FMLA Insights - Guidance & Solutions for Employers

Illinois currently has no equivalent of the federal Family and Medical Leave Act.  Soon, it may.  And unlike the FMLA, the proposed Illinois leave law would allow civil union partners the same leave entitlements currently enjoyed by married couples.  Notably, because of the conflicting parameters of state and federal law, the proposed Illinois Family and Medical Leave Act, which recently hit the floor of Illinois House of Representatives, actually would afford civil union partners greater leave benefit rights than married couples.

Let me explain.

The Illinois Religious Freedom Protection and Civil Union Act, which became law on June 1, 2011, provides that partners in a civil union are entitled to the same rights, benefits and privileges as those in traditional marriages.  Under this Act, wherever the term "spouse" appears within any Illinois statute, it must be read to include "partners in a civil union."

Like its federal counterpart, the Illinois FMLA would extend leave benefits to "spouses."  Because "civil union partners" are now the equivalent of "spouses" in Illinois under the Civil Union Act, civil union partners would be able to take leave to care for their civil union partner under the Illinois FMLA.

This leaves employers with operations in Illinois in a bit of an inadvertent quandary.  Currently, civil union partners cannot utilize leave rights under the federal FMLA because it is governed by the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  So, if an employee in a civil union takes leave to care for his/her partner under the proposed Illinois FMLA, it would count against the leave entitlement under Illinois law, but not under the FMLA. 

To illustrate, let's pretend I am your employee and a partner to a civil union.  I also am otherwise eligible for leave under the FMLA and the proposed Illinois FMLA (meaning, I have worked for you for 12 months and have worked 1,250 hours in the past 12 months).  If I take a two-week leave of absence to care for my partner with a serious health condition, I will have exhausted two weeks of Illinois leave, but I have not exhausted any portion of my 12 weeks of FMLA leave (because FMLA, of course, does not recognize my civil union).  In theory, I could take up to 24 weeks of leave in a 12-month period -- 12 weeks under the Illinois FMLA to care for my civil union partner, and 12 weeks for any eligible reason under the FMLA.

Insights for Employers

If the Illinois FMLA becomes law, we will advise employers further.  In the meantime, let me address a more immediate issue.  Over the past several years, I have counseled employers who voluntarily have chosen to provide federal FMLA leave to domestic and civil union partners.  Clearly, this is a growing phemonenon among Fortune 500 companies and leading business.  

Keep in mind as you develop these FMLA leave policies: if your policy provides employees leave to care for a domestic or civil union partner, employers cannot count this leave under the employee's 12-week FMLA allotment, since (as noted above) the FMLA does not recognize these relationships.  To ensure that you are not unintentionally setting yourself up for an FMLA interference claim when providing leave to domestic or civil union partners, we recommend that employers contact their employment counsel for guidance as to best practices in this area. 

'Tis the season already, as I am starting to receive telephone calls from employers with questions about how they calculate an employee's FMLA leave during a holiday week or when the employer is closed for a period of time (e.g., winter break for schools, plant shut down).  As we prepare for the holidays, here are a few basic rules to have handy next to your payroll sheet:

Calculating FMLA Leave During A Holiday Week

Let's use Veterans Day as an example.  This year, Veterans Day falls on a Friday.  If the employee observes the Veterans Day holiday and then takes the entire work week off (i.e., he is absent from Monday through Thursday), the employer should count the entire workweek as one full week of FMLA leave used. (The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.) 

However, if the employee works any portion of the workweek (i.e., he takes FMLA leave Tuesday through Thursday and then observes the employer holiday on Friday), the employer cannot count the holiday as FMLA leave.  Here, the employer can only count Tuesday through Thursday as FMLA leave.  29 C.F.R. § 825.200(h).      

Calculating FMLA Leave During a Plant Shut Down or School Break

What about situations where the employer shuts down operations for a period of time or a School District or College/University observes winter and summer breaks?  Here, the regulations are very clear:

If for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g. , a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.

Keep in mind: in these situations, you cannot count the time against the employee's FMLA allotment, even if it is obvious the employee would not have been able to perform the duties of the job during this break. 

Does the same hold true for a School District or College/University on winter, spring and summer breaks where the employee is otherwise not required to report to work?  Yes.  As noted above, the FMLA regulations specifically incorporate by example a “school closing two weeks for the Christmas/New Year holiday or the summer vacation.”  Thus, the days during these school breaks should not be counted against the employee's FMLA leave entitlement. 

Wait, there's more...

If you still cannot get enough of this scintillating topic, you can access our podcast "Bah, Humbug! What Do I Do When My Employees Are Home for the Holidays?" for further guidance and examples.

Happy holidays!

Q. We employ an FLSA-exempt employee who has been certified for intermittent FMLA leave for migraine headaches.  He averages two to three intermittent absences per month.  Normally, I would calculate the employee's total FMLA allotment as 480 FMLA hours (12 weeks x 40 hrs/wk), but he claims he should be entitled to 600 FMLA hours because he averages 50 hours worked per week.  Is he correct?  Help!?! 

A.  One of the (many) headaches of managing intermittent FMLA leave is keeping track of leave in increments smaller than one work week.  For non-exempt employees, employers often calculate leave entitlement as 480 hours per FMLA year (i.e., 12 weeks x 40 hrs/wk).  However, the FMLA regulations urge caution when making these calculations.  

When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to.  You make this calculation according to the employee's regular workweek.  For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk.  Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

Fluctuating work week: If an employee's schedule varies from week to week that an employer cannot determine with any certainty how many hours the employee would otherwise have worked, the employer should average of the hours scheduled over the 12 months prior to the beginning of the leave period (including the hours for which the employee took any type of leave) to calculate the employee's leave entitlement.

However, for an FLSA-exempt employee, employers typically have not recorded any work hours for the employee.  Thus, determing the actual intermittent FMLA allotment is particularly difficult, since it is not unusual for exempt employees to work more than 40 hours in a work week.  In these instances, the burden is on the employer to disprove the employee's record of the number of hours he or she worked. 

Insights for Employers

How can an employer meet this burden?  For starters, we strongly recommend that employers utilize a standard leave of absence form that employees complete in conjunction with any absence.  On the form, employers should require their exempt employees to specify the number of hours they have worked over the preceding 12-month period. 

If you have concerns about the hours represented by the employee, discuss this with your employee.  Perhaps you can cite to attendance patterns or time records to show that their calculation is not accurate.  At a minimum, it encourages an open dialogue at the beginning of the FMLA leave so that it minimizes any surprises (or claims of unfair treatment) further down the line. 

One additional note:  If an employer has made a permanent or long-term change in the employee's schedule (for reasons other than FMLA leave and before the notice of need for FMLA leave), the employer can use the hours worked under the new schedule to make the leave entitlement calculation.

Earlier this month, Sen. Jon Tester (D-Mont.) introduced the Parental Bereavement Act (S. 1358), which would expand the Family and Medical Leave Act to provide job-protected leave due to the death of an employee's son or daughter.  In a press release, Sen. Tester said he introduced the bill because the "last thing [parents] should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss."  The Act would allow leave "because of the death of a son or daughter," and it assumes leave would be taken in one block.  Like bonding leave, bereavement leave could be taken intermittently only if the employer agrees.  Like the FMLA itself, the bill would apply only to employers of 50 or more employees.

Although the Parental Bereavement Act currently has no co-sponsors, it likely has a better chance of passage than the recently-introduced FMLA Inclusion Act (H.R. 2364, S. 1283), which would provide unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild or grandparent.  The latter bill, which has been introduced in Congress several times before, likely would not enjoy the support of a Republican-controlled House of Representatives, even if it were to pass the Senate. 

These bills are among several legislative initiatives that have been introduced in Congress over the past year to amend (and often enlarge) the scope of the FMLA.  The latest proposal under the Parental Bereavement Act is intriguing, since it builds upon a grass roots initiative imploring Congress to pass legislation providing job-protected leave upon the death of a child.  The initiative is led by Kelly Farley and Barry Kluger, both of whom lost children at a very young age.  Realizing that he could not take FMLA-protected leave upon his daughter's death (because it is not provided for under the FMLA), Farley instead submitted FMLA paperwork seeking leave to care for his wife, who was dealing with depression in the aftermath of the tragic event.  In reality, he suggests, he needed leave to care for himself. 

Natural disasters like the kind we recently have witnessed in the flood-ravaged areas of the southern United States raise a host of issues for employers.  Some wonder whether they are required to pay their employees during suspended operations; others are unsure whether and to what extent health benefits should be offered.  But what about an employer's obligation to provide a leave of absence to employees during a natural disaster under laws such as the Family and Medical Leave Act?  We cover below some of the more common FMLA-related issues employers face after natural disasters, such as a tornado, hurricane or flood, hit.

An Employee's Right to Take FMLA Leave after a Natural Disaster

The FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.  (See our recent post where a court dismissed an employee's FMLA claim where the employee sought leave to clean up his mom's basement after a flood.)  However, employers clearly have the right to voluntarily provide leave in these situations pursuant to their personnel policies.

That being said, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Here are some examples:

• A natural disaster causes an employee's chronic condition (such as stress, anxiety or soaring blood pressure) to flare up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play.
• An employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee's parent who suffers from diabetes.  If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.

Could a Natural Disaster Cause a Serious Health Condition That Implicates the FMLA?

In addition to those reasons above, employees who are physically or emotionally injured as the result of a natural disaster also may be entitled to FMLA leave.  Moreover, their impairments may be significant enough to rise to the level of disability, resulting in potential employer obligations under the Americans the Disabilities Act (ADA).  These medical conditions may arise several weeks and months after the natural disaster hits.  Thus, employers should be vigilant in watching for signs of an employee who is unusually scarred by a natural disaster. 

Take, for example, post-traumatic stress disorder.  A condition often associated with military servicemembers returning from active duty, PTSD also can arise out of a natural disaster.  In this situation, an employer would not only be required to consider its FMLA obligations for such an employee, but its ADA obligations as well.  Here, the employer may need to provide FMLA leave if the employee is unable to perform their job duties as a result of a serious health condition.  It also may be required to provide reasonable accommodations for the employee, such as the option to telecommute or work from home, or provide leave to attend counseling or receive treatment for the medical condition.  (See our comprehensive summary (pdf) of the ADA Amendments Act, which will affect these situations.)

Insights for Employers

Our prayers go out to our fellow Americans affected by the recent spring tornadoes and flooding.  As the media already has reported, employers in the south continue to do their part to assist their employees with personal tragedies arising out of this life-changing event. 

In the time ahead, employers must familiarize themselves with employment issues arising out of the natural disaster that may impact their business operations and implement appropriate procedures that will adequately protect themselves against liability in the future.  Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.