Have you been concerned that the US Department of Labor in an Obama Administration might reverse many of the “employer-friendly” FMLA regulations that took effect in January 2009?  According to the DOL, however, major changes to the regulations is unlikely to happen any time soon.

As first reported by Thompson Publishing, at a DOL stakeholders’ forum held on May 21, 2010, Michael Smythe, chief of the Regulatory Analysis Branch at the DOL, indicated that the DOL’s 2010 regulatory update to the FMLA (which currently is scheduled for November) will focus “narrowly” on:

  1. The qualifying exigency and military caregiver leave amendments; and
  2. The new airline flight crew rules.

These comments appear to reign in earlier statements made in DOL’s semiannual regulatory agenda (pdf), at which time the DOL indicated an interest in reviewing all of the new FMLA regulations, which took effect in January 2009.  These comments left employers wondering whether the DOL would roll back some or all of the perceived “employer-friendly” regulations.


What will the DOL’s FMLA Regulatory update likely cover?

According to the DOL, the regulatory update apparently will be limited to regulations that interpret:

  1. The 2010 Defense Authorization Bill, which expanded the manner in which employees can take leave due to “qualifying exigencies” arising from family members’ military service, and to care for family members injured in the course of military service; and
  2. The Airline Flight Crew Technical Corrections Act, which makes it easier for flight crews to qualify for FMLA leave by changing the manner in which hours of service requirements are met to account for the airline industry’s unique timekeeping methods.

However, the DOL’s position on the FMLA regulatory agenda could change on a moment’s notice, and it does not take into account the number of bills pending in Congress that would considerably expand the reach of the FMLA.  See our earlier post for an update on FMLA-related bills currently pending in Congress and their status.

Last fall, Congress passed and the President signed several amendments to the Family and Medical Leave Act, including an expansion of military leave (2010 Defense Department Authorization Bill) and a relaxation of the hours requirement for airline employees (Airline Flight Crew Technical Corrections Act).

Congress’ willingness to amend portions of the FMLA in 2009 may be a sign of things to come in 2010.  The above FMLA legislation constitutes just a fraction of the FMLA bills under consideration in Congress.  Click on the link below for a summary of FMLA legislation currently pending in Congress as well as its status.

  • Family Fairness Act (H.R. 389): Eliminates the requirement under the FMLA that the employee have worked at least 1,250 hours during the 12-month period before the leave begins.
  • Federal Employees Paid Parental Leave Act (H.R. 626): Provides that 4 of the 12 weeks of parental leave available to federal employees under the FMLA would be paid leave.
  • FMLA Enhancement Act (H.R. 824): Amends the FMLA to allow employees to take time off from work to participate in children’s or grandchildren’s school or community organization activities, attend regular medical/dental appointments, or attend to the needs of an elderly relative, such as visiting them in a nursing home; expands FMLA coverage to employers with 25 or more employees.
  • Family Leave Insurance Act (H.R. 1723): Creates an insurance program, funded through employer and employee payroll tax contributions, to provide up to 12 weeks of paid FMLA leave benefits.
  • FMLA Inclusion Act (H.R. 2132): Amends the FMLA to allow leave to care for a same-sex spouse, domestic partner, parent-in-law, child of a domestic partner, adult child, sibling, or grandparent with a serious health condition.
  • FMLA Restoration Act (H.R. 2161): Repeals most of the employer-friendly provisions of the recent FMLA amendments, while leaving in place the new and more onerous requirements on employers.
  • Family Income to Respond to Significant Transitions Act, or “FIRST Act” (H.R. 2339): Awards grants to states to pay portion of the cost of carrying out programs that assist families; provides wage replacement for eligible individuals taking FMLA leave or leave provided under state or local law.
  • Healthy Families Act (H.R. 2460): Requires covered employers to provide employees up to 56 hours paid sick leave per year.
  • Domestic Leave Violence Act (H.R. 2515): Amends the FMLA to permit leave for employees addressing domestic violence, sexual assault, or stalking, and their effects, and to care for a family member addressing domestic violence, sexual assault or stalking, and their effects.
  • Paid Vacation Act (H.R. 2564): Requires employers to provide employees one week of paid vacation during each 12-month period and two weeks of paid vacation beginning on the employee’s first anniversary of employment.
  • Balancing Act of 2009 (H.R. 3047): Employers covered if they employ 25 or more; borrows from Family Leave Insurance Act to provide employees 12 weeks of unpaid FMLA leave; adopts FMLA Enhancement Act to provide for expanded uses of leave; permits leave to address acts of domestic violence, sexual assault and stalking; incorporates the Healthy Families Act.

Administering worker’s compensation benefits in conjunction with FMLA leave can create issues that trip up even the most experienced HR professional. This month’s podcast addresses common issues that arise when worker’s compensation leave intersects with FMLA leave, such as:

  • Can an employer run FMLA leave concurrently with a worker’s compensation absence?
  • Can an employer exhaust accrued paid leave while the employee is out on worker’s compensation and FMLA leave?
  • How does light duty affect an employer’s ability to administer FMLA leave?

Access the podcast here.

All too often, employers are criticized for blunders they could have avoided when taking disciplinary action against an employee with a medical condition.  However, a recent federal appellate court decision provides a glowing example of how an employer got it right when it disciplined an employee upon her return from leave under the Family and Medical Leave Act.

Last month, the 11th Circuit Court of Appeals found that a drug company did not violate the FMLA when it demoted a top-level executive upon her return from maternity leave for performance deficiencies unrelated to her FMLA leave.  Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline.

The Facts

Plaintiff Ellen Schaaf served as a regional vice president for GlaxoSmithKline (GSK), and after several years in this position, Schaaf’s subordinates complained about her “antagonistic and inflexible” management style, poor communication skills, and other shortfalls.  After an investigation, GSK placed Schaaf on a performance improvement plan (PIP).  Months later, while she was out on protected FMLA maternity leave, further deficiencies were discovered and she was demoted upon her return.  Schaaf sued, claiming her FMLA leave was the employer’s reason for the demotion, rather than the employee complaints or her own work deficiencies.  She alleged that because GSK learned of her performance issues while she was on FMLA leave, her legally protected leave caused the demotion. In other words, according to Schaaf, but for the FMLA leave, GSK would have no reason to find out about her performance issues and demote her.

Court Ruling

The Court rejected this argument as “legally incorrect” and “logically unsound.” It reasoned that Schaaf’s reading of the FMLA would “effectively protect deficient employees from adverse employment actions, such that those workers could actually attain job security by seeking leave under the FMLA.” Such a result is “laughable,” according to the Court, which further found:

[The FMLA’s] purpose is not implicated in the least if an employee’s absence permits her employer to discover past professional transgressions that then lead to an adverse employment action against the employee. In such a situation, the employer is motivated not by the taking of the leave itself, but rather by prior deficiencies that, whenever they were discovered, would have prompted demotion or discharge whether or not the employee took FMLA leave.”

Insights for Employers

This decision is a clear win for employers.  Moreover, the case itself is a great example of an employer taking immediate action to discipline an employee for performance deficiencies, a response which was supported by a thorough investigation into the employee’s conduct, written documentation and use of a PIP. Here, GlaxoSmithKline was able to establish quite clearly that it would have issued discipline regardless of Schaaf’s maternity leave and her exercise of FMLA rights.  Employers should follow GSK’s lead in the manner they approach their own employees’ performance problems.

 

One of the key elements of the FMLA is an employee’s right to return to the same or equivalent position when he or she returns from FMLA leave. This right of reinstatement is subject to very limited exceptions.

However, what should an employer do when the employee’s performance deficiencies are uncovered while the employee is out on FMLA leave, or when it is forced to lay off employees due to economic conditions? In these situations, may the employer take action against the employee despite his or her leave status? This month’s podcast addresses this common issue.

Listen to the podcast here.

In this edition of our podcast, we discuss attempts to use the FMLA to obtain leave for travel and recreational purposes. We tackle questions including:

  • Is visiting a faith healer considered medical treatment under the FMLA?
  • Is an employee entitled to FMLA leave for a vacation with a seriously ill spouse?
  • What issues should an employer consider when responding to a request for FMLA leave for travel or recreational activity prescribed as treatment for a serious health condition?

Listen to the podcast here.

A recent federal trial court decision broadens the scope of individual liability for supervisors in claims filed under the Family and Medical Leave Act (FMLA). In Narodetsky v. Cardone Industries, Inc. (pdf), the court allowed a former employee’s FMLA claim to proceed against three human resources executives and a supervisor who allegedly conducted a forensic search of the plaintiff’s computer to find a reason that would justify his termination and therefore obviate the need to grant his requested leave of absence. The suit also named the company’s chief executive officer as a defendant.

In Narodetsky, the plaintiff suffered a knee injury and required surgery. Shortly thereafter, his wife contacted the employer to inform the company that the Plaintiff would need time off for the anticipated operation. He later sought a ten-day leave of absence to recuperate from the surgery. Within a day of the initial request, the plaintiff alleges that the HR executives and the plaintiff’s supervisor forensically combed through his computer and found an email he sent to a co-worker that allegedly contained pornographic images. Weeks later, several of the defendants convened a meeting with the plaintiff, at which time they showed him the email and terminated his employment. He later filed suit against the company, alleging that it interfered with his FMLA leave rights and retaliated against him for requesting leave.

In denying the motion to dismiss the individual defendants from the case, the Court held that all five of the individual defendants were properly named as parties because each one had the power to fire and played a role in the decision to terminate the plaintiff.

Insights for employers

The lesson learned from Narodetsky decision is clear: Aside from the obvious take away (read: don’t conduct a forensic search of an employee’s computer immediately after he seeks a leave of absence!), it is critical that employers establish a regular protocol for responding to requests for medical leaves of absence that passes muster under laws such as the FMLA and ADA. This case also highlights how vital it is for employers to train their supervisors as to their responsibilities in managing an employee with a medical condition. Indeed, the price tag in litigating this case will far outweigh the costs the company would have incurred in training supervisors as to their obligations under the FMLA.

In this edition of our podcast, we discuss how an employer should properly administer FMLA leave when it is needed for pregnancy-related matters or upon the birth of the child. We tackle common questions such as:

  • Can an employer obtain medical certification of a pregnancy?
  • Is intermittent leave allowed for child-parent bonding time?
  • Are prenatal visits covered by the FMLA?
  • What are the father’s FMLA entitlements?

Listen to the podcast here.

 

In this month’s podcast, we analyze recent FMLA amendments that expand an employee’s right to take leave due to “qualifying exigencies” arising from family members’ military service, and to care for family members injured in the course of military service.

The podcast also provides an overview of pending legislation that would require paid leave, expand the categories of individuals eligible for FMLA leave and broaden the reasons under which they could take leave.

Listen to the podcast here.