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Benefits in the News > By Subject >

Family and medical leave, incl. FMLA

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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)
Oregon Clarifies Paid Sick Leave Law
"Foremost among the changes was the addition of language in the statute that permits employers to limit the accrual of paid or unpaid sick time of their employees to 40 hours per year.... This change brings greater clarity to the law and its application for employers following the 'accrual' method of calculating time for their employees." (Littler)
New York Sets Paid Family Leave Contribution Rate
"[F]or those employees earning less than the New York average weekly wage, the contribution will be 0.126% of the weekly income they earn. For those earning more than the New York average weekly wage, the contribution amount will be capped at 0.126% of that state average weekly wage. Currently, the New York average weekly wage is set at $1,305.92. So ... the maximum contribution rate ... is $1.65 per week per employee." (Corporate Synergies)
[Guidance Overview] Washington Becomes Fifth State to Guarantee Paid Family Leave
"Employees are eligible under the law if they have worked at least 820 hours during what the law defines as a 'qualifying period,' or the first four of the last five completed calendar quarters or, if eligibility is not established, the last four completed calendar quarters immediately preceding an employee's application for leave.... Both employers and employees will pay into the state program based on percentages of the employee's wages and the state's weekly average wage." (Dorsey & Whitney LLP)
Beware: Cat's Paw May Shred Your Defense of Employees' FMLA Claims
"A decision maker weighing an adverse action against an employee should be wary of relying too heavily on the mere insights of a subordinate supervisor. In the end, the subordinate may be biased. While the decision maker may eventually decide that adverse action is warranted, he must be able to show that the decision was made at the conclusion of a thorough, unbiased investigation and wasn't merely the product of a subordinate's influence. Otherwise, the employer may be on the hook for liability." [Marshall v. Rawlings Co. LLC, No. 16-5614 (6th Cir., Apr. 20, 2017)] (HRDailyAdvisor)
[Guidance Overview] Things You Want (and Need) to Know About New York's Paid Family Leave Law
"Although employers are required to provide PFL benefits to eligible employees, employers are not required to pay anything towards the cost of those benefits. Paid family leave is intended to be 100% employee-funded.... With only one exception, all employees are required to contribute to the cost of PFL and must have the appropriate amounts deducted from their pay -- even if they have not yet been employed long enough to themselves be entitled to benefits under the PFL. The only exception to this is for employees (such as seasonal and temporary employees) who are hired for shorter periods of time than is necessary for them to be eligible to receive PFL benefits." (Bond, Schoeneck & King)
[Guidance Overview] Georgia's New Kin Care Law: Who is Covered and What It Means for Employers
"[If] the employer provides paid sick leave for the employee to use for her or his own illness, now the employer must allow that employee to use the employee's sick leave to care for an immediate family member. Moreover, an employee can only use sick leave that the employee has already accrued, and sick leave must be used in accordance with employer's sick leave policy." (Ford & Harrison LLP)
[Guidance Overview] New York Paid Family Leave Law Contributions Have Started, While Proposed Regs Are Revised
"The definition of 'wages' was amended to explicitly provide that tips be included in the average weekly wage calculation.... The eligibility criteria have been amended to account for employees with compressed work schedules ... The proposed regulations have [also] been amended to [1] explicitly permit employees that will be employed for fewer than 26 consecutive weeks or 175 days in a 52 week period to waive coverage.... [2] include language to require that insurance carriers specifically state the basis of a denial of a request for paid family leave.... [3] clarify that an employee using intermittent leave must give the employer separate notice for each day of paid family leave." (Mintz Levin)
[Guidance Overview] State of Washington Enacts Paid Family and Medical Leave Law
"The new law will provide eligible workers with up to 12 weeks per year of paid medical leave for an employee's own serious health condition, as well as 12 weeks per year of paid leave for family care purposes... If an employee has a need for both medical and family care leave during the same 52-week period, the employee's total leave allotment will be capped at 16 weeks.... [F]emale employees who experience complications relating to pregnancy will be eligible to receive two additional weeks of leave, for a possible 18 weeks total per year." (Proskauer's Law and the Workplace)
[Guidance Overview] Washington State Approves Paid Family and Medical Leave: What Employers Need to Know
"The new paid leave program provides benefits of up to 90 percent of the employee's income and matches Washington, D.C., in providing the highest percentage of income benefit of any state or district in the United States. The key aspects of this new paid family and medical leave law are [outlined in this article]." (Ogletree Deakins)
Error to Hold That Benign Mass on Foot Could Not Be FMLA 'Serious Health Condition'
"Post-operative appointments for wound care constituted 'continuing treatment' of an employee's benign growth on her foot... [T]he appeals court also found that her employer failed to prove her condition did not involve at least three consecutive days of incapacity absent medical treatment. The fact that she worked until the day of her surgery was not dispositive because she and her doctor viewed the condition as worsening." [Pollard v. The New York Methodist Hospital, No. 15-3231 (2d Cir. June 30, 2017)] (Wolters Kluwer)
[Guidance Overview] Think Your PTO Policy Complies With the Chicago or Cook County Paid Sick Leave Ordinances?
"Based on 'safe harbor' provisions in both Ordinances, many employers are assuming that their Paid Time Off (PTO) policies are sufficient -- as written -- to comply with these new PSL obligations. However, a careful reading of the Ordinances and their respective rules leads to the inescapable conclusion that almost no traditional PTO policy satisfies the Ordinances' burdensome and somewhat complex requirements." (Bryan Cave LLP)
11th Circuit Reminds Employers: Proceed Cautiously When Terminating Employees Shortly After FMLA Leave
"While employees who have recently taken leave may be terminated for legitimate reasons, establishing a non-retaliatory termination can be challenging. The timing of the termination alone can support causation, and even a well thought-out and justified termination may raise issues of fact that would prevent quick resolution in court." [Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142 (11th Cir. Apr. 19, 2017)] (Seyfarth Shaw LLP)
[Guidance Overview] Arizona Issues 18 New Pages of Paid Sick Leave FAQs: Highlights for Employers
"Some of the FAQs merely restate the draft regulations, while others provide useful examples helping to give color to draft supplemental regulations recently issued. These include examples of how to calculate 'same hourly rate' for various employee groups and notations that a commissioned employee's acknowledgement of a handbook policy, setting forth the hourly rate, is sufficient to set the 'same hourly rate.' Still other FAQs answer questions you never knew you had -- including whether employees may take paid sick leave (PSL) to care for their service animals when they're sick. Spoiler alert: The ICA says 'no.' " (Ogletree Deakins)
[Guidance Overview] New York Employers Can Begin Payroll Deductions for Paid Family Leave as of July 1
"[B]eginning July 1, 2017, employers may begin making deductions from employee payroll to fund PFL benefits and related insurance premiums. Because PFL benefits will be funded exclusively through employee contributions, the goal is to ensure that there will be a sufficient pool of funds collected to begin to provide PFL benefits by the effective date of January 1, 2018." (Chiesa Shahinian & Giantomasi PC)
[Guidance Overview] Nevada Mandates Employer Provided Leave and Accommodations for Victims of Domestic Violence
"The Act amends Chapter 608 of the Nevada Revised Statutes to require Nevada employers to provide leave to employees who are victims of domestic violence, or whose family or household members are victims of domestic violence. The Act also imposes certain record keeping requirements on Nevada employers regarding domestic violence leave." (Littler)
[Guidance Overview] Chicago Issues Final Paid Sick Leave Rules While Suburbs Continue to Opt Out of Cook County Sick Leave Ordinance
"Employers should also be aware of the growing list of municipalities in Cook County -- at last count, some 93 out of the 134 in Cook County -- that have affirmatively opted out of the County's sick leave ordinance, ostensibly due to the fact that the ordinance increases the cost of doing business within the County's boundaries. Like the Chicago Paid Sick Leave Ordinance, the Cook County Earned Sick Leave Ordinance takes effect on July 1." (Ogletree Deakins)
[Opinion] N.J. Governor Must Veto Paid Family Leave Expansion
"Assembly Bill 4927 would alter the state's paid family leave laws that have been in effect since 2009. The current law allows employees to receive paid leave benefits to care for a child, parent, or spouse, mirroring the definition of 'family member' under FMLA, which has been applied uniformly and consistently to all 50 states. The proposed bill would add siblings, parents-in-law, grandparents, and grandchildren to the state's definition of a 'family member.' " (The ERISA Industry Committee [ERIC])
[Guidance Overview] Arizona Agency Issues Supplemental Draft Regulations on Paid Sick Leave
"The biggest developments are for employers who frontload paid sick time (PST) or equivalent paid time off (PTO) for the same purpose and under the same conditions as PST. Employers who frontload PST are allowed to prorate the annual PST frontloaded amount if it meets or exceeds the employer's 'reasonable projection' of the amount of PST the employee would earn in the rest of that year at the statutorily required rate of 1 hour PST accrued for every 30 worked.... If the employer's reasonable projection turns out to be off, the employer is afforded the opportunity to (and must) true up the accrual." (Ogletree Deakins)
[Guidance Overview] A Detailed Description of New York State Paid Family Leave (PDF)
11 pages. "On June 1, 2017, the NYS Department of Financial Services announced that the weekly employee deduction rate would be a percent of salary. The payroll deduction paid by an employee will depend on how much an employee earns ... Employers may be able to continue to deduct the employee contribution when an employee is receiving benefits ... Eligibility is redefined in the revised proposed regulations ... Employees with multiple covered employers are not required to take PFL from each covered employer during a single period of PFL." (Arthur J. Gallagher & Co.)
[Guidance Overview] Guide for the Illinois Employee Sick Leave Act (PDF)
"The Illinois Employee Sick Leave Act does not require employers to provide sick leave to their employees. It does mandate for employers who do offer a sick leave policy to allow employees to take such leave for absences due to the illness, injury, or medical appointment of the employee's child, step-child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, stepparent or domestic partner. There is very little difference between the Cook County Paid Sick Leave Law and the Chicago Paid Sick Leave Ordinance." (Arthur J. Gallagher & Co.)
[Guidance Overview] Georgia's New Paid Sick Leave Law
"This new law takes effect on July 1, 2017.... Unlike other states with paid sick leave laws, Georgia's statute does not obligate employers to provide sick days. The law only requires that if an employer already provides workers with paid sick leave, then that employer is also required to allow employees to use a certain amount of their leave allowance to care for immediate family members.... Covered employers must allow eligible employees to use up to five days of paid sick leave for the care of an immediate family member." (Ogletree Deakins)
DOL Will Again Issue Opinion Letters on FMLA, FLSA, and Other Sticky Employment Law Scenarios
"As you may recall, the Obama Administration did away with opinion letters, replacing them with a mysterious, bureaucratic process in which it infrequently published 'Administrator Interpretations,' which frankly, consisted of more political mumbo jumbo on mundane, tangential topics than practical guidance for employers. Though opinion letters were limited in nature, they addressed real life situations and provided some reasonable guidance on which employers could rely in addressing day-to-day FMLA and other employment law issues." (FMLA Insights)
DOL Reinstates Wage and Hour Opinion Letters
"The [DOL] will reinstate the issuance of opinion letters, U.S. Secretary of Labor Alexander Acosta announced [on June 27]. The action allows the department's Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.... The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010." [Editor's note: duties of the Wage and Hour Division include enforcement of FMLA rules.] (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Guidance Overview] Cook County, Illinois, Issues Final Paid Sick Leave Regulations
"Although the final regulations are similar to the draft regulations, they differ in notable ways.... [S]ince the draft regulations were published, a number of additional municipalities have opted out of the Ordinance.... [T]he Commission also has issued a model posting/notice to employees regarding their right to earn and use paid sick leave, as contemplated by the Ordinance." (Jackson Lewis P.C.)
Paid Leave Wars: The Battles Intensify
"With no national standard, states and cities are rolling out paid leave mandates at a dizzying pace. This presents daunting compliance challenges for employers with employees in multiple jurisdictions.... Five states -- Connecticut, California, Massachusetts, Oregon and Vermont -- currently require private sector employers to provide paid sick leave to their employees, but several states have recently enacted new laws and many cities and counties have adopted their own requirements.... Some states are pushing back to bar cities from passing paid leave laws. For example, Minnesota and Pennsylvania are considering these types of laws." (Fox Rothschild LLP)
Washington State Poised to Pass Expansive Paid Family and Medical Leave Bill
"[The legislation] would mandate employers to enroll employees in a state program giving new parents or those taking care of an ailing family member twelve weeks of paid time off. To fund the benefit, employers with over 50 employees and all employees would pay premiums on payroll taxes ... Other key elements of the proposed legislation reportedly include: [1] A path for an employer to opt out if already offering paid leave; [2] Portability for employees; and [3] A weekly benefit cap of $1,000, with benefits for those making less than the state's average wage receiving 90 percent of their weekly wage." (HR Policy Association)
There's No Crying at Work! But If an Employee Does Cry, Is That Sufficient Notice of the Need for FMLA Leave?j
"Noting that that the FMLA notice requirement for employees is 'not demanding,' the court found that the employee herself may not even be aware she is suffering from a serious health condition.... The 'notice' here is not just the crying.... If all she did was cry, as strange as that might have been, it would have difficult for Noemi to establish that she put the employer on notice of the need for FMLA leave. However, she didn't stop there. She also made clear that she was 'confused and overwhelmed, had not slept or eaten in weeks, and was losing weight.' " [Valdivia v. Township High School Dist. 214, No. 16-10333 (N.D. Ill. May 15, 2017)] (FMLA Insights)
[Guidance Overview] Chicago and Cook County Paid Sick Leave Ordinances Revised (PDF)
"Chicago's draft rules provide that if an employer's benefit year begins after an employee's start date, the employer shall allow the employee to carry over all of the accrued paid sick leave, up to 20 hours, to the benefit year. Cook County's rules provide two possible ways to move an employee to a different accrual period than based on an anniversary.... Employers in both jurisdictions who already provide time off for employees may not have to provide separate PSL in certain circumstances." (Ford & Harrison LLP)
Fourth Circuit Finds City, Not Staffing Agency, to Be Employer for FMLA Purposes
"The court commented that the employee's allegations showed that the city exercised significant control over her employment and, as such, that it could be her primary employer.... The court also noted that, even if the city were found to be the employee's secondary employer, it could still be liable for FMLA violations." [Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017)] (The Wagner Law Group)
[Guidance Overview] A Close Look at New York's New Paid Family Leave Law
"Which employers are covered? ... Which employees are eligible for PFL? ... What can PFL be used for? ... How are payroll deductions calculated? ... Are employees required to provide notice before taking PFL?.... Can PFL benefits be coordinated with other leave laws? ... Can PFL benefits be coordinated with an employers' existing policies? ... Does PFL leave require the employer to hold the employee's job? ... What should employers in NY do now? ... What must employers do once the NYPFL Law takes effect?" (Davis Wright Tremaine LLP)
Father's EEOC Charge Challenges Disparity in J.P. Morgan's Paid Parental Leave Policy
"The complainant is the father of two young children, including a two-year old and a newborn just nine days old ... [He] contends that J.P. Morgan discriminates against men by designating biological mothers as the default primary caregivers, eligible for 16 weeks of paid parental leave, while presumptively considering fathers to be non-primary caretakers, who are eligible for just two weeks of paid parental leave." (Wolters Kluwer)
[Guidance Overview] Arizona Mandatory Paid Sick Leave Update: Can We Use Our Old PTO System?
"As Arizona employers prepare for the imminent July 1 effective date of Arizona's first mandatory paid sick time law (The Fair Wages and Healthy Families Act), one of the questions that we get most frequently is, 'If we have a Paid Time Off, do we need to have a separate policy for paid sick time?' The answer is: Possibly not, but you still might want to." (Bryan Cave LLP)
FMLA Abuse: Serving Jail Time, Moonlighting, Vacationing and More
"People who abuse the Family and Medical Leave Act (FMLA) do so for a variety of off-the-wall reasons: to serve a jail sentence, attend a criminal court hearing, travel to exotic locations, go fishing or build a family business, for example. But even if the fraudulent conduct is outrageous, whether an employer prevails in an FMLA leave abuse case often depends on whether it has conducted an exhaustive investigation[.]" (Society for Human Resource Management [SHRM])
[Guidance Overview] Arizona's Paid Sick Day Law
"If an employer's current paid sick leave is in excess of these requirements, it need not change company policy. Attention should be directed to the specific requirements including accrual and carry over ... The new law requires employers to keep employees up-to-date on the amount of earned paid sick time available, the amount of earned paid sick time taken to date in the year and the amount of pay received as earned paid sick time. These figures must be part of, or attached to, the employees' regular paychecks." (Dickinson Wright PLLC)
[Guidance Overview] Arizona's Paid Sick Leave Law: Record-Keeping, Shifting Employment Relationships, and Tips for Drafting Policies
"Employers should be cautious not to impose unreasonable temporal requirements on notice required for PST, especially on unforeseen PST usage.... [E]mployers generally cannot restrict how an employee provides notice of an upcoming leave covered under the Act.... [O]ne key remaining unanswered question is whether an employer may use a combined PST/PTO policy without separately tracking PST hours and pay on the employee's pay stub.... [F]or businesses contemplating purchasing the assets of another business and hiring at least some of the predecessor's employees, those buyers should keep in mind that an asset purchase alone will not necessarily insulate the purchaser from the Act's successor liability[.]" (Ogletree Deakins)
Joint Employment and the FMLA: Which Employer is Responsible?
"When a staffing agency and a client both exercise control over an employee, the staffing agency is usually considered the primary employer for [FMLA] purposes... As [the city of] Alexandria found out, merely having 'secondary employer' status does not absolve an employer of its FMLA responsibilities. The DOL's regulations set out specific requirements for both the primary and secondary employer in a joint employment relationship, which it says exists when two employers exercise some control over the work or working conditions of the employee." [Quintana v. City of Alexandria, No. 16-1630 (4th Cir., June 6, 2017)] (HRDailyAdvisor)
[Guidance Overview] Arizona's Paid Sick Leave Law: The 'Same Hourly Rate,' Attendance, and Coverage Questions
"The [Industrial Commission of Arizona (ICA)] recognized that incentive compensation schemes, shift differentials, and premiums meant to compensate employees for work performed under differing conditions (e.g., the night shift), as well as exempt salaried employees, pose difficulties for employers seeking to provide paid sick time off at the 'same hourly rate.' Therefore, the ICA has proposed regulations that apply [four] methods for determining same hourly rates for PST ... Although ICA has not elaborated on what is meant by 'with the same benefits, including health care benefits,' informally ICA indicates that a PST day off should be treated the same as a day worked for purposes of healthcare insurance benefits accruals." (Ogletree Deakins)
[Guidance Overview] Are Employers Ready for Arizona's New Paid Sick Leave Law?
"[Key] aspects of this new law that Arizona employers should know: [1] How much earned paid sick leave must be provided by an employer? ... [2] How can employees use paid sick leave? ... [3] What happens to the earned paid sick time when an employee resigns or is terminated? ... [4] What if the employer already provides Paid Time Off, isn't that enough? ... [5] For an employer that operates in locations both within Arizona and outside it, if the employer complies with Arizona sick leave requirements, is it in compliance everywhere else?" (Greenberg Traurig)
Minneapolis and Saint Paul Sick Leave Ordinances Become Effective July 1
"The Minneapolis and Saint Paul sick and safe time ordinances will be enforced only against employers residing within the respective cities -- at least for now. The Hennepin County District Court's temporary injunction prohibiting the city of Minneapolis from enforcing its ordinance against employers residing outside of the city is on appeal, with oral argument scheduled for July 11. The city of Saint Paul has confirmed that it would enforce its ordinance only against employers physically located within the city." (Society for Human Resource Management [SHRM])
[Guidance Overview] Arizona's Paid Sick Leave Law: Accrual and Usage Issues
"One of the Act's more significant anomalies is its apparent requirement that all unused accrued paid sick time be carried forward to the following benefit year (unless the employer 'buys back' unused PST at the end of the benefit year). This apparent unlimited carryover requirement is at odds with the Act's clear limitation on maximum usage hours, which are capped at 40 per year (24 for small employers), unless the employer opts to allow more usage. Fortunately, the ICA has addressed this issue and prepared both a FAQ and a proposed regulation (R20-5-1206(F)) that caps annual mandatory carryover at 40 hours from one benefit year to the next." (Ogletree Deakins)
Nurse Fired for Violating Dual Employment Policy While on Extended Leave Can't Advance FMLA Claims
"A nurse who was granted extended medical leave after her FMLA leave expired but was discharged when the hospital learned that she violated the leave policy's prohibition against dual employment by working elsewhere without permission failed to defeat summary judgment on her FMLA interference and retaliation claims. A federal court in Maryland determined that the hospital's denial of light duty did not constitute FMLA interference, she could not have reasonably considered herself to have been terminated at that point, and she failed to present evidence suggesting the decision to fire her due to her dual employment while on leave was pretextual." [Ibewuike v. Johns Hopkins Hospital, No. 15-1630 (D. Md. May 17, 2017)] (Wolters Kluwer Law & Business)
[Guidance Overview] Cook County, Illinois Publishes Final Rules for Sick Leave Ordinance
"On July 1, 2017, the Cook County Earned Sick Leave Ordinance goes into effect.... Employers with at least one covered employee and who have at least one place of business within Cook County are covered by the Ordinance ... The Ordinance covers employees who work within Cook County for at least 2 hours within any two-week period ... The Ordinance is not limited to full-time employees, but also covers part-time, temporary, seasonal, occasional, or long-term employees, and covered existing, new, and re-hired employees." (Littler)
[Guidance Overview] Intermittent Leave Under the FMLA: The Basics
"Employers should ask the employee questions designed to determine whether the employee's request is one that would be FMLA-qualifying. Don't ignore an employee's seemingly simple or routine requests for time off.... If the request is for foreseeable leave, the employer should communicate with the employee about how it will consider the request pending the receipt of a medical certification and further investigation. Employers have a right to request a medical certification and should exercise that right.... [E]mployers should be mindful of the fact that the FMLA does not exist in a vacuum and that they are responsible for identifying all laws that apply to an employee's request for medical leave." (Mintz Levin)
[Opinion] Paid Family and Medical Leave: The Time Has Come (PDF)
48 pages. "There is little or no disagreement in [this] working group that the time for the US to adopt such a policy has come.... It is in the spirit of compromise that we offer a plan ... that could help move the US forward on this issue.... Its key elements are benefits available to both mothers and fathers, a wage-replacement rate of 70 percent up to a cap of $600 per week for eight weeks, and job protection for those who take leave. It would be financed in part by a payroll tax on employees and in part by savings in other parts of the budget. Because too little is known about how this might work in practice, we called for an independent study of the consequences." (AEI-Brookings Working Group on Paid Family Leave)
[Guidance Overview] Is Your California Public Agency Aware of These Lesser-Known Job-Protected Leaves?
"Many public agencies are familiar with the well-known reasons why an employee can take time off of work, such as for paid sick leave, family and medical leave, disability or industrial injury leave, and jury duty leave. However, in California, there are a few 'lesser-known' leaves that often get overlooked. These leaves include School Activities Leave; Leave for Victims of Domestic Violence, Sexual Assault and Stalking; and Leave to Perform Emergency Duties or Attend Related Training." (Liebert Cassidy Whitmore)
[Guidance Overview] New York Issues Updated Regs to Paid Family Leave Benefits Law (PDF)
"While the Updated Regulations remove the terms 'full-time employee' and 'part-time employee,' they otherwise maintain the concepts.... The Updated Regulations clarify that the optional waiver, whereby employees may elect to not provide weekly contributions, is available for an employee whose regular work schedule never achieves 26 weeks or 175 days in a 52-consecutive-week period ... The Updated Regulations clarify that if an employee is eligible for leave under both the federal FMLA and the PFLBL, but the employee declines to apply for PFL payments under the law, employers may still designate the leave as both FMLA and PFL." (Epstein Becker Green)
[Opinion] ERIC Comment Letter to Arizona Industrial Commission Regarding Proposed Rulemaking on Paid Sick Leave (PDF)
"ERIC respectfully requests that the Proposed Amendments to Article 12 be modified to allow for ... mandating carryover only in instances where the employer does not frontload sick leave. This alternative serves the underlying purpose of the Act, but does so in a way that provides optimum benefits to the employee without burdening employers.... [T]he Proposed Amendments must make clear the types of policies that are covered (e.g. unlimited paid sick leave, unlimited PTO, universal PTO banks, etc.), and whether employers with sufficient policies are exempt from the Act and relevant aspects of Article 12 or whether the exemption is simply applicable to the leave afforded to each employee." (The ERISA Industry Committee [ERIC])
Employers Would Likely Foot the Bill for Trump's Parental Leave Plan
"According to Trump's proposal, the program would use the UI system as a base and expenses would be offset by reforms to that system. Those changes include reducing improper payments, helping unemployed workers find jobs more quickly, and -- most notably -- encouraging states 'to maintain reserves in their Unemployment Trust Fund accounts.' ... [A]ccording to the U.S. [DOL], many states depleted those trust funds during the recession.... To resolve that issue and also be able to take on new claimants, the administration would require states to increase their UI payroll taxes ... [In] most states, those taxes are paid solely by employers." (HRDailyAdvisor)
Tenth Circuit Determines Employer Not Required to Repeatedly Notify Employee of FMLA Rights
"[T]he Tenth Circuit acknowledged that if an employer 'is on notice that an employee might qualify for FMLA benefits, the employer has a duty to notify the employee that FMLA coverage may apply.' ... [T]he court determined that because the employee had already requested and received FMLA leave multiple times during her tenure with the employer, she was already aware of her FMLA rights." [Branham v. Delta Airlines, No. 16-4092 (10th Cir. Feb. 3, 2017)] (The Wagner Law Group)
[Guidance Overview] Update on the Cook County and Chicago Paid Sick Leave Laws
"There are inconsistencies between the final County regulations and draft City regulations ... [including] how the frontloading of paid sick leave for FMLA-covered employers should be calculated as well as the rounding up of carried-over sick leave under the two ordinances. Employers should also be aware of the growing list of municipalities in Cook County that have affirmatively opted out of the sick leave ordinance, ostensibly due to the fact that the ordinance increases the cost of companies to do business within their boundaries." (Ogletree Deakins)
[Guidance Overview] New York to Offer Paid Family Leave in 2018; DC Law to Take Effect in 2019
"New York is set to become the fourth state [to offer paid family and medical leave] effective January 1, 2018. The program will be phased in over a four-year period and will be funded by an employee payroll deduction estimated to be between $.45 to $1.00 per week. While the payroll deduction is scheduled to begin July 1, 2017 in advance of the law taking effect, the State Superintendent of Financial Services has not yet released the maximum employee contribution." (ABD Insurance & Financial Services)
[Guidance Overview] Arizona's Paid Sick Leave Law: New Guidance from the Industrial Commission
"[T]he Act requires that employers provide all Arizona employees with paid sick time starting July 1, 2017.... [An] employer's non-Arizona employees [are not included] in an employer's total employee count for earned paid sick time purposes.... shall be included when computing an employee's hourly rate.... [E]arned paid sick time shall be carried over to the following year, subject to usage limitations based on employer size." (Snell & Wilmer)

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