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DOL Proposes FMLA for Eligible Employees in Same Sex Marriages

Posted on Fri, Jul 18, 2014 @ 09:59 AM

by Jack B. HarrisonJack B. Harrison

Recently, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking under which it stated its intentions to extend the protections of the Family and Medical Leave Act (“FMLA”) to all eligible employees in legal same-sex marriages regardless of the state in which they live.  In releasing the proposed rule change, the DOL described the purpose of this proposed rule change as follows:

The proposal would help ensure that all families will have the flexibility to deal with serious medical and family situations without fearing the threat of job loss. Secretary Perez is proposing this rule in light of the Supreme Court's decision in United States v. Windsor, in which the court struck down the Defense of Marriage Act provision that interpreted "marriage" and "spouse" to be limited to opposite-sex marriage for the purposes of federal law.

Under the proposed rule change, the regulatory definition of “spouse” would be changed to allow eligible employees in a legal same-sex marriage to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Under the current regulatory definition of "spouse," only same-sex spouses who reside in a state that recognizes same-sex marriage are able to take advantage of FMLA leave.  The proposed rule would define “spouse” for FMLA purposes as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Thus, under the proposed rule change, coverage under the FMLA would be based on the law of the place where the marriage was entered into (“state of celebration” as opposed to “state of residence”), which would allow legally married same-sex couples to be eligible for FMLA family leave rights regardless of whether the state in which they currently reside recognizes such marriages.

Under the process following the issuance of a Notice of Proposed Rulemaking, interested parties may submit comments on the proposed rule at  Interested parties who wish to provide comments on the proposed rule must do so on or before August 11, 2014.

Employers, particularly those in states that do not currently recognize same-sex marriages, should closely follow the developments surrounding this proposed rule.  Assuming the rule is adopted, employers should be prepared to modify their leave policies to bring them in line with the new rule.  Cors & Bassett will continue to monitor developments related to this proposed rule and will provide updates as appropriate.

Tags: Family and Medical Leave Act, FMLA

Employee Handbooks 101: "Must Have" Provisions

Posted on Mon, Sep 09, 2013 @ 02:04 PM

Jack B. Harrisonby Jack B. Harrison

It is extremely important that employers periodically review with their employment counsel their Employee Handbook to insure that it accurately sets forth the employer’s policies and goals in a clear manner so that all employees know exactly what is expected of them as employees.  Clearly articulated policies and goals contained in the Employee Handbook can, at times, limit an employer’s legal liability by providing a valid defense to certain claims.  Below are some of the policies that should be included in every Employee Handbook.  This list is certainly not meant to be exhaustive, but is intended to provide guidance as to some important provisions that should be contained in an Employee Handbook.

Discipline Policy

Employees need to be provided with clearly articulated expectations of what conduct will or will not be tolerated in the workplace.  The Discipline Policy should set forth the steps that will be followed in the event of a disciplinary action.  Management personnel should be periodically trained on these steps and on the importance of documenting that all disciplinary steps have been followed.

Statement Concerning Equal Employment Opportunity (EEO)

The employer’s EEO policy should provide a clear statement of the employer’s intent to provide fair and equal treatment to all employees in all terms and conditions of employment, regardless of the employee’s race, color, sex, age, disability, religion, national origin, veteran status and/or any other status protected by applicable federal, state or local laws.  Like all policies, an EEO policy should be part of the training of all management personnel and should be periodically reviewed to insure that it is consistent with any changes that might occur in the law.

Statement Regarding At-Will Employment

An Employee Handbook should contain a statement making it clear that employment is at-will, meaning that the employment may be terminated by either the employer or employee at any time, without reason or notice.  This statement should also make it clear that the Employee Handbook does not create a contract for employment.  Additionally, the statement should inform employees that any policies set forth in the Employee Handbook can be modified at any time by the employer.

Statement Prohibiting Harassment and Discrimination

Related to the employer’s EEO policy or statement, this statement makes it clear to all employees that discrimination, harassment and retaliation in the employer’s workplace that is based on a person’s race, color, religion, national origin, sex, age, disability, veteran status or any other classification protected by federal, state or local law is prohibited and will not be tolerated.  In addition to the clearly articulated statement of the employer’s intent, this statement should include the various processes by which an employee may complain if the employee believes he or she has been the victim of harassment, discrimination or retaliation.

Statement Regarding Family and Medical Leave Act

Under federal law, where an employer employs fifty or more employees, the employer must comply with the Federal Family and Medical Leave Act.  The FMLA provides eligible employees 12 weeks of unpaid leave each leave year.  The FMLA requires that an employer’s Employee Handbook contain an FMLA policy statement.

Statement Regarding Confidentiality and Trade Secrets

A statement in the Employee Handbook regarding confidentiality and trade secrets should clearly state that, during the course of their employment, employees have or may have access to confidential and proprietary information and trade secrets that are the sole property of the employer.  The statement should inform employees that they are required to keep this information confidential both during the course of their employment and following the termination of their employment.  This statement should articulate policies and guidelines for how such information is to be managed and handled by the employees.

Statement Regarding Electronic Communications

Given that many employees make use of workplace computer systems and other company owned equipment in the context of their employment, Employee Handbooks should make it clear that the employer reserves the right to review and monitor all information that passes through their computer systems and equipment.  Employees should be informed that they should have no expectation of privacy related to any communication that takes place using employer owned computers or equipment, regardless of whether the communication is business related or personal.

Tags: Employee Handbooks, At-Will Employment, Discipline Policy, EEO, Equal Opportunity Employment, Discrimination, Family and Medical Leave Act, Trade Secrets, Electronic Communications, Harassment, FMLA

Facebook Postings: Used to Terminate Employee on FMLA Leave

Posted on Fri, Apr 19, 2013 @ 09:59 AM

Jack B. Harrisonby Jack B. Harrison

In Lineberry v. Detroit Medical Center, et al., Case No. 11-13752 (E.D. Mich., S.D. Feb. 5, 2013), a court was faced with the question of whether an employee’s posts on Facebook could form the basis for the employee’s termination for dishonesty, even when the employee was on a lawful FMLA leave.

In Lineberry, an RN, employed at the Detroit Medical Center, was on FMLA as a result of her claim that she could only walk or stand for limited periods of time.  However, the employee posted photos to Facebook of her vacation in Mexico, photos of her riding in a motorboat, photos of her lying on her side on a bed holding up two bottles of beer in one hand, and of her standing and holding both her infant grandchildren, one in each arm.  Additionally, she had made other postings indicating that she was far more active than she had represented when applying for FMLA leave.  These postings on Facebook were discovered by the employee’s coworkers, who reported them to hospital management.

While the Mexico vacation had been preapproved by the employee’s doctor, the employee had represented to her supervisor that she employed wheelchairs in all airports through which she travelled.  The employee’s supervisor responded to an email complaint from the employee regarding the fact that the employee had not received a get well card from staff by stating that “the staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.”  The employee responded to this email from her supervisor as follows:

As far as the airport, customs, etc., goes, I was in a wheelchair because I couldn’t stand that long. As far as the plane goes (3.5 hr. flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.

* * * * *

I want to come back to work as soon as possible and wouldn’t have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

When the employee was subsequently asked at a meeting with hospital management about this trip, she reiterated her contention that she had used wheelchairs throughout the trip.  When the employee was then confronted with her Facebook postings and reminded that all airports have security cameras throughout, she admitted that she had lied about the use of wheelchairs on her trip and admitted that she had never used a wheelchair at all on the trip.  As a result of these admissions, the employee was terminated by the hospital for dishonesty, even though she was still on a lawful FMLA leave.

Following her termination, the employee filed suit against the hospital.  In her suit, the employee claimed that the hospital had violated her rights under the FMLA by refusing to reinstate her and by retaliating against her for taking the FMLA leave in the first instance.  The Court, in granting the hospital’s motion for summary judgment, held that the undisputed evidence, including the employee’s admissions and Facebook postings, supported the fact that she had been terminated for dishonesty, not in retaliation for taking the FMLA leave.

While prudent employers should always be cautious regarding the termination of an employee who is on a lawful FMLA leave, Lineberry does support the proposition that an employer may lawfully terminate an employee who is on FMLA leave when the employer has undisputed evidence that the employee has been dishonest as to the basis for the need for FMLA leave.

Tags: FMLA

Department of Labor Clarified the Terms "Son" or "Daughter" Under the FMLA

Posted on Fri, Mar 01, 2013 @ 01:16 PM

by Jack B. HarrisonJack B. Harrison

On January 14, 2013, the Department of Labor (DOL) issued a clarification of the definition of "son or daughter" under the Family and Medical Leave Act (FMLA).  Administrator's Interpretation (AI) No 2013-1.  The clarification makes clear the DOL position regarding whether an eligible employee may take FMLA leave to care for an adult child who is incapable of self-care because of a disability.  The clarification made it clear that such leave may be taken without regard to how old the child was when the disability commenced.  The clarification also applies to the FMLA's military caregiver provision.

Under the FMLA's definition of a "son or daughter," an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability.  The regulations issued by the DOL incorporate the Americans with Disabilities Act's (ADA) definition of "disability," namely a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC).  However, even where the adult child is disabled under the broad definitions of the ADA, the child must be incapable of self-care because of his or her disability in order to meet the definition of son or daughter under the FMLA.  The regulations define "incapable of self-care because of mental or physical disability" as being when an adult son or daughter "requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living' (ADLs) or ‘instrumental activities of daily living' (IADLs)."  Where the other requirements of the FMLA are met, a parent is entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter (1) has a disability as defined by the ADA; (2) is incapable of self-care due to that disability; (3) has a serious health condition; and (4) is in need of care due to the serious health condition.  Only when all four of these requirements are met is an eligible employee entitled to FMLA-protected leave to care for his or her adult son or daughter.

The DOL further clarified that the age of the son or daughter at the onset of a disability is not relevant in determining a parent's entitlement to FMLA leave.  "An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced."

This clarification by the DOL impacts the military caregiver provision of the FMLA.  Under that provision, a parent of a covered service member who suffered a serious injury or illness is entitled to up to 26 work weeks of FMLA leave in a single 12-month period if all other requirements are met.  In the clarification, the DOL acknowledges that the service member's injury may last beyond the single 12-month period covered by the military caregiver leave entitlement.  The expanded definition of a disability under the ADA, as well as the clarification that when an adult son or daughter's disability commences is irrelevant in determining whether he or she qualifies as a "son or daughter" under the FMLA, may allow parents of adult children who have been wounded or sustained an injury or illness in military service to take FMLA leave beyond that provided under the special military caregiver leave provision of the statute, as long as all other FMLA requirements are met.

As a result of this clarification, with the DOL incorporating the broad ADA definition of "disability," employers will likely see an increase in the number of adult children who can be classified as disabled and for whom parents may take FMLA-protected leave to provide care if the adult child is incapable of self-care at the time of the FMLA.  Prudent employers should make sure that personnel who manage and process leave requests are trained on the new interpretation. Employers should also reexamine the method they utilize to compute FMLA leave to determine if, in light of the recent expansion, a different computing method might benefit the company.

Tags: Department of Labor, Americans With Disabilities, FMLA