DOL Proposes Rule to Extend FMLA Benefits to Same-Sex Spouses in Texas

Last week the U.S. Department of Labor published a proposed rule to extend FMLA benefits to same-sex spouses on the same terms as spouses of other legally recognized marriages.   This will confirm, if passed, that FMLA benefits must be provided to all eligible employees to: care for their legally married spouses who have a serious health condition; take military exigency leave for spousal military service; take military caregiver leave to care for their same-sex spouse servicemember. This is significant in that Texas is a state that does not recognize same-sex marriages.

The FMLA allows eligible employees to take job-protected leave for specified family and medical reasons –including leave to care for a spouse with a serious health condition. In determining who is a “spouse” under the FMLA, the regulations currently provide a “state of residence” test whereby the employee is eligible to take FMLA leave for the serious health condition of a same-sex spouse if the employee resides in a state recognizing same-sex marriage. The continuing viability of this regulation and a Texas employer’s obligation to extend FMLA leave to employees to care for same-sex spouses has been in doubt since the U.S. Supreme Court struck down similar U.S. Treasury guidance defining spouse in such a way as to exclude same-sex spouses in the 2012 case U.S. v. Windsor –the Defense of Marriage Act case

Under the proposed rule, a “state of celebration” test will be used where the marriage is recognized for FMLA purposes if it was performed in a state that legally recognizes same-sex marriages. Assuming that this regulation becomes final (and it most certainly will after a public comment period and publication in the Federal Register as a final rule), it will confirm that Texas employers must recognize all legal marriages (including same-sex marriages) for FMLA purposes.

You can download a copy of the proposed rule here

Access to the DOL’s FAQ page is available here.

Download the DOL Fact Sheet on the Proposed Rule here.

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A Most Ridiculous Employment Regulation

In this current political cycle there is a lot of talk about the adverse effect unnecessary governmental regulation has on business.  Here is one example.  The FMLA requires employers to post notice of FMLA rights (and include an FMLA policy in their handbooks) even if they have no FMLA eligible employees that can take FMLA leave.  Employers with fifty or more employees have to post notice of FMLA rights even if they do not have fifty or more employees within seventy-five miles of one another.  As written, this is a ridiculous regulation.  The regulation requires employers to advise employee about rights that they don't have.  Do you think some of those ineligible employees might be confused about the rights?   If I'm an employee, I'm not thinking that my employer would include policies in a  handbook that have no applicability to me.  Indeed, based on the employer's inclusion of such a policy in its handbook, I would likely think that government-mandated FMLA leave was available to me.

Certainly I don't think this specific regulation is cause of our Nation's economic troubles.  It is, however, an example of how regulation can place ridiculous obligations on business.  Hopefully the political debate will cause all involved to require governmental agencies to review the regulations they put in place to determine which are necessary and eliminate the ridiculous ones.  

Follow me on Twitter @RussellCawyer.

FMLA Doesn't Always Require Reinstatement to an Equivalent Position

While the FMLA normally requires an eligible employee be reinstated to an equivalent position at the end of his FMLA leave, the employee has no greater right to reinstatement than if the employee had been continually employed.  Thus, there are several situations where an employee is not entitled to reinstatement.

First, where an employer conducts a layoff or reduction in force while the employee is on FMLA and would have been laid off had the employee not been on leave, the employer's obligation to reinstatement and continuation of benefits ends on the date of termination.

Second, employees hired for specific project or for a specified term, have no right to reinstatement after the termination of the project or specified term.

Third, employees who have obtained leave fraudulently have no right to reinstatement.

Fourth, employees who are unable to perform the essential functions of the position of employment at the end of leave are not entitled to reinstatement.  To avoid an ADA claim, the employee must only be denied employment if he or she cannot perform the essential functions of the position with or without reasonable accommodation.

Finally, employer's may deny reinstatement to salaried, eligible key employees when the denial of reinstatement (not leave itself) is necessary to prevent substantial and grievous economic injury to the operations of the employer.  Key employees are those salaried employees who are among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee's worksite.  Substantial and grievous economic injury sufficient to warrant denial of reinstatement to a key employee includes those situations where reinstatement would jeopardize the viability of the company itself.  Minor inconveniences and costs the employer would otherwise experience in the normal course of business, however, would not qualify.  Keep in mind that the employer must provide "key employees" with certain disclosures at the time the employee gives notice of the need for leave to be able to deny reinstatement.

While an employee's use of FMLA leave will normally entitled the employee to reinstatement to an equivalent position, keep these exceptions to the general rule in mind when managing leave programs.

Follow me on Twitter @RussellCawyer.

Using GPS Tracking Technology to Prove Intermittent FMLA Abuse?

The U.S. Supreme Court will decide next term whether it is law enforcement's warrantless placement of GPS devices on a suspect's vehicle amounts to an unlawful search or seizure in violation of the Fourth Amendment.  The Fifth Circuit has already authorized law enforcement's use of this warrantless tactic.  Similarly, a New Jersey court has blessed a spouse's use of GPS tracking technology to gather evidence of her partner's infidelity in preparations for a divorce proceeding. 

One of the most frustrating human resources issues to manage is proving the case against an employee who is suspected of abusing intermittent FMLA. I'm not referring to the intermittent use of FMLA that is scheduled or reasonably anticipated.  I'm talking about the unscheduled, unanticipated use of intermittent FMLA where the employee calls in shortly before the start of his scheduled shift (normally right before or after a weekend) to report an absence that is due to a serious health condition.  This can occur frequently with certain respiratory conditions or migraine headaches.  How can an employer confirm that the employee is really absent on these occasions for the serious health condition and not because the employee stayed up too late the night before?

The recent cases highlighting law enforcement's use of GPS tracking technology (without a warrant) to track persons of interest made me start wondering about the legality of an employer's use surrepticious use of GPS tracking technology on an employee who is suspected of intermittent FMLA abuse.  A search of the reported cases did not uncover any cases where an employer use GPS technology to prove an employee fraudulent use of FMLA leave.  However, there are several reported cases where employers have used private investigators to follow employees to prove a case of FMLA abuse.   Is the placement of tracking technology much different than that so long as the potential tracking is disclosed to the employee in either handbooks or other notices?  Would it make a difference if the GPS device is first placed on the employee's vehicle when it is on public streets or even the employer's parking lot?  Would an employer have more latitude to track the employee if the employee is using an company-owned vehicle?  Could an employer subpoena the GPS data file, in the defense of an FMLA case, from the employee's Onstar system installed in the employee's car?  All of these questions are interesting and I confess I don't readily know how a court would rule on these issues.

The legality of this conduct likely depends on the state where the tracking occurs (different states have different levels of privacy protection and some states --not Texas --have private causes of action for constitutional violations).  The circumstances under which the GPS tracker was placed (i.e., was the employer able to place the device on a vehicle when it was on public or employer-owned property or on the employee's property) and ownership of the vehicle (i.e,. company or employee owned) are also likely key questions.  Employer disclosure of the practice, in either handbooks, policies or elsewhere, could also be important and perhaps determinative.  Certainly, this practice is fraught with interesting potential legal issues.  

If you have had any experiences where an employer used Onstar or GPS tracking technology to prove an employee's abuse of FMLA leave, I'd like to hear about it in the comments.

Follow me on Twitter @RussellCawyer.

EEOC Holds Hearing on Leave of Absence as Reasonable Accommodation

This week the EEOC held a hearing on whether new or updated regulations and enforcement guidance was needed with respect to providing leave of absence as a reasonable accommodation for disabled employees.  The EEOC has recently been very aggressive in bringing suit against employers that use maximum leave policies or "inflexible" policies that provide no exception for reasonable accommodation.  For example:

  • EEOC v United Road Towing Inc., No. 10-cv-06259 (N.D. Ill.) (failure to provide reasonable accommodations by terminating disabled employees after exhausting 12 weeks of FMLA leave and refusing to re-hire employees after they were released to return to work);
  • EEOC v. IPC Print Services, No. 10-886 (W.D. Mich.) (failure to provide reasonable accommodations by terminating an employee rather than granting him a part-time schedule because he had exceeded the maximum hours of leave under company policy);
  • EEOC v. Princeton HealthCare System, No. 10-4216 (D.N.J.) (failure to provide reasonable accommodations by terminating employees after either seven days or 12 weeks, depending on eligibility for FMLA);
  • EEOC v. UPS, Case No. 09-5291 (N.D. Ill) (failure to provide reasonable accommodations by terminating employee for exceeding 12-month leave policy);
  • EEOC v. Denny’s, Inc., No. 06-2527 (D. Md.) (failure to provide reasonable accommodations by terminating a nationwide class of disabled employees at the end of the company’s pre-determined maximum leave limit).

And of course, the EEOC reached a $6.2M settlement with Sears over its use of a maximum leave policy. (See here).  I predicted the demise of "neutral absence control" or "maximum duration leave policies" over a year ago.  (Post here).  Moreover, I discussed how an employer's inability to rely on such policies will adversely affect an employer's ability to handle leaves of absence for employees needing leave for non-work-related injuries, workers' compensation leaves of absence and leaves caused by pregnancy.  

Hopefully the EEOC's proposed regulations on the use of leave of absence as a reasonable accommodation, optimistically (but probably unrealistically) slated for Fall 2011 publication, will provide employers with needed guidance that will preserve the ability for employer's to continue to use neutral or maximum duration leave of absence policies.   

What others are saying about this week's hearing:

EEOC and employers differ on the use of neutral maximum leave of absence policies

EEOC Meeting and Forthcoming Written Guidance Address Leave Policies and Reasonable Accommodations Under the ADA

No Good Deed Goes Unpunished

If I had a dollar for every time I reminded a client that "no good deed goes unpunished," my childrens' college funds would be flush and I'd be planning to retire early.  The recent case of Terwilliger v. Howard Mem. Hosp. (W.D. Ark. 1/27/2011) reminds us that employees will often attempt to ensure that "no good deed goes unpunished" and employers are often "darned if they do and darned if they don't."

Fellow bloggers have comprehensively covered Terwilliger (See Ohio Employer's Law Blog, The FMLA BlogFMLA Insights, Employment Law Matters) and so only a brief summary is necessary.  In that case, Terwilliger was out on FMLA leave for a back-related injury.  She testied (which the court was required to accept as true) that her supervisor called her weekly while on leave to inquire when she was going to return to work.  As a result, she felt pressured by these calls to return to work.  Because of this testimony, the Court denied the employer's motion for summary judgment finding that a fact-issue existed on Plaintiff's claims that these calls chilled her willingness to and interferred with the exercise of FMLA rights. This is probably the technically correct ruling at the summary judgment stage, but at trial I suspect a different story will be told where the jury, unlike the court, will not be required to accept the plaintiff's version as true.

At trial, I suspect the supervisor will testify that, if she called at all, she was merely calling to check on how the plaintiff was doing and to check on her well-being.  Should that be illegal?   Imagine, if the supervisor never called to check on the employee.  The employee can then complain, "They never even bothered to call to see how I was doing."  Instead, because the supervisor called to check on the employee, she complains that her FMLA rights were interferred with.  Terwilliger teaches that employers cannot always predict how their actions will be spun by creative lawyers representing employees.  Instead, supervisors should ensure they follow the law; treat employees consistent with the employer's policies; and in a manner in which they would want to be treated.  Leave it to the company lawyers to take the spin out of the employee's efforts to punish good deeds.

Court Rules Employee Does Not Necessarily Need to Comply with Employer's Heightened FMLA Notice Procedure

The exercise of sound judgment and the uniform, mechanical application of employment policies are not always synonymous. Every FMLA-covered employer in Texas, Mississippi and Louisiana should be interested in the Fifth Circuit’s most recent FMLA case resulting from an employer’s uniform application of its internal FMLA reporting policy. In Saenz v. Harlington Medical Center, the Court decided, what it characterized as a “close question,” that an employee does not necessarily have to comply with an employer’s internally created, heighted notice provision to maintain FMLA protection and that in some cases the employee need only comply with the FMLA’s more relaxed notice requirements. 

The plaintiff in Saenz, suffered from partial complex epileptic seizures that caused her to lose consciousness and become unable to perform her job. This normally incapacitated her for two days at time. Saenz requested and was granted intermittent FMLA leave for this seizure condition. Her employer, Harlingen Medical Center (“Harlingen”) had a policy that required employees to contact its FMLA administrator not later than two days after each leave period pursuant to the intermittent leave request. Under Harlingen’s policy, failure to provide the required notice could lead to a loss of FMLA protection. In the following six months, Saenz used intermittent FMLA leave eleven times and provided the required notice each time.

Thereafter, Saenz began suffering from depression and bipolar disorder that caused hallucination and disorientation. She was admitted the hospital and later committed to a behavioral center for three days of evaluation. Saenz’s mother contacted her daughter’s supervisor to advise of the symptoms and that Saenz would not be reporting to work.   While at the emergency room (in the same hospital where she normally worked), another Harlingen supervisor personally visited Saenz and observed some of her treatment. In the nine days during which she was incapacitated, Saenz was hospitalized, placed under a judicially created guardianship and eventually released into her mother’s care.

Ten days after first becoming incapacitated, Saenz called Harlingen’s FMLA administrator to advise of her depression/bipolar diagnoses and to discuss the five work absences she suffered as a result of her condition. She also requested approval for intermittent FMLA for these new conditions. Eight days later, Saenz received two letters. The first was from the FMLA administrator advising her that her intermittent FMLA leave request was being processed. The second letter was from Harlingen advising her that her employment was being terminated for excessive absenteeism. The termination letter expressly referenced her failure to comply with the two-day call-in policy. 

Saenz sued Harlingen for violations of the FMLA. The trial court dismissed the case holding that that factual issues existed as to whether the employer could rely on its heightened notice provision, namely, the employer’s actual notice of the severity of Saenz’s condition and the lack of evidence that Saenz affirmatively refused to comply with the company’s heightened noticed provisions. The court of appeals also found that fact issues existed as to whether Saenz gave sufficient notice of her need for leave as soon as practicable as required by the FMLA because the evidence showed that her mother told two supervisors of her hallucinations; at least one supervisor visited her in the hospital emergency room and observed Saenz’s treatment; and her mother stayed in constant contact with the employer as to the status of Saenz’s treatment. Based on these facts and this evidentiary record, the court of appeals remanded the case to the trial court for further proceedings.

Texas Supreme Court Holds State Agencies Immune from FMLA Self-Care Lawsuits

In its first FMLA opinion, the Texas Supreme Court held that agencies of the State of Texas cannot be sued for FMLA violations arising out of an employee's FMLA leave taken for his own serious health condition.   In University of Texas at El Paso v. Herrera, the Supreme Court of Texas held that, unlike the family care provisions of the FMLA, Congress did not abrogate Texas' sovereign immunity for violations of the FMLA self-care provision and therefore the State of Texas cannot be sued for such violations.

The underlying facts are as follows.  Alfredo Herrera was an HVAC technician for the University of Texas at El Paso.  Herrera sustained a work-related injury to his elbow requiring a nine month leave of absence.  One month after he returned to work, his employment was terminated.  He sued alleging that he was terminated for taking personal medical leave under the self-care provision of the FMLA and exercising his First Amendment rights by complaining about unsafe work conditions.  UTEP challenged the court's jurisdiction over the claim asserting that it was barred by sovereign immunity.  The trial court and court of appeals found that jurisdiction existed. 

Acknowledging that the U.S. Supreme Court held that Congress effectively abrogated state sovereign immunity for the FMLA family-care provisions, the Texas Supreme Court found that there was no evidence in the FMLA legislative history or Congressional findings that women took more personal medical leave (or were thought to do so) than men.  Because, according to the Court, the self-care provisions of the FMLA were not targeted at an identified pattern of gender discrimination on the part of the States, Congress overreached when it attempted to apply the self-care leave provisions to the states. 

While the opinion analyzes complex issues of state sovereignty and Congressional findings, the simple take away from Herrera is that the State of Texas cannot be sued for FMLA violations arising out of an employee's need for leave for self care.   

DOL Clarifies Definition of "Son or Daughter" under FMLA

The U.S. Department of Labor has "clarified" the reach of the FMLA by offering an interpretation of the meaning of "son or daughter" under the FMLA.  Under the FMLA regulations, a "son or daughter" is defined as:

a biological, adopted, or foster child, a stephchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and 'incapable of self care because of a mental or physical disability' at the time that FMLA leave is to commence.

The new Administrator's interpretation (and first issued under the FMLA) provides some examples where the the Department would find a parental relationship despite the absence of of a biological or legal relationship such as:

  • where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child;
  • where an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth ;
  • where an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

You can access a complete copy of the Administrator's interpretation here.

FMLA Amended For Second Time in Two Years

President Obama signed the 2010 National Defense Authorization Act setting the budget for the Department of Defense for fiscal year 2010.  The NDAA amends the Family & Medical Leave Act and is effective immediately.  In relevant part, the NDAA amends the FMLA to extend its military leave entitlements.  The FMLA is amended, in relevant part, as follows:

  • Expands the exigency leave provisions (which had been limited to family members of reservists) to make clear that employees make take up to twelve (12) weeks of unpaid leave for qualifying exigencies to family members of any member of the armed services on active duty.
  • Provides up to twenty-six (26) weeks of unpaid caregiver leave to care for any veteran family member (i.e., child, spouse, parent or next of kin) who is undergoing medical treatment, recuperation or therapy for a serious illness or injury that was sustained or aggravated in the line of duty  and was a member of the Armed Services during the five (5) period preceding the date on which the veteran undergoes the treatment, recuperation or therapy.   

Employers should amend the FMLA policies in their handbooks and procedures to incorporate these changes and train those responsible for administrating leaves of absences on these important changes.

 

Texas Employers May be Required to Give Employees Paid Time Off to Vote

As we approach local elections, it is good to remember that Texas law may require an employer to provide an employee with paid time off to vote.  The Texas Election Code makes it a Class C misdemeanor for an employer to refuse to allow an employee to be absent from work on election day for purpose of attending the polls to vote.

An employer is not, however, required to allow time off to vote if the polls are open on election day for voting for two consecutive hours outside of the employee's working hours.  For example, if you have an employee that regularly works 8:30 a.m. to 5:30 p.m. with a one-hour lunch break, an employer may have to give that employee time off from work on election day to attend to the polls and vote. In Texas, the election polls are generally open from 7:00 a.m. until 7:00 p.m. 

Because the term "penalty" means a loss or reduction in wages, an employer should provide paid time off for the employee to attend the polls to vote if the polls are not open on election day for at least two consecutive hours outside the employee's working hours.

An employer can avoid this interruption and the payment for otherwise nonworking time by rescheduling work schedules on election day so that employees have two consecutive hours off while the polls are open (e.g., reschedule the employee to work 8:00 a.m. to 5:00 p.m. on election day). 

 

Federal Bill Introduced to Provide Paid Family and Medical Leave

I recently wrote about several leave of absence bills pending in the Texas Legislature. On March 25, Congressional Democrats introduced a bill to provide twelve weeks of paid federal family & medical leave --the Family Leave Insurance Act of 2009 (HR 1723).

Unlike the FMLA which only applies to employers with 50 or more employees within a 75 mile radius, the Family Leave Insurance Act of 2009 would apply to employers with 2 or more employees. Employees eligible for the new benefit include employees who earned wages (i.e., paid into the fund) with a covered employer for a minimum of 6 months prior to seeking benefits; and has been employed by the employer with respect to whom paid leave is requested for at least 625 hours of service during the previous 6 months.

Benefits are available to eligible employees who take the leave for the same reasons as FMLA (i.e., the birth or placement of a son or daughter; to care for a serious health condition of the employee or the employee’s family member, including a family service member; or due to a qualifying exigency arising from a close family member who is on or been called up to active military duty).

The employee’s benefit amount is dependent on the employee’s annual income and is calculated on a sliding scale.

  • Up to $20,000 is paid 100 percent of that employee's daily earnings;
  • More than $20,000 but less $30,000 is paid the greater of 75 percent of that employee's daily earnings; or 100 percent of the daily earnings of an employee with an annual income of $20,000;
  • More than $30,000 and not more than $60,000 is paid the greater of 55 percent of that employee's daily earnings; or 75 percent of the daily earnings of an employee with an annual income of $30,000;
  • More than $60,000 and not more than $97,000, is paid the greater of 40 percent of that employee's daily earnings; or 55 percent of the daily earnings of an employee with an annual income of $60,000; and
  • More than $97,000, an amount equal to 40 percent of the daily earnings of an employee with an annual income of $97,000.

The benefits would be paid from a federal trust fund. The trust fund would be funded from both employer and employee contributions. Employers and employees would both contribute .2 percent of each employee’s wages to the fund beginning on January 1, 2011. Small employers (under 20 employees) would pay a .1 percent premium. The law, if passed, would be administered like state unemployment benefit programs.

Finally, the bill provides anti-retaliation provisions; creates a new civil cause of action against employers that violate the anti-retaliation provisions; as well as potential administrative fines and penalties.

Texas Legislature Update: Employee Leaves of Absence

There are several pending bills in the Texas legislature that could effect the leaves of absence private employers must make available to their employees.  Some of these types of leaves have already been passed in more liberal states such as California and Massachusetts.  Pending leave of absence bills in the Texas legislature include:  

  • HB 615 Permitting employees with a child enrolled in a special education program and having at least one year tenure with the employer take 10 hours per year of unpaid leave to meet with certain school officials.
  • HB 1005 Requiring employers to provide employees employed at least 90 days to take up to 40 hours per year unpaid leave to meet with teachers or attend to certain school events, ceremonies or meetings. The bill also contains anti-retaliation provisions.  (See also SB 649)
  • HB 1057 Permitting employees with at least 6 months service to take not less than 2 weeks accrued paid leave for the birth or placement of adoption of a child.  Employees of employers that do not provide paid leave, who have insufficient paid leave or are ineligible for leave are entitled to between 2 and 6 unemployment benefits.  The bill does not mandate the creation of any leave programs but does provide a right to reinstatement for employees that utilize leave under this proposed law.  (See also SB 692)
  • SB 60   Requires employers to provide for unpaid time off to employees who are the victims of certain violent crimes to attend court proceedings.  The bill also provides a civil cause of action, damages and anti-retaliation provisions for violations.