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Family and medical leave, incl. FMLA

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[Guidance Overview] IRS Permits Employees to Donate Paid Leave to Harvey and Irma Victims, Without the Tax Consequences (PDF)
"To avoid tax consequences to the donating employees, the employer's donations must ... [1] Go to one or more charitable organizations described in Tax Code section 170(c). [2] Go specifically toward the relief of the victims of Hurricanes Harvey and/or Irma. [3] Be made before January 1, 2019." (Lockton)
[Guidance Overview] New York's Paid Family Leave Law Becomes Effective January 2018
"An employer may apply to the chair of the New York State Workers' Compensation Board for approval as a self-insured employer by September 30, 2017. To be approved as a self-insured employer, an employer must: [1] provide PFL benefits at least as favorable as required by the PFLL; [2] demonstrate the ability to make PFL payments; [3] submit certain financial information; [4] file with the chair an agreement to pay disability and PFL benefits; [5] assume all liability for PFL benefits that exceed the funds collected in excess of the maximum contribution amount; [6] post a surety bond; [7] allow the chair to examine its operations and records; and [8] file annual reports." (Vorys, Sater, Seymour and Pease LLP)
[Official Guidance] Text of IRS Notice 2017-52: Treatment of Amounts Paid to Section 170(c) Organizations Under Employer Leave-Based Donation Programs to Aid Victims of Hurricane and Tropical Storm Irma (PDF)
"The [IRS] will not assert that cash payments an employer makes to Section 170(c) organizations in exchange for vacation, sick, or personal leave that its employees elect to forgo constitute gross income or wages of the employees if the payments are: [1] made to the Section 170(c) organizations for the relief of victims of Hurricane and Tropical Storm Irma; and [2] paid to the Section 170(c) organizations before January 1, 2019. Similarly, the Service will not assert that the opportunity to make such an election results in constructive receipt of gross income or wages for employees." (Internal Revenue Service [IRS])
If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?
"Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as she did here) that the employer took action on the heels of an employee's request for FMLA leave. Yet, this court decision is an endorsement to carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave." [Jackson v. BNSF Railway Co., No. 16-695 (N.D. Tex. Aug. 1, 2017)] (FMLA Insights)
[Guidance Overview] Qualified Disaster Relief Payments by Employers Not Taxable Income to Employees
"[S]ection 139 of the Internal Revenue Code allows [employers] to make qualified disaster relief payments to affected employees that are not includable in these employees' gross incomes. Employers may deduct any qualified disaster relief payments even though the payments are not included in employees' gross incomes. An employer need not obtain detailed receipts and documentation for qualified disaster relief payments so long as the payments reflect a reasonable estimate of the employee's losses and expenses attributable to the disaster." (McGuireWoods LLP)
[Guidance Overview] Hurricane Recovery: Establishing a Charitable Leave Donation Program
"[E]mployers are given latitude to design a program that fits within the employer's particular needs, circumstances, and policies. At a basic level, the employer must decide who is eligible to participate in the program and what types of leave may be donated.... The employer must also determine in what increments leave can be donated, (i.e., hours, days, weeks)." (Morgan Lewis)
[Guidance Overview] New York Issues Final Regs for Paid Family Leave
"Starting January 1, 2018, eligible employees can receive paid family leave benefits through New York's disability benefits law. The benefits are a percentage of the employee's average weekly wage or of the state average weekly wage, whichever is less. The law intends for paid family leave to be fully funded by employees." (Willis Towers Watson)
[Guidance Overview] Federal Sick Leave Health and Welfare Benefit Changes Bring Enhanced Compliance Challenges for Federal Service Contractors (PDF)
"[F]ederal service contractors need to closely manage ... [1] the application of differing H&W rates to service contracts and individual service employees; [2] the differing standards for incorporation of the federal sick leave obligations and the new [Service Contract Act (SCA)] fringe benefits levels; and [3] the impact of the new sick leave H&W level on potential price adjustments under the FAR price adjustment clause. This white paper discusses these challenges as well as strategies for managing these SCA compliance issues." (Wiley Rein LLP)
[Guidance Overview] What Employers Need to Know About New York�s Impending Paid Family Leave Benefits Law and Final Regulations (PDF)
10 pages. "When fully implemented, New York's [Paid Family Leave (PFL) Benefits Law] will provide up to 12 weeks of PFL during a 52-consecutive week period to employees for [certain] purposes ... [T]he amount of leave available to an employee is measured by reviewing how much PFL or New York State short-term disability benefits the employee has taken in the previous 52 weeks, as of the first date that PFL benefits would begin.... Employers must provide employees who are not eligible for PFL (i.e., those employees who, in connection with their regular work schedules, never achieve 26 consecutive weeks or 175 days in a 52-consecuitive-week-period) with the option to file a waiver of PFL benefits. This waiver would exempt an employee from the obligation to have PFL payroll contributions withheld from his or her wages." (Epstein Becker Green)
EEOC Sues Estee Lauder Over Paid Parental Leave Policy
"The paid parental leave policy at issue in this case ... provides 'primary caregivers' six weeks of paid parental leave for child bonding and only offers 'secondary caregivers' two weeks of paid leave for child bonding.... On its face, this policy does not appear to provide different benefits to new mothers or female employees and new fathers or male employees; however, in practice, the company only allows male employees to receive 'secondary caregiver' leave benefits under this policy." [EEOC v. Estee Lauder Companies, Inc., No. 17-3897 (E.D. Penn)] (Seyfarth Shaw LLP)
Hurricanes Harvey and Irma: What Kind of Relief May Employers Offer to Affected Employees? (PDF)
"Qualified Disaster Relief Payments ... Paid leave and working condition fringes ... Charitable contributions ... Leave sharing programs ... Traps for employers ... Retirement plan relief." (Epstein Becker Green)
Individual Supervisor May Be Liable Under FMLA
"In denying the supervisor's motion to dismiss the claims against him, the court first noted that FMLA liability may attach to any 'employer' and that the statute provides a broad definition of 'employer' that includes any individual who acts directly or indirectly in the interest of an employer to any employees of such employer.... Massachusetts supervisors must now face the possibility of personal liability for violating the FMLA rights of their subordinate employees." [Eichenholz v. Brink's Inc., No. 16-11786 (D. Mass. May 9, 2017)] (The Wagner Law Group)
Tax Relief Available for Leave Donations to Aid Victims of Hurricane Harvey
"Because the emergency declaration for Tropical Storm Harvey in Louisiana does not authorize individual assistance, storm victims in that state apparently are not eligible for the loan and hardship distribution relief. They may, however, be able to benefit from charitable assistance made possible by this leave-donation relief." (Thomson Reuters / EBIA)
Comprehensive FAQs for Employers on Hurricanes and Other Workplace Disasters
"This list of frequently asked questions was originally prepared ... in response to Hurricanes Katrina, Rita and Wilma. It has been updated several times over the course of the past 12 years, most recently in the aftermath of Hurricane Harvey striking Texas and Louisiana in August 2017, and in anticipation of Hurricane Irma striking Florida in September 2017. This article addresses many employment-related issues facing employers in the wake of hurricane-related disasters; ... in addition to federal laws, [it covers] certain state laws, especially those in the Gulf Coast area." (Fisher Phillips)
[Guidance Overview] IRS Allows Employees to Donate PTO Value for Hurricane Harvey Victims
"[E]mployers may contribute the value of the PTO contributed by their employees as Harvey relief to a non-profit organization and will be entitled to a deduction that may be treated as a business expense, rather than a charitable contribution, as long as the donations are specifically for the relief of Harvey victims and are made by January 1, 2019. The employees who make the donations will not be entitled to take charitable deductions, but will not be subject to income or Social Security taxes on the amounts donated." (Seyfarth Shaw LLP)
Employee's FMLA Claims Survive Because Employer Miscounted Leave Days Used
"Holidays, spring breaks and office closures may or may not be counted against an employee's 12-week FMLA entitlement, depending on the length of the leave, the length of the holiday/break/closure, and whether the employee would otherwise be required to work on those days or weeks." [Jones v. Maywood Melrose Park Broadview School District, No. 16-9652 (N.D. Ill. July 11, 2017)] (Society for Human Resource Management [SHRM])
[Official Guidance] Text of IRS Notice 2017-48: Treatment of Amounts Paid to Section 170(c) Organizations Under Employer Leave-Based Donation Programs to Aid Victims of Hurricane Harvey and Tropical Storm Harvey (PDF)
"The [IRS] will not assert that cash payments an employer makes to Section 170(c) organizations in exchange for vacation, sick, or personal leave that its employees elect to forgo constitute gross income or wages of the employees if the payments are: [1] made to the Section 170(c) organizations for the relief of victims of Hurricane Harvey and Tropical Storm Harvey; and [2] paid to the Section 170(c) organizations before January 1, 2019. Similarly, the Service will not assert that the opportunity to make such an election results in constructive receipt of gross income or wages for employees. Electing employees may not claim a charitable contribution deduction under Section 170 with respect to the value of forgone leave excluded from compensation and wages." (Internal Revenue Service [IRS])
[Opinion] ERIC Comments on Washington State's Proposed Paid Sick Leave Rule
"The Proposed Edited Rules require employers to allow employees to carry over, at minimum, forty hours of accrued but unused leave from one benefit year to the next. Despite the statutory mandate,ERIC believes there is still room for employer flexibility while still ensuring that Washingtonians are guaranteed adequate paid sick leave. This can be achieved by adopting new regulations that mandate carryover only in instances where the employer does not frontload the paid sick leave." (The ERISA Industry Committee [ERIC])
How Employers and Employees Can Help Those in Need Due to Hurricane Harvey
"[F]our types of employer-sponsored relief programs that allow employers to provide assistance on a tax-advantaged basis: [1] Charitable leave donation programs; [2] Disaster assistance leave banks; [3] Qualified disaster relief programs; [4] Employer-sponsored charitable organizations. The first program is targeted at broad-based relief to victims of disasters like Hurricane Harvey, and the last three programs are methods to assist an employer's own employees who have been directly impacted by this major disaster." (Morgan Lewis)
[Guidance Overview] Agencies Provide Guidance for Plans and Participants Affected by Hurricane Harvey
"A hardship distribution is still limited to the maximum amount permitted by IRS rules but can be provided for any hardship, not just those listed in the IRS regulations, and no post-distribution contribution restrictions are required.... Plan loans can be made without following the procedural requirements imposed by the plan at the time of the loan.... The filing date for Form 5500 filings due on or after August 23, 2017 and before January 31, 2018 is automatically extended to January 31, 2018.... The DOL requests welfare plans make reasonable accommodations for participants and beneficiaries who are unable to timely file benefit claims or make COBRA elections ... Under an emergency PTO sharing plan, employees can donate some of their PTO to a PTO bank that is administered by the employer." (Haynes and Boone, LLP)
[Guidance Overview] New York Releases Paid Family Leave Tax Guidance (PDF)
"On August 25, the New York State Department of Taxation and Finance issued guidance on the tax treatment of family leave contributions and benefits under the state's paid family leave program, which will go into effect on January 1, 2018. The guidance confirms that employee contributions should be made on an after-tax basis, and paid family leave benefits that employees receive will be taxable income. Employers should review their payroll and reporting practices to ensure compliance." (Conduent)
[Guidance Overview] Guidance Issued on Taxability of Contributions and Benefits Under New York Paid Family Leave Law
"The notice addresses several issues ... [1] Employee contributions to PFL benefit premiums will be deducted from employees' after-tax wages. [2] PFL benefits paid to employees will be taxable non-wage income that must be included in federal gross income. [3] Taxes will not automatically be withheld from benefits, but employees can request voluntary tax withholding from PFL benefits paid." (Proskauer's Law and the Workplace)
[Guidance Overview] Hurricane Harvey Deployment: Issues Surrounding Legally Protected Leave
"Any employer may receive requests for leaves related to Hurricane Harvey and the employer does not need to be in the vicinity of Houston as national guard and other first responders are being called upon to assist and employees may have relatives in the areas hit by Hurricane Harvey.... [E]mployers need to remember there are benefit continuation and benefit resumption requirements under both [FMLA and USERRA] as well as implications for when COBRA continuation coverage must be offered." (Winstead PC)
Can an Individual Supervisor Be Liable Under the FMLA?
"[T]he court observed that liability under the FMLA may attach to any 'employer,' and the statute broadly defines the term 'employer' to include 'any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.' Next, the court noted that the definition of 'employer' in the Fair Labor Standards Act (FLSA) is 'materially identical' to the definition in the FMLA. Because the U.S. Court of Appeals for the 1st Circuit ... has ruled that individual supervisors may be sued personally under the FLSA, the judge ruled that it was only logical to follow the 1st Circuit's ruling when determining individual liability under the FMLA." [Eichenholz v. Brink's Inc., No. 16-11786 (D. Mass. May 9, 2017)] (HR Daily Advisor)
[Guidance Overview] New York Paid Family Leave Law: Yes, It's Complicated
"What kinds of eligibility and notice requirements are in the NYPFL law? ... What's the difference between paid family leave and disability leave? ... What's the difference between paid family leave and paid time off? ... Paid family leave is not FMLA ... What employers should do to prepare." (Corporate Synergies)
[Guidance Overview] New York State Issues Guidance on Tax Treatment of Paid Family Leave Contributions and Benefits
"[1] Premiums are to be deducted from employee's after-tax wages. [2] Paid Family Leave Benefits paid to employees will be taxable, non-wage income that must be included in federal gross income. [3] Taxes will not automatically be withheld from benefits. Employees ... can request voluntary tax withholding ... [4] Employers should report employee contributions on an IRS Form W-2 using Box 14 -- State disability taxes withheld. [5] Paid Family Leave Benefits should be reported by the New York State Insurance Fund (NYSIF) on IRS Form 1099-G and by all other payers (either private carriers or self-insured employers) on IRS Form 1099-MISC." (Littler)
[Guidance Overview] Hurricane Harvey and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?
"FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.... However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a 'serious health condition' and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.... If your business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, these days do not count against the employee's FMLA leave entitlement." (FMLA Insights)
FMLA's Limitations Period Was a Statutory Right That Could Not Be Waived by Contract
"Refusing to dismiss a fired employee's FMLA interference and retaliation claims, a federal district court in Indiana first found that it was not barred by a six-month contractual limitations period because the longer two-year statutory period was an FMLA right that could not be waived. The court also found that the employee sufficiently pleaded her claims by alleging that she had a serious health condition, about which the employer knew, and she was fired because she had to miss too much work to receive treatment." [McKinley v. Rapid Global Business Solutions, Inc., No. 17-621 (S.D. Ind. July 26, 2017)] (Wolters Kluwer Law & Business)
Failure to Clarify FMLA Overlap with Maternity Leave Results in Triable Issue on Interference Claim
"Denying cross-motions for summary judgment on a discharged employee's FMLA interference claims, a federal district court in New York found triable issues on whether her employer's inadequate FMLA notices resulted in her inability to structure her leave for childbirth so as to successfully return to her job, particularly given her obvious confusion over whether maternity leave and FMLA ran concurrently, the employer's failure to answer her questions, and the lack of guidance in its policies." [Rengan v. FX Direct Dealer, LLC, No. 15-4137 (S.D.N.Y. Aug. 4, 2017)] (Wolters Kluwer Law & Business)
Bereavement Leave: Does One Policy Fit All?
"94.2% of all responding member organizations provide some type of paid bereavement leave, either through a separate bereavement leave policy or a paid-time off (PTO) program for their workers. Although most organizations offer at least some type of paid bereavement leave, the number of paid days away from the office varies greatly among organizations and is dependent on the employee's relationship to the deceased. Policies may not address whether the deceased was the parent of the employee's children or the ages of the children." (International Foundation of Employee Benefit Plans [IFEBP])
[Guidance Overview] New York Paid Family Leave: What Must Employers Do Now to Comply?
"Do you maintain an employee handbook? If so, the new law requires you to edit your handbook to include 'information concerning leave under PFL and employee obligations under PFL.' ... If You Do NOT maintain a handbook ... The state requires you to 'provide written guidance to each of your employees concerning all of the employee's rights and obligations under PFL, including information on how to file a claim for paid family leave.' ... Employers must decide by September 30, 2017 whether to provide PFL benefits to eligible employees through an insurance policy, the state insurance fund, or a self-insured plan.... [Y]ou must decide (if you've not already done so) whether to begin deducting premiums prior to January 1, 2018." (FMLA Insights)
Dispute Over Injured Employee's 'Resignation' Advances His FMLA Claims
"Reasoning that it was clearly disputed whether an employee voluntarily resigned while he was restricted from working due to an injured knee, a federal district court in Michigan refused to dismiss his FMLA interference and retaliation claims on summary judgment. The employee's request for time off work, coupled with a doctor's note from an occupational health physician to whom he was sent, he claimed, by his employer, were enough to create an issue of fact as to adequate notice of his request for FMLA leave." [Morrow v. AI-Cares, LLC, No. 17-10057 (E.D. Mich. July 28, 2017)] (Wolters Kluwer Law & Business)
Poorly Implemented FMLA Policies and Procedures Are Costing Employers Big-Time
"A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures: [1] Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave.... [2] When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability.... [3] Draft and maintain very clear call-in procedures, and ensure they are demanding." (FMLA Insights)
Siblings Aren't FMLA-Covered Family Members, Are They?
"There is no specific test or set of duties, responsibilities, or factors that will definitively establish an in loco parentis relationship ... There is even some difference in opinion between the drafted FMLA regulations and the [DOL's] interpretation as to whether an in loco parentis relationship requires both financial support and care, or whether one or the other is sufficient.... [A] sibling could be a covered family member if -- and that can be a big if -- an in loco parentis relationship exists between the sibling and the covered employee." (HR Daily Advisor)
Teller Fired While Using Intermittent Leave Could Not Show FMLA Retaliation
"The court found that Walker had not offered any evidence that she was terminated because she took intermittent FMLA leave. Walker did not show that there were any employees who also performed poorly but were not terminated because they had not used FMLA leave. Rather, the facts showed that she was terminated because of her performance failings." [Walker v. J.P. Morgan Chase Bank, N.A., No. 15-7911 (N.D. Ill. June 26, 2017)] (Society for Human Resource Management [SHRM])
[Guidance Overview] Chicago and Cook County Paid Sick Leave Ordinances May Apply to Your Organization
"Myth 1: Our company does not have a physical location in Chicago or Cook County, so the PSLOs do not apply to us.... Myth 2: Our company has a physical location in Cook County, but it is in a municipality that 'opted out' of the PSLO, so the PSLO does not apply to us.... Myth 3: We already have a sick leave policy that is more generous than the PSLOs require, so we don't need to make any changes to the policy.... Myth 4: We have an 'unlimited PTO' policy, so surely we are already in compliance." (Jackson Lewis P.C.)
Generous Parental Leave Policies Spreading in Law Firms
"Lawyers typically work long hours that don't leave much time for personal pursuits. When they have a baby, however, they may need to slow the pace for a while, and many firms are helping them do that with generous parental leave policies. Large law firms generally offer 16 to 18 weeks of paid leave for mothers and approximately six weeks for fathers ... Many firms also allow lawyers to add paid sick or vacation leave or unpaid leave to extend their time off." (Bloomberg BNA)
[Guidance Overview] New York Issues Final Paid Family Leave Law Regs
"[T]he final regulations [1] define 'full-time' employees as those working 20 or more hours per week, and 'part-time' employees as those working fewer than 20 hours per week.... [2] address whether use of paid time off counts towards 'consecutive weeks worked' or 'days worked' for eligibility purposes.... [3] clarify the procedure for computing the rate for weekly leave and the average daily rate for daily leave.... [4] clarify when time off taken by an employee under the [FMLA], an employer's vacation or paid time off policies, or an employer's private paid leave policies, can be counted against PFLBL paid family leave." (Littler)
Sad Dad Wants Paid Leave to Care for Newborn Lad; Employer's Leave Policy Is Not So Rad; ACLU Gets Mad
"Can an employer distinguish between moms and dads when granting paid parental leave for care for a newborn?... If a man working for an FMLA-covered employer is FMLA-eligible and requests 12 weeks of unpaid leave when a newborn enters his life, the employer's answer is almost always a definite yes. The issue in this matter is about the employer's paid leave policy." (Bradley Arant Boult Cummings LLP)
[Guidance Overview] Paid Family Leave in Washington: What You Need to Know
"The law creates a paid family and medical leave program that offers employees 12 to 18-weeks of paid time off for birth, adoption or foster placement of a child or a serious health condition of any employee or a member of an employee's family. The program is paid for by premium payments equal to 0.4 percent of an employee's wages -- with two-thirds going toward medical leave and one-third going towards family leave. While employers can elect to pay the full premium on behalf of their employees, employers are required to pay at least 37.5 percent of the premium, and may deduct the remainder from employees' paychecks." (Davis Wright Tremaine LLP)
[Guidance Overview] Prepare for the New York Paid Family Leave Law
"Although the PFLL does not take effect until January 1, 2018 and will not be fully implemented until 2021, many employers are already taking steps to prepare.... he PFLL requires covered employers to provide employees with notice of their rights under the law.... Covered employers are required to maintain Paid Family Leave insurance, funded by employee payroll deductions. An employer should work with its disability insurance carrier to ensure that it has appropriate coverage.... [H]uman resource personnel must be able to identify situations that qualify for leave, charge that leave to the applicable leave entitlement(s) and provide the employee with appropriate notice." (Thompson Hine)
[Opinion] Paid Family Leave Figures from BLS Are Misleading
"[In calculating the number of employers who provide paid family leave, the Bureau of Labor Statistics] requires paid family leave be provided 'in addition to any sick leave, vacation, personal leave, or short-term disability leave that is available to the employee.' This means that when employees take paid leave for family purposes, it doesn't count if it could have been used for another purpose. In the real world, parents with conventional benefit programs often save and pool paid personal leave, vacation, sick leave, and short-term disability in the event of a birth or adoption." (Cato Institute)
HR Director May Be Individually Liable for FMLA and Wage Violations
"A human resources director named, individually, as a defendant in a FMLA and wage lawsuit by an employee fired upon returning from medical leave, will remain on the hook in the lawsuit ... Denying the defendants' motion to dismiss, the court concluded that the plaintiff sufficiently alleged that the individual defendant had supervisory authority over her and was responsible in part for the alleged FMLA violation." [Edelman v. Source Healthcare Analytics, LLC, No. 16-6280 (E.D. Pa. July 18, 2017] (Wolters Kluwer Law & Business)
FMLA: Not Just a Large Employer Concern
"[A] smaller employer's failure to accurately communicate [FMLA] rights could lead to unintended coverage for the employee.... While not all federal appellate courts have weighed in on the application of equitable estoppel in FMLA cases, the doctrine is being argued at the district court level in every circuit. Employers should be aware of the potential for such claims and take steps to avoid them. [Some] examples illustrate scenarios where eligibility for FMLA leave may be misrepresented." (von Briesen & Roper, s.c.)
FMLA Limitations Period Is Statutory Right That Cannot Be Waived by Contract
"Refusing to dismiss a fired employee's FMLA interference and retaliation claims, a federal district court in Indiana first found that it was not barred by a six-month contractual limitations period because the longer two-year statutory period was an FMLA right that could not be waived. The court also found that the employee sufficiently pleaded her claims by alleging that she had a serious health condition, about which the employer knew, and she was fired because she had to miss too much work to receive treatment."[McKinley v. Rapid Global Business Solutions, Inc., No. 17-621 (S.D. Ind. July 26, 2017)] (Wolters Kluwer)
[Guidance Overview] Preparing for New York State's Paid Family Leave Benefits Law
"Starting January 1, 2018, eligible employees may take job-protected leave and receive PFLL wage-replacement benefits for any of the following 'family leave' purposes: [1] To bond with a new child within the first 12 months after birth, adoption or foster care placement; [2] To care for a family member with a serious health condition; [3] For qualifying exigencies arising when the employee's family member is on, or called to, active duty in the U.S. Armed Forces. Leave for an employee's own illness, however, does not qualify as a basis for paid family leave under the PFLL." (Goodwin Procter)
[Guidance Overview] DOL Essentially Erases Federal Contractor Sick Leave Benefit Provided by Obama Executive Order
"Federal contractors will soon encounter a new hybrid Health & Welfare benefit for annual Wage Determinations (WDs) issued by the [DOL] that will be challenging to apply and may result negative price adjustments under contracts subject to the Service Contract Labor Standards (SCLS).... DOL issued AAM No. 225 announcing the new H&W rate for the coming year.... DOL also issued a separate H&W rate for workers covered under the new sick leave regulations promulgated pursuant to Executive Order (EO) 13706." (Holland & Knight)
[Guidance Overview] Increase in 2017 Service Contract Act Health and Welfare Rate; Lower Rate for Contracts Covered by Federal Paid Sick Leave Executive Order
"The [DOL] has released its annual memorandum with the rate increase for Service Contract Act (SCA) Health and Welfare Fringe Benefits. The new rate of $4.41 per hour (up from the 2015-2016 rate of $4.27 per hour) is required in all government contract bids or other service contracts awarded on or after August 1, 2017." (Jackson Lewis P.C.)
Proposed New York City Council Legislation Would Add Private Right of Action to Earned Sick Time Act
"Under the new legislation, employees ... could file a civil action in any court with jurisdiction to enforce their rights under the ESTA.... The legislation also would give authority to the City's Corporation Counsel to initiate actions to correct violations of the ESTA, including to secure permanent injunctions, to enjoin certain practices, or to mandate compliance with the ESTA." (Jackson Lewis P.C.)
Second Circuit Lowers Bar for Causation in FMLA Retaliation Claims
"The Second Circuit agreed with the former employee, finding that she need only show that taking protected FMLA leave was a motivating factor in her discharge. The court found that ... deference should be given to the [DOL regulations, which] provide that FMLA leave cannot be used as a 'negative factor' in employment actions." [Woods v. START Treatment & Recovery Centers, Inc., No. 16-1318-cv (July 19, 2017)] (Ogletree Deakins)
Paid Parental Leave May Be the Idea That Transcends Politics
"In its 2018 budget, the Trump administration included a national paid leave plan for parents after the birth or adoption of a child. It's a rare call for a new entitlement program from the administration and not yet been endorsed by GOP leaders on Capitol Hill.... Opponents of such government programs don't dispute the benefits of paid leave. Instead, they argue, it's best left as a voluntary choice by businesses, which can tailor their policies to the needs of their workforces." (Kaiser Health News)
[Guidance Overview] Washington State Enacts Paid Family Leave Program
"[T][he state insurance program will provide private-sector employees up to 12 weeks of income for leave related to childbirth, a child's adoption, a relative's illness, or an employee's own health condition.... The new law also requires employers to hold the employee's job open, regardless the size of the business, until he or she returns from leave. The employer may, however, hire a temporary worker to substitute for the employee on family or medical leave." (Hunton & Williams LLP)
Second Circuit Adopts 'Motivating Factor' Causation Standard for FMLA Retaliation Claims
"The U.S. Court of Appeals for the Second Circuit recently clarified that the 'motivating factor' standard of causation applies to [FMLA] retaliation claims, instead of the 'but for' causation standard applied in Title VII and ADEA retaliation cases.... The less burdensome 'motivating factor' causation standard requires the plaintiff to show only that the action was motivated at least in part by discriminatory or retaliatory animus." [Woods v. START Treatment & Recovery Ctrs., Inc., No. 16-1318 (2d Cir. July 19, 2017)] (Epstein Becker Green)
[Guidance Overview] Final New York Paid Family Leave Regs Released: What Employers Need to Know
"Employers and employees can agree to allow the employee to supplement PFL benefits up to their full salary or wages with accrued vacation, sick, personal, or other paid time off during the paid leave, enabling him or her to receive full salary.... [D]uring any period of PFL, employers must maintain the employee's existing health benefits for the duration of PFL as if the employee had continued to work (for a plan funded by insurance, this will require an amendment to the state insurance law mandating compliant policy provisions and, arguably, would be unenforceable as preempted by ERISA for a self-insured plan)." (Jackson Lewis P.C.)
Can a Chiropractor Certify FMLA Leave for a Chronic Bad Back? Are There Limits?
"In determining whether you are required to grant FMLA leave in situations involving chiropractic care, you should confirm through medical certification: [1] Whether an x-ray of the back was taken; [2] Whether the chiropractor has found and is treating for subluxation of the spine; [3] Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave. Anything short of this is not protected by FMLA." (FMLA Insights)
[Guidance Overview] Final Regs for New York State Paid Family Leave Law Adopted
"[E]mployers are permitted to begin employee wage deductions under the PFLL at any time between now and January 1, 2018, when paid family leave (PFL) benefits become available to eligible employees.... The final regulations include amendments to Section 380-2.5(c), addressing how to compute an employee's benefit rate for purposes of PFL taken in single-day increments ... [D]uring the first year of PFLL implementation in 2018, the 52-week 'look back' period will extend back into 2017." (Proskauer's Law and the Workplace)
When Switching to Unlimited PTO, Coordinate with FMLA
"When switching to unlimited paid time off (PTO) for the C-suite, employers should consider their [FMLA] obligations to ensure that FMLA time off, which is typically unpaid, doesn't become 12 weeks of paid leave, management attorneys recommend. And before unlimited PTO takes effect, employers should decide whether to pay out remaining accrued leave or offer a grace period during which employees can use that accrued leave." (Society for Human Resource Management [SHRM])
[Guidance Overview] Washington Becomes Fifth State with Paid Family Leave
"On July 5, Washington joined four other states and the District of Columbia in providing a paid family leave benefit. Under the state's new insurance program, workers will be eligible for up to 12 weeks of paid family or medical leave per year starting in 2020. Employer and employee contributions will fund the benefit, but businesses with fewer than 50 employees in the state will not be required to pay the employer portion. Employers should begin planning to integrate the new entitlement into their current leave programs and payroll practices." (Conduent)
[Guidance Overview] New York Employers: Get Ready for Mandatory Paid Family Leave
"Effective January 1, 2018, employers that provide Disability Benefits Law coverage to New York-based employees will also be required to provide Paid Family Leave coverage.... The PFL will be phased in over the next four years, with the duration and amount of the paid leave benefit increasing each year ... What employers need to know right now: Does the new law apply to my company?.... Are all employees eligible for this leave? ... Who pays for PFL benefits? ... When should I begin collecting deductions?" (Blank Rome LLP)
[Guidance Overview] Employer Considerations in Light of Arizona's New Paid Sick Time Law
"[1] Counting employees to determine employer size.... [2] Year one prorating accrual and use.... [3] PST use increments.... [4] Designating leave as PST without employee's request.... [5] PST use cannot count towards attendance policy.... [6] Reporting requirements -- paychecks.... [7] Carryover versus payout at year end.... [8] Calculating hourly rate for PST payout.... [9] Using a general PTO policy to comply with the PST law.... [10] Multistate employers." (Littler)

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