Proposed Domestic Violence Leave Act Would Expand the Scope of the FMLA

Recently, Rep. Lynn Woolsey (D-CA) introduced the Domestic Violence Leave Act (H.R. 2515).  The Act would amend the FMLA to permit victims of domestic violence, sexual assault, and stalking (as those terms are defined in the Violence Against Women Act) and their family members to take leave as a result of the violence.   Specifically, the Act would permit a qualified employee to take leave to seek medical attention, legal assistance, or psychological counseling, or to attend support groups, as a result of domestic violence, sexual assault, or stalking directed at the employee or a family member.  In addition, the Act would permit leave to participate in safety planning or other activities necessitated by domestic violence, sexual assault, or stalking.  The employer could require a certification that the employee requires leave for the reasons outlined in the Act.  Court or police records, or other records substantiating the domestic violence, sexual assault, or stalking, would meet the certification requirement.

If the legislation is signed into law, it would not be the first time that leave unrelated to medical care or childbirth would be made available to eligible employees.  Under the amendments to the FMLA occasioned by the National Defense Authorization Act, eligible employees are entitled to up to 12 weeks of leave due to "any qualifying exigency" arising out of the fact the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.  Under those amendments, qualified employees can take leave to meet with legal counsel, make childcare arrangements, and take other similar actions necessary to deal with the family member's active duty status.

The Domestic Violence Leave Act also would amend the FMLA by adding the phrase "or domestic partner" wherever the  word "spouse" appears in the Act.  This change previously was proposed in H.R. 2132, which I discussed in my post on May 12, 2009, and which has been referred to Committee.   We should anticipate that any upcoming bills to amend the FMLA will include a provision expanding the definition of "family member" to include a domestic partner. 

 

 

Focus on Revised FMLA Regulations: When Do Employers Count A Holiday As FMLA Leave?

With the Memorial Day holiday approaching, I am being asked by employers whether the holiday counts against the 12-week FMLA leave entitlement of employees who have requested FMLA leave.  

The answer depends upon the length of the leave.  Under the Revised FMLA Regulations that went into effect earlier this year (see 29 C.F.R. Section 825.200(h)), if an employee takes a full workweek of FMLA leave during which a paid holiday falls, the holiday counts against the employee's FMLA entitlement.  If the employee takes FMLA leave in increments of less than a full workweek, and a holiday falls on a leave day, that day does not count against the employee's 12-week FMLA leave entitlement. 

For example, if an employee requires FMLA leave for the full week of Monday, May 25, through Friday, May 29, 2009, for surgery due to a serious health condition, Memorial Day will count as an FMLA leave day.  However, if the employee only requires FMLA leave for Tuesday, May 26, and Wednesday, May 27, 2009, for continuing treatment related to a serious health condition, Memorial Day would not be counted against the employee's FMLA leave entitlement. 

Employers should keep these rules in mind as the other summer holidays--Fourth of July and Labor Day--present similar scenarios.

 

Proposed Legislation Would Make FMLA Leave Available to Care for a Domestic Partner, Same-Sex Spouse and Other Extended Family Members

On April 28, 2009, Representative Carolyn Maloney of New York introduced H.R. 2132, entitled the Family and Medical Leave Inclusion Act, which would amend the FMLA to permit leave to care for  same-sex spouses, domestic partners and other extended family members.  Specifically, the Act would permit leave to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent with a serious health condition. 

Currently, the FMLA permits eligible employees to take family leave to care for a spouse, minor child, adult child who is incapable of self-care, or parent (not in-law) with a serious health condition.  Under the federal Defense of Marriage Act, the term "spouse" is defined as a spouse of the opposite sex.  The proposed Act would define spouse to include a same-sex spouse as determined under applicable state law.  You can access the full text of the proposed Act here

Although the proposed Act would not provide employees with additional leave time, it would expand significantly the instances in which eligible employees could invoke their FMLA rights. 

The Catch-22 of Timing: Can You Still Terminate An Employee Who Has Requested FMLA Leave?

An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility.  Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?  

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee.  Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't.  The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status.  However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation.  If the company terminated her following her FMLA leave, she also could claim retaliation.  What should an employer do in this situation?

1.  Ensure that the reason for termination is as iron-clad as possible.   The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations.  In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation.  Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims.  Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2.  Document, document, document.  Document the policy violation clearly as soon as it occurs.  If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination. 

3.  Be decent.  We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way.  The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination.  The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee.  In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month.  (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month).  Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis.  By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.   

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