(Answers below)

Answer True or False

1. Pregnant employees must begin taking FMLA leave not later than 30 days before their due date.

2. If you decide a pregnant employee cannot continue in her job because her condition presents a safety hazard to herself and others, you must have a doctor’s approval before you can prevent the employee from doing the job.

3. If you decide a pregnant employee is physically unable to perform the major tasks of a job (for instance, lifting or climbing), the law states you must provide that employee with another job that is less strenuous but carries the same pay and benefits.

Answers:

1. False. There is no set time period when a pregnant employee must begin taking FMLA leave. Generally, leave commences at a date of the employee’s choosing. The law does mention that, when able, employees should give their employer at least 30 days’ notice of the intent to take leave, but that time period is just a recommendation and doesn’t apply to all situations..

2. False. A supervisor or other member of management can make the call on whether a pregnant employee presents a safety hazard. A doctor’s agreement isn’t needed.

3. False. Under federal disability regs, you are only required to make a reasonable and practical effort to provide an alternative position, but not necessarily at the same pay. In some states, if the employee is unable to do the job, she’s eligible for short-term disability payments.

A new fact sheet from the Department of Labor (DOL) spells out some important guidelines:

1. Leave taken by an employee who wants to avoid exposure to the flu isn’t protected under the FMLA. Employers should encourage people who are ill with pandemic influenza or are exposed to ill family members to stay home, and should consider flexible leave policies for their employees in these circumstances.

2. When schools are closed because of pandemic influenza, parents who must stay home to care for their healthy children aren’t covered by FMLA. There’s no federal law covering employees who take off from work to care for healthy children. Employers aren’t required by federal law to provide leave to those caring for healthy dependents who’ve been dismissed from school or child care. That said, given the potential for significant illness, employers should review their leave policies to consider providing increased flexibility to their employees and their families. (Remember, though, federal law says flexible leave policies can’t discriminate because of race, color, sex, national origin, retaliation, age, disability or veteran status. Policies must be applied equally.)

3. If employees can’t come to work because they have to take care of sick family members, in limited instances employers may be able to lay them off. If a worker is covered and eligible under the FMLA and has to care for a family member with a serious health condition, then he or she is entitled to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states have similar family leave laws. However, people can be laid off if they’re not covered and eligible for FMLA leave – but the DOL encourages employers to:

a. consider other options, such as telecommuting, and

b. prepare an action plan specific to that particular workplace.

4. If a company sets a policy requiring employees to go home sick when they show symptoms of pandemic influenza, that time off could qualify as FMLA-protected leave. It’s important to set an action plan specific to your workplace – including giving the firm permission to send employees home. (Just be sure the policies aren’t discriminatory). This required leave would be covered under the FMLA if employees work for a covered employer and they’ve:

a. worked for the company for at least 12 months

b. worked for at least 1,250 hours over the previous 12 months, and

c. work at a location where at least 50 employees are employed by the firm within 75 miles.

Question:
We recently were advised we’re allowed to deny leave under the Family and Medical Leave Act to the highest-paid workers in our company. Is that true? If so, under what authority?

Answer:
You’re probably thinking about the so-called key-employee exception to the FMLA, says litigation expert Denise Drake. But no, you’re not allowed to deny them FMLA leave.

The exception says that key employees who are in the top 10% of the company and who take FMLA leave do not have an automatic guarantee to job restoration. The reason? It’s harder for a company to lose top-level people, hold their jobs open and sustain business until they return.

If  any of your top-paid workers request FMLA leave, advise them they are key employees and that you may fill their position before they return. But you can’t deny them leave.

The Department of Labor has issued final regs clarifying when time off does — and doesn’t — qualify under the Family Medical Leave Act (FMLA).

Tracking leave is especially important now as employees are bound to take time off for many reasons around the holidays — it could lead to trouble if they feel their time off wasn’t calculated properly and they were given less FMLA than they deserve.

Here are two areas of great concern and what’s allowed:

Leave around holidays

Whether you can count holidays toward someone’s FMLA entitlement depends on the type of leave the person takes.

Example: The hours the employee doesn’t work on the holiday will count against the leave entitlement — if he or she would normally be scheduled to work that day.

But the hours the employee didn’t work on the holiday can’t be counted against his or her leave requirement if the person wouldn’t have otherwise been required to work on that day.

Intermittent leave and OT

If an employee would’ve been required to work OT — if it weren’t for taking FMLA — then the hours the person would’ve worked (but didn’t) may be counted against his or her FMLA entitlement.

Example: Say an employee has a serious health condition that limits his normal 48-hour workweek to 40. He’d have to take 10 hours of FMLA-protected time off for the week.

Here’s where good companies run into trouble. They –

• Work short-handed while employees are out sick

• Shut their doors because viruses like H1N1 prevent people coming to work, or

• Send everyone home to telework in an attempt to prevent illnesses from spreading.

Whatever plans your company makes to continue operations could inadvertently cause it to run afoul of the Fair Labor Standards Act. To ensure you remain in compliance, follow the U.S. Department of Labor guidelines:

1. Employers aren’t obligated to pay hourly workers who put in a partial week when the business is closed. The FLSA generally applies to hours actually worked – and it doesn’t require employers who are unable to provide work to nonexempt employees to pay them for hours people would’ve otherwise worked.

2. People can do work that’s outside their job descriptions. It’s OK to require those reporting for duty to pick up some of their ill colleagues’ responsibilities. The FLSA doesn’t limit the types of work employees age 18 and older may be required to perform. That’s true even if the work isn’t listed on the employee’s job description.

3. Companies may require employees to telework as an infection-control strategy when there are pandemic conditions. Telework may also be a reasonable accommodation. Just be careful HR doesn’t single out employees to either telework or continue reporting to the workplace for reasons prohibited by any of the EEOC rules. Remember, too, that workers must be paid their same hourly rate or salary if they work from home. Under the FLSA, employers generally have to pay people only for the hours they actually work, whether at home or at the worksite. However, the FLSA requires employers to pay nonexempt workers at least the minimum wage for all hours worked, and at least time and one-half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain exceptions.

4. Employees who are required to work from home (because the workplace has shut down) but can’t, don’t have to be paid. The FLSA only requires employers to pay people for the hours they actually work, whether they’re at home or the worksite – that’s minimum wage (or more) for nonexempt employees. Salaried exempt employees must be paid their full salary in any week in which they perform any work, but for a few exceptions. Note: DOL encourages employers to consider additional options to promote “social distancing,” such as adding staggered work shifts.

5. Letting employees “volunteer” to help out during a personnel shortage could cause trouble. While that’s a nice gesture, the FLSA has stringent requirements on when you can and can’t allow people to volunteer time. Generally, covered, nonexempt employees working for private, for-profit employers have to be paid at least the minimum wage, and can’t volunteer their services. Check with the Department of Labor for the rules when volunteering in the public and private, nonprofit private sectors may be allowed.

Different approach from the government
New proposed legislation would allow the sick to stay home on the employer’s dime (which, admittedly, could also prevent the spread of illness). Here are specifics from two bills under consideration by Congress, each of which would add a layer of worker protection:

- HR 3991, Emergency Influenza Containment Act – Legislation introduced by Rep. George Miller (D-CA) would guarantee five paid sick days for anyone sent home or told to stay home by their employer because they have a contagious disease (e.g., H1N1 virus). It also protects those taking advantage of the sick time from being fired, disciplined or retaliated against for their decision. Anyone needing more than the five sick days could continue staying home under the Family and Medical Leave Act, if applicable. The legislation would apply to employers with 15 or more employees that currently don’t provide at least five days of sick leave.

- SB 1152, The Healthy Families Act – This bill would require employers with more than 15 employees to give anyone putting in more than 20 workweeks annually up to seven days of paid sick days each year. The time could be used for their own or a family member’s illness, or for preventative care such as a doctor’s office visit. Other versions of this bill, which was introduced earlier this year by Rep. Rosa DeLauro (D-CT) and Sen. Edward Kennedy (D-MA), made the rounds in 2005 and 2007.

Here’s what happened:

A steel mill worker in Arkansas had been demoted after having four unexcused absences for drunkenness.

The man filed suit, claiming his employer violated the Family and Medical Leave Act (FMLA) by demoting him.

He claimed that several phone calls he’d made to his supervisor during the four-day absence should’ve alerted the company to his need for FMLA leave.

The court’s decision

But a court said the calls merely put the employer “on notice that he was upset and intoxicated,” not suffering from a serious medical condition that would warrant an offer of FMLA leave.

Also, a judge said the company had no prior knowledge of the employee’s alcohol problem. And even if it had known of the worker’s problem, the FMLA only protects absences for alcohol treatment, not alcohol use.

Cite: Scobey v. Nucor Steel-Arkansas.

The ruling now gives companies more power to discipline employees who don’t provide proper FMLA notification.

What happened

A worker took intermittent leave for migraines. The side effects of his medicine made him sleep — up to 27 hours at a time — and he knew it.

The man took two doses of meds prior to his shift, but he didn’t call to notify his supervisor that he needed an FMLA day. He slept through his entire shift.

When the company suspended him for 20 days, the man sued, claiming FMLA interference.

The company said he knew he needed FMLA leave — especially after taking the second dose. He could’ve notified the company prior to his absence but failed to do so.

What the court said

The court agreed, saying the man should’ve notified his supervisor as soon as he took his medicine.

Regs require workers to notify employers as soon as possible. The worker didn’t so his suspension wasn’t FMLA interference.

Cite: Valdivia v. BNSF Railway Co., U.S. Dist. Crt., ED KN, No. 07-2467-KHV, 2/12/09.

To facilitate passage, a number of proposals were recently consolidated within a single bill that could bring about the most sweeping reforms since the Family and Medical Leave Act became law 16 years ago. On June 25, 2009, Representative Lynn Woolsey (D. CA) introduced “The Balancing Act of 2009,” which incorporates multiple expansion efforts. Taken together, these provisions could have significant implications for employers and employees alike.

Within the bill is a proposal that would essentially convert FMLA to a paid-leave statute, allowing employees to take upwards of 12 weeks of paid leave over a 12-month period for qualifying family, medical or military-exigency reasons. Here’s the way it would work:

• A federal “Family and Medical Leave Insurance Fund” would be established to finance paid-leave distributions.
• Employers and employees would jointly subsidize the trust fund by contributing 0.2%  of employee earnings. That comes out to an average of about $100 per employee. The fund would be managed by the U.S. Department of Labor.
• The act would expand FMLA coverage by creating new forms of protected leave for both “parental involvement” and “family wellness.” Parental-involvement leave would allow workers to participate in certain academic and extracurricular activities of their children and grandchildren, while family-wellness leave would enable employees to assist family members in attending medical appointments and to care for elderly relatives.
• The legislation contains additional provisions that would: 1) require covered employers to provide a minimum of seven days of paid sick leave per year; 2) extend protection to victims of domestic violence and sexual assault; and, 3) allow leave to care for a broader category of family members, which would include domestic partners and same-sex spouses.
• While the FMLA currently covers only employers with 50 or more employees, the Balancing Act would expand the coverage to those with 15 or more employees. The bill would also extend eligibility to certain part-time employees who work 1,050 or more hours per year, a substantial reduction from the current minimum threshold of 1,250 hours per year.

Roughly one-third of U.S. employers offer currently domestic partner benefits, whether for opposite-sex partners, same-sex partners or both.

Regardless of your company’s policies – or your personal beliefs – it’s important to know how these benefits (or the lack thereof) are affected by federal and state regs.

Here’s a rundown of how COBRA, flexible spending accounts, HIPAA, FMLA and tax regulations affect these benefits:

COBRA

Currently, there’s no federal requirement for employers to offer COBRA to an employee’s domestic partner who loses coverage due to what would otherwise be a qualifying event. However, many employers choose to do so, anyway.

Be careful if you choose not to offer COBRA to domestic partners. You’re not necessarily in the clear legally. State insurance laws often vary from their federal equivalents.

Flexible spending accounts

In most cases, an employee’s flexible spending account (FSA) money may not be used to reimburse health care for a same-sex domestic partner, even if you do provide other domestic partner health benefits.

Reason: The IRS has ruled employer-sponsored health benefits are exempt from taxable income only if domestic partners (same or opposite sex) are legally considered spouses or dependents under state law.

Fifteen U.S. states plus the District of Columbia give tax-favored status to opposite-sex common-law marriages. Sixteen states that lack common law marriage statutes will grant tax-favored status to couples who register as common-law partners in other states.

The tax on healthcare expenses for partners that can’t get tax-favored status in your state is determined by your average local market cost for a domestic partner’s health coverage.

One case where FSAs might be used for same-sex partners: The partner meets criteria under the Working Families Tax Relief Act (WFTRA). Under WFTRA, the partner must live with the employee for more than half the year and receives more than half his or her support from the employee.

HIPAA

Domestic partner benefits are something of an anomaly under federal HIPAA regulations. In the first place, HIPAA protects the portability of employee health coverage. But domestic partner benefits aren’t necessarily portable if an employee changes jobs. It all depends on whether the new employer offers such coverage, and on state insurance laws.

On the flip side, if your organization’s health plan (like most) is covered under HIPAA, the act’s non-discrimination rules apply to domestic partners to the same extent that a spouse or dependent covered under your plans would be.

Example: If you offer domestic partner health benefits and have a wellness program in which an incentive for undergoing a health risk assessment is available to employee’s spouses, you can’t exclude the domestic partner from receiving the incentive.

As for HIPAA’s privacy rules for protected health information, it works the same for domestic partners as for anyone else covered on your health plan.

FMLA

Family leave under federal FMLA only may be taken to care for a spouse, child or parent with a serious health condition.

The regulations define spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

In other words, an employee’s right to take family leave depends entirely on whether the relationship holds the legal status of a common law marriage (for opposite sex partners), civil union (for same sex partners) or same-sex marrage (in Massachusetts).

Taxes

Unlike typical benefits for spouses and dependents, domestic partner benefits are subject to both federal and state tax as a form of compensation, according to the Partners Task Force for Gay and Lesbian Couples.

In terms of administration, however, benefits such as paid bereavement leave tend to work the same in terms of their tax treatment.

The scene:

Warren Bridges looked at the copies of the e-mails handed to him by HR manager Susanna Diaz. “Yes, I wrote both of those,” he said. “So what?”

Susanna looked over her copies as she replied: “Well, you sent them to Lori a couple of weeks before you fired her. The first one says her performance is a problem ‘and could result in your termination.’ The second one thanks her for her service and says you had to let her go ‘as part of a companywide reduction in force.’”

“Right,” Warren nodded. “I was trying to let Lori down easy and say she got caught in a RIF.”

“Here’s the problem,” Susanna explained. “You replaced her with a man.”

“And …” Warren said.

“You gave her conflicting reasons for letting her go — poor performance and a RIF,” she said. “First, we never had a RIF. Second, with all the confusion about the real reason for firing her, you replace her with a man. That looks fishy.

Warren sighed. “I still don’t see the big deal.”

But Lori did. She sued the company for sex discrimination, saying there was no clear reason for the firing, and Warren — a man — replaced her with another man. The company said Warren was just trying to go easy on her, and the hiring of a male replacement was a coincidence.

Did the company win?

The judgment
No the company lost.

Even though the supervisor had good documentation backing his performance-based reasons for the firing, the judge still ruled in favor of the employee.

The judge’s reason: You can have good documentation, but that doesn’t mean there are grounds for throwing out other evidence that might show mixed reasons or bias.

In this case, the conflicting e-mails and the hiring of a male replacement were enough to overshadow the performance documentation. A lack of consistency in documentation and actions always calls into question the motives of the supervisor and the company, the judge said.

Ruling: Employee wins because of the doubt behind the company’s decision.

When there’s a charge of bias, conflicting information from the supervisor tends to set off alarm bells — and questions — in a judge’s mind:
• Why would they say one thing and then another?
• Were they trying to cover up something?

Combine those with the outward appearance of discrimination – a male supervisor replacing a female with a male – and you have the ingredients for a company loss in the courtroom.

[Based on: Parks v. Lebhar-Friedman, Inc.]