Tag Archives: FMLA


Last night the DOL issued updated FAQS for the FFCRA ( that’s a lot of alphabet soup!). You can find the new FAQs here https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

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Emergency FMLA and Paid Sick Leave- What Employers Need To Know

On March 18th President Trump signed the Families First Coronavirus Response Act.  This new law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA and emergency paid sick leave in certain limited circumstances.   Some of the highlights are discussed below.

Beginning and End Date: Both the expanded FMLA and the emergency paid sick leave provisions  take effect on April 2, 2020 and expire on December 31, 2020.

What Employers Are Covered?  Both provisions apply to all employers with fewer than 500 employees, including public agencies.  Both allow employers of an employee who is a healthcare provider or an emergency responder to elect to exclude the employee from these two provisions. Both also allow subsequent Department of Labor regulations to exempt small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business.

Who Is Eligible?  Under the FMLA provision both full and part-time employees who have been on the employer’s payroll for 30 days are eligible.  But the paid sick leave provision applies to all employees, regardless of length of service.

What reason qualifies for the FMLA expansion? This is limited to an employee who cannot work or telework due to the need to care for the employee’s minor son or daughter if the minor child’s school or place of childcare has been closed, or the childcare provider is unavailable due to a “public health emergency” with respect to COVID-19 declared by a federal, state or local authority. Basically, it is “caregiver leave”.

Is any of this expanded FMLA leave paid?  Yes.  The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including the new emergency paid sick leave. The remaining leave ( a maximum of 10 weeks,  as the total available is still 12 weeks) is paid at 2/3 of the employee’s regular rate, for the number of hours the employee would be otherwise scheduled to work.  This pay is capped at $200 a day and $10,000 total.

Is expanded FMLA leave job protected? Yes, the employee must be restored to the same or equivalent position.  However, there is an exception for employers with less than 25 employees, if the employee’s position no longer exists due to operational changes related to the public health emergency, such as a reduction in force or restructuring because of a downturn in business.

What qualifies for emergency paid sick leave? The inability to work or telework due to any of the following:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health-care provider to self-quarantine because of COVID-19;
  3. The employee is experiencing symptoms of (you guessed it) COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual ( note, NOT a family member) subject to a quarantine or isolation order, or advised to quarantine or isolation;
  5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions;or
  6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor ( a catch-all!)

How much emergency paid sick leave is required? 80 hours maximum, but available immediately, so no accrual requirement.   Paid at the regular rate of pay for reasons 1-3 above (employee is sick), with a maximum of $511 a day and $5,110 in total.  For reasons 4-6 above (caregiver reasons) it is paid at 2/3 the regular rate of pay, with a maximum of $200 a day and $2,000 in total.

Can I require  employees to use paid leave under an existing policy before using this new emergency paid leave? No. The emergency paid leave is supplemental.

Does the unused emergency sick leave carryover ? No, the unused leave does not carryover to the next year.  It also does not have to be paid upon termination under this law, but your state law might require it to be paid, so check that before you make a final decision.  Under current Tennessee law, so long as you state in the policy that it will not be paid upon termination you do not have to pay it.

Do I get a tax break? Potentially under both the expanded FMLA and the emergency sick leave provisions.   Talk with one of the lawyers at my firm who does tax law, or your accountant.

Of course, you cannot retaliate against an employee for exercising his or her rights under these new laws. You will also have to post a Notice detailing these laws, and the Department of Labor is  in the process of drafting that Notice.

There are a lot of issues and open questions with these sweeping changes.  If we can help you to further navigate these uncharted waters please give us a call.


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Individual Liability Under The FMLA

A little known fact about the FMLA is that it can provide for individual liability in certain circumstances.  Recently, the Second Circuit Court of Appeals in Graziadio v. Culinary Institute of America served a loud reminder of that fact.

The FMLA defines “employer” as “any person who acts, directly or indirectly, in the interest of any employer to any of the employees of such employer”.  That is a convoluted way of saying an individual can be liable under the Act.  This definition came directly from the FLSA, and in certain FLSA cases individual liability is imposed.

What are the circumstances which can result in individual liability? The Second Circuit adopted a nonexclusive four factor “control” test. The four factors the court recognized are:

  1. The power to hire and fire;
  2. Supervising and controlling employee work schedules or conditions of employment;
  3. Determining the rate and method of payment to employees; and
  4. Maintaining employment records.

In Graziadio the court applied this test and held that there were disputed factual issues as to whether the company’s HR Director met the definition of employer and ruled that a jury will have to decide the question.

This case may lead to plaintiffs suing both the company and an HR Director or some other member of management under the FMLA, particularly if there is some question about the solvency of the company.  Only time will tell.

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Employer Takeaways From The Same Sex Marriage Decision

On Friday June 26th the United States Supreme Court struck down prohibitions on gay marriage in Kentucky, Michigan, Ohio and Tennessee when it issued the decision in Obergefell v. Hodges.  This decision has the effect of legalizing same-sex marriage nationwide.  There are several employer takeaways from this decision, including those listed below.

First, FMLA leave is now available to an eligible employee in a same sex marriage regardless of the state where the marriage was performed or where the employee seeking leave resides.

Second, any laws in your state that require employers to provide benefits to employee spouses will now apply to spouses in same sex marriages.

Third, COBRA benefits that extend to spouses will now be available to spouses in same sex marriages.

Fourth, if your employee handbook or manual defines spouse or marriage, or has other leave policies which are impacted by the decision,  you should update those definitions and policies to comply with the law.

There could be other issues as well.  If you have questions or concerns about other issues created by the Hodges decision call your attorney.

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Spring Cleaning: Get Your Employee Handbook Legally Compliant

Spring is in the air.  For many of us that means Spring cleaning.

Spring cleaning for all employers should include a review of the current Employee Handbook. The review should focus on whether the current version of the Handbook complies with the law and adequately meets the needs of your business.

Make sure the Handbook does not promise more than what the law requires unless you intend to keep that promise. The recent case of Marini v. Costco (U.S. District Court of Conn.) illustrates why committing in a Handbook to do more than what the law requires might result in you having to keep that commitment.

In Marini  the company’s sexual harassment policy did more than what the law requires.  For example, the policy said the company would take appropriate corrective action, regardless of whether the conduct violated the law.  Because of this and other language in the harassment policy, the Court denied the company’s motion for summary judgment on the employee’s breach of contract claim.

Similarly, in Tilley v. Kalamazoo County Road Commission (6th Cir. 2015) the employer’s FMLA policy said that employees were eligible for FMLA leave if they had “accumulated 1250 work hours in the previous 12 months.”  The policy did not mention the FMLA requirement that the employer must also employ 50 employees within a 75 mile radius of the work location of the employee requesting leave for that employee to be eligible.  As a result the Court in Tilley held that the employee was entitled to FMLA leave.

Take the time to review your Employee Handbook to insure that it complies with the law and is consistent with your intent.  You will reap the benefits from this Spring cleaning for many seasons to come.

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Does the FMLA Provide Leave To Care For A Child That Becomes Disabled As An Adult?

The FMLA entitles eligible employees to take a total of 12 workweeks of leave during any 12 month period to care for a son or daughter with a serious health condition.  Son or daughter is defined as any biological, adopted, foster or stepchild, legal ward, or a child of a person standing in loco parentis who is: (1) under 18 years of age; and (2) 18 years of age or older and incapable of self-care because of a mental or physical disability.  Does the FMLA apply if the child becomes disabled and incapable of self care after he or she turned 18?

While the FMLA and its regulations are silent on this issue the US Department of Labor’s Wage and Hour Division (WHD)  clarifed it in a recent opinion.  The WHD, relying on the legislative history of the FMLA, opined that the age that the child becomes disabled is irrelevant in determining whether the employee is entitled to leave to care for the child.  As a result, employers must grant FMLA leave to eligible employees who need to care for a disabled adult child, regardless of when the child becomes disabled.

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Will the FMLA be extended to cover same sex couples?

The U.S. House of Representatives recently  introduced legislation that would broaden the employee protections of the Family and Medical Leave Act to allow workers to take unpaid time off to care for a same-sex spouse or partner and additional family members.

The proposed legislation would not change the terms of the FMLA, but would expand its coverage to permit employees to take unpaid leave to care for a same-sex spouse or partner and would also provide benefits to those who need to care for a parent-in-law, grandparent or adult child with a serious health condition.

The bill is known as the Family and Medical Leave Inclusion Act.  My guess is the bill will not pass in the Senate, but stranger things have happened.

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Facebook Vacation Pictures Support Terminating Employee on FMLA Leave

The case of Lineberry v. Detroit Medical Center is yet another example of how an employee’s use of social media can lead to termination.  Ms. Lineberry was on FMLA leave for severe back and leg pain.  But while on leave she took a vacation to Mexico and posted photographs of the trip which showed her doing things that were inconsistent with her alleged condition, such as riding in a motorboat.  Her co-workers saw these pictures and complained to the Hospital.

The Hospital confronted Ms. Lineberry who admitted that she lied about needing to use a wheelchair at the airport as she prepared to travel to Mexico.  The Hospital terminated her for her dishonesty and because of  its honest belief that she abused her FMLA leave.  Based on these facts the Court dismissed Ms. Lineberry’s claim that the Hospital fired her for taking the leave in violation of the FMLA.

Two takeaways for employers.  1. FMLA leave must be used for its intended purpose; and  2.  To rely on the “honest belief” rule an employer must conduct an investigation and point to specific facts which support its belief.

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Princess Kate and the FMLA

Yesterday reports surfaced that Princess Kate is pregnant and had been hospitalized with acute morning sickness.  Congratulations to the Prince and Princess!  But what if Kate wasn’t a princess and was an employee of your company.  Would her acute morning sickness qualify her for leave under the FMLA?

The answer is yes.  The FMLA expressly provides that the mother is entitled to “leave for incapacity due to pregnancy” and cites severe morning sickness as an example.

So what are our takeaways?  If you are a FMLA covered employer (50 employees in a 75 mile radius), the pregnant employee has worked for you for at least 12 months and has worked 1250 hours in the 12 month period preceding the request for leave, she is entitled to up to 12 weeks of unpaid leave for incapacity due to pregnancy, for prenatal care, for the birth of the child, for bonding time with the child and for her or the child’s serious health condition following the birth.  In Tennessee the employee would be entitled to 16 weeks of unpaid leave for pregnancy, child birth, bonding and related conditions if she is a full time employee and the employer had at least 100 full time employees “on a permanent basis”.  This leave runs concurrently with the FMLA so the total leave is 16 weeks, not 28.  Laws in your state might provide for additional leave time as well.

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