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Every once in awhile, my posts must return to the nuts and bolts of FMLA, and this is one of ‘dem ‘dere posts. After all, I can’t always cover scintillating topics such as Beyonce concerts, bullies who abuse FMLA leave and whether FMLA covers excess trips to the potty.

Yet, the FMLA topic de jour is no less important because I address below an issue critical to FMLA compliance:  How often must an employer check an employee’s eligibility for FMLA leave?

Screw it up and you could be looking at significant FMLA liability. Get it correct and you have just saved your boss hundreds of thousands of dollars in legal fees and a possible judgment (for which he/she may never thank you).

As we recently have turned the calendar to a new year, this article is particularly important to my peeps out there who track FMLA leave based on a calendar year. But I cover all the 12-month FMLA periods below:

First, Let’s Start with the Rule

Whenever an employee requests FMLA leave, the employer first must check whether the employee is eligible for FMLA leave.  The critical rule is at 29 CFR 825.300(b)(1):

Eligibility notice. When an employee requests FMLA 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 the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. . . Employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period . . . All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.  (My emphasis)

What are the takeaways from this Rule?

There are two:

  1. The employer must check eligibility at the first instance of FMLA leave for each different FMLA reason in a 12-month FMLA period.
  2. Once eligibility is established for a particular FMLA reason, eligibility for FMLA leave as to that reason does not change for the remainder of the FMLA year.

I illustrate this rule the only way I know how — through examples.

Rolling year

Let’s assume you use a rolling FMLA year (or look back period).  Let’s further assume that your employee, Johnny, requests leave to begin on the following days:

  • Intermittent leave for migraine headaches as of March 2, 2017
  • Intermittent leave for chronic bad back as of November 17, 2017
  • Continuous leave of absence for back surgery (to fix said bad back) on December 13, 2017

When do you check eligibility for these leave requests? First, you check eligibility as of March 2, 2017 (the date leave begins for migraines) because it is the first time in the FMLA year that Johnny needs leave for migraines.  Second, you check eligibility again as of November 17, 2017 (the date leave begins for the bad back) because it is the first time in the FMLA year that Johnny needs leave for his bad back.

How long is FMLA Eligibility good for?

Let’s assume Johnny is FMLA-eligible on both of these dates for migraines and the bad back, respectively.  In a rolling year, FMLA eligibility for each condition remains in place for the 12-month period beginning with the first day of leave for the condition.  So, for migraines, Johnny’s is FMLA eligible through March 1, 2018.  Therefore, we would not check eligibility again until he needs leave for migraines the first time on or after March 2, 2018.  For his bad back, Johnny’s eligibility is all clear through November 16, 2018.  We would not check eligibility for his back until he needs leave again for this condition the first time on or after November 17, 2018.

Does the Need for Continuous vs. Intermittent Leave Change Things?

What about the continuous leave Johnny required for surgery on his bad back in December 2017? Shouldn’t we check eligibility because he’s now seeking a continuous (instead of intermittent) period of leave?  In a word, no.  Once Johnny became eligible for FMLA leave for his bad back, he maintains eligibility for that same reason for the remainder of the FMLA year.  The fact that the need for leave changed from intermittent to continuous doesn’t change the reason for the leave, so eligibility need not be checked until November 2018 or after.

Calendar year or fixed year

Checking eligibility is generally the same when you maintain a 12-month FMLA period based on a calendar year.  If you are using a calendar FMLA year, the key difference is that you will check eligibility for the first instance of leave for each different condition on or after January 1 of each year.

Again to illustrate, let’s go back to the example above.  For Johnny’s bad back, eligibility was first determined as of November 17, 2017. Because you maintain a calendar year FMLA cycle, you will need to check eligibility again upon the first instance of leave for a bad back on or after January 1, 2018.

If Johnny needs leave on January 1 for his back condition, doesn’t it seem a bit strange that you would need to check eligibility for the same reason a mere six weeks after you last checked eligibility? I hear you loud and clear, but we still must follow the regulations, which unambiguously tell us to check eligibility for the first instance of FMLA leave in a new FMLA year. For those FMLA nerds who really want to dive into this topic, take a look at Davis v. Michigan Bell Telephone, in which the court made clear that an employer must check eligibility in the first instance on or after January 1 when the employer is using a calendar year FMLA cycle.

“Look forward” year

Some employers base the 12-month FMLA period on a “look forward” period measured forward from the date any employee’s first FMLA leave. Testing for eligibility is the same as the “rolling year” above. You check eligibility for the first instance of FMLA leave for a particular reason, at which point they are eligible for that reason for the following 12-month period.  Upon the first instance of FMLA leave for this condition in the next FMLA year, eligibility should be checked again.

For what it’s worth, if you need a refresher about which 12-month FMLA period is best to use, and an explanation of all your options, take a look at one of my previous posts on the topic.

Heavy stuff? Naw! This is why employment law is so damn sexy! 

It’s that time of year — my kids are already making changes to the fourth draft of their Christmas wish list, holiday music has been playing on my local radio station for four weeks now, and I’m just about ready to claim the couch where I will spend most of Thanksgiving week in my PJs watching football and eating leftover turkey!

Another sign of the holiday season? An uptick in client calls asking me to confirm how they calculate FMLA leave during the holiday season.

I’m sure your employees never take FMLA leave during the holidays, right?  But if in the unlikely chance they do [cough, cough], here is a quick compliance reminder about how you account for FMLA leave as we head into Thanksgiving, Christmas, winter break and the New Year:

Calculating FMLA Leave During A Holiday Week

Let’s use Thanksgiving Day as an example.  If the employee gets Thanksgiving Day off as an employer holiday and then takes the entire rest of work week off for an FMLA reason, the employer should count the entire workweek as one full week of FMLA leave used. The same reasoning would apply if the holiday occurred on any other day of the workweek and the employee was otherwise absent for the remaining work days that week.

However, if the employee works any part of the workweek (e.g., he works Monday then is gone the rest of Thanksgiving week on FMLA leave), the employer cannot count the holiday as FMLA leave.  Here, the employer can only count Tuesday, Wednesday and Friday.  29 C.F.R. § 825.200(h).

Calculating FMLA Leave During a Plant Shut Down or School Break

What if the employer shuts down operations for the entire week of Thanksgiving or at the end of the year or if a school/university closes down for winter break?  Here, the regulations are 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. [My emphasis]

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.

Calculating FMLA Leave Where the Employee Works Part of a Holiday Week

Just to confirm calculating intermittent FMLA leave during a holiday week: Let’s go back to our employee who works Monday of Thanksgiving week and is absent the rest of the week.  There are only four workdays in this particular workweek, and he’s missed Tuesday, Wednesday and Friday.  So, he has used 3/4ths of a workweek of FMLA leave.

Contrast this with a non-holiday week: If there was no holiday this particular week, and he worked only Monday, he would have used 4/5ths of workweek of FMLA leave.

Still Can’t Get Enough of this Scintillating Topic?

We talk even more about FMLA calculations during a holiday week on a old podcast “Bah, Humbug! What Do I Do When My Employees Are Home for the Holidays?”

Happy Thanksgiving!

Our thoughts and prayers are with those in Texas and Louisiana whose lives have been impacted by Hurricane Harvey and those in Florida in the dangerous path of Hurricane Irma.  Join us sending a donation to those organizations performing rescue operations and providing much needed help to our fellow Americans in need.

Natural disasters like Harvey and Irma raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered?

The aftermath of a hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Several years ago, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricanes Harvey and Irma:

  • Keep in mind that 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. Case in point: poor Joe Lane, whose FMLA lawsuit was dismissed after he sought FMLA leave, in part, to clean up his mom’s flooded basement because her health conditions precluded her from doing so.
  • However, 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.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares 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; or 2) 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 the Hurricane actually cause a serious health condition requiring time away from work? See my answer here.
  • What if an Employee was already on FMLA leave when the Hurricane hit and your business now is shut down for a period of time? Here, the FMLA regulations are clear: If your business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, these days do not count against the employee’s FMLA leave entitlement.
  • Finally, do you have to pay your employee on FMLA leave while your workplace is closed down? In short, you treat them the same way you would treat another employee on non-FMLA leave.  See my previous post here for an explanation.

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 from several years back 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.

Photograph of a U.S. Department of Homeland Security logo.

Over the past few months, I’ve been asked by clients whether foreign nationals who are in the United States on work visas are eligible for FMLA leave.

As a General Matter, an H-1B Worker Must Be Paid (with some exceptions)

A U.S. employer hiring an H-1B worker is required to pay the worker while he/she is working for the employer.  In other words, an employer is not permitted to “bench” an H-1B worker, or otherwise give an H-1B worker an unpaid leave, except in rare instances. Placing an H-1B worker on an unpaid leave without authorization creates substantial risk, as an employer becomes susceptible to a back wage and/or front pay award by the Department of Labor.

The FMLA and ADA Exceptions

What are those rare instances when an H-1B worker can take an unpaid leave?  The Immigration and Naturalization Services (INS) and DOL have made it clear that H-1B workers are entitled to FMLA leave on the same terms as U.S. citizens, whether the leave is paid or unpaid under the employer’s policies. So, an H-1B worker can request and be approved for an unpaid FMLA leave on the same terms as the employer’s U.S. workers.  Of course, whether the leave is paid depends on the employer’s policies for paid leave.

The same individual also is protected by the Americans with Disabilities Act, so leave as a reasonable accommodation under the ADA must be considered in the same way it would for a U.S. national.

Documentation is Critical

Because of the risks associated with a DOL finding that an unpaid leave was not authorized, it is critical for employers to properly document the FMLA leave.  Whenever possible, an employee leave request form should be used, and the employer must provide the requisite FMLA notices and secure medical certification so it can provide DOL and/or INS with all the information necessary to establish that the employee was appropriately on an FMLA-protected leave of absence.

What About U.S. Citizens Working Abroad?  Are They Protected by the FMLA?

Nope.  With the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company.  So, a U.S. national loses FMLA protection once he steps off U.S. soil.

Fascinating. Who knew?


butt pepperApparently, Kim Kardashian isn’t the only one whose derrière seems to have transformed over the years.

According to data provided by the American Society of Plastic Surgeons (ASPS) and published in a number of news outlets, butt implants and male breast reduction are now among the fastest-growing types of plastic surgery in the United States.

According to the ASPS, there were just under 16 million surgical and minimally invasive cosmetic procedures performed in 2015 — that shakes out to one in 16 adults. Since 2000, procedures to pump up your behind have surged 250%. ASPS also reported more than 68,000 breast reduction surgeries in 2015, and men accounted for more than 40% of those procedures.

Can an Employee Take FMLA Leave for Plastic Surgery?

As all good things in life come back to the FMLA, let me pose the question:  Can your employee take FMLA leave for plastic surgery?

Make no butts about it, it is entirely possible.

If the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the FMLA, then FMLA leave definitely is in play. So, for example, reconstructive surgery following a serious injury or illness would very likely qualify for FMLA leave.However, the FMLA regulations make clear that “conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘serious health conditions’ unless inpatient hospital care is required or unless complications develop.” Therefore, FMLA leave is generally not available for purely outpatient cosmetic procedures unless it:

  1. Involves an overnight stay in the hospital; or
  2. Complications develop as a result of the procedure.

Hat tip: To my friend Tiffany Passmore for passing along the perfect photo for this cheeky blog post!

FMLA-CalendarEvery once in awhile, I find myself counseling an employer with either no FMLA policy or one completely lacking any meaningful details. Often, these policies fail to include key provisions to protect against liability.

Take, for instance, the FMLA 12-month period.

As employers are aware, an otherwise eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. What happens when an employer fails to disclose the 12-month period in its FMLA policy? They may end up like the Illinois Department of Corrections (IDOC).

IDOC apparently maintained an FMLA policy, but it failed to inform employees how the 12-month FMLA period was defined. When that happens, the 12-month option that provides the most beneficial outcome for the employee is used. IDOC learned this the hard way. One of its employees, Mike, took and seemingly exhausted FMLA leave. He later was terminated for three unexcused absences.

Finding that IDOC did not inform employees of what it was using as the 12-month FMLA period, the court determined that the “most beneficial” outcome should be used for Mike, effectively earning him back two weeks of FMLA leave that he could have used in this instance. Caggiano v. Illinois Dept. of Corrections (pdf)

Ouch. That stings.

How Many Ways are There to Count to 12?

Let’s use IDOC’s loss as an opportunity to discuss what 12-month FMLA period you should use for your workforce.  The FMLA regulations allow employers to utilize any one of four different methods to calculate the amount of FMLA leave an employee uses within a 12-month period.  Per the regulations, an employer may choose any one of the following 12-month periods:

  1. The calendar year
  2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins
  4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave

Pros and Cons in Choosing a Particular 12-Month Period

Employers may select any one of these four counting methods, so long as the method is applied consistently and uniformly for all employees.  Once the employer chooses a particular 12-month period, however, it cannot change to another 12-month period without first giving all employees at least 60-days’ notice of the change.  29 CFR 825.200(d)(1)  As I referenced above, if the employer fails to select one of the above 12-month periods, or if the employer has changed the method but it is within the 60-day window, the employer must use the 12-month period that provides the most beneficial outcome to that employee.

Clearly, there are pros and cons with each of these four methods.  But one method stands out above the rest: the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

Let me explain.

Methods One and Two

The first two methods are materially the same in that they set a fixed point in time by which to start calculating FMLA leave.  Although these two options are by far the easiest to administer, they allow for employees to “stack” 12-week FMLA periods back to back, thereby potentially providing more leave than necessary.  “Stacking” means taking FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.

Take Jane, for example.  Under her employer’s “calendar year” method, Jane takes four weeks of FMLA leave the first time on February 1.   Later in November, she takes another eight weeks of leave, which takes her through the end of the calendar year.  In theory, beginning on January 1, Jane could utilize another 12 weeks of FMLA leave.  In this example, this method of calculation allows Jane a total of 20 consecutive weeks of FMLA leave.  (It could have been worse — Jane could have taken 12 weeks at the end of the year and another 12 at the beginning of the following calendar year, for a total of 24 consecutive workweeks of FMLA leave.)  For employers seeking a continuity of business operations, this unintended result might be a difficult pill to swallow.

Method Three

The third method is not entirely different from the two above, but it offers a marginally better balance between protecting the continuity of businesses operations and ease of administration. Under this method, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  From an administrative perspective, this is easier to understand:  the employee begins leave on February 1, so the employee’s leave year begins on February 1.  However, this method does not avoid the “stacking” conundrum identified above.  Here, employers cannot avoid a situation where an employee takes FMLA leave later in the FMLA leave year, which is followed consecutively by as many as 12 weeks taken at the beginning of the following FMLA year (on February 1).

Notably, under the FMLA regulations, employers must use this method when calculating leave for an employee who is caring for a covered servicemember with a serious injury or illness. 29 C.F.R. 825.200(f)

Method Four

The most common method (but clearly the most confusing) that employers use is referred to as the “rolling” method.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  Therefore, when calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

The regulations provide a fairly straightforward example of how the employer would calculate leave using this method:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

29 C.F.R. 825.200(c)

The Winner

When using the rolling calendar or look-back period, an employee’s FMLA leave remaining in his or her 12-week FMLA leave entitlement literally can change daily, since the employer must add days (or hours) used upon the 12-month anniversary of an FMLA absence.  Although this method can be confusing to administer (such as calculating the leave available from different FMLA dates for each employee, and to do so each time FMLA leave is requested), it is the only method available under the regulations to ensure that an employee will not take a block of FMLA leave for more than 12 consecutive weeks.  Implementing this method is an employer’s best defense against FMLA abuse, and it tends to save costs in the long run.  Moreover, it discourages employees’ use of extended periods of leave across consecutive 12-month periods. When balanced against the others, this method often is the best choice for employers.

Work with your employment counsel to ensure you’re using an FMLA year that meets your operational and business needs.


Don’t make the same mistake IDOC did above.  Regardless of what 12-month FMLA period you choose, make sure it is clearly defined in your FMLA policy.

gay marriageOn Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution.

So, I’ll give you one guess as to the topic of my blog post today.

How is the FMLA Impacted by the Supreme Court’s Ruling on Same-Sex Marriage?

Earlier this year, the Department of Labor issued a final rule allowing an otherwise eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognized their marital status.  Now that the Supreme Court has declared that same-sex marriage is a Constitutional right, states can no longer prohibit same-sex marriage.  Obergefell v. Hodges (pdf)

As a result of the Supreme Court’s decision, it appears any questions regarding the DOL’s Final Rule have been all but eliminated.  This means that employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons.

What About the Four States Covered by the Texas Court Decision Halting Issuance of the DOL’s Final Rule?

As  I reported in a previous post, four states (Texas, Arkansas, Louisiana and Nebraska) obtained an injunction stopping enforcement of the DOL’s final rule. Although we don’t know how these four states will proceed in light of the Supreme Court’s decision, the Court’s decision validates the DOL’s definition of “spouse.” The DOL has not yet issued any statement on enforcement in these four states, but employers in these states that elect not to provide FMLA leave to same-sex spouses are taking on significant risk.

What Do Employers Need to do Now?

In another of my previous posts, I gave employers extensive guidance on what they should do in light of the new DOL rule on same-sex spouses. Among other things, employers should:

1. Update FMLA policies and forms.

2. Train supervisors and administrators on the new rule.

3. Determine whether any state leave law applies, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

4. Be mindful that the DOL’s new rule covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater leave rights than those provided for under the FMLA.

gavel - same sexLast week, I reported that a federal district court in Texas had halted the DOL’s enforcement of its final rule that would allow employees to take FMLA leave for their same-sex spouse.

Following that court order, the DOL now has represented that it will not enforce the rule in the four states covered by the decision — Texas, Arkansas, Louisiana and Nebraska. In a court filing, the DOL said in no uncertain terms:

[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .

In the same filing, however, the DOL confirmed it will enforce the rule as to employers located in the other 46 states. ¡Ay de mi! Best wishes to that poor employer with operations in multiple states, including some inside and outside those four states. Call your favorite employment counsel to assist with these land mines!

Today (April 10), the court heard the DOL’s motion to reconsider the court’s earlier ruling prohibiting enforcement, and it refused to overturn the ruling, according to a press release issued by the Texas Attorney General.

gay_cityhall_gavelA federal judge in Texas granted an injunction on Thursday that (for the time being) has stopped enforcement of the DOL’s final rule regarding the definition of spouse.  Under the new rule, which was scheduled to take effect today, the FMLA would cover same-sex spouses if the marriage occurred in a state that recognizes same-sex marriage and allow those spouses to receive FMLA benefits even in states that do not recognize same-sex marriage. According to the court, the public has “an abiding interest” in protecting state laws from “federal encroachment.”

Earlier this month, Texas Attorney General Ken Paxton, along with the Attorneys General from the states of Arkansas, Louisiana and Nebraska, filed suit in federal court in Texas asking that the court strike down the DOL’s final rule. “The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Texas AG Paxton said in a statement Thursday.

In issuing its order, Judge Reed O’Connor barred the DOL from enforcing the rule pending a final ruling on the merits of the Texas AG’s claim.  The ruling raises doubts about whether the DOL will enforce the new rule in the other states not covered by the court’s injunction.  My fellow employment blogger, Jon Hyman, thinks the DOL will stand down until a definitive ruling is issued.  While I can’t disagree with him, I am not so sure what the DOL will do.  I have a call into the DOL now about how it will administer the new rule in light of this ruling and will update when/if I receive official word from the agency.

The DOL has asked the court to reconsider its decision, and the oral argument on this request has been set for April 13.

As another blogging friend, Robin Shea, points out, this entire issue might become moot once the Supreme Court renders a decision in the four same-sex marriage cases it has agreed to decide this term.

For more information on the DOL’s final rule, access my post here.

same-sex-marriage----DOMA.jpgThe Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  This rule change will impact the manner in which employers administer FMLA leave, so I’ll quickly get down to the details:

Where We Were

The FMLA regulations have guided us since their inception that the term “spouse” was to be defined according to the law of the state in which an employee resides, as opposed to the jurisdiction where the marriage was entered.  This distinction became particularly significant after the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Before Windsor, that section restricted the definition of marriage for purposes of federal law to opposite-sex marriages. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized gay marriage. Windsor effectively extended FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriages, even if they were legally married in another state.

After the Windsor decision, President Obama instructed federal agencies such as the DOL to review all relevant federal statutes to implement the decision and, as expected, the DOL took it as an opportunity to apply Windsor to the FMLA regulations. In June 2014, the DOL adopted a proposed “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. Thus, if two individuals of the same sex get married in a state that recognizes same-sex marriage, they are considered to be married for federal FMLA purposes even if the state in which they live and work does not currently recognize same-sex marriage. For example, if the employee was married in New York, but now resides with his same-sex spouse in Texas, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York, since they were married in New York and that state recognizes the right of same-sex couples to marry.

Where We Are Now

After issuing its proposed rule in 2014, the agency now has announced that, on February 25, 2015, it will issue a new final rule (to take effect March 27, 2015) providing that the definition of “spouse” indeed is determined by the state in which a marriage is entered (i.e., the “state of celebration”). As the DOL points out, a place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”  The DOL notes that, as of February 13, 2015, 32 states and the District of Columbia (as well as 18 countries) extend the right to marry to both same- and opposite-sex partners.

In the age of social media, the DOL secretary, Thomas Perez made the agency’s announcement through its own blog post.  That’s kinda neat, so says this FMLA nerd.

A copy of the DOL’s final rule and comments to the final rule can be accessed here (pdf).  A copy of the DOL’s fact sheet on the final rule can be accessed here.

What Does This Mean for Employers?

All well and good, Jeff.  Of course, I know all of this.  Tell me how this new rule impacts my life.  

Here’s what employers need to know and do:

1.  As an initial matter, determine whether the FMLA applies to you.  If so, you should:

  • Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.
  • Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.
  • Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

2.  Whether or not FMLA applies to you, you should determine whether any state leave law applies to you.  These laws may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

3.  Keep in mind two particular FAQs on This New DOL Rule (which I have taken, in part, from of the DOL Final Rule FAQs):

Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?

A. The Final Rule makes no changes to the manner in which employers may require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy this requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. 29 C.F.R. § 825.122(k)

Here’s the catch, employers: It is the employee’s choice to provide a simple statement or another type of document. And DOL has us in a trick bag as to when we can and should ask for reasonable documentation.  On one hand, the agency tells us in the final rule, “Employers have the option to request documentation of a family relationship but are not required to do so in all instances.” (My emphasis) It also rejected calls for instituting a standard in which employers would be required to show that they requested this documentation in a consistent, non-discriminatory manner.  Yet, on the other hand, the DOL is quick to point out that employers “may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”

Thus, from a practical standpoint, shouldn’t employers institute a consistently-applied, non-discriminatory policy when asking for confirmation that a family relationship exists?  In a word, yes. Otherwise, employers risk a claim that they are treating certain employees in a discriminatory manner, thereby interfering with their FMLA rights. I leave that compliance piece carefully in your hands, but I encourage you to tread carefully.

One thing is clear:  If an employee has already submitted proof of marriage to the employer for another purpose, such as in electing health care benefits for the employee’s spouse, the DOL finds that “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”  So, employers, no second bites at the apple if you already have this information!

Q. Does the Final Rule Change the Manner in Which Employees Take FMLA leave to care for a child to whom they stand in loco parentis?

A.  No.  In June 2010, the DOL recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (You can find more on the in loco parentis rule in DOL Fact Sheet #28B.) In other words, this new rule has no impact on the standards for determining the existence of an in loco parentis relationship.