New surveys reveal that most employees favor paid leave and flexible schedules

America remains the only industrialized nation that doesn’t mandate some level of paid maternity and/or family leave for employees. Meanwhile, while the FMLA provides 12 weeks of unpaid leave, many will tell you that benefit is woefully inadequate for employees. Indeed, more than 40 percent of employees are not covered by the FMLA and are not eligible to take FMLA leave.

http://dilbert.com/strip/2013-05-10

Thus, the results of a recent survey conducted by the Pew Research Center should surprise few.

Paw-ternity leave is a great idea, but please don’t forget about us humans

This is Loula, our vizsla.

We love our dog. And, when we brought her home four summers ago, it was a great benefit to our family that my wife had yet to return to work. She was home for Loula’s first two months, to acclimate her to our house and family. What if, however, you lack the luxury of not working during your puppy’s first few weeks at home?

BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.

Failure to follow employer’s reporting rules dooms employee’s FMLA claim

F-M-L-A: four letters that cast fear in the heart of any HR professional. So many rules to follow, so many ways to mess up and cost an employer. It's not just an employer that has FMLA rules to follow, however. Employees also have rules that they must follow, or the FMLA will not protect their leave.

In Alexander v. Kellogg USA (6th Cir. 1/4/17) [pdf], an injured production operator terminated for unexcused absences lost his FMLA claim because he failed to follow his employer's attendance policy.

Employee’s misuse of medical leave grounds FMLA claim

Employers often tread too cautiously when handling employees on FMLA leave. Despite this caution, courts will to side with an employer that terminates an employee after uncovering abuses of FMLA leave.

Case in point? Sharif v. United Airlines (4th Cir. 10/31/16).

Why the DOL’s federal contractor paid sick leave rules matter for all employers

Last week, the Department of Labor rolled out its final regulations mandating paid sick leave for the employees of federal contractors. According to the DOL, Once fully implemented, more than one million employees of federal contractors will be covered. At the highest of levels, the rule mandates that covered workers earn up to 56 hours (7 work days) of paid sick leave annually. Notably, the rule does not apply retroactively, and only applies to new federal contracts and replacements for expiring contracts on or after January 1, 2017.

Employment at-will is dead

Last week, I suggested that the “FMLA is not a personnel-file eraser.”

One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.

In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.

http://dilbert.com/strip/2015-09-08

FMLA does not excuse poor performance

Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.

FMLA leave means leave, period.

FMLA leave means leave. That is, an employee exercising rights under the FMLA to take protected time-off from work must be relieved of their job functions, and an employer cannot hold such an employee responsible for job tasks uncompleted during such a leave of absence.

Maternity leave vs. “Me-ternity” Leave, and what it means for work-life balance

I read with great interest the following story in the New York Post, entitled, “I want all the perks of maternity leave — without having any kids.”

The story, written by Meghann Foye, a self-professed overworked, yet childless, woman in her mid-30s (and author of a recently published novel called “Meternity”), argues that all women deserve “me” time away from work, and that maternity leave shouldn’t be limited just to new moms.

DOL publishes new employer FMLA guide

Since I recently cut a check to the IRS for the balance due on my taxes, I thought I’d take today’s space to review how the federal government spends our tax dollars. Today’s examination? The Department of Labor’s newest publication, The Employer’s Guide to the Family and Medical Leave Act [pdf].

Does HR understand their own personal liability for FMLA violations?

If you’ve ever held supervisor and manager training on any employment-law issue, you know the glazed-over expression of a group of individuals going through the motions. “Oh goody, we have training today. Here’s an hour of my life I’ll never get back,” is what you’ll hear around the coffee machine before they enter the training room.

Want to wake them up and ensure rapt attention? Hit them with the idea of individual liability. Under Ohio law, we have it for discrimination claim. It exists for wage-and-hour claims under the FLSA. And, last week, in Graziadio v. Culinary Institute of Am. [pdf], the 2nd Circuit Court of Appeals held that a manager or supervisor can be individually liable for FMLA violations.

Intermittent FMLA does not permit sleeping on the job (usually)

Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?

According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.

Can an employer prohibit an employee from job hunting during FMLA leave?

Earlier this week, an employee out on FMLA leave posed the following question to the Evil HR Lady:

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

DOL doubles down on joint employment under the FMLA

Yesterday, we looked at the DOL’s recent guidance on joint employment under the Fair Labor Standards Act. Simultaneously with its FLSA guidance, the DOL also published guidance on joint employment under the FMLA, and it’s definitely worth you time.

Intermittent leave for exempt employees: the survey results

Last week, I asked a simple question: should employer require salaried, exempt employees to take intermittent FMLA leave as unpaid leave, and deduct hours spent on leave from their pay.

Here are the results:

Should you deduct from an exempt employee’s salary for intermittent FMLA? [survey]

Suppose you have a salaried, exempt employee. You pay that employee a fixed weekly salary, regardless of the number of hours he or she works. Some weeks the employee works 40 hours, some weeks the employee works 30 hours, and some weeks the employee works 60 hours. In the calculus of a weekly paycheck, the number of hours worked is irrelevant. A salary covers all hours worked in a week, whether it’s one hour or 100 hours.

Let’s further suppose this salaried, exempt employee submits a request, and is approved for, intermittent leave under the FMLA. It could be for the employee’s own serious health condition, or that of a family member. As a result, this salaried exempt employee starts taking an hour or two off per week for doctor’s appointments related to the serious health condition. Is that FMLA time-off paid or unpaid, for the salaried, exempt employee?

“FMLA” is not a magic word

Does an employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or, what if an employer fires an employee who misses work because of an FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer violated the statute?

In Festerman v. County of Wayne (6th Cir. 5/8/15) (h/t: Eric Meyer), a police officer felt chest pains at left work for the emergency room. Five days later, he submitted an incident report, and, a day after that, a doctor’s note that stated, “Patient is advised to limit working hours to 8 hrs/day.”  At no time, however, did the employee specifically request FMLA leave, or invoke the statute for his time off from work.

The 6th Circuit concluded that neither the hospital visit nor the doctor’s note were individually sufficient to place the employer notice that the employee qualified for FMLA leave. However, the court concluded that, presented with the total picture, a fact issue existed as to whether the FMLA covered this employee’s leave.

This Court is confronted with a doctor’s note that expressly discloses a requirement of limiting the employee’s work hours per day, but fails to disclose the condition that gives rise to this requirement or any additional prescribed treatment. Consequently, the doctor’s note submitted by Festerman, in isolation, may not have provided sufficient notice to Wayne County of a qualifying condition under the FMLA. The circumstances surrounding Festerman’s initial qualifying leave, however, provided additional context to the doctor’s note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying condition….

Given Wayne County’s knowledge of a serious health-related incident that occurred in the workplace and the doctor’s note which advises that Festerman’s workday should be limited to eight hours per day, a reasonable jury could find that Festerman provided sufficient notice to Wayne County of a FMLA-qualifying serious health condition.

I’ve previously discussed how an employer should handle an employee’s potential or questionable request for leave under the FMLA.

• If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

• If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

In other words, employers, err on the side of caution. Use the FMLA’s checks and balances. When in doubt, offer conditional FMLA leave, and confirm with the statute’s medical certification process. And, just, as importantly, train your supervisors to recognize a potential FMLA issue so that they do not get in the way of this process working.

John Oliver tackles paid medical leave

Is it time for America to catch up to the rest of the world and offer paid family leave to our employees? Perhaps the best argument in favor of paid family leave is that besides Papua New Guinea, we are the only country that doesn’t offer it. Makes you think we’re a little behind the times.

Here’s John Oliver’s very funny, and poignant, take on the issue from this week’s Last Week Tonight:

BREAKING: FMLA’s “same-sex spouse” rule on hold, for now

Today, the new rule that would permit FMLA benefits for same-sex spouses was to take effect. However, late yesterday, a federal judge in Texas granted a preliminary injunction [pdf] temporarily halting the rule.

The plaintiffs—the attorney generals of four states that do not recognize same-sex marriages—successfully argued that they were likely to succeed on the merits of their claim that the FMLA rule infringed on their states’ rights under section 2 of the Defense of Marriage Act to ignore same-sex marriages lawfully entered in other states.

This is only a temporary victory for the plaintiffs in this case. And, while it legally only impacts the four states that are plaintiffs in this action, practically, the DOL will hold any implementation of this rule until this case plays itself out.

As for the merits of the case itself, as Robin Shea points out, this case could become moot (clearing the way for the FMLA rule-change) if the Supreme Court legalizes same-sex marriage later this term. Fingers crossed.

Why your control employees must care about employment laws

Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.