Same-Sex Unions – What’s Happening Where?

By Martha J. Cardi, Reed Group Chief Compliance Officer

Currently, 15 states and the District of Columbia officially recognize some form of union between individuals of the same gender.  These are variously designated as domestic partnerships, civil unions, or same-sex marriages.  The legal effect of these unions varies from state to state.  This article provides a brief overview of the laws in those states that authorize some sort of same-sex union.

Generally, these laws do not have the effect of requiring a private employer to extend typical spousal benefits to same-sex partners, such as health insurance and leave to care for an ill partner.  There may be other state laws, however, that do have a direct impact on employer-employee relations, such as a state family leave law that allows time off to care for a same-sex partner.

States with some sort of same-sex union are summarized below in alphabetical order.  For each state, this article provides the following information:

• Type of union authorized and definition
• Effective date
• Brief explanation of rights/obligations
• Link to the statute or other relevant source

California — Domestic Partnerships

Effective Date:  June 30, 2005

Registered domestic partners have the same rights, protections, and benefits, and are subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

“Domestic partners” are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.  A domestic partnership is established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State.

Presently, domestic partnerships are available to same-sex couples, and to opposite-sex couples in which at least one party is over 62 years of age.

Effective January 1, 2012, domestic partnership eligibility requirements will be identical to those of marriage (e.g., not requiring the maintenance of a common residence).

Domestic Partnership Registry:  http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=00001-01000&file=297-297.5

Conversion of eligibility requirements:  http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_651_bill_20111009_chaptered.html

Connecticut — Same-Sex Marriage

Effective Date:  April 23, 2009

Same-sex couples may marry and have all the same rights as opposite-sex couples.

“Marriage” means the legal union of two persons. . . . The registrar must issue a license to any two persons eligible to marry under the laws of Connecticut.

“Wherever in the general statutes or the public acts the term “husband”, “wife”, “groom”, “bride”, “widower” or “widow” is used, such term shall be deemed to include one party to a marriage between two persons of the same sex.”

Connecticut previously recognized civil unions.  Effective October 1, 2010, civil unions ceased to be provided and existing civil unions were automatically converted to marriages. Voluntary conversion was available prior to this date upon passage of the act.

Same-sex marriage statute:  http://www.cga.ct.gov/2009/ACT/Pa/pdf/2009PA-00013-R00SB-00899-PA.pdf

Delaware — Civil Unions

Effective Date: January 1, 2012.

Parties to a civil union  recognized by Delaware law will have all the same rights, protections and benefits, and will be subject to the same responsibilities, obligations and duties under the laws of the state . . . enjoyed by or imposed upon married persons.

“Civil union” means a legal union between two individuals of the same sex established pursuant to Delaware law.

Civil union statute:  http://www.legis.delaware.gov/LIS/lis146.nsf/vwLegislation/SB+30/$file/legis.html?open

District of Columbia — Same-sex Marriage and Domestic Partnerships

Same-Sex Marriage:  Effective Date:  March 3, 2010

Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is otherwise expressly prohibited.

Same-sex marriage licenses became available in the District of Columbia on March 3, 2010, and marriages began on March 9, 2010.

“Where necessary to implement the rights and responsibilities relating to the marital relationship or familial relationships, gender-specific terms shall be construed to be gender neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.”

Religious Freedom and Civil Marriage Equality Amendment Act of 2009:  http://www.davidcatania.com/publicdocuments/Signed_Marriage_Bill.pdf

Domestic Partnerships: Effective 2002 – January 1, 2011

Domestic partnerships were allowed in the District of Columbia prior to same-sex marriages.  The ability to register a new domestic partnership in DC expired as of January 1, 2011.  Parties to existing domestic partnerships may apply for a marriage certificate and convert the partnership to a marriage.  The domestic partnership dissolves as of the date of the marriage.

DC’s domestic partnership laws went through many amendments.  Information can be found at:  http://dchealth.dc.gov/doh/cwp/view,a,3,q,573324,dohNav_GID,1787,dohNav,%7C33110%7C33120%7C33139%7C.asp

Hawaii — Civil Unions

Effective Date; January 1, 2012.

Partners to a civil union will have all the same rights, benefits, protections, and responsibilities under law as are granted to married persons.

“Civil union” means a union between two individuals of either the same or opposite sex established pursuant to Hawaii law.

Civil union statute:  http://www.capitol.hawaii.gov/session2011/Bills/SB232_HD1_.HTM

Illinois — Civil Unions

Effective Date: June 1, 2011.

A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.

“Civil union” means a legal relationship between two persons, of either the same or opposite sex.

Illinois Religious Freedom Protection and Civil Union Act:  http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1513

Iowa — Same-sex Marriage

Effective Date:  April 3, 2009

Same-sex marriages are permitted in Iowa.

As currently stated, Iowa Code § 595.2 limits civil marriage to a man and a woman.  However, in 2009 the Iowa Supreme Court struck that language from the statute as a violation of the equal protection clause of the Iowa Constitution.

The remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009):   http://www2.law.columbia.edu/faculty_franke/Gay_Marriage/Varnum%20v%20Brien%20edited%20EP.pdf

Maine — Domestic Partnerships

Effective Date: July 30, 2004

Registered domestic partners have legal status similar to that of married persons with respect to certain rights (e.g., inheritance without a will, making funeral and burial arrangements, entitlement to be named a guardian or conservator if partner becomes incapacitated or to be named a representative to administer a deceased partner’s estate, entitlement to make organ and tissue donation and explicit protection in the state’s domestic violence laws).

“Domestic partner” means one of two unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.

http://www.mainelegislature.org/ros/LOM/lom121st/15pub651-700/pub651-700-32.htm

Nevada — Domestic Partnerships

Effective Date:  June 1, 2009

Domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law as are granted to and imposed upon spouses.

“Domestic partners” means persons who have registered a valid domestic partnership with the state pursuant to law and have not terminated that domestic partnership.

Nevada Domestic Partnership Act:  http://www.leg.state.nv.us/NRS/NRS-122A.html

New Hampshire — Same-Sex Marriage

Effective Date: January 1, 2010

Marriage is the legally recognized union of two people. Any person who otherwise meets the eligibility requirements for marriage may marry any other eligible person regardless of gender. Each party to a marriage shall be designated “bride,” “groom,” or “spouse.”

New Hampshire previously recognized civil unions. All civil unions will be merged into marriage no later than January 1, 2011, unless otherwise annulled or dissolved.

An act relative to marriage and civil unions:  http://www.gencourt.state.nh.us/legislation/2009/HB0436.html

New Jersey — Civil Unions and Domestic Partnerships

Effective Date: February 19, 2007.

”Civil union” means the legally recognized union of two eligible individuals of the same sex established pursuant to New Jersey law. Parties to a civil union receive the same benefits and protections and are subject to the same responsibilities as spouses in a marriage.

Same-sex couples registered as domestic partners may enter into a civil union with the same person without terminating their domestic partnership first.  If the domestic partnership was registered in New Jersey, it automatically terminates when the civil union is registered.

Domestic Partnerships registered prior to February 19, 2007 remain valid and are afforded the rights and benefits of Domestic Partners. New Domestic Partnerships are limited to same or opposite sex partners 62 years of age or older.

An act concerning marriage and civil unions:  http://www.njleg.state.nj.us/2006/Bills/PL06/103_.HTM

Domestic Partnership Act:  http://www.njleg.state.nj.us/2002/bills/pl03/246_.htm

NJ Attorney General Formal Opinion No. 3-2007:  http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf

New York — Same-Sex Marriage

Effective Date:  July 24, 2011

Same-sex marriages are permitted.  “A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.”

“It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law.” Marriage Equality Act: http://assembly.state.ny.us/leg/?default_fld=&bn=A08354&term=2011&Summary=Y&Text=Y

Oregon — Domestic partnerships

Effective Date:  February 4, 2008

Domestic partners are treated the same as married spouses.  Any privilege, immunity, right, or benefit granted or imposed by any law or other authority to an individual because the individual is or was married is granted on equivalent terms to an individual in a domestic partnership. “Domestic partnership” means a civil contract entered into in person between two individuals of the same sex who are at least 18 years of age, who are otherwise capable, and at least one of whom is a resident of Oregon. Oregon Family Fairness Act: http://www.leg.state.or.us/07reg/measures/hb2000.dir/hb2007.en.html

Vermont – Same-sex Marriage

Effective Date: September 1, 2009.

“Marriage” is the legally recognized union of two people, regardless of gender.

Vermont previously recognized civil unions.  As of September 1, 2009, new civil unions are no longer available. Civil unions entered into prior to September 1, 2009 will remain valid.

Marriage Equality Act:  http://www.leg.state.vt.us/docs/2010/bills/Passed/S-115.pdf

Washington – Domestic Partnerships

Effective Date:  December 3, 2009

State registered domestic partners are treated the same as married spouses. Any privilege, immunity, right, benefit, or responsibility granted by any law or other authority to an individual because the individual is or was married is granted on equivalent terms to an individual in a state registered domestic partnership.

Couples of the same sex or in which at least one of the partners is age 62 or older may become registered domestic partners.

State Registered Domestic Partnerships:  http://apps.leg.wa.gov/RCW/default.aspx?cite=26.60

Wisconsin – Domestic Partnerships

Effective Date:  January 1, 2010

Registered domestic partners in Wisconsin are afforded some of the spousal benefits of marriage (e.g., inheritance and survivor protections, state family and medical leave, medical/hospital visitation rights, and exemption from the real estate transfer fee).

Same-sex Domestic Partnerships:  http://legis.wisconsin.gov/statutes/Stat0770.pdf

Summary of effects of same-sex domestic partnership:  http://www.wisbar.org/AM/Template.cfm?Section=Search&CONTENTID=87323&TEMPLATE=/CM/ContentDisplay.cfm#45

The Importance of Getting It “Just Right”: Communications with Employees on FMLA Leave

By Martha J. Cardi, Reed Group Chief Compliance Officer

Handling FMLA absences is a balancing act . . . don’t call the employee on leave too often, don’t call too seldom (or neglect to return calls).

Recently we reported on the employer’s right to require an employee to check in periodically during FMLA leave (read here).  In a side note, we mentioned that contacting the employee on FMLA leave too often can create an interference claim (see box, “The Other Side of the Coin”).

Now a federal court has ruled that a supervisor’s failure to return an employee’s calls during leave can support an FMLA retaliation.  So here is how it appears to add up:

• Too many calls + employee stress = FMLA interference
• Too few calls + discipline or termination  = FMLA retaliation

How does an employer get it “just right”?

We recommend that employers: institute a reasonable procedure for communications with employees on FMLA leave; train HR representatives to follow the procedure; train supervisors on their responsibilities to an employee with regard to FMLA leaves; and reach out for expert guidance if ever in doubt. See further guidance below after reading about an employer whose supervisor didn’t get it just right.

The Employee’s Leave.  Kathleen Hofferica was employed by St. Mary Medical Center when she became ill.  In April 2008 she applied and was approved for intermittent FMLA leave through February 2009.  In September 2008 Hofferica’s physician informed her that she needed to undergo a series of surgeries as treatment for her condition.  She commenced a continuous leave and anticipated returning to work on November 6, 2008.  During her leave Hofferica or her husband called Hofferica’s supervisor each week to provide updates on her progress and her anticipated RTW date.  Hofferica claimed that the supervisor often failed to return her calls.  In particular, Hofferica claims that:

• She called her supervisor on November 4 to explain that her physician might postpone her RTW date.  The supervisor never returned the call.
• She called on November 6 to inform her supervisor that Hofferica’s physician had cleared her to return to work on November 13, and to request “a brief extension of her medical leave until said date as a reasonable accommodation for her disability”.  The supervisor did not return this call.

Hofferica received a letter from St. Mary dated November 7, stating that she had been terminated because her FMLA leave of absence had expired and she had not returned to work.

What happened next?  Of course, Hofferica sued St. Mary, alleging FMLA interference and retaliation.  The interference claims were dismissed, but the retaliation claim survived.  The court held that:

• The supervisor’s failure to return Hofferica’s calls reflected an antagonistic attitude toward the employee and her use of FMLA; and
• This antagonism could lead a jury to conclude that Hofferica was fired in retaliation for her leave usage.

As a result, St. Mary has a choice – pay Hofferica to settle, or pay their attorneys to proceed to trial.

Hofferica v. St. Mary Medical Center, No. 10-6026 (E.D.Pa. September 20, 2011).

http://www.paed.uscourts.gov/documents/opinions/11D1055P.pdf

Lessons for employers.

1. Set a Procedure.  Establish a consistent and compliant procedure for communications with an employee during an FMLA leave.  Not too much, not too little.  The employer is permitted under FMLA to require the employee to report in periodically during the leave of absence.  It is also alright for the employer to check in with the employee if he or she hasn’t called.  The appropriate frequency for communications with the employee will depend on the length of the leave, its purpose, and the information previously provided by the employee.  For more tips on call-in policies, see “What Employers Should Do” (here).

2. Train Supervisors.  Supervisors are not expected to be FMLA experts.  However, if they don’t have a general understanding of employee / employer  rights and obligations under the FMLA – including communications procedures –  they are likely to express intolerance of or frustration about a subordinate’s use of FMLA time off or call and disturb the employee during the leave.  Such an attitude might discourage an employee from asking for and/or using as much FMLA time as he or she needs and is entitled to.  This “chilling effect” can be enough to create a claim for interference.  (See “The Other Side of the Coin”, linked above.)
3. Bonus lesson!  Although the employee in the Hofferica case did not assert a claim under the Americans with Disabilities Act, she could have done so.  Even if an employee exhausts her FMLA leave, an extended leave of absence might be a reasonable accommodation for an employee with a disability.  Hofferica set up a possible claim under the ADA by requesting in her last message to her supervisor, “a brief extension of her medical leave until said date as a reasonable accommodation for her disability”.  Why Hofferica did not assert this claim in the lawsuit is unknown; it could have provided the employer with even more to worry about.  See our prior discussions of this topic (ADA Lawsuits on the Rise here  and The EEOC Beat Goes On here). 
4. Train HR.  Train your HR managers to follow appropriate contact and communication protocols in accordance with the procedure you have established.  They need to know when and how to be proactive in communicating with employees on leave and when to back off.

Sometimes it helps to have outside assistance if you are not sure you are handling communications as well as possible.  If Reed Group is administering your FMLA leaves we manage communications with employees in compliance with the FMLA while taking advantage of all rights the FMLA provides to employers.  Call  1-866-218-4650  if you would like to explore this option with Reed Group.

Employer’s toolbox: Use Your Sick Leave Policy to Curb FMLA Abuse

By Martha J. Cardi, Reed Group Chief Compliance Officer

Last quarter we wrote about how employers can curb FMLA abuse by creating a toolbox for  absence management which includes a strong attendance policy.  View.   Reed Group now recommends adding to your toolbox: the sick leave policy.

Employers are often concerned that employees are misusing FMLA time or company paid sick. Here are two great examples of how employers’ sick leave policies have effectively curbed FMLA abuse and survived courtroom scrutiny.

CASE 1: Pellegrino v. Communications Workers of America.   A case decided earlier this year emphasizes that time taken under FMLA does not provide unfettered job protection.  Instead, an employee must still abide by all workplace rules while exercising rights under the FMLA. The employee’s FMLA leave, the employer’s sick leave policy, and the court’s decision are set forth below.

The employer’s sick leave policy: The employer’s manual included a policy entitled Sickness and Absenteeism. This policy provided wage replacement for eligible employees on medical leave subject to certain restrictions, including that employees remain in the immediate vicinity of their homes during the period of sick leave. The policy contained exceptions if an employee needs medical treatment, must attend certain personal or family activities, or if an employee receives written permission from the company to travel. This policy was separate from the company’s FMLA policy, but the Sickness and Absenteeism policy did note that the company provides unpaid leave in accordance with the FMLA and that FMLA runs concurrently with the sick leave.

The employee:  Denise Pellegrino sought an FMLA leave of absence in order to undergo a hysterectomy. Included in the FMLA packet sent to Ms. Pellegrino by her employer was a letter noting that the process for medical certification under FMLA was separate from the eligibility process to receive wage replacement under the sick leave policy. The letter also stated that under the policy, if she met the qualifications, Ms. Pellegrino would be required to use her paid leave during her FMLA leave.

The employer approved Ms. Pellegrino’s FMLA leave and also paid her wages under the Sickness and Absenteeism policy. Two weeks after Ms. Pellegrino’s hysterectomy surgery and while on her approved leave of absence, Ms. Pellegrino traveled to Cancún where she stayed for 7 days. Ms. Pellegrino did not receive written permission from her company to travel nor did she request vacation time during the dates she was in Cancún. Upon return and after admitting the trip to her employer, the company fired Ms. Pellegrino for not following the Sickness and Absenteeism policy.

The court:  The court noted that the FMLA does not prevent an employer from instituting policies to prevent the abuse of FMLA leave as long as the policies do not conflict with an employee’s FMLA rights. Also, the court stressed that the FMLA will not shield an employee from termination if the employee was allegedly involved in misconduct related to the FMLA leave.

The court determined that the Sickness and Absenteeism policy served several legitimate purposes including providing the benefit of wage replacement during a leave of absence that would otherwise go unpaid and also ensuring that the privilege of paid sick leave is not abused by employees. In fact, the court contemplated that a sick leave policy providing wage replacement during unpaid FMLA leave actually serves to encourage, rather than discourage, an employee’s use of FMLA.

Pellegrino v. Communications Workers of America, 2011 WL 1930607 (W.D.Pa 2011)

CASE 2: Callison v. City of Philadelphia.  This case was cited during the court’s review of Ms. Pellegrino’s claim and, although not as recent, also holds a key lesson for employers. In 2005, the federal Third Circuit determined that an employer’s sick leave call-in procedure which set forth employees’ obligations when using the company’s paid sick time did not run afoul of the FMLA.

The employer’s sick leave policy: The employer’s handbook contained a sick leave policy that required employees out on paid sick leave to notify the company’s Sick Control hotline when leaving home and again upon returning. The policy further stated that while on sick leave, the employee was to remain at home except for personal needs related to the reason for being on sick leave.  The policy informed employees that a sick leave investigator might call or visit an employee on sick leave unless the employee has 150 days or more of accumulated sick leave credit.

The employee: David Callison used 26 days of sick leave in January 2000 and subsequently 12 days the following year. Because of his frequent use of sick leave in 2000, Mr. Callison was placed on the company’s Sick Abuse List in 2001, which meant that he had to obtain medical certification for all sick days and was subject to progressive penalties for violations of the sick leave policy.

After being placed on the Sick Abuse List, Mr. Callison took another sick day and never notified the Sick Control Hotline that he was leaving his home that day; an investigator called his residence when Mr. Callison was not there. Mr. Callison then received a warning for violating the sick leave policy.

Following this incident, Mr. Callison went out on approved FMLA leave and also received sick pay during the absence. While Mr. Callison was on leave, the employer investigated and found that Mr. Callison was not home on two occasions and failed to notify the Sick Control Hotline that he was leaving his home. Mr. Callison received one- and three-day suspensions, respectively, for failing to notify the hotline that he was leaving his home.

The court: Notably, the court stated that employees do not have a right to be “left alone” while on a leave of absence from work and employers may ensure that employees do not abuse the leave. The court determined that the employer’s Sick Abuse List and corresponding progressive discipline as well as the call-in hotline procedure did not compromise an employee’s FMLA rights because the employer was simply ensuring that their employees did not abuse leave.

Callison v. City of Philadelphia, 430 F.3d 117 (3^rd Cir. 2005)

Check your sick leave policy!  As these two cases demonstrate, an employer can combat leave of absence abuse by putting in place an across-the-board sick leave policy that allows the employer to verify that employees are using paid sick days for the proper reasons. This means the employer can even require approval of an employee’s errands or travel away from home. The key here is that the employers’ policies were related to employee use of paid sick leave, not for unpaid FMLA use.

FMLA Flash: US DOL Announces Proposed Regulations to Support 2009 Amendments

The U.S. Department of Labor today introduced proposed regulations to implement and interpret the 2009 amendments to the federal Family and Medical Leave Act (FMLA).  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

The FMLA was amended twice in 2009, first by the National Defense Authorization Act for Fiscal Year 2010 (NDAA FY 2010, effective in October 2009), and then by the Airline Flight Crew Technical Corrections Act (AFCTCA, effective in December 2009).

See below for: A summary of the 2009 FMLA amendments Key provisions of the proposed new regulations What employers should do now

FMLA 2009 Amendments

The NDAA FY 2010 included statutory amendments that expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions.  Military caregiver leave provides time off for an employee to care for a family member with a serious illness or injury incurred in the line of military duty.  Qualifying exigency leave provides time off for an employee to attend to certain legal, financial, family, and other matters related to a family member’s military deployment.

The amendments:

• extended military caregiver leave to eligible employees whose family members are recent veterans (active within the past 5 years) with serious injuries or illnesses;
• expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions;
• expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces; and
• added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country.

The Airline Flight Crew Technical Corrections Act (effective in December 2009) established a special FMLA hours of service eligibility requirement for airline flight crew members, such as pilots and flight attendants, based on the unique scheduling requirements of the airline industry. Under the amendment, an airline flight crew employee will meet the FMLA hours of service eligibility requirement if he or she:

• has worked or been paid for not less than 60 percent of the applicable total monthly guarantee;  and
• has worked or been paid for not less than 504 hours during the previous 12 months.

Major Provisions of the Proposed Regulations

The DOL implements new regulations for laws within its authority by publishing a Notice of Proposed Rulemaking (NPRM). Many of today’s NPRM proposed rules interpret the 2009 FMLA amendments summarized above.  In addition, major provisions include:

Military Caregiver Leave:

• providing a new,  flexible, three-part definition for serious injury or illness of a veteran
• expanding the type of health care providers who can provide a medical certification to include providers who are not affiliated with the military

Qualifying Exigency Leave:

• including a new foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces)
• expanding the amount of FMLA leave an eligible employee may take to spend time with a military family member during rest and recuperation from 5 days to 15 days

Airline Flight Crew FMLA Eligibility Rules:

• adding specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

What Employers Should Do Now

• Comply with the NDAA FY 2010 and AFCTCA amendments – they went into effect in 2009.  Employers covered by the FMLA must comply with these amendments even though they do not have supporting and interpretive regulations.
• Review and, if desired, submit written comments on the proposed rules at www.regulations.gov. Once the NPRM has been published in the Federal Register, interested parties will have 60 days to submit comments and suggestions.
• Relax!  These are just proposed rules, not final.  The process is slow, and changes in the proposals can be expected.
• Contact Reed Group if you have questions about this or any other leave issue.
  • MDGuidelines, web-based return-to-work toolkit:  866.889.4449 or email
  • Outsourced Case Management Services:  866.218.4650 or servicesales@reedgroup.com
  • LeavePro™ Software:  866.218.4650 or leavepro@reedgroup.com
  • Leave of Absence Advisor, an on-line resource for authoritative guidance to federal and state LoA management:  866.889.4449 or email  or check it out: http://leaves.mdguidelines.com/

Additional Information on the NPRM:

NOTICE OF PROPOSED RULEMAKING (WITH PROPOSED RULES):

http://www.dol.gov/whd/fmla/NPRM/FMLA_NPRM_2012.pdf

DOL INTRODUCTION:

http://www.dol.gov/whd/fmla/NPRM/

DOL FAQs:

http://www.dol.gov/whd/fmla/NPRM/FAQs.htm

Connecticut Paid Sick Leave – Employers, Start Your Engines

By Martha J. Cardi, Reed Group Chief Compliance Officer

Paid sick leave becomes a reality for many employers in Connecticut on January 1, 2012, as the first paid state sick leave law in the country goes into effect.  Employers without employees in Connecticut should watch the developments there with interest – what happens in Connecticut doesn’t necessarily stay in Connecticut.

Employee eligibility, accrual and usage rules, and other features of the law will make it a compliance challenge for covered employers, at least initially.  We previously reported on the complex requirements of the law here.

Fortunately, the Connecticut Department of Labor has come to the rescue.  A 15-page Guidance published by the DOL explains its take on many areas of the law that are not clear from the statute.

Read on for –

• a summary of some of the law’s provisions clarified by the Connecticut DOL Guidance, and
• links to key resources for employers.

Fortunately, the Connecticut Department of Labor has come to the rescue.  A 15-page Guidance published by the DOL explains its take on many areas of the law that are not clear from the statute.  Here is a summary of a few of the helpful explanations from the Guidance:

Covered Employees:  “Service Worker.”  [Sec. 1(7)]  The statute is applicable only to “service workers.”  Both the law itself and the Guidance contain a full listing of the covered worker categories.  But, the Guidance warns that “[i]f a job title is not listed specifically, it does not mean that the job is not included in one of the prescribed classifications.  The employer must read the broad and detailed occupations and descriptions provided on the Bureau of Labor Statistics website . . . “

“680 Hours of Employment” and “Break in Service.”  [Secs. 2(b) and 4(c)]  Service workers cannot use accrued paid sick leave until they have at least 680 hours of employment with the employer.   The Guidance addresses several points:

• The 680 hour requirement is a one-time requirement.  Once a service worker meets this requirement, he or she never has to meet it again for the same employer, despite a break in service of any length (1 month or 5 years, it carries over).
• If there is a break in service before the employee has worked for 680 hours, the employee’s hours carry over if he or she is again hired by the same employer.  Thus, an employee who works for 350 hours before a break in service would only have to work another 330 hours upon reemployment to be entitled to start using accrued paid sick leave.
• Accrued sick leave hours do not carry over to a new period of employment following a break in service.  If the service worker returns to work at that same employer, then the service worker begins to accrue paid sick leave hours anew.

Pay Rate. [Sec. 2(d)]  For service workers whose normal hourly wage is lower than minimum wage, such as service workers who earn a tip credit, they should be paid minimum wage for any paid sick leave hours that they use. In addition, overtime and commissions are not to be calculated and included in the determination of a service workers “normal hourly wage.”

Documentation.  [Sec. 3(b)]  Employers may only require the employee to provide documentation of the reason for absence if the employee uses paid sick leave for 3 or more consecutive work day absences, not calendar days. The absences do no need to be full days, but include any time taken off from work as paid sick leave during a work day. Example: a service worker who is scheduled to work Friday, Monday, and Tuesday, who uses paid sick leave for any portion of those three days in a row, could be required by his/her employer to obtain reasonable documentation from his/her health care provider. Unlike the FMLA, however, there is no provision for an employer to seek clarification of the health care provider’s note or a second opinion if the employer questions the documentation.

STAY TUNED FOR OUR NEXT POST:  The Importance of Getting it “Just Right”:  Communications with Employees on FMLA Leave

 

Reed Group’s LeavePro™ Software Now Available Direct to Employers

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Managing the ever-more complex web of FMLA, disability and other regulated leaves is a huge headache for today’s employers. Fearing noncompliance, many over-approve leaves, wasting money and hurting productivity. Others mistakenly deny leaves, running the risk of multi-million dollar legal action.

To help organizations solve this problem, we’re pleased to announce that Reed Group’s popular LeavePro™ software is now available to employers who self-manage employee absence.

LeavePro helps employers save money by reducing lost workdays and speeding up the administration of employee leaves. In 10 minutes, human resources personnel can open a case, view applicable leave plans, determine eligibility, and send legally compliant notifications to employees and supervisors. Through LeavePro’s self service portal, employees and supervisors can submit leave requests, view status and view time balances. Real time reporting helps employers identify trends, reduce leave policy abuses, and manage workloads.

Managing Leaves with Spreadsheets Over-exposes Employers to Risk

“Too many employers are over-exposing themselves to risk by managing leaves with spreadsheets or working with outdated leave information,” says David Roberts, Reed Group president, software and technology. “LeavePro helps employers maintain a personal touch while being confident that HR team members are providing employees with the right information, and administering leaves accurately and efficiently.”

LeavePro currently is used by insurance carriers and benefits administrators, as well as two major employers, to manage leaves for more than 200 employers with more than one million employees on the system. Reed Group experts continually monitor and evaluate leave laws, updating the software’s unique rules engine so employers can be confident that their organizations are fully compliant with constantly evolving federal and state leave laws and case law interpretation.

A Natural Extension of Reed Group’s Absence Expertise

Kevin Curry, senior vice president, national practice leader, for Reed Group, says that LeavePro is a natural extension of Reed Group’s expertise with leave management.

“Since the company was founded, Reed Group has offered the industry’s most valued reference content — now called MDGuidelines™ — that allows absence management stakeholders to understand leave occurrence and duration,” Curry says. “We also provide outsourced case management for employers who want us to manage it for them. With LeavePro, we have taken all of that deep expertise and have built it into a powerful software product that allows employers to manage absence themselves. Reed Group is the only provider in the industry to offer this full suite of services.”

LeavePro Includes Leave Laws Reference Tool

Every purchase of LeavePro software includes access to Reed Group’s industry-leading Leave of Absence Advisor™, a searchable online reference tool that provides accurate and complete information on FMLA, state and other leave laws. Users can search by keyword, browse by category or specify state and leave reason, and also obtain information on corresponding best practices for managing absence by Reed Group’s return-to work and leave law experts.

For more information and a free demonstration of LeavePro™ software, phone Reed Group at 866-303-5858 or email leavepro@reedgroup.com

Please join us for the DMEC Tools &Tactics Webinar: ADAAA Implications for Absence Management – Avoid that $20 Million Judgment

Thursday, October 27, 2011 (9:00 AM – 10:00 AM)

Qualifies for 1 CPDM CE

(Please note start time: 9:00am PT, 10:00am MT, 11:00am CT or 1200pm ET)

 

Session Description:

Join this timely webinar about the critical impact of the Americans with Disabilities Act Amendments Act and recent EEOC actions (such as the $20 million consent decree against Verizon) on company absence management practices.

Reed Group absence management experts Kevin Curry and Martha Cardi will address steps employers must take to develop an effective ADA accommodation program and to ensure the integration of ADA considerations into various absence plans, including the FMLA, workers’ compensation, company disability plans, and more.

Cindy Gonzales, US Disability Program Manager of Intel Corporation, will share the challenges the company faced on its path to successful integration of continued absence as an ADA accommodation into Intel’s wide array of absence benefits

Click here to register

 

PRESENTERS:

Kevin Curry, Senior Vice President, National Practice Leader

Reed Group

Kevin Curry brings more than 15 years of experience in Integrated Absence management and consulting to Reed Group. As Practice Leader, he is responsible for setting and facilitating Reed Group’s absence and disability business, with focus on technology, content and services. Before joining Reed Group, he was a well-known and highly respected senior absence management consultant in Mercer’s Total Health Management practice, where he helped numerous employers achieve cost reduction and productivity improvements in FMLA, disability and broader employee absence management activities. Mr. Curry is a frequent speaker at industry conferences in the areas of Integrated Absence, Health & Productivity. Prior to his work on behalf of employers at Mercer, Curry held various leadership positions at CORE Inc.

 

Martha J. Cardi, Chief Compliance Officer and Employment Counsel

Reed Group

Martha Cardi is Chief Compliance Officer for Reed Group, a leave of absence software and services company. Ms. Cardi is responsible for ensuring that Reed Group services are provided in compliance with state, federal, and local leave and employment laws. Her team tracks legislative developments, trends, and case law on an on-going basis. Ms. Cardi is the chief author, editor, and content expert for Reed Group’s Leave of Absence Advisor, an in-depth online referential guide to the Family and Medical Leave Act and state leave laws.  Ms. Cardi’s expertise includes more than 25 years as in-house employment counsel for national companies and in private practice with Denver law firms, where she provided management clients with advice and counsel on employment compliance matters and represented clients in state and federal courts and agency proceedings. She is admitted to practice in Colorado. Ms. Cardi holds a B.A. from Colorado State University and a J.D. from the University of Colorado School of Law, and is rated AV Preeminent by Martindale-Hubbell.

 

Cindy Gonzales, US Disability Program Manager

Intel Corporation

Cindy Gonzales is the US Disability Program Manager at Intel, where she has worked for 18 years.  After getting a business degree from New Mexico State University, Cindy owned and operated a hobby store business where her benefit learning’s began with a small group of employees.   She started her career at Intel in the Payroll team and then moved over to Benefits where she managed Intel’s in-house COBRA administration and Health Care Provider data exchange before both were outsourced.  She then took over as the supplier manager and added LOA Operations to her scope after it, too, was outsourced.  Finally, when a vendor change occurred moving both STD/LTD and LOA administration, she developed and created her current role as US Disability Program Manager, where she has been for the past 6 years.

In this position, Cindy owns front to end program management the administration of Intel’s Short and Long-term Disability programs, including monitoring of trust accounts money flow, audit/compliance of the plans, resolving complex customer escalations and issues, and managing stakeholder relationships.  She also works with the Intel Global Benefits Design group on the strategy, design and implementation of related plan changes.

 

Employer Fights FMLA Abuse With an Attendance Policy and an Independent Review

By Martha J. Cardi, Chief Compliance Officer, Reed Group

Misuse or abuse of FMLA leave is a constant headache for employers and absence managers. Many feel helpless and taken advantage of in the face of perceived abuse. However, the FMLA regulations do provide some tools that employers sometimes overlook or are hesitant to use.

Read on to learn how one employer’s use of FMLA and HR tools enabled the employer to defend successfully its termination of an employee for FMLA abuse.  Remember, FMLA abuse does not occur in a vacuum – use all your FMLA tools AND layer on your usual HR management practices.

A case decided in August 2011 illustrates how the proper use of FMLA tools coupled with traditional human resources practices can detect and reduce FMLA abuse.

The Background. Douglas Rydalch was hired by a major U.S. airline in 1998 as a reservations sales agent in Salt Lake City. In 2004, the airline closed the reservations center in Salt Lake City and transferred Rydalch to Houston. Rydalch’s family remained in Salt Lake.

Also in 2004, Rydalch injured his back in an auto accident and was approved for FMLA intermittent leave for up to eight days per month. Rydalch often had difficulty getting time off during holidays because of his limited tenure compared to other workers.

Would you call this a pattern? In 2007, the airline began to notice a possible pattern in Rydalch’s FMLA usage in conjunction with his time off. An administrator compiled a summary of Rydalch’s FMLA days and his other days off and discovered the following:

• Between 2004 and 2007, Rydalch had used FMLA days 35 times on days just before or after his previously scheduled time off.
• He often used FMLA time on important dates or holidays when he was scheduled to work: July 4, his birthday, one Labor Day (which was also his wedding anniversary), Thanksgiving Day, Christmas Day and New Year’s Eve.

McHenry, Rydalch’s supervisor, gave Rydalch a warning about this pattern of usage and the perception that it might be an abuse of the company’s time off policies.

Undaunted, Rydalch again used FMLA leave on July 4, 2007. McHenry investigated Rydalch’s absences further and discovered that he had a pattern of taking flights to and from Salt Lake City on the days he requested FMLA leave. She met with Rydalch again on July 12 to make sure he understood that the airline’s attendance policies prohibited misuse of FMLA leave.

Christmas 2007 was the final straw. Rydalch was scheduled to work December 24, 26, and 27. However, in June 2007 he had booked a flight to Salt Lake City on December 22 and a return flight to Houston on December 27. He checked in for his departure and printed his boarding pass on December 21, roughly 24 hours before the flight. He requested FMLA time on December 24, 26, and 27.

Independent Hearing. Following the airline’s collective bargaining agreement, it requested a hearing into Rydalch’s FMLA usage. After a presentation by both sides, the hearing officer, an individual who had never met Rydalch, found that Rydalch had violated the employer’s attendance policies. Consequently, the airline terminated Rydalch’s employment. Rydalch appealed the decision internally and, after the decision was upheld, filed a lawsuit against the airline.

The Employer’s Good Faith Belief of Abuse Wins the Day. Rydalch asserted claims for FMLA interference and retaliation, and ADA failure to accommodate and retaliation. The court found that the airline had a good faith belief that Rydalch had abused his FMLA rights. Rydalch had tendered arguments seeking to justify his behavior but they were not consistent with the undisputed facts of his pattern of FMLA usage and his flight schedules.

The court found that even if Rydalch’s excuses were true, the employer’s good faith beliefs that he was abusing FMLA and violating the airline’s attendance policies supported its decision to terminate him. The court granted judgment in the airline’s favor and dismissed all of Rydalch’s claims.

What Did the Employer Do Right? Several things. Considered good employment practices, the following can be particularly useful when dealing with a suspected FMLA abuse situation:

• Attendance and Reporting Policy. First, the airline had a written attendance policy spelling out the requirements for using and reporting absences, and letting employees know that failure to follow the policy and/or abusing time off could lead to termination. The FMLA regulations allow an employer to enforce its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 29 C.F.R. § 825.302(c) and .303(c). By having such a policy in place, the employer is able to receive appropriate notice of an employee’s need for FMLA time off, and to discipline the employee if he or she fails to follow the procedures without good cause.
• Warnings. The employer provided Rydalch with at least two warnings that his FMLA usage appeared to violate the company’s attendance policy. Although not required by the FMLA, it is always a good employer practice to provide an employee with a warning if the employee is violating a policy. Many policies won’t reasonably justify termination at the first violation, but repeated violations after warnings will almost always support disciplinary action.
• Investigation.The employer investigated Rydalch’s FMLA usage carefully before terminating him. It gathered pertinent documentation, compared his FMLA days with other days off, and noted the coincidence of some days off with holidays or special occasions. As an airline, the employer was uniquely positioned to compare his FMLA days off with his flights between Houston and Salt Lake City as well.Many employers are hesitant to investigate suspected FMLA misuse for fear of being hit with an FMLA interference or retaliation claim. However, employers have latitude to investigate a suspected misuse.
  Two caveats: First, be respectful and discreet in gathering information, not invasive or overbearing. Second, during the investigation don’t request additional medical information. For example, if a call is placed to the employee’s physician’s office to verify that the employee attended an appointment for which she claimed FMLA time, don’t ask the physician’s office for any additional medical information such as the purpose or results of the appointment.
• Independent Review and/or Decision Maker. The full hearing on Rydalch’s situation was required by the employer’s collective bargaining agreement. Nonetheless, nonunion employers can take a lesson from this process. A full-fledged evidentiary hearing may not be necessary, but using someone who had no prior involvement in the circumstances as a reviewer or decision maker is wise. All employers can use this tactic by having someone uninvolved with the players and situation review all the information, including the challenged employee’s story, before a final, fateful decision is made.

Read the full case — and the additional facts not included in this summary

(Good Faith Definition — sincere belief or motive without any malice or the desire to defraud others.)

STAY TUNED FOR OUR NEXT POST: PACK YOUR TOOLKIT WITH THESE FMLA ABUSE-FIGHTING TOOLS

If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws. 

Handling FMLA in the Wake of Hurricane Irene

By Martha J. Cardi, Reed Group Chief Compliance Officer

In the aftermath of natural disasters, employers may see a flood of requests for FMLA leave.

While compassion may call for establishing policy on time off for post-disaster clean-up, curbing FMLA abuse while staying in compliance with leave laws is important for both employers and their workforces.

Here are two potential areas employers should watch for potential FMLA abuse:

Pre-existing Intermittent Leave – Employees with chronic health conditions may take intermittent FMLA leave. If an employee already is approved for intermittent leave for a hard-to-verify condition such as a nervous disorder, migraines or back pain, he or she may try to use FMLA leave for flood damage or other home repairs.

Caring for a Family Member – Employees may take FMLA leave to care for a family member, but only as it relates to the family member’s personal care, such as bathing, transporting them to doctor appointments or fixing meals. FMLA does not provide leave for home cleaning and maintenance. Therefore, if an employee requests FMLA leave to deal with a parent’s flooded basement or to meet a repair crew at the parent’s house, these would not be covered under FMLA.

Court Rejects Flooded Basement For FMLA Leave

When Joe Lane, an employee of Pontiac Osteopathic Hospital on intermittent FMLA leave to care for his aging mother tried to claim flood clean-up of his mother’s basement as FMLA leave, the federal district court in Lane v. Pontiac Osteopathic Hospital rejected his FMLA interference claim on several grounds, one of which was that Mr. Lane did not present sufficient evidence that cleaning his mother’s basement met the definition of “caring for” a family  member with a serious health condition.

What Should Employers Do? 

While in most cases, employers have to take the employee’s word that the absence is justified, Reed Group experts find that practicing “appropriate and active oversight” tends to discourage FMLA abuse because employees who are not taking legitimate leave know they are being watched.

When the employee requests FMLA leave, try to verify the exact reason for the leave. If the employee says it’s for a doctor’s appointment, the employer may call the doctor’s office to verify that the employee appeared for the appointment, but may not request any additional medical information.

Post-Irene Situations that Warrant FMLA Leave

Be aware that there are many situations in which Irene’s aftermath may spur legitimate FMLA leave. The following are all examples in which leave should be granted:

• An employee with an existing nervous or stress disorder might have his or her condition exacerbated by the hurricane experience and need time off to recover.
• An employee with a bad back or other physical ailment might need FMLA time because of aggravating the condition while cleaning up after the hurricane.
• An employee with FMLA leave to care for a parent might need time because the hurricane cut power to the parent’s oxygen tank (requiring him or her to move the parent temporarily) or cut power to the parent’s refrigerator (requiring him or her to bring the parent staples or fresh food) or because Irene caused the parent to lose water service (requiring the employee bring the parent bottled water).
• An employee might have received a new injury during the hurricane or during the clean-up, which qualifies as a serious health condition and justifies time off after the fact.

Curbing FMLA Abuse May Benefit the Employee

In post-disaster situations it may be tempting to ease up on curbing FMLA abuse, but remember, FMLA leave is limited. If the employee abusing FMLA today needs it legitimately in the future, he or she may have exhausted benefits when they legitimately need them most.

Don’t Forget State FML and Other Leaves

FMLA and other leave laws can be a bewildering patchwork. Be sure to consider all FML leaves when evaluating post-Irene requests.

If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws. 

Cat’s Paw Strikes Employer’s Defenses in USERRA and FMLA Cases

by Martha J. Cardi, Reed Group Chief Compliance Officer

The “cat’s paw” theory of employer liability in employment cases has made headlines following the recent U.S. Supreme Court’s decision in Staub v. Proctor Hospital on March 1, 2011. Now, a federal court has also applied the cat’s paw theory to employees’ claims of employer interference with their FMLA rights.

USERRA Supreme Court Case

Vincent Staub was employed by Proctor Hospital and also served in the United States Army Reserve, which required monthly weekend duty and an additional two to three weeks of service per year. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of a person who is a member of a uniformed service. An employer violates USERRA if an employee’s military service is a motivating factor in the employer’s adverse employment action against the employee. 38 U.S.C. §4311(a)and(c).

Two of Staub’s supervisors had made statements to others showing hostility toward Staub’s military service and the burdens it placed on others in the department. One supervisor issued Staub an adverse corrective action and the other supervisor reported to the vice president of Human Resources, Linda Buck, that Staub had violated the corrective action. Staub denied the allegations.

Buck had shown no animus toward Staub’s military duty. She reviewed Staub’s file and, based on the corrective action and its alleged violation by Staub, decided to terminate him. During the company’s grievance procedure Staub alleged that his two supervisors’ actions were motivated by their hostility to his military service and that they intended their actions to influence the decision by Buck. Buck failed to investigate this allegation and upheld her termination decision. Staub sued, alleging that his termination was a violation of USERRA.

A jury found that Staub’s military status was a motivating factor in Proctor’s decision to discharge him and awarded over $57,000 in damages. Although initially overturned on appeal by the Seventh Circuit, the Supreme Court upheld the application of the cat’s paw theory to this case.

Staub v. Proctor Hospital, No. 09-400 (S.Ct. March 1, 2011).

FMLA Case

Two employees of Ohio Bell—Blount and Durrah— were terminated for their undisputed failure to meet performance standards. They alleged, however, that their termination was in retaliation for taking FMLA leave, since they were “progressed much more quickly through the disciplinary process than were other workers” who had not taken FMLA leave. The employees’ supervisors had said in meetings that they would target individuals who took FMLA leave with increased punishment.

Ohio Bell defended the claims by asserting that the authority to punish or terminate the employees resided higher in the supervisory chain, not with the two antagonistic supervisors. Citing the recent Staub decision by the Supreme Court, the district court ruled that even if the two supervisors did not have such authority, the cat’s paw theory might apply and their animus could be “inferred upwards where it had the effect of coloring the various adverse employment actions in this suit.”

Blount v. The Ohio Bell Telephone Co., Case No. 1:10- CV-01439 (N.D.Ohio March 10, 2011).

Lessons for Employers

The cat’s paw theory has been in existence in employment cases for many years, but the recent attention brought by the Supreme Court decision in Staub is likely to cause an increase in the use of this argument by plaintiffs’ attorneys. There are steps an employer can take to minimize the risk of improper influence by a non-decisionmaker antagonistic toward the employee who has recently asserted FMLA rights.

• Beware of adverse employment decisions and recommendations by a supervisor whose job is made more difficult by the FMLA absences of workers. Any supervisor recommendation or decision to terminate or otherwise discipline an employee who has recently used FMLA leave should be:

- Reviewed by Human Resources personnel and
- Compared to the treatment of other employees with similar—but not FMLA-related—performance or attendance issues.

• Investigate any employee allegations of supervisor bias or animus based on a protected classification, such as use of FMLA leave rights.

- Although allegations of discrimination or retaliation should always be investigated, this becomes even more important when the employee is about to be terminated. The Staub case likely would have come out differently if Buck, the Human Resources vice president, had investigated Staub’s allegations of animus toward his military service. She might have found that the corrective action and report of Staub’s violation were unfounded and reversed the termination decision. Or, if her investigation showed that the corrective action was warranted Proctor Hospital would have had a defense that the termination would have occurred even without the discriminatory attitude of the supervisors.

Train supervisors on employee rights under the FMLA and other employment laws. Include in that training the importance of respecting these rights and not “punishing” employees by expressing impatience or intolerance with respect to their leave rights. See Reed Group’s prior article (PDF format): “An FMLA Lesson: supervisor attitudes can create employer liability”

What is the Cat’s Paw Theory?

The cat’s paw theory is a means of holding an employer liable for the illegal discriminatory motivation of a supervisor who did not make the adverse employment decision but exerted influence over the actual decision maker. The Supreme Court explained that the cat’s paw theory is derived from one of Aesop’s Fables. In the fable, a monkey induces a cat to extract roasting chestnuts from a fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.

The Supreme Court applied the cat’s paw theory to hold that an employer is liable under the applicable employment law:

• if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and
• if that act is a proximate cause of the ultimate adverse employment action.

If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws.