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.
Employee Benefits: Most Benefits Have Remained Stable Despite Economic Downturn, SHRM Says.
Richardson, Nathaline R.; Daily Labor Report; no127 p A11 Jul 5, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : A February 2010 survey of 2,850 members of the Society for Human Resource Management (SHRM) finds the economy has negatively affected employee benefits offerings for 72 percent. Among those, nine percent were severely affected, but organizations for the most part have not made significant benefit changes. Benefits have been relatively stable in 2009 and 2010 but are leaner than in 2004. Declines are evident in housing and relocation benefits and in business travel benefits. The survey found 96 percent of firms offer drug benefits, 37 percent cover health care for part-time workers, 59 percent offer wellness programs, 44 percent offer paid vacation and 24 percent offer paid family leave. Defined contribution (DC) pension plans are about 3.4 times more common than defined benefit plans, and 72 percent offer an employer match for DC plan employee contributions.
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A Leave Law That Just Won't Go Away.
Cadrain, Diane; HR Magazine; v55 no7 pp 49-52 Jul 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Especially for firms with operations in many states and larger firms with numerous employees on leave simultaneously, outsourcing leave administration is the best strategy is the best way to comply with the Family and Medical Leave Act (FMLA). Outsourcing services range from bare bones to expansive, from automated services that focus on narrowly on recording calls and linking to an Internet tracking system to services that take over the entire process for HR professionals. Costs must be viewed relative to problems avoided, especially lawsuits from alleged violations of federal laws or many disparate state laws. Outsourcing administration also adds some protection for employee privacy. At the end, employers are still liable for any FMLA violations, making it crucial that employers carefully oversee and train all involved.
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PTO Programs and the FMLA.
Panaro, Gerard P.; HR Advisor: Legal & Practical Guidance; v16 no4 pp 40-44 Jul-Aug 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Paid time off (PTO) banks may be simpler than traditional time off for specific purposes, but federal, state and local laws override employer policies. These regulations may govern leave for family purposes, military service, school, jury duty and other purposes. The Family and Medical Leave Act (FMLA) has specific provisions dealing with notice, information shared, time taken and potentially retaliatory employer actions. Numerous court cases on the interaction of the FMLA with employer leave policies maintain the precedence of FMLA provisions over an employer's policies. Courts have ruled that employees must have FMLA leave available to claim it, and employers can require workers to use PTO time before taking FMLA leave.
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Family Leave: FMLA Applies to People Caring for a Child, Including Domestic Partners, DOL Clarifies.
Cinquegrani, Gayle; Daily Labor Report; no119 p AA1 Jun 23, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : A June 22, 2010 interpretation letter from the DOL clarifies the definition of son or daughter under the Family and Medical Leave Act (FMLA), stating a biological relationship is not necessary. The DOL says the letter is a victory for nontraditional families and a critical step in ensuring that children have the support and care they need. The letter says that day to day care and financial support can both establish a relationship in which an employee takes on the responsibilities of a parent. The presence in the home of a biological parent, the letter says, does not prevent an employee without a biological relationship from having a parental relationship with the child for FMLA purposes.
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Absence Makes the Sales Grow Bigger.
Bell, Allison; National Underwriter: Life & Health; v114 no12 p 18 Jun 21, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Absence management programs are on the rise. Hewitt Associates found in 2010 that nearly one in five of 600 large firms have a program and 56 percent plan to add one. Insurers such as Standard Insurance Co., Prudential Financial Inc. and Hartford Financial Services Group are expanding their expertise in disability leave management programs in response to the demand. Employers must track employees' vacation, sick time, family, disability, military and other types of leave. Various state laws add to the confusion, with several mandating time for parent teacher conferences. Leave management providers can highlight the administrative challenges and demonstrate solutions, and promote awareness of new products through employer bulletins and presentations to employer groups.
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The Pregnant Police Officer's Overtime Duties and Forced Leave Policies Under Title VII, the ADA, and FMLA.
Wolkinson, Benjamin; Wolkinson, Sarah; Employee Relations Law Journal; v36 no1 pp 3-20 Summer 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : With more women becoming police officers, the treatment of necessary overtime for pregnant employees is becoming increasingly significant. Case law and Equal Employment Opportunity Commission (EEOC) guidance on Title VII of the Civil Rights Act of 1964 indicate that employers do not need to accommodate pregnant employees for overtime duties unless other employees have received similar accommodation because of disabling conditions that did not occur at work. The Americans With Disabilities Act of 1990 has also been interpreted to provide little protection to pregnant employees because pregnancy is a temporary condition. It is likely that courts will find that employer decisions to deny intermittent leave for pregnant workers does not violate the Family and Medical Leave Act of 1993 in positions where overtime is an essential duty.
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Work & Family: 81 Percent of Workers Would Telecommute if Allowed, but Many Lack Option, Poll Finds.
Daily Labor Report; no99 p A13 May 25, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : Workplace Options Inc. presented the results of an April 2009 telephone poll showing interest in telecommuting and work life benefits. Of 997 respondents, over four fifths would like to be able to work from home. About two thirds have flexibility in time management and personal time off. Nearly 70 percent felt greater work flexibility would increase loyalty to an employer. Over half would telecommute as much as possible if offered the chance, though 44 percent felt they could not do their entire job effectively from home. Almost half were opposed to government mandates for minimum paid sick days and family leave. Nearly half felt satisfied with their work life balance.
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FMLA: Seventh Circuit OKs Rejecting FMLA Claims; Lawful 'No-Fault' Absence Rule Caused Firing.
Dube, Lawrence E.; Daily Labor Report; no63 p A1 Apr 5, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The Seventh Circuit Court of Appeals granted summary judgment for the defendant in Bailey v. Pregis Innovative Packaging Inc. The plaintiff was terminated for exceeding the company's absence limits, though she claimed some of the absent time should be excused as pregnancy-related leave under the Family and Medical Leave Act (FMLA). The court affirmed that hours calculation for FMLA credit may not include time not actually worked. Absence penalties normally forgiven after 12 months did not yet qualify for purging since leaves and absence days extended the 12-month period.
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FMLA: Judge, Not Jury, Should Rule on Front Pay Under Family Leave Act, Ninth Circuit Says.
McGowan, Kevin P.; Daily Labor Report; no39 p A1 Mar 2, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The plaintiff in Traxler v. Multnomah County was fired after taking intermittent leave under the Family and Medical Leave Act (FMLA). The district court jury awarded her $250,000 in damages for back pay and $1.5 million in front pay or lost future earnings. Concluding he should not have left the front pay issue to the jury, the judge vacated that award and offered a lower award. The plaintiff appealed to the Ninth Circuit, which found the trial judge should have specified the reason for rejecting the plaintiff's bid for damages and remanded the case to the lower court. The appeals court supported the lower court's authority and choice in setting front pay at $267,000. The court noted the text of the FMLA supports front pay as an equitable remedy, distinct from damages, and within the purview of the court.
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Sick Leave: California Justices Rule 'Kin Care' Provision Doesn't Apply to Uncapped Sick Leave Plans.
McGolrick, Susan J.; Daily Labor Report; no32 p AA1 Feb 19, 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : California's "kin care" provision in the state labor code requires employers to let employees use paid sick leave to care for ill family members, but there are limits. The provision only applies where employers provide accrued increments of compensated leave. The California Supreme Court reversed the state Court of Appeals' ruling in McCarther v. Pacific Telesis Group and found the provision to be inapplicable in this case because of the specifics of the employer's sick leave policy. The collective bargaining agreement with the employer provides employees with one year of service uncapped paid leave of up to five days in a seven-day period, but not based on an accrued number of hours worked in a period of time.
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Family and Medical Leave Act and Cafeteria Plans.
LeTourneau, Janet; Broker World; v8 no2 pp 62-63 Feb 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : One of the few opportunities to change elections to a cafeteria plan comes is available to an employee taking leave through the Family and Medical Leave Act (FMLA). An employee taking an FMLA leave must have options to pay for continued health coverage. Alternatively, a member may lose coverage for nonpayment or actively revoke coverage before starting FMLA leave. In either case, the FMLA requires the plan to allow the employee to be reinstated when he or she returns from leave. The employee can be reinstated at the same level of coverage as before taking leave and pay the missed contributions, or resume at a lower coverage level, paying a proportionate share.
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Terminating Employees for Excessive Absenteeism.
Employment Law Counselor; no234 pp 1-8 Feb 2010; journal article

Availability : International Foundation of Employee Benefit Plans
Abstract : The Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) impose constraints on employers' handling of employees' excessive absences for personal or family health issues. A clear attendance policy is essential, detailing acceptable reasons for absence, procedures to deal with late arrival and early departure from work, supervisor notification, definition of excessive absence and disciplinary steps. Employers must be able to differentiate general absences from those eligible as FMLA leave or associated with ADA reasonable accommodations. The two laws have different effects regarding leave requests, temporary transfer, continuation of benefits, reinstatement after leave and confidentiality of medical information.
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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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