Family & Medical Leave

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These executive summaries were compiled from EMPLOYEE BENEFITS INFOSOURCE database, a source for information on employee benefits and human resources.
Mandated Benefits: 2010 Compliance Guide.
1111 pp 2010; book

Availability : International Foundation of Employee Benefit Plans
Abstract : Comprehensive and practical guidance for dealing with the growing number of federal regulations that must be addressed by human resources (HR) managers and benefits specialists. Describes the essential requirements and administrative processes necessary to comply with each regulation. Suggestions are offered for avoiding the most common litigation threats and handling various types of employee problems. Includes numerous exhibits, checklists, forms, and do’s and don’ts. The Equal Pay Act, ERISA, COBRA, ADA, HIPAA, FMLA, Social Security, worker’s compensation and unemployment insurance is just a sampling of the laws, regulations and programs covered. A state-by-state guide to laws concerning temporary disability benefits, pay practices, workplace health and safety, layoff notices and drug testing is also included. Includes information on workplace ethics.
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The Third Circuit Provides Guidance on Vexing FMLA and ADA Issues.
Keon, Martha J.; Tax Management Compensation Planning Journal; v37 no311 8 pp Dec 4, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Proper administration of leave under the Family and Medical Leave Act (FMLA) requires close accounting of hours and other details, as shown by the case of Erdman v. Nationwide Insurance Co. The plaintiff adjusted her work schedule to care for her disabled child, routinely working extra hours at home in exchange for compensatory time off. A change in supervisor prompted review of the arrangement, refusal of overtime and comp time, return to full time work, refusal of an FMLA leave request and ultimately dismissal. Much of the case revolved around accounting for hours of service to qualify for FMLA leave. The district court dismissed the plaintiff's FMLA claims since she did not have sufficient hours to qualify. The court ultimately dismissed the claim that caring for her disabled daughter led to dismissal in violation of the Americans with Disabilities Act (ADA). The Third Circuit Appeals Court reinstated the FMLA claim, finding the comp time hours in dispute, but upheld the ADA claim dismissal. The complicated case provides several lessons for employers in accounting for work hours and determining FMLA eligibility.
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Accessing the Impact of Regulatory and Statutory Changes to the Family and Medical Leave Act.
Colopy, Katie; Dielman, Sandy; Compensation and Benefits Review; v41 no6 pp 42-48 Nov-Dec 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : In 2009, final regulations affecting the administration of the Family and Medical Leave Act of 1993 (FMLA) went into effect. Also, the National Defense Authorization Act of 2008 created two new classes of family member military leave. Employers will need to modify their FMLA policies to account for the changes in regulation and law. They will also have to assess the impact of the changes on other policies, such as light duty programs and employee bonuses.
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Handle With Care.
Zeidner, Rita; HR Magazine; v54 no11 pp 22, 24-26, 28 Nov 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : A number of workers with caregiving responsibilities say they are being discriminated against in job opportunities, pay and benefits. Lawsuits alleging such discrimination, also known as family responsibility discrimination or FRD, increased by 400 percent from 1995 to 2005. In 2007, the Equal Employment Opportunity Commission added caregivers to an enforcement initiative against systemic discrimination. Many forms of FRD appear to stem from pervasive gender stereotypes, either limiting opportunities for female employees or denying accommodation to male caregivers that is routinely given to female caregivers.
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Military Leave: Obama Signs Defense Bill Into Law, Provides Military Leave Expansions.
Daily Labor Report; no207 p A5 Oct 29, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : On October 28, 2009, President Barack Obama signed into law a Defense Department authorization bill that includes an expansion of Family and Medical Leave Act of 1993 provisions related to family leave rights for military personnel. The law extends qualifying exigency leave, previously limited only to the families of National Guard and Reserve members, to the families of active duty service members. Qualifying exigency leave grants leave to the families of active duty members to manage the members' affairs. The law also grants eligible family members of current or former service members injured in the line of duty up to six months leave per year to care for the injured service members.
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Discrimination: Employee Fired After Leave Request Raises FMLA Claim, but No ADA Case.
McGowan, Kevin P.; Daily Labor Report; no184 p AA1 Sep 25, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : After working full-time for 18 years, the plaintiff in Erdman v. Nationwide Insurance Co. switched to part time to care for her daughter. She had been permitted to work some hours at home and accrue time, but this ended with a change in work schedule and supervisor. When a previous approval for vacation was withdrawn, the plaintiff requested family and medical leave. Within a month, she was fired, prompting a suit under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). The Third Circuit Court of Appeals found she had worked sufficient hours and provided constructive notice for FMLA leave. The court also ruled the plaintiff had grounds to pursue a claim that the employer fired her in retaliation for her FMLA claim, even though she had not yet started the FMLA leave. The ADA claim was rejected since there was no evidence the firing rose from discrimination associated with the child's disability.
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Biting the Hand That Rocks the Cradle: What Employers Should Be Doing About Caregiver Discrimination Right Now.
Silverman, Leslie E.; Smith, Gershom R.; HR Advisor: Legal & Practical Guidance; v15 no5 pp 14-17 Sep-Oct 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Potential discrimination due to a worker's family caregiving responsibilities has gained significant attention in 2009. In March of that year, the First and Ninth Circuit Courts of Appeals found in favor of employees alleging caregiver discrimination. Government agencies under the Obama administration, such as the Equal Employment Opportunity Commission, are offering opinions on the issue. Employers should be careful to be fair when applying discipline or making leave decisions and avoid asking employees if their caregiving responsibilities prevent them from performing certain tasks.
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FMLA Protection Recently Expanded to Military Families: Qualifying Exigency and Servicemember Family Leave.
Martin, Sarah B.; Compensation and Benefits Review; v41 no5 pp 43-51 Sep-Oct 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The National Defense Authorization Act for 2008 amended the Family and Medical Leave Act (FMLA) of 1993 to cover employees caring for an injured servicemember or attending to practical needs on a servicemember's behalf. Basic eligibility requirements remain the same in terms of service hours, but the law brought changes and additions that employers must understand and implement in all personnel policies and procedures. The DOL issued guidance with terminology, definitions and examples to clarify the expanded qualifications for FMLA leave. The guidelines address forms and notifications that must be brought into compliance, certification requirements, leave scheduling, handling unanticipated leave and many other issues.
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Absence Makes It Hard to Grow Fonder.
Saunderson, Roy; Employee Benefit Plan Review; v64 no2 pp 17-19 Aug 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : According to the 2007 CCH Unscheduled Absence Survey, only 34 percent of unscheduled absences are due to health issues or sudden illnesses. Some companies are offering rewards as a preincentive for perfect attendance. Employers without the resources to offer these rewards must communicate expectations and job descriptions at hiring, ensure job candidates fit the job and organizational culture, pay employees fairly, recognize and acknowledge employee contributions and offer career and professional development opportunities. Dr. Saul Gellerman identifies four types of absentees, the habitual, conformist, escapist and legitimate, each requiring a different management approach. Regulations under the Family and Medical Leave Act of 1993 as of January 16, 2009 do not provide hoped for relief from abuses of intermittent leave, but they do provide additional guidance on notice requirements for employers.
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Employee Benefits: Unionization Has Positive Impact on Family-Friendly Policies, Report Says.
Daily Labor Report; no135 p A5 Jul 17, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : A study on the influence of unionization on employer policies supporting employees work and family balance found union workers enjoy more advantages. Unionized workplaces are 1.7 times more likely to comply with the Family and Medical Leave Act, more often receiving fully paid leave. Union members are more likely free to use sick leave or personal leave to care for a sick child. They are far more likely to have health insurance fully paid or share a smaller percentage of the cost. Of the features studied, only flexible work hours were less common among union shops, according to the study by the University of California Berkeley Center for Labor Research and Education and the Labor Project for Working Families.
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Amendments to the ADA and FMLA: New Legislation Equals New Policies for Employers.
Elkins, Michael; Compensation and Benefits Review; v41 no4 pp 36-43 Jul-Aug 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The ADA Amendments Act (ADAAA) of 2008 brought major changes to the Americans with Disabilities Act (ADA), expanding the potential population of disabled employees by broadening the range of protected disabilities impairing major life activities. Disabled workers meeting the less strict definition may require accommodation for work, though employers are not required to offer accommodations for those with vision problems corrected with ordinary lenses, those with transitory and minor impairments and those simply regarded as disabled. The ADAAA also amends the Family and Medical Leave Act, especially affecting families of military personnel. Employers must ensure policies and employee handbooks are up to date and that supervisors and HR personnel understand the law.
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Family Leave: CRS Report Details Leave Benefits Available in Public, Private Sectors.
Daily Labor Report; no112 pp A4 Jun 15, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : A Congressional Research Service report finds vastly uneven distribution in paid leave benefits. Employees with higher pay and education, white collar workers and those working full time and for larger organizations are more likely to receive paid sick leave, vacation and family leave. Federal law requires only limited leave benefits, and union bargaining agreements and state law may impose other benefits. While over 75 percent of private sector workers get paid vacation and holidays, only six in ten get paid sick leave. Those with most need are least likely to have the benefit available due to job classification and tenure. Paid sick leave costs an average $0.23 per hour worked for private sector employers and $0.81 for public sector employers.
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Stretch and Bend.
Shepherd, Leah Carlson; Employee Benefit News; v23 no7 pp 48-49 Jun 1, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : In 2009, there are a number of bills before Congress and state legislatures to require paid sick days or expand Family and Medical Leave Act of 1993 (FMLA) protections, benefits that small firms often have difficulty paying for. A 2008 study by the Families and Work Institute found that while 48 percent of small employers, compared to 76 percent of large employers, offered replacement pay during maternity leave, there is no significant difference in the percentage of small and large employers offering full FMLA coverage. Almost two thirds of small employers, though, encourage supervisors to find work life solutions for employees with family needs, compared to less than half of large employers. Small companies are particularly interested in offering affordable benefits such as flex time, telecommuting, and lunchtime seminars or chats on work life topics.
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Pregnancy Discrimination: Divided Supreme Court Finds No Bias in AT&T's Calculation of Pension Benefits.
McGowan, Kevin P.; Daily Labor Report; no94 p AA1 May 19, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : A divided Supreme Court found that AT&T Corp. did not violate Title VII of the Civil Rights Act of 1964 by granting female employees in the 1960s and 1970s only partial service credit for pregnancy leave. This partial credit became illegal after the Pregnancy Discrimination Act (PDA) went into effect in April 1979. According to the majority decision, the policy was protected by Title VII prior to April 1979, and nothing in the PDA required the company to grant retroactive service credit to employees who took pregnancy leave under that policy once it was rescinded. A dissenting opinion authored by Justice Ruth Bader Ginsburg and joined by Justice Stephen Breyer argued that the majority decision followed a discredited Supreme Court case which ruled pregnancy discrimination is not sex discrimination.
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FMLA: Labor Department Releases Opinion Letter on Employee Notice of Need for FMLA Leave.
Dube, Lawrence E.; Daily Labor Report; no86 p A1 May 7, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The DOL issued an opinion letter clarifying a 1995 regulation in opinion letter FMLA-101 that implied a two-day notification requirement for FMLA leave. FMLA2009-01-A clarifies that employees must provide notice of leave as soon as practicable, 30 days ahead if the need for leave is foreseeable. A shorter notice time is permitted if circumstances dictate. The implied two-day notice in the earlier guidance conflicted with some employers' policies. The DOL defers to the employer's usual rules when they are more strict than the updated rule.
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Helping Employees Juggle Multiple Roles.
Davis, Andrea; Employee Benefit News Canada; v7 no3 pp 28, 30 May-Jun 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The sense of role overload is widespread, felt by 58 percent of Canadians according to Health Canada. Those feeling overloaded are nearly twice as likely to spend $300 or more on prescription drugs, nearly three times more likely to report only poor or fair health and 2.6 times more likely than others to seek mental health support. Few feel they can share concerns with employers. But employers such as Vancouver's Next Level Games, the Association of Management, Administrative and Professional Crown Employees of Ontario and KPMG LLP are leaders in helping employees balance work and family needs. Among the exemplary benefits are generous vacation, unlimited sick time, personal time, parental and grandparental leave, child and elder care and adoption benefits.
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New FMLA Regs Change Definitions & Eligibility Rules.
Managing Benefits Plans; no09-05 pp 1, 5-7, 11-12 May 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Updated regulations for the Family and Medical Leave Act include many unfamiliar elements. Leave to provide care for an injured member of the military or attend to a reservist's or National Guard member's qualifying exigency is distinct from traditional family leave. The regulations explain intermittent leave and the employee's responsibility to help maintain work operations as much as possible. The rules stress the need for timely notification by employees needing leave whenever possible and the overall requirement to follow the employer's established leave policies. Employee rights and responsibilities must be visibly posted and included in an employee handbook.
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FMLA: Federal Judge Denies FMLA Action; Doctor Said Pregnant Worker OK to Work.
Daily Labor Report; no39 p A5 Mar 3, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The U.S. District Court for the Middle District of Florida ruled in the case of Allen v. Progress Energy Inc. that an employee denied leave under the Family and Medical Leave Act of 1993 (FMLA) and fired was not eligible for the leave. The court granted summary judgment for the defendant company because the plaintiff employee had submitted medical documentation stating that she could work. Although the plaintiff demonstrated she had a serious health condition under the FMLA, the documentation amounted to a negative certification. The court also ruled that the plaintiff could not succeed in a retaliation claim after she tried to take the leave she was not entitled to.
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Bonuses for Employees Who Take FMLA Leave: What Can Employers Do?
Cohen, Jennifer; Guerrasio, Edna; HR Advisor: Legal & Practical Guidance; v15 no2 pp 17-22 Mar-Apr 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : On January 16, 2009, the DOL changed the criteria for determining bonuses for employees on leave under the Family and Medical Leave Act of 1996 (FMLA). Under the old rules, employers had to determine whether the bonus was being awarded for production or absence of occurrence. The new rules allow employers to prorate a bonus regardless of whether it is for production or absence of occurrence as long as the bonus is given for achievement of a goal. Employers must be sure to place workers who take FMLA leave and those who take other kinds of leave on equal footing. Bonuses not granted for achieving goals may not be prorated.
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Leave Law Spurs Policy Changes.
Cadrain, Diane; HR Magazine; v54 no3 pp 47-48 Mar 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The updated regulations for the Family and Medical Leave Act (FMLA) include two important points for employers. They can use their normal leave notice procedures with requirements that employees call a specific position within a certain time to indicate need for family or medical leave. Employers can also use a standard set of rules for FMLA leave and other paid time off. Employers should have a procedure in place for handling employee FMLA and other leave requests and should follow it consistently with exceptions only for clear emergencies. Employers must issue an updated rights and responsibilities notice about changes.
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New FMLA Regulations in Effect January 16; New Fitness-for-Duty Rule Gives Employers More Rights, Flexibility.
Panaro, Gerard P.; HR Advisor: Legal & Practical Guidance; v15 no2 pp 32-36 Mar-Apr 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : On January 16, 2009, updated regulations went into effect for the Family and Medical Leave Act of 1996. One important set of changes to previous regulations is in fitness for duty clearances. An employer may require a fitness for duty certification to determine whether an employee can perform the essential duties of his or her job. If a certification is required, the employer must provide a list of essential job functions to the employee. Employers may require certifications every 30 days, may contact employees' health care providers to clarify or authenticate certifications and may fire employees who do not provide the certifications.
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Top 10 Things Employers Need to Know About the New FMLA Regulations.
Mills, Christopher H.; Employee Benefit Plan Review; v63 no9 pp 5-6 Mar 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The DOL's updated Family and Medical Leave Act (FMLA) regulations include provisions for an employee to take leave to care for a military family member's health or certain other needs. The regulations also specify employees are entitled to leave if they have worked a total of 12 months over seven years for the employer. An employer, HR personnel, leave administrator or management official, but not an immediate supervisor, can contact care providers for medical certification for an employee's leave. Requirements for employers to provide notifications about leave are raised, and employees must follow customary procedures when absent for leave rather than waiting. The regulations took effect January 16, 2009, and employers must already be in compliance with necessary forms.
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FMLA: High Court Will Not Review Decision Finding Retaliatory Cause of Action Under the FLMA.
Daily Labor Report; no12 p AA5 Jan 22, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The Supreme Court decline to review Dollar General Corp. v. Bryant, in which the Sixth Circuit had ruled for the defendant employee. The employee was fired after an argument at work, but the employer did not initiate disciplinary action until after she requested leave under the Family and Medical Leave Act (FMLA) for health conditions. The district court and later the Sixth Circuit supported her allegation of unlawful retaliation. The employer argued the FMLA prohibits retaliation only for actions specifically banned by the act, such as oppositional activity, which the employee did not claim. It argued the DOL's effort to apply the retaliation prohibition was invalid because the FMLA does not specifically address retaliation for other causes.
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FMLA: New FMLA Regulations Clarify, Change Requirements, Definitions, Eligibility Rules.
Francis, Laura D.; Daily Labor Report; no09 p C1 Jan 15, 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Revised regulations for the Family and Medical Leave Act take effect January 16, 2009. These regulations add two types of leave. Military caregiver leave is distinct from regular FMLA leave and gives up to 26 weeks of leave in a 12-month period for care of an injured family member who is in the military. Qualified exigency leave applies when an employee's family member has been unexpectedly called up to active military duty, and the employee handles various arrangements on the service member's behalf. The requirements for certification are stringent and unusually intrusive. The regulations also cover a number of other issues, including the transfer of employees who take intermittent leave, substitution of paid leave and notification requirements for both employers and employees.
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New FMLA Regulations Take Effect January 16, 2009: Are You Ready?
Weitzman, Allan H.; Schwartz, Jurate; HR Advisor: Legal & Practical Guidance; v15 no1 pp 5-36 Jan-Feb 2009; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The DOL's final rules for the Family and Medical Leave Act (FMLA), issued in November 2008, include numerous changes in coverage, rights and obligations and especially rules for military reservists and their family members. Among the changes are clarifications of eligibility rules, employee notification requirements, designation of FMLA leave and employee notice requirements. The rules also update the medical certification form and permit employers to seek additional information from the health care provider to confirm the employee qualifies for paid leave benefits. Close relatives of injured military member may take leave to provide care or attend to qualifying exigencies on the service member's behalf.
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