November 17th, 2011 | By Paul Cherner
On a monthly basis, employers are often dealing with employees requesting a leave of absence (“LOA”). What are the employer’s obligations under the law? The answer to this question is not “cut and dry” and involves examining the possible applicability of several federal and state employment laws, as well as a conversation with the employee requesting the leave.
This basic guide should be helpful in identifying some of the federal law issues arising from LOA requests:
1.) What is the reason for the leave request?
The Family and Medical Leave Act (“FMLA”) may apply if the employee is requesting the leave to: give birth to or care for their child; or placement of a child with the employee for adoption or foster care; or to care for an immediate family member who has a serious health condition; or because of a serious health condition that makes the employee unable to do the functions of their job; or because of the need to care for the employee to care for an immediate family member who was injured while on active military duty; or for certain exigencies that arise from an employee’s family member being called to active duty in the uniformed services. If any of these situations is the reason the employee is requesting leave, then an employer must determine whether the FMLA, which provides up to 12 weeks of unpaid leave per 12 month period , applies.
2.) Is the Employee Eligible for FMLA Benefits?
An employee is eligible for FMLA benefits if they have been employed for at least 12 months by the employer they are requesting the leave from and have worked at least 1,250 hours for that employer during the past 12 months. Additionally, employees are only eligible if they are employed at a worksite where the employer employs 50 or more employees or if the employer employs 50 or more employees within 75 miles of that employee’s worksite. If the employee meets these eligibility requirements, then a formal process is undertaken with the exchange of letters that authorizes the employee to take the leave for the time that is supported by the requisite documentation.
3.) What if the Employee is Not Eligible for FMLA Benefits?
If the employee requests a LOA for one of the reasons set forth in the FMLA, but is not entitled to FMLA benefits (because they have not met one or more of the criteria or they work in a worksite that regularly employs less then 50 employees), can the HR Director deny the request? Not necessarily so. First, the HR Director needs to see what the employer’s policy and practice has been with respect to other employees requesting LOAs. An employer must treat all such requests on a uniform basis and if they do not, they must be able to demonstrate that the different treatment is based on a legitimate, nondiscriminatory reason.
4.) An Employee May be Entitled to Leave Under the ADA.
If the employee is requesting leave because of a physical or mental condition that meets the broad definition of “disability” in the amended Americans with Disabilities Act (“ADA”), then the employee may be entitled to leave, even when they do not qualify for FMLA benefits. The ADA requires an employer to offer an employee with a disability “reasonable accommodation” if it would allow the employee to perform the essential functions of a job that they are qualified to perform. An exception to requiring this “reasonable accommodation” is if it would cause the employer an “undue hardship.” While this is a narrow exception, an employer needs to be aware of it for situations where allowing the employee to take such leave would place an undue burden upon the employer and its business operations.
An employer must engage in an interactive dialogue with the employee concerning whether granting the LOA request may be required as a reasonable accommodation. The employer must make their decision on an individual case basis, analyzing factors such as how long the leave will be for and the impact of such leave on the employer’s operations. For example, if the employee is requesting leave for a few days or a few weeks to have medical treatment required by their disability, it is likely that granting the LOA may be found to be a reasonable accommodation that the employer is required to grant. What if the amount of leave is undeterminative or is for 6 months or more then a year? Depending on the individual circumstances involved, granting extensive or undeterminative leave may be deemed reasonable or unreasonable. The EEOC recently held a public hearing on this subject, acknowledging that they needed to provide better guidelines for employers who were faced with such requests. However, it is not known at this time when the EEOC will issue further guidance on this subject.
In summary, leave requests need to be individually reviewed to determine what rights, if any, the employee requesting the leave may have under federal or state laws, in addition to those provided by the employer’s policy and practices.
Caveat: This article is a brief, general outline of a complicated subject and is not being offered as legal advice.. Employers should consult with experienced employment law counsel when faced with specific issue such as those identified in this articles.
March 29th, 2010 | By Paul Cherner
On March 27, 2010, President Obama announced the following recess appointments to the NLRB and the EEOC.
Craig Becker and Mark Pearce have been appointed to be Board Members of the National Labor Relations Board. While both had been approved by the Senate Labor Commitee, a vote on their confirmation has been delayed in the Senate. There is still one vacancy on the five member NLRB Board. No action was taken on the third nominee to the NLRB, Bryan Hayes, that President Obama had previously sent to the Senate.
Chai R. Feldblum, Victoria A. Lipnic and Jacqueline A. Berrien (Chair) were appointed Commissioners of the Equal Employment Opportunity Commission. P. David Lopez was appointed General Counsel of the EEOC.
The recess appointments will expire in December, 2011 when the Senate next has a recess. In the interim, all of these nominations for a full term will be awaiting a Senate vote.
November 23rd, 2009 | By Paul Cherner
The EEOC, like the NLRB, has several presidential nominees to the agency who are waiting for confirmation by the U.S. Senate.
In July, 2009 President Obama nominated Jacqueline A. Berrien, associate director-counsel of the NAACP Legal Defense and Educational Fund, to serve as Chair of the EEOC. In September, 2009, the President nominated Chai R. Feldblum, a professor of law and director of the Federal Legislation Clinic at the Georgetown University Law Center in Washington, D.C., to be an EEOC Commissioner.
Recently, the President nominated Victoria A. Lipnic, the former Assistant Secretary of Labor for Employment Standards, to be an EEOC Commissioner. Lipnic’s nomination, if confirmed by the Senate, would fulfill the requirement that two of the five commissioners not be from the President’s political party. Constance Barker, whose term expires in 2011, is the other Republican Commissioner.
In late July, 2009, the Senate confirmed President Obama’s nomination of EEOC Vice Chair Christine Griffin as Deputy Director of the Office of Personnel Management, but, according to the rules governing the EEOC, Griffin will remain an EEOC Commissioner until her successor is confirmed by the Senate. On October 22, 2009, President Obama nominated P. David Lopez to be General Counsel of the EEOC . Lopez has worked for the EEOC for 13 years and is currently a Supervising Trial Attorney in the EEOC’s Phoenix District Office.
November 13th, 2009 | By Paul Cherner
The Centers for Disease Control and prevention (“CDC”) has just issued a report indicating that in the past six months 22 million Americans have become sick with the H1N1 influenza virus (a/k/a the “swine flu”), of which 4,000 have died. As this pandemic shows no signs of abating, employers are faced with many legal issues in addition to being concerned about the health and safety of their workers, customers and clients, while at the same time attempting to determine how best to carry on their businesses under these circumstances.
An excellent reference source for most questions pertaining to this pandemic is the federal government’s website http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.
The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus. Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Act (“ADA”) on this pandemic situation.
As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance. Accordindly, continued monitoring of the main website - www.flu.gov is advised.
November 2nd, 2009 | By Paul Cherner
The EEOC has revised its required employer postings to reflect recent changes in the EEO laws. The new poster includes two new laws, the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA” – effective November 21, 2009.) The revised poster also includes updates from the Department of Labor and should be posted as soon as possible.
Employers may obtain the new required postings by either :
- Printing the EEOC’s supplemental posting and posting it next to the EEOC’s September 2002 “EEO is the Law” poster or the OFCCP’s August 2008 “EEO is the Law” poster, or
- Printing and posting the EEOC’s comprehensive November 2009 version of the “EEO is the Law” poster, or
- If you need multiple copies and/or non-English language versions, ordering the new poster through the EEOC Clearinghouse (the posters are on “back order” now, but are expected to be available before GINA becomes effective on 11/21/09.)
September 23rd, 2009 | By Paul Cherner
The EEOC has just published for public comment proposed new regulations interpreting the Americans with Disabilities Amendments Act of 2008 (“ADAA“). The ADAA, which became effective January 1, 2009, required the EEOC to revise its ADA regulations and to redefine the term “substantially limits” in accord with the Congressional goal of defining the term “disability” in favor of broad coverage to the maximum extent permitted by the ADA.
The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted. The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the ADA standard for disability. The definition of “major life activities” has been expanded and now include factors on two non-exhaustive lists, including one that identifies major bodily functions.
These rules provide that actions based on an impairment should also include actions based on symptoms of an impairment. They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision should not be used unless shown to be job-related for the position in issue and consistent with business necessity.
There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing final rules, which will probably not occur before early 2010. However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA. The EEOC has published questions and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.
July 17th, 2009 | By Paul Cherner
President Obama has nominated Jacqueline A. Berrien to be Chair of the Equal Employment Opportunity Commission. Ms. Berrien has been associate director-counsel of the NAACP Legal Defense and Educational Fund for the past five years. She previously worked for the Ford Foundation and the American Civil Liberties Union.
There appears to be a compromise gathering consensus concerning the enactment of the Employee Free Choice Act (“EFCA”). See our prior post for a description of the key provisions of this proposed legislation. The compromise that is emerging will be to drop the card check recognition provisions in favor of quick union elections (five to ten days) to be conducted by the NLRB. Left in the bill for now are the provisons providing for arbitration of first time union contracts and increased penalties for unfair labor practices committed during organizing drives and/or first contract negotiations. It is predicted that the Senate will probably not deal with this legislation until September at the earliest.
January 26th, 2009 | By Paul Cherner
President Obama has appointed Stuart J. Ishimaru as Acting Chair of the Equal Employment Opportunity Commission and Christine M. Griffin as Acting Vice Chair of the EEOC.
President Obama has also appointed Wilma Liebman as Chairman of the National Labor Relations Board.
January 9th, 2009 | By Paul Cherner
The U.S. House of Representatives passed “The Lilly Ledbetter Fair Pay Act of 2009″ on January 9, 2009. On January 22, 2009, the Senate passed its version of the Lilly Ledbetter Fair Pay Act. The House and Senate will have to reconcile the two different versions of this bill and then send it to President Obama, who is expected to sign it. This bill will likely become law before the end of February, 2009. This act would amend Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment act, by expanding the time limit that an individual has to file an employment discrimination claim. The amendment would provide that the time for filing a discrimination claim would start to run after the adoption of a discriminatory compensation decision or when the individual becomes subject to such decision or practice or upon each additional application of that decision or practice. This last factor is known as the “paycheck rule”, which will mean that each time an employee receives a new paycheck that reflects what they believe to be discriminatory action under Title VII or the ADEA, the time for filing a charge will begin anew. This change will also apply to claims for violations of the ADEA, ADA and the Rehabilitation Act, if this bill is signed into law in its current form.
This new Act, if it becomes law, will reverse the 2007 U.S. Supreme Court decision which held that the time for filing an employment discrimination charge by employees (including Ms. Lilly Ledbetter) did not begin upon receipt of each new paycheck. The Senate is expected to consider this bill next week.
December 30th, 2008 | By Paul Cherner
Expect increased activity in the labor and employment law arena from Washington, DC in 2009. The Labor Movement invested more than $300 million and countless volunteer hours to help elect President-elect Obama and enlarge the Democratic majority in Congress and it expects both to enact new legislation and initiate administrative activities that will benefit labor unions and workers.
The number one priority of the labor movement is the Employee Free Choice Act (“EFCA“). EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure. If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards. After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement. If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (“FMCS“) would then become involved in the negotiations. If a contract is not agreed to in the following 30 days, the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues. President-elect Obama was a sponsor of the EFCA bill when he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007. It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.
President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (“NLRB“) and to designate a new Chairman and General Counsel of the Board. These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration. Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.
The U.S. Department of Labor (“DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview. There are serious efforts to increase the minimum wage (“FLSA“) and to enact new safety rules (“OSHA“). There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.
Several organizations that advocate for a more family friendly workplace are expected to make an effort to have the Family & Medical Leave Act (“FMLA“) require paid leave. There are several states that have recently passed such legislation. The recently promulgated FMLA regulations are not expected to be changed in the near future.
President-elect Obama also has the opportunity to appoint the Chairman, General Counsel and Commissioners to the Equal Employment Opportunity Commission (“EEOC“) and that agency is expected to increase its enforcement efforts during the new administration. Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.
There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.
