RULE CHANGE COMING: The DOL plans to amend the FMLA definition of “spouse” to provide leave to care for all same-sex spouses
By Megan G. Holstein, Senior Counsel, Compliance and Employment Law
The Family and Medical Leave Act (FMLA) allows eligible employees 12 work weeks of unpaid leave to care for a spouse, child, or parent who has a serious health condition. But the FMLA defines a spouse as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides (not where the employee works). 29 C.F.R. §§ 825.102, 825.122(b).
This June, the United States Supreme Court issued a decision, United States v. Windsor, striking down a key provision of the Defense of Marriage Act (DOMA,) allowing employees to take FMLA leave to care for a same-sex spouse if the employee resides in a state that recognizes same-sex marriages. We’ve previously written about the Windsor decision as well the Department of Labor’s (DOL) updates to incorporate Windsor into its regulatory and enforcement activities. Even after the Windsor decision and the DOL updates, however, the FMLA still didn’t cover employees who reside and/or work in states that do not recognize same-sex marriages, but who married in a state that does recognize such unions. (Yes, it’s confusing.)
The DOL announced that it plans to revise the regulatory definition of “spouse” under the FMLA “in order to fully implement the Supreme Court’s decision”. The DOL plans to fill the gap and confusion of the FMLA’s current definition of “spouse” by issuing a notice of proposed rulemaking to revise the FMLA regulations accordingly. Reed Group will be monitoring the DOL’s proposed rulemaking and the FMLA regulations revision process and will provide periodic status updates, including an announcement when the final regulations are issued. Stay tuned!
By Lori Welty, Compliance Attorney and Marti Cardi, Chief Compliance Officer
We’ve all heard stories of an employee going on leave, only to have a co-worker find a hidden pile of work with long-expired deadlines. Many employers – and employees – are under the assumption that employees on leave are insulated from adverse employment actions during leave, or that somehow information obtained during leave can’t be used against employees. Simply because information is discovered during a period of leave does not prevent the employer from acting on the situation. So under what circumstances can an employer take action? Read more.
As of last night, Illinois became the 15th state to approve gay marriage. Employers need to make sure that benefits provided to married couples are correctly being applied to same-sex spouses, who are now entitled to them under Illinois law as well as the law in 14 other states. Don’t forget that your employee leave policy has to keep up with changes in marriage laws, too.
If you’re finding it tricky to keep track of which states have same-sex marriage laws on the books, and want to see the details behind each state’s law (civil unions? Marriages? Both?), here’s a map.
So, your employee calls in and requests time off under FMLA. You grant the request. You’re checking Facebook the next day and find fresh photos of your “sick” employee, enjoying a night on the town with friends. What can you do about it? Read more.
By Kevin Curry, Reed Group Senior Vice President and National Practice Leader
As I reviewed the results of the in-depth survey that Reed Group conducted with Spring Consulting Group on employer practices around the Americans with Disabilities Act, I kept finding reminders of a simple fact: the ADA is not easy for employers to interpret.
Even though it’s been around since 1990, most employers still have trouble understanding how to administer the Act. Based on the survey findings, there are a few steps that many of you probably need to take to get started on improving your ADA practices:
- Update job descriptions to include essential functions. 30% of the employers who responded to our survey haven’t done so. Detailed job descriptions that include the physical requirements and essential functions of every job are crucial; if they’re not clearly defined, you’re missing a simple way to limit your exposure to ADA claims that might require costly accommodations.
- Update policies and procedures. Clearly defining how your organization will handle leave as an accommodation can prevent misunderstandings down the road. Eliminate language that references automatic termination after leave for medical reasons; a review process should be outlined in the policies, and that process should be followed consistently.
- Don’t automatically agree to restructure jobs. Although 43% of the survey respondents indicated that they do restructure jobs in response to ADA claims, this is rarely required under the law, and nearly a third (27%) found it challenging to do so.
To learn more about the survey’s findings, download the white paper, “Survey: Employers and the ADA.”
By Lori Welty, Reed Group Compliance Counsel
On September 25, Jersey City became New Jersey’s first city, and the nation’s sixth, to require private employers to offer paid sick leave. We have previously written about other cities enacting similar ordinances, and it certainly appears that this trend is continuing to gain momentum. Jersey City’s ordinance goes into effect on January 23, 2014.
Below is a summary of Jersey City’s Ordinance Number 13-097:
All employers who operate a business in Jersey City must comply.
An employee is eligible if the employee works at least 80 hours per year within Jersey City, not including government employees.
Amount of sick time:
Employers must provide 1 hour of paid sick time for every 30 hours of work. If the employer has 9 or fewer employees then the sick time can be unpaid.
An employee begins accruing sick time at the commencement of employment. Employees can begin using sick time on the 90th calendar day following the commencement of employment.
Employees can carry over sick time from year to year, but employers can cap sick time use and accrual at 40 hours per year.
Reasons for Sick Time
Employees can use sick time for any of the following reasons:
- Treatment of an employee’s or a family member’s mental or physical illnesses, injuries, health conditions, or preventative care; or
- Because the employer’s business or the employee’s child’s school or childcare facility closes for a public health emergency; or
- To care for a family member whose exposure to a communicable disease jeopardizes the health of others.
Interaction with Employer Policy
If an employer policy already provides time off such as paid sick time that is equivalent to the sick time required under the Ordinance, then the employer does not need to provide additional sick time.
Notice and Verifying the Need for Sick Time
An employee must provide notice of the need to use sick time to the employer as soon as practicable.
If the employee’s absence is more than 3 consecutive work days, the employer can require reasonable documentation that the use of sick time was for an authorized purpose; however the employer may not require that the documentation explain the nature of an illness.
In addition to displaying a poster, employers are required to give individual written notice of the Ordinance to employees when they are hired, or as soon as practicable for existing employees.
Stay on Top of the Wave
If the trend holds, local leave laws are only going to become more widespread. It’s crucial for employers to stay alert to the developments in local leave laws, as well as changes at the state and national level. Employers need to be prepared to comply with new local leave laws, including consideration to how the new provisions interact with existing leave obligations.
Employers: Are You Analyzing Your Employees’ ADA Accommodation Requests Too Narrowly? Beware of This Pitfall!
By: Lori Welty, Compliance Counsel and Marti Cardi, Chief Compliance Officer
When an employee approaches your HR representative with a request for a disability-related accommodation, does HR only consider whether the request relates to the employee’s ability to do his or her job? According to the Court of Appeals for the 5th Circuit, this may be too narrow of a review. Employers have a broad obligation to accommodate a disabled employee’s reasonable request for accommodation, even where the accommodation does not relate the employee’s ability to perform the job.
In Feist v. State of Louisiana, (5th Cir. 2013), Pauline Feist’s employer, the Louisiana Department of Justice, argued that Feist’s request for on-site parking as a result of her osteoarthritis of the knee did not require accommodation since the parking situation did not limit her ability to perform the essential functions of her job. Feist countered that the ADA did not require a relationship between the accommodation and her ability to perform her job. The 5th Circuit agreed, finding that a reasonable accommodation includes making work facilities readily accessible to an individual with a disability. The Court noted that the requirement to provide a reasonable accommodation is defined and interpreted broadly, enabling an employee to “enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” This decision is consistent with the outcome in Colwell v. Rite Aid Corp., (3rd Cir. 2010), where the Court held that changing an employee’s shifts to accommodate a disability-related difficulty in getting to work (meeting bus schedules) is an accommodation contemplated by the ADA.
Caution for Employer: Accommodation Need Not Be Related to the Employee’s Ability to Perform the Job
Employers should exercise caution when considering an employee’s request for accommodation. Keep in mind that providing an employee equal access to the benefits and privileges of employment is key, even where those benefits do not relate directly to the employee’s ability to perform his or her job.