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.

                 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.

            (1)  Eligible employees will be able to take Military Caregiver Leave for covered servicemembers who are veterans undergoing medical treatment, recuperation, or therapy, or who are otherwise in an outpatient status, for a serious injury or illness and who were a member of the Armed Forces (including the National Guard and Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy.   An eligible employee may take up to 26 weeks of leave during a single 12 month period, which commences on the date that the employee first takes such leave.  [Note: Previously, such leave was only available to care for current members of the Armed Forces, Guard, or Reserves.]

            (2)  “Serious illness or injury” is now defined as an injury or illness that was incurred by the member or by a veteran while in the line of duty on active duty in the Armed Forces or which existed before the beginning of the member’s active duty and was aggravated by service in the line of duty while on active duty in the Armed Forces and that may render that member medically unfit to perform the duties of the member’s office, grade, rank, or rating . [Note: These changes have now included veterans as well as certain preexisting conditions that were aggravated while on active duty].

          (3)  Qualifying Exigency Leave will now also cover members of the regular Armed Forces during their deployment to a foreign country.  [Note: Prior to these amendments, Qualifying Exigency Leave was only available for covered military members in the Reserves or Guard when ordered to active duty during the deployment of the member to a foreign country.]

              These changes became effective on October 27, 2009, the date the law was signed  by President Obama.

             Employers should review and revise their FMLA leave policies and practices to reflect these new amendments. 

            Note: A special nod of thanks to the FMLA blog for tipping us off about these important changes that are buried within that massive new defense authorization act.

The U.S. Department of Labor has issued detailed regulations implementing these two new forms of leave for employers with 50 or more employees.  Employers are required to update their FMLA policies, post revised FMLA notices and provide for these two new additional forms of leave for their eligible employees.     For an indepth discussion of these new forms of leaves, see this author’s article  “Leave for Military Family Members – What Employers Need to Know” in this week’s online version of Crain’s Workforce Management and the December 10, 2008 post in this blog..

You can obtain the  poster and forms from the DOL website by clicking on these links: new poster  and Notice of Eligibility (to be given to employees within 5 business days of their request for FMLA leave.)  If certification will be required, then the appropriate certification form must be given to the employee (with the Notice of Eligibility) within 5 business days after the leave request: certification for employee’s serious health condition; or certification for family member’s serious health condition; or family military leave for qualified exigency form; or certification for serious injury or illness of covered military service member for Military Family Leave.  Within 5 business days after its decision on the leave request, an employer must give a Designation Notice setting forth the terms of such leave if approved, whether  additional information is needed or whether the leave request has not been approved.

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.

Your FMLA policy must provide for Military Caregiver Leave, allowing an eligible employee to take up to 26 weeks in a 12 month period to care for a covered family service member who has suffered a serious illness or injury in the line of duty while on active duty.

Qualifying Exigency Leave may be taken by an eligible employee for up to 12 weeks when an “exigency” arises because a covered family member belonging to the National Guard or Military Reserves is on active duty or is called to active duty.  The new regulations specify 8 broad categories that are regarded as exigencies.

The new regulations provide for a revised FMLA notice to be posted, as well as new forms to be used when either of these leaves or traditional FMLA is requested.  The notice and forms are available on the DOL’s website. 

There is also a change in the time periods involved in administering FMLA requests.

I recommend that all employers inform their managers of these changes, in addition to conducting internal training for FMLA administrators.