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.
Legislation Introduced To Expand FMLA To Include "Domestic Violence Leave"
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- Published on Friday, 14 October 2011 19:47
Rep. Lynn Woolsey (D-CA) has reintroduced the Domestic Violence Leave Act (H.R. 3151), which expands leave options for victims of domestic abuse, sexual assault, or stalking. Currently, the Family and Medical Leave Act (FMLA) allows employees to take unpaid leave from work for birth, adoption, caring for children, and other benefits, but it does not provide this option for domestic violence victims or their families. The proposed legislation applies to domestic violence, sexual assault, or stalking of an employee, or the employee’s family member (which also includes an adult son or daughter) who is addressing those issues. The terms ‘domestic violence,’ ‘sexual assault,’ and ‘stalking’ have the same meanings as under the Violence Against Women Act, and the term ‘domestic violence’ includes dating violence. Under the bill, the worker can use leave in a variety of ways including seeking medical attention for injuries; seeking legal assistance or remedies, including participating in a legal proceeding; attending support groups; obtaining counseling; participating in safety planning; and any other activity necessitated by domestic violence, sexual assault or stalking. The bill also provides that the employer must keep all evidence of domestic violence, sexual assault, or stalking in the strictest confidence, except with the consent of the employee to protect the safety of the employee or family member or to assist in documenting the domestic violence, sexual assault or stalking for a court or law enforcement agency. In addition, the bill extends all FMLA protections and benefits – not just those related to domestic violence -- to domestic partners and children of a domestic partner. Rep. Woolsey, commented that “Domestic violence is a widespread problem affecting millions of people in the United States, men and women…My bill ensures that those who have suffered abuse have the time to recover, physically and emotionally, without losing their job or forfeiting the income that supports them and their family…Our primary goal must be to stamp out domestic violence altogether. But until then, we need to help those who need time off to deal with its effects.” Read More.
Employers Must Continue Health Benefits For Employees On Pregnancy Disability Leave
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- Published on Monday, 10 October 2011 03:30
California Governor Jerry Brown recently signed into law SB 299 (effective as of January 1, 2012), which requires California employers to continue group health insurance benefits for employees on pregnancy disability leave for up to four months. Under the law prior to SB 299, California employers with five or more full-time or part-employees were required to provide up to four months of leave pregnancy disability leave. However, employers were not required to provide health insurance benefits for an employee on pregnancy disability leave unless the employee was also eligible for leave pursuant to the Family and Medical Leave Act (FMLA) and the employer was covered by the FMLA, in which case the employer was required to provide continuation of health benefits for 12 weeks. Now that SB 299 is in effect, employers with five or more employees must provide continuation of group health benefits for employees disabled by pregnancy for four months, even if the employer is not covered by the FMLA. In pertinent part, the legislation provides that it shall be unlawful “For an employer to refuse to maintain and pay for coverage for an eligible female employee who takes leave pursuant to paragraph (1) under a group health plan, as defined in Section 5000(b)(1) of the Internal Revenue Code of 1986, for the duration of the leave, not to exceed four months over the course of a 12-month period, commencing on the date the leave taken under paragraph (1) begins, at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Nothing in this paragraph shall preclude an employer from maintaining and paying for coverage under a group health plan beyond four months.” As specified in the legislation, employers may require employees to continue paying their portion of the group health insurance premium. SB 299 also specifies that the “employee shall be entitled to utilize any accrued vacation leave during this period of time.” California employers should review their employee handbooks and any other policies to make sure they are compliant with the new law by January 1, 2012. Read More.
Proposed Legislation Expands USERRA Rights Of Veterans On Medical Leave
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- Published on Wednesday, 14 September 2011 03:48
U.S. Rep. Lloyd Doggett has reintroduced the Wounded Veteran Job Security Act (H.R. 2875), legislation which he authored that expands the rights of veterans under the Uniformed Services and Reemployment Rights Act (USERRA) who are on service-related medical leave. In general, the proposed legislation protects veterans against discrimination in the workplace for time spent receiving treatment for injuries and disabilities caused by their service. According to Congressman Dogget, “This legislation is the result of problems that local veterans raised during discussions with me...They said, 'Wounded veterans should not be fired after they exhaust their sick and vacation days to receive care for injuries suffered while defending our Nation.' I agreed. They said, ‘There ought to be a law supporting our veterans.’ I agreed. And, I said that when my colleagues learn what some of our veterans are facing, they will agree with us too.” Over 45,000 Americans have been wounded as a result of their military service in Iraq and Afghanistan. The Wounded Veteran Job Security Act would: (1) Entitle veterans to protected leave for the treatment of service-related medical conditions; (2) Grant these service members the seniority and other rights and benefits they had prior to receiving treatment; and (3) Ensure these service members receive the same rights and benefits as other employees who are on furlough or a leave of absence. The Wounded Veteran Job Security Act has been endorsed by the American Legion, the Reserve Officers Association, Disabled American Veterans, and Veterans for Common Sense. Read More.
Employee Allegedly Abused FMLA Leave By Taking It Around Holidays
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- Published on Friday, 26 August 2011 16:30
Douglas Rydalch (Rydalch) worked as a reservations sales agent for Southwest Airlines at its Salt Lake City location. In 2004, Southwest closed the Salt Lake City center and transferred Rydalch to the Houston center. However, Mr. Rydalch’s family remained in Utah and he continued to reside in Utah during his time off. Further, because of his limited seniority, Rydalch had difficulty getting time off around the holidays. In 2004, Rydalch injured his back in a car accident and requested leave pursuant to the Family and Medical Leave Act (FMLA). Southwest granted all of the leave that he requested. However, in 2007, Southwest began to question whether Rydalch was taking FMLA leave around other previously scheduled time off, such as holidays. Southwest conducted an investigation and discovered that Rydalch had used FMLA leave thirty-five times for leave on days just before or after previously scheduled time off, and around important dates and holidays such as July 4, his birthday, Labor Day, his wedding anniversary, Thanksgiving, Christmas and New Year’s Eve. A Southwest staff administrator then met with Rydalch and advised that Southwest’s Attendance Program states “Using sick leave or sick pay for a purpose other than that intended constitutes abuse. Abuse of sick leave or sick pay shall warrant immediate termination.” Southwest did not take any further action against Rydalch at that time. Subsequently, Rydalch used FMLA leave around July 4, 2007, and Southwest conducted another investigation in which it determined that Rydalch had a pattern of taking flights to and from Salt Lake City on the days he requested FMLA leave. The staff administrator again met with Rydalch to advise that Southwest’s policy prohibited misuse of FMLA leave. On December 24, 2007, the staff administrator learned that Mr. Rydalch did not report to work and had requested FMLA leave for that day; the staff administrator also learned that Rydalch had purchased round trip tickets from Salt Lake City to Houston during the leave period, and the flights had been booked in June of 2007. Subsequently, Southwest terminated Rydalch and he sued alleging violations of the FMLA and the Americans with Disabilities Act (ADA). The court found for Southwest noting that “Mr. Rydalch has not provided any evidence that Southwest interfered with his exercise of FMLA leave in any way apart from terminating his employment… the cause of Mr. Rydalch's termination was Southwest's honest belief that he violated the Attendance Program.” Read More.
