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Total Articles: 45

Got an Employee Who Doesn't Follow Your FMLA Call-in Policy? Apparently, You Now Have to Ask Him Why He Couldn't

I recently had an interesting call with a DOL investigator, and I wanted to share it with you.

Employer Violates FMLA for Failure to Provide Calculation of When Leave Expires, Court Rules

In a case reminding employers of their obligation to notify employees about their Family and Medical Leave Act rights, the District Court of New Jersey has ruled that an employer violated the FMLA when it terminated an employee without providing her notice that her modified return-to-work date exceeded her available leave. Ross v. Youth Consultation Service, Inc., No. 02229 (D.N.J. Dec. 29, 2016).

Use The "Rolling" Method to Calculate FMLA Leave! This Employer Learned the Hard Way

Every once in awhile, I find myself counseling an employer with either no FMLA policy or one completely lacking any meaningful details. Often, these policies fail to include key provisions to protect against liability.

A Cruise Aboard the Love Boat is Not Protected by the FMLA, Even When the Doc Says It's a Good Idea

This post has nothing to do with Netflix and its new, generous parental leave policy. Or GOP presidential candidate Carly Fiorina’s latest position on paid leave. Sorry to disappoint.

Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer's Lead

Even once in awhile an employer has handled an FMLA situation so effectively, you just want to shout out, “You Go Girl!” . . . or let out a fist pump (like you just sank a 70-foot birdie) . . . or initiate a wild chest bump in the hallway with a colleague (after you just landed that new client).

FMLA FAQ: If Your Employee Checks into the Hospital After Midnight, Is It an "Overnight Stay" under the FMLA?

Q: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight. He spent most of the day in the hospital and was discharged later that same day. In total, he missed two days of work. Is this absence covered by the FMLA?

DOL Will Not Enforce Final FMLA Regulation Regarding Same-Sex Spouses in Four States

Last week, I reported that a federal district court in Texas had halted the DOL’s enforcement of its final rule that would allow employees to take FMLA leave for their same-sex spouse.

Employer Requires Employee to Work During FMLA Leave. Ummmm, Is This a Problem?

Sure, Joan, you can take a leave of absence, but you’re still going to work while you’re out, right?

Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead

Ena Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp. She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of complications caused by her pregnancy.

FMLA FAQ: Can an Employer Force an Employee on FMLA Leave When the Employee Wants to Continue to Work?

Q: This week, one of our employees professed her love to one of her co-workers (who is married) and announced to everyone that they had been dating. The problem is — it’s not true.

DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe.

DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe.

DOL Celebrates FMLA’s 20th Anniversary with New Regulations

The federal Family and Medical Leave Act (“FMLA”) turned 20 years old on February 5, 2013. In celebration, the U.S. Department of Labor (“DOL”) issued new regulations. The new regulations cover 1) leave related to members or veterans of the military and 2) leave for airline flight crew employees. This article focuses on the former.

DOL Issues Final Rule Implementing FMLA Amendments Expanding Military Family Leave and Leave for Airline Flight Crew Members

This week, the Department of Labor released its final rule implementing the Family and Medical Leave Act amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The final regulation also revises a handful of existing regulatory provisions, and removes the model FMLA forms from the appendices of the regulations. I reported on these proposed changes in greater detail in a previous blog post last year. The final rule takes effect March 8, 2013.

DOL Issues Final Rule Regarding FMLA Changes for Military Caregivers and Flight Crew

On February 6, 2013, the U.S. Department of Labor (DOL) published a final rule to implement amendments to the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). To assist employers with compliance, the DOL has created a web page with a FAQ sheet on the final rule, a new FMLA poster, and a new Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave–Form WH-385-V.

U.S. Department of Labor Issues Guidelines on Parents' Rights to FMLA Leave for Adult Children Care

Since its enactment in 1993, an unresolved issue under the Family and Medical Leave Act ("FMLA" or "the Act") was exactly how the definition of "son or daughter" under Section 101(12) of the Act applied to adult children, 18 years of age or older and incapable of self-care because of a mental or physical disability. In interpretive guidelines just issued by the U.S. Department of Labor ("USDOL"), which enforces the FMLA, the federal agency clarified that the age of a son or daughter at the onset of a disability is not relevant in determining a parent's entitlement to FMLA leave. Employers need to be aware that the new guidelines will expand the number of employees who will now be eligible to take FMLA leave to care for adult children.

Legal Alert: Department of Labor Issues New Guidance Clarifying FMLA Qualifying Leave

Executive Summary: The Department of Labor (DOL) has clarified the definition of "son or daughter" to now permit an eligible employee to take leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is incapable of self-care because of a disability, regardless of how old the child was when the disability commenced. This clarification also impacts the FMLA's military caregiver provision.

DOL Issues Guidance on "Caring for an Adult Child" Under the FMLA

Yesterday, the U.S. Department of Labor issued an Administrator's Interpretation (AI) to clarify the factors an employer must consider when an employee requests leave to care for an adult child.

An Employee Requests and is Denied Vacation Leave but Later Takes FMLA Leave for the Same Time Period. What Recourse Does an Employer Have?

This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve. Due to seniority or the employee's last minute request for time off, her leave request is denied. However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can't work due to a flare up of her chronic bad back.

Hurricane Sandy and the FMLA (Part II): How Do Employers Calculate FMLA Leave When the Workplace Closes Because of the Storm?

Thanks for the great feedback we received on our post earlier this week about Hurricane Sandy's impact on employers when it comes to issues arising under the Family and Medical Leave Act. In your feedback, I received several requests to address the following question:

Visit to doctor for prescription refill is not "treatment" for purposes of FMLA.

The Family and Medical Leave Act (FMLA) provides unpaid leave time to eligible employees under specific circumstances, including the serious health condition of the employee. It is a violation of the FMLA for an employer to interfere with an employee’s use or attempted use of FMLA leave time. The 7th U.S. Circuit Court of Appeals has held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.

Is Time Spent Filling Your Prescription at Walgreens Covered by FMLA?

Take Bob. He is a machine operator. Bob suffers from back and leg pain as well as bouts of anxiety. As a result, he typically visits with his physician every couple of months and is on prescription medication. He's been approved for intermittent FMLA leave as a result of his serious health condition(s).

DOL's New Employee Guide to the FMLA Issued: What's the Impact on Employers?

Earlier this week, the U.S. Department of Labor issued a 16-page FMLA guide that the DOL says is "designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides." Entitled "Need Time? The Employee's Guide to the Family and Medical Leave Act," the Guide apparently was created out of DOL's belief that "too many workers don't know about their rights under the FMLA and fail to take advantage of its protections," as stated in a DOL press release earlier this week.

It's a Fact: Employers Often Can Designate FMLA Leave in Longer Increments Than the Actual Leave Taken

In a recent post, I discussed an employer's obligation to designate leave under the Family and Medical Leave Act even though the employee did not want it to be classified as FMLA leave.

Taking FMLA leave does not affect employee's obligations under non-FMLA attendance policies.

Employment termination during an employee’s leave under the Family and Medical Leave Act (FMLA) may constitute “interference” with that leave. However, an employer typically does not violate the FMLA if it terminates an employee for failing to comply with the company’s policies regarding absences, even if those absences occur during a protected FMLA leave. A recent decision by the 3d U.S. Circuit Court of Appeals reminds us that the FMLA is not a law that can remedy an employee’s failure to follow a company’s sick leave policies. Pellegrino v. Communications Workers of America, AFL-CIO, CLC, 3d Cir., No.11-2639, April 19, 2012.

DOL's Model FMLA Forms Now Approved Through 2015. Details Here...

As I reported last month, the Department of Labor has been working with the Office of Management and Budget to extend the life of its model FMLA forms, which expired on December 31, 2011. If you checked the DOL website today, you would find that the Department now has approval to use its model FMLA forms through February 28, 2015.

Best Practices: FMLA Leave to Care for an Adult Child

Perhaps it's just me, but I recently have received several calls from clients inquiring about an employee's right to take FMLA leave to care for an adult child (i.e., age 18 or older). Some examples include: Can a grandparent take FMLA leave to care for her daughter after the birth of her baby? Or can an employee take leave to care for an adult child suffering from depression? The answer is not always an easy one. What are an employer's obligations when an employee seeks leave under the Family and Medical Leave Act to care for an adult child? (I apologize in advance for the length of this post, but I hope it's worth the read.)

Employee's FMLA Claim Dismissed After Taking a Trip to Cancun

Employees should think twice before setting off on a Cancun vacation while out on FMLA leave. In an FMLA decision that smacks of pure common sense, a federal court has upheld an employer's reasonable work rules that restricted an employee's travel outside the immediate vicinity while on FMLA leave.

Are Employees Eligible for FMLA Leave When A Natural Disaster Strikes?

Natural disasters like the kind we recently have witnessed in the flood-ravaged areas of the southern United States raise a host of issues for employers. Some wonder whether they are required to pay their employees during suspended operations; others are unsure whether and to what extent health benefits should be offered.

FMLA FAQ - Does a phone call to the doctor count as "treatment"?

An employee recently missed five days of work due to the flu. She did not visit the doctor, but did call in to the doctor's office while she was out. Based upon the call, the doctor wrote her a prescription for some medication. Does this count as FMLA leave?

Where FMLA Bonding Leave is at Issue, Unmarried Parents Have More Generous Leave Rights

The folks at the California Public Agency Labor and Employment blog yesterday raised an issue that has popped up from time to time with our own clients: When it comes to "baby bonding" leave, does the Family and Medical Leave Act provide more generous benefits for unmarried parents than it does for married parents? In short, the answer is Yes.

Employee's Failure to Return Supervisor's Phone Calls Dooms FMLA Claim

When an employee's request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA. When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection.

Employee's failure to respond to phone calls from employer regarding his request for FMLA leave precludes a claim against employer under that Act.

Most employers recognize that the Family and Medical Leave Act (FMLA) prohibits them from denying, restraining, or interfering with an employee’s rights to qualified leave. Last week’s Update addressed a situation in which an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with that employee’s FMLA rights.

FMLA FAQ - Does Travel Time Count as FMLA Leave?

One of our employees has asked for leave to care for a family member in another state. Does the travel time to and from the family member count as part of the FMLA leave?

Employer can require compliance with call-in policy, even during FMLA leave.

The 8th U.S. Circuit Court of Appeals has held that an employee who was fired for repeatedly violating her employer’s call-in policy cannot proceed with her lawsuit under the FMLA.

FMLA FAQ - How do I calculate FMLA leave around the holidays?

I have an employee who is certified for FMLA leave. Our office is closed for Thanksgiving next Thursday and Friday. Do those days count as FMLA leave.

Impaired Employee May Be Excused From Heightened Reporting Requirement for FMLA Leave.

The 5th U.S. Circuit Court of Appeal has held that an impaired individual may not be required to comply directly with her employer’s heightened reporting requirements associated with FMLA leave. Saenz v. Harlingen Medical Center, LP, 5th Circ., No. 09-40887, August 2, 2010.

DOL to Conduct "FMLA survery": Is More Regulatory Change on the Horizon?

On the campaign trail, then candidate Barack Obama promised to work aggressively on work-family balance if he was elected president. In doing so, he clearly signaled a movement toward pursuing additional rights for employees to permit them to better balance their workplace duties and their personal and family lives. This "movement," however, has been stalled by the health care debate, the conflict in Iraq, and the Gulf Oil mess.

New FMLA and New York Employee Privacy Requirements.

New U.S. Department of Labor (DOL) regulations regarding the Family and Medical Leave Act (FMLA) take effect on January 16, 2009. They implement two types of new military family leave (Military Caregiver leave and Qualifying Exigency leave) and update and clarify the existing FMLA regulations. In addition, a recent amendment to the New York Labor Law, effective January 3, 2009, restricts an employer’s use and disclosure of an employee’s personal identifying information, including an employee’s social security number.

New FMLA Regulations Take Effect.

The Family and Medical Leave Act (FMLA) regulations issued late last year by the U.S. Department of Labor (DOL) took effect on January 16, 2009. According to Al Robinson, a shareholder with the firm's Washington, D.C. office and the former acting Administrator of the DOL's Wage and Hour Division (which enforces the FMLA): "The new regulations change the pro-vision of family and medical leave in the workplace, particularly the new basis for leave for families of individuals in the military. As a result, employers must become familiar with these changes and adjust their policies accordingly."


On November 17, 2008, the U.S. Department of Labor (DOL) issued the first new regulations governing the Family and Medical Leave Act (FMLA) since the law’s 1993 enactment. The final regulations, which take effect January 16, are intended to be more “user-friendly” for both employers and employees.

Third Circuit Rejects Controversial FMLA Regulation.

Joining other federal courts, the Third Circuit recently rejected a Department of Labor regulation, 29 C.F.R. §825.110(d), which deems an employee eligible for FMLA leave, even if the employee does not satisfy the FMLA’s eligibility requirements, when an employer fails to advise an employee of his/her eligibility after leave is requested. Here, the plaintiff had not worked the required 1,250 hours in the 12 months preceding her requested leave, but her employer failed to respond to her request for FMLA leave for the birth of her child.

FMLA: Labor Department Releases Revisions (pdf).

Highlights of the proposed changes.

DOL Publishes Long-Awaited Proposals to Update FMLA Regulations.

For some time now, business groups have been calling for a substantial overhaul of FMLA regulations that have proven to be unduly vague, cumbersome, and in some cases, completely out of touch with the realities of today’s workplace. It seems that those requests are no longer falling on deaf ears. On February 11th, the Department of Labor took a substantial step toward regulatory reform by publishing a Notice of Proposed Rulemaking in the Federal Register. Once implemented, the final rules will contain regulatory language based upon comments submitted during the review process. Although a final set of new regulations is still months away, a spokesperson for the administration expressed her desire to implement changes by the end of President Bush’s term. The proposed rules will remain open for public comment through April 11, 2008.

DOL to Publish FMLA Proposals: Changes to Existing Regulations and Comments on New Military Family Leave.

On Monday, February 11, 2008, the U.S. Department of Labor (DOL) is expected to publish in the Federal Register a dual-purpose proposal on the Family and Medical Leave Act (FMLA). The DOL's first purpose is to propose revisions to certain existing FMLA regulations. These are the first proposed changes to the existing regulations since the FMLA was passed in 1993. The other reason for the proposal is to request public comments on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act. The DOL will use these comments to issue final regulations for these new military family leave entitlements.
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