating a special eligibility provision for airline flight crew employees. The FMLA entitles eligible employees who are working for employers covered by the Act, to take unpaid, job-protected leave for specified family and medical reasons.  Eligible employees may take up to twelve workweeks of FMLA leave in a 12-month period for the birth, adoption or placement of a child, to care for a family member with a serious health condition, or because they are unable to work due to their own serious health condition.

Amendments to Military Family Leave

In 2008, the FMLA was amended to add special military family leave entitlements thereby providing an expanded leave entitlement which permits eligible employees who are the spouse, son, daughter, parent, or next of kin of a service member (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty,  to take up to twenty-six workweeks of unpaid, job protected FMLA leave during a single 12-month period to care for their family member (military caregiver leave), and to allow eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves to take up to twelve workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave).

The current proposal expands coverage for military caregiver leave for the first time to include care for covered veterans with a serious injury or illness. The proposal includes the statutory amendment’s limitation on coverage to care for veterans to veterans who have been discharged within the five preceding years. In addition, the proposal expands military caregiver leave to cover serious injuries or illnesses resulting from the aggravation of a preexisting condition in the line of duty for both active duty service members and covered veterans.

The proposal also extends qualifying exigency leave to include employees whose family members serve in the Regular Armed Forces (in addition to the National Guard and Reserves). Further, the proposal adds the new requirement that the employee’s family member be deployed to a foreign country (this requirement applies to National Guard, Reserves, and Regular Armed Forces members) in order for the employee to qualify for exigency leave.

Airline Flight Crew Amendments

The proposal implements a new special minimum hours of service eligibility requirement for airline flight crew employees. Specifically, airline flight crew employees will meet the hours of service eligibility requirement under FMLA if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to their leave.

The DOL has issued a fact sheet detailing the amendments. Read More. 

U.S. Supreme Court Considers How FMLA Applies to State Workers

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Published on Wednesday, 11 January 2012 18:44

On January 11, 2012, the U.S. Supreme Court heard oral arguments in a case involving how the federal Family and Medical Leave Act (FMLA) applies to state government workers. The case, which could affect millions of state workers, was brought by Daniel Coleman, a Maryland man who says he was wrongfully terminated for trying to take a 10-day medical leave to deal with hypertension and diabetes, and then was barred from suing state officials for monetary damages. The 1993 federal leave act provided workers a right to unpaid medical leave, but Maryland and Coleman disagree about the penalty for violations. Coleman argues he should be able to sue the state for monetary damages. However, Maryland and 26 other states argue they are protected from monetary damages in such cases. Coleman was terminated from his job overseeing contracts for the Maryland court system in 2007. According to Coleman, he was fired after asking for time off for doctor-ordered bed rest to deal with hypertension and diabetes. Pursuant to FMLA, eligible employees can take up to 12 weeks of unpaid leave for certain reasons, including a serious health condition. After being terminated, Coleman sued, alleging a FMLA violation; however, a lower court dismissed his claim. He had asked Maryland to pay him a reported $1.1 million in compensatory and punitive damages. But, as indicate above, lawyers for Maryland argued that Congress should not have provided Coleman with the ability to sue state employers for monetary damages. Unlike private employers, states are generally exempt from such lawsuits. Two lower courts agree with Maryland that Congress overstepped its authority. Read More.