Delaware Employment Law Blog

Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month's Delaware Today magazine.  Young Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation's adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur--a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave--the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act ("PDA"), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It's likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

The FMLA is complicated for employers to apply.  One reason for this is that most every "definition" in the statute contains another word that has its own definition.  For example, we know that FMLA leave may be taken to care for the serious medical condition of a family member.  We know that "family member" includes a child of the employee.  But who is a "child" under the statute?  Here's one twist on that question.

Q:  An employee has requested to take intermittent FMLA leave to care for her adult son, who has long-term emotional problems, whenever there is a “situation where she is needed.”

There are three questions that the employer would need to have answered before being able to determine whether the requested leave is FMLA qualified. First, the employer must determine if the adult son is a covered family member, which requires a determination of whether he is “incapable of self-care.” If he requires assistance to engage in the activities of daily living, the second question is whether this inability is a result of a chronic serious medical condition. Third, the employer would need a further description of the “situations” for which the employee would require leave.

Adult Children and the FMLA

Adult children can qualify as a “family member” for purposes of the FMLA only if the individual is incapable of self-care because of a mental or physical disability. “Incapable of self care” means that the individual requires active assistance or supervision to provide daily self-care in at least three “activities of daily living,” such as bathing, dressing, eating, cooking, cleaning, shopping, or taking public transportation.

Emotional Problems as a Serious Medical Condition

The statement that the employee’s son has “emotional problems” is insufficient to qualify him as having a serious medical condition, as is required for FMLA protection. A health-care provider, such as a psychologist, should determine whether the son’s emotional problems constitute a serious medical condition as that term is defined by the FMLA.

“Situations” as Reason for Leave

The FMLA broadly defines the times that an eligible employee can take leave. Simply, the employee must only be taking leave to provide care for or provide psychological comfort to an immediate family member with a serious health condition. If, in the first question, we determined that the adult son qualifies as an “immediate family member” and, in the second question, determined that his “emotional problems” qualify as a serious health condition, the final question is whether the employee is requesting leave to provide care or psychological comfort for her son. If she is taking him to medical appointments or simply caring for him while he is not well, this time is protected by the FMLA. But if she was requesting leave to take him to have his picture taken for the annual holiday card, or to a friend’s house to visit, these would not qualify as protected activities and would not constitute FMLA-eligible leave.

What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?

Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.

Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.

The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an employee’s total hours worked.

New FMLA regulations go into effect on January 16, 2009.  On January 13, 2009, Delaware attorneys William W. Bowser and Scott A. Holt will be speaking to Delaware employers about how to comply with the new regs.  Delaware Society of Human Resources will host the event at Cavalier Country Club, beginning at 5:30 p.m.

For those Delaware employers who are not members of DESHRM, the Employment Law Department will host a breakfast briefing at the end of the month on the new regulations, as well.  More information on the details of that seminar will follow.  Until then, you can get a head start on the topic by checking out these earlier posts:

• Department of Labor Issues Long-Awaited FMLA Regulations

• New FMLA Regulations Define Scope of Active-Duty Leave

• New FMLA Regulations Explain Military-Caregiver Leave

• 10 Most Important Changes to the FMLA Regulations

The new FMLA regulations go into effect on January 16, 2009.  To help Delaware employers prepare for these significant changes, Young Conaway's Employment Law Group will host a free breakfast briefing on the new regulations.  The two-hour seminar will be held at our Wilmington, Delaware offices on January 30, 2009, from 9 - 11 a.m.  Delaware employment law attorneys William W. Bowser, Scott A. Holt, and Margaret (Molly) DiBianca will discuss the following:

• New "military caregiver leave" permitting family members of wounded military personnel to take up to six months of unpaid leave in a 12-month period to care for their relatives during the recovery process
• New "qualifying exigency leave" permitting families of National Guard members and the reserves to use up to 12 weeks of leave to manage the members’ affairs while they are on active duty
• New definitions of a “serious health condition” 
• New regulations on  “chronic serious health condition”
• Prohibitions on direct supervisors contacting the employee’s health care provider about a medical certification
• Expanding the notice requirements for employers and employees
• Explaining how employers may settle FMLA claims
• Stopping employers from charging FMLA time to employees who are on light duty

Due to the expected popularity of this seminar and the limited number of seats, employers are asked to send no more than two representatives.  Registration is open until all seats are filled or until January 23, 2009, whichever is first.  Registration forms can be found on the Young Conaway website.

An employee requested FMLA leave, which she was provisionally granted. She took the time off but, despite requests by HR, has failed to submit a completed medical certification form. It has been more than 15 days since the form was first requested.

Can we retroactively withdrawal the provisional approval? Do we need to give the employee some kind of warning about the expiration of the 15 days?

The current regulations provide that, when the need for leave is foreseeable and at least 30 days notice has been provided, the employee should provide the medical certification before the leave begins. But this doesn’t sound like the case, here. If this is not possible, the employee must provide the certification to the employer.

The employer can set a deadline so long as it is not less than 15 days. If the employee here was given at least 15 days to provide the certification and was notified of the need to do so but has failed to comply, the leave need not be designated as FMLA-eligible. Many employers, though, will provide notice in writing to the employee of the missed deadline and offer another 7 or 14 calendar days in which to comply. This is a safeguard but is not required.

If the employee returns the certification after the deadline but has made good-faith efforts to do so within the mandated timeframe and was prevented only by circumstances beyond her control, the employer is best advised to accept the certification as timely.

The Family Medical Leave Act (FMLA), Americans With Disabilities Act (ADA), and state worker’s compensation laws are not mutually exclusive. By qualifying for one, an employee is not automatically disqualified from the others.

For example, an employee who is hurt on the job is not necessarily ineligible for FMLA leave. He still must be an eligible employee, work for a covered employer, and have a serious health condition. If his on-the-job injury resulted in him being absent from work for two days, though, he would not qualify for FMLA because a serious health condition is defined, in part, as an illness or an injury that incapacitates the employee for more than three consecutive days.

And what about an employee who exhausts all of his FMLA leave but is still on disability leave? Can he be terminated if he fails to return to work at the end of the 12-week period? Certainly an employer can terminate an employee who fails to return to work after exhausting all available leave.

But there is another level to this question. If the employee is on disability under the company’s disability-insurance plan, his serious medical condition may very well qualify as a disability, as well, under the ADA. The ADA requires that employers make “reasonable accommodations” for qualified employees. The U.S. Equal Employment Opportunity Commission (EEOC), and the courts have taken the position that an accommodation may take the form of a modified work schedule, flexible leave policy, or even just additional time off.

Whenever faced with a decision about whether to terminate an employee who is about to exhaust all of his FMLA time but is not expected to return to work, be sure to consider whether the ADA is applicable and what is required if it is.

For more information on legal compliance with the FMLA and ADA, see the posts in the HR Summer School category, which covers these topics in a comprehensive and no-nonsense style.

The U.S. Department of Labor (DOL,) formally published its long-awaited Family and Medical Leave Act (FMLA) regulations on Monday, November 17, 2008. The regulations contain hundreds of changes and become effective on January 16, 2009 – just a few days before President-Elect Barack Obama takes office. This post discusses some of the most important of these changes.

1. Military-Caregiver Leave.
Military-caregiver leave was mandated by the National Defense Authorization Act (NDAA) Eligible employees are entitled to take up to 26 weeks of leave during a “single 12-month period.” The regulations make clear that the 26 weeks will be calculated on a per servicemember, per injury basis. The 12-month period begins on first day of leave and ends 12 months later and any unused leave cannot be carried over.

The NDAA states that military-caregiver leave can be taken by spouses, children, parents or “next of kin.” Under the regulations, “next of kin” is defined as the nearest blood relative (other than spouse, child, or parent). All family members sharing the closest level of relationship (i.e. siblings) are next of kin. Importantly, the injured servicemember can designate in writing who is next of kin.

In order to take military-caregiver leave the servicemember must be receiving treatment for a “serious illness or injury” incurred in the line of duty while on active duty. The servicemember must be undergoing “medical treatment, recuperation, or therapy, is otherwise in ‘outpatient status,’ or is otherwise on the temporary disability retirement list, for a serious injury or illness.” “Servicemember” is defined as member of the Armed Forces, including a member of the National Guard or Reserves. The regulations make clear that the illness or injury need not have occurred at a time near the need for leave.

2. Active-Duty Leave (Leave because of a qualifying exigency).
The NDAA also created another form of military leave. This leave is called “active-duty leave” or “qualifying-exigency leave.” Up to 12 weeks of active duty leave can be taken by spouse, parent, child. This leave cannot be taken by a servicemember’s “next of kin.”
Active-duty leave must be as a result of qualifying exigency arising out of the fact that a member of the Reserves or National Guard is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation. It does not apply to family members of Regular Armed Forces.

The regulations define seven categories of qualifying exigency: short-notice deployment; military events; child and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and a “catch-all” category of situations agreed to by the employer and employee. Details of these categories are set out in an earlier post.

3. Serious Health Condition.
The regulations also modify the definition of “serious health condition.” Period of incapacity, however, unfortunately stays at “more than three consecutive calendar days.” Incapacity must, however, be for “full” days. Moreover, the first visit to the healthcare provider must occur within seven days of start of incapacity and the visit must be in-person.

When relying on two visits to a health care provider to establish “continuing treatment,” the visits must occur within 30 days of the first day of incapacity. The second visit must be determined by the health care provider, not the employee.

Chronic conditions must involve treatment at least twice a year.

4. Light Duty.
The regulations now provide that time spent in “light duty” work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

5. Perfect Attendance Awards.
Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave – but only if the employer treats employees taking non-FMLA leave in an identical way.

6. Employer Notice Obligations.
The new regulations reorganize and modify an employer’s notifications obligations under the FMLA. The first change involves how employers must inform their employees of the FMLA. This general notice may inform employees electronically, but a paper posting must be seen by applicants. Employers without handbooks must provide general notice at time of hire. Employers with handbooks can include prototype general notice found in Appendix C of the regulations in such handbooks.

Upon a request for FMLA an employer must provide an employee with an eligibility notice. This notice addresses only whether the employee meets eligibility criteria. Notice must be supplied to employee within five business days, “absent extenuating circumstances.” The regulations provide that eligibility is determined (and notice provided) at the commencement of the first instance of leave for each FMLA-qualifying reason. If ineligible, the employer need only provide one reason for ineligibility.

If leave is designated as FMLA qualifying, an employer must provide the employee with a designation notice. A designation notice must be provided in writing and provided within five business days after employer has enough information to determine whether leave will be designated as FMLA leave. Prototype designation notice is contained in Appendix E of the regulations.

Only one notice is required for each FMLA-qualifying reason per 12-month period, regardless of whether leave is taken in a block or intermittently. Employer must notify the amount of leave counted against the employee’s entitlement. If known at time of designation it must be provided with notice. If unknown, employer must provide upon request of employee, but no more often than every 30 days.

Along with the designation notice, an employer must provide a rights and responsibilities notice. This notice must be in writing and spell out the specific expectations and obligations of employee and consequences of failure to meet these obligations. If leave has commenced, the notice must be mailed. A prototype notice of rights and responsibilities is contained in Appendix D of the regulations.

7. Employee Notice Obligations.
The new regulations also place new obligations on employees seeking FMLA leave. These obligations depend, in part, on whether the leave is “foreseeable” or “unforeseeable.”

Notice for foreseeable leave must be at least 30 days or “as soon as practicable” taking into account all the facts and circumstances. It should be the same day or the next business day after learning of need for leave. There is no more “two-day” rule allowing employees two days after the leave need occurs to inform the employer. Employees can be required to explain why it was not possible to give 30 days notice.

While an employee need not mention the FMLA or specifically request FMLA the first time leave is need, the employee must reference FMLA-qualifying reason if employer has previously provided FMLA-protected leave for this reason. This should eliminate an employers need to guess on every absence whether is for the FMLA-qualifying reason or not.

Importantly, an employer may require an employee to comply with notice and procedural requirements (including call-in procedures) for requesting leave, “absent unusual circumstances. Foreseeable FMLA leave can be delayed until 30 days after notice from employee if unusual circumstance don’t exist.

In the case of unforeseeable leave, an employee must provide notice to the employer “as soon as practicable under the facts and circumstances of the particular case.” Generally, notice should be within the time frame prescribed by employer’s usual and customary notice requirements for such leave. Employee must provide sufficient information for an employer to determine whether FMLA applies. Calling in “sick” without more explanation is not sufficient to trigger employer’s obligations.

An employee need not assert FMLA in first request for leave, but must reference FMLA-qualifying reason if employer has previously provided FMLA-protected leave for this reason. Again, an employer may require an employee to comply with notice and procedural requirements (including call-in procedures) for requesting leave, “absent unusual circumstances.” FMLA leave can be delayed for failure to comply unless policy requires notice sooner than practical.

8. Medical-Certification Process.
The new regulations make a number of changes to the medical certification process. Most importantly, it changes the time frames for requesting a certification and responding to such a request. An employer now has five days to request a certification instead of two days. The employee must then provide the requested certification within 15 days, regardless of type of leave. The employee must, however, be given additional time if he or she is using “diligent, good faith efforts” and informs employer of such efforts. Employer need not send a notice indicating that certification has not been received. An employer may get a certification annually for conditions that last longer than a year.

Employer may generally get a recertification every 30 days. If the initial certification says that an absence will last longer than 30 days, recertification can be requested when the initial certification says the absence will end or six months, whichever is shorter. Recertification can take place any time the employee requests: an extension of leave; circumstances described in initial certification have changed significantly; or the employer has information that casts doubt upon the stated reason for absence or continued validity of the certification.

The regulations also set sure a procedure for curing an incomplete certification. The employer must first state in writing what information is required to make certification complete and sufficient. The employee then has seven calendar days to cure the certification.

9. Substitution of Paid Leave.
Finally, the regulations impose new limits on the ability of employees to substitute paid leave for unpaid FMLA leave. Under the new regulations, an employee’s right to substitute paid leave will be determined by the terms and conditions of the employer’s normal leave policy, regardless of the type of leave (including vacation and personal leave). For example, if sick leave must be taken in full day increments, an employer can refuse substitution for a partial day of sick leave. Employee can, however, take the entire day and a full day will count towards his FMLA entitlement. Similarly, if personal days can be used upon two days notice, the same requirement can be imposed prior to allowance of substitution. The employee will, of course, be able to take the unpaid FMLA leave. The Employer can, and in most case probably will, waive the procedural requirements with or without the employee’s consent so that substitution can occur.

10. Legal Fixes.
The new regulations make a couple of technical legal changes. The first brings the regulations into compliance with the U.S. Supreme Court’s Ragsdale decision which dealt with the consequences of an employer’s failure to properly designate FMLA leave. In Ragsdale, the U.S. Supreme Court ruled that the so-called “categorical” penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave) contained in the DOL’s earlier regulation was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law’s remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

The regulations also remove an impediment for settling FMLA claims. The regulations clarify that employees may voluntarily settle their FMLA claims without court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.

The Family and Medical Leave Act (FMLA), will be the talk of the HR world next week when the U.S. Department of Labor (DOL), formally issues its new revised final regulations. The new regulations finally define the scope of two new types of FMLA leave that were created by the National Defense Authorization Act for FY 2008 (NDAA). These two new kinds of leave, known as active-duty leave and military-caregiver leave, provide FMLA leave for the families of servicemembers called to active duty or injured in the line of duty. In an earlier post, (New FMLA Regulations Define Scope of Active-Duty Leave), we addressed the regulations dealing with active-duty leave.  Now we examine the regulations on military-caregiver leave.

The NDAA provides that “an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a [single] 12-month period to care for the servicemember.”   This type of leave is different from other forms of FMLA leave, including Active-Duty leave, in that it provides for up to 26 weeks of leave rather than 12 weeks.  In addition, the NDAA also provides that a covered servicemember’s “next of kin” is eligible to take FMLA leave to care for the servicemember.

Defining "Next of Kin"

The NDAA left several questions unanswered. The first group of questions involved the phrase "next of kin."  Just who is a "next of kin"?  Is it just one person or a group of relatives? Can the employee designate his or her "next of kin"?  Can the employer require an employee to prove his or relation to the servicemember? The new regulations address all of these questions.

The final regulations define a servicemember’s “next of kin” as the servicemember’s nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military-caregiver leave under FMLA, in which case the designated individual shall be deemed to be the covered servicemember’s next of kin.

The final regulations also provide that all family members sharing the closest level of familial relationship to the servicemember shall be considered the servicemember’s next of kin, unless the servicemember has specifically designated an individual as his or her next of kin for military-caregiver leave purposes. In the absence of a designation, where a servicemember has three siblings, all three siblings will be considered the servicemember’s next of kin.

Finally, the regulations permit an employer to confirm an employee’s status as a covered servicemember’s next of kin.

How Much Leave Is Available?

The next set of questions left open by the NDAA involved the amount of military-caregiver leave that could be taken by an employee. Is this type of leave a one-time entitlement?  Can an employee take more than one period of military caregiver leave to care for multiple covered servicemembers with a serious injury or illness, or the same covered servicemember with multiple serious injuries or illnesses? How should the “single 12-month period” should be determined?

The final rule explains that an eligible employee may take no more than 26 workweeks of military caregiver leave in any “single 12-month period.” This section also provides that the 26-workweek entitlement is to be applied as a per servicemember, per-injury entitlement, meaning that an eligible employee may take 26 workweeks of leave to care for one covered servicemember in a “single 12-month period” and then take another 26 workweeks of leave in a different “single 12-month period” to care for another covered servicemember or to care for the same covered servicemember with a subsequent serious injury or illness. The final rule also provides that the “single 12-month period” begins on the first day the eligible employee takes military-caregiver leave and ends 12 months after that date.

The Family and Medical Leave Act (FMLA), will be clarified when the U.S. Department of Labor (DOL), formally publishes new regulations on Monday, November 17, 2008. Among the many changes contained in the regulations, are provisions dealing with the recently enacted leave benefits for family members of both seriously injured or ill service members and National Guard and Reserve members who have been called to service.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA was an amendment to the Family and Medical Leave Act of 1993 (FMLA) which created two new types of FMLA leave: Military Caregiver Leave and Active-Duty Leave. Although the NDAA became effective immediately following the President's signature, the DOL announced that it would not look to enforce the Act until it issued regulations as long as an employer was attempting to comply with the NDAA "in good faith." The new regulations apparently end this amnesty period.

Active-Duty Leave, as the name suggests, is triggered when the employee's relative is called to active duty. It can be taken by employees spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." The new regulations finally define what is a "qualifying exigency."

Section 825.126(a) of the final rule defines qualifying exigency by providing a specific and exclusive list of reasons for which an eligible employee can take leave because of a qualifying exigency. These reasons are divided into seven general categories: (1) Short-notice deployment, (2) Military events and related activities, (3) Childcare and school activities, (4) Financial and legal arrangements, (5) Counseling, (6) Rest and Recuperation, (7) Post-Deployment activities, and (8) Additional activities.

The short-notice deployment category involve the situation where a covered military member is notified less that seven days prior to a deployment. Under these circumstances, leave can be taken to address any issue that arises from the deployment. Leave taken for this purpose can be used for a period of seven calendar days beginning on the date the covered military member is notified of an impending call or order to active duty.

The Military Events and related activities category allows leave to attend any official ceremony, program, or event sponsored by the military and to attend family support and assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member.

The Childcare and School activities category allows an eligible employee to take leave to arrange childcare or attend certain school activities for a biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

Leave may be taken under this to arrange for alternative childcare when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement; (2) to provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status of a covered military member; (3) to enroll the child in or transfer the child to a new school or day care facility when enrollment or transfer is necessitated by the active duty or call to active duty status of a covered military member; and (4) to attend meetings with staff at a school or a day care facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, when such meetings are necessary due to circumstances arising from the active duty or call to active duty status of a covered military member.

The Financial and Legal Arrangements category allows qualifying exigency leave to make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, such as preparing and executing financial and health-care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (“DEERS”), obtaining military identification cards, or preparing or updating a will or living trust. It also allows leave to act as the covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status and for a period of 90 days following the termination of the covered military member’s active duty status.

The Counseling category allows qualifying leave to attend counseling provided by someone other than a health-care provider for oneself, for the covered military member, or for the biological, adopted, or foster child, a stepchild, or a legal ward of the covered military member, or a child for whom the covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.

The Rest and Recuperation category provides leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

The Post-Deployment activities category allows qualifying exigency leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty and to address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Finally, the Additional Activities category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

A future post will address how the new regulations answer the many open issues surrounding military caregiver leave. Stay tuned.

The U.S. Department of Labor (DOL) released the newly revised regulations governing the Family and Medical Leave Act (FMLA).   This is the first major regulatory update of the 1993 law in more than ten years. 

We will be providing the highlights of the changes shortly.  If you can't wait, the 750-page report can be accessed via the electronic version of the FMLA regulations in the Federal Register.

What counts towards “hours worked” under the Fair Labor Standards Act (FLSA), can become an issue when it comes to the Family and Medical Leave Act (FMLA), as well. An employee has been approved to take intermittent FMLA leave one to three days per month. When the employer asks the staff to work overtime, the employee volunteers. He claims that he should be paid at his overtime rate even though he was out on FMLA leave for some portion of the week. Is this true?

Let’s look at the numbers. Let’s say that the employee takes off on Monday and Wednesday for FMLA leave, thus working 24 of the 40 hours for which he was scheduled. And then he volunteers to work on Saturday, a day outside his normally scheduled work time. In all, he actually worked 32 hours (24 + 8), with an additional 16 hours of FMLA leave time. The 16 hours do not count as “hours worked” under the FLSA.

Because he did not work more than 40 hours in one week, the employee is not entitled to overtime pay.

The result is the same even if the employee is paid sick or vacation time during the FMLA leave time. The use of such paid time still does not count toward an

The Family Medical Leave Act (FMLA), is heavily abused and burdensome to administer.  Put together, this combination can mean a major headache for employers.  There are numerous questions that remain unanswered when it comes to what to do when an employer suspects an employee is abusing his FMLA rights.  Many employers have been subject to painful litigation as a result of the FMLA, especially as a result of their well-intentioned but improper attempt to regulate these frequent abuses.  There's no guaranteed way to avoid FMLA errors but sample scenarios help illustrate some of the most common traps for employers.

Requesting Recertification During Leave

If the employer has good, objective evidence that abuse is taking place, the employer may require that the employee be recertified before the end of leave.  If an employee requests an extension of leave, the circumstances since the last certification have changed significantly, or the employer has received information that casts doubt on the continuing validity of the certification.

Possible Options

The Department of Labor (DOL), issued an administrative ruling saying that "the FMLA does not prohibit an employer from including a record of an employee's absences along with the medical certification form for the health-care provider's consideration in determining the employee's likely period of future absences."  The employer may ask the provider whether the employee's absences are consistent with the stated serious medical condition. 

FMLA 103, part of the HR Summer School Back-to-Basic Series, addresses the very hot topic of intermittent leave.  Most HR professionals would agree that the FMLA's intermittent leave is one of the most difficult types of employment laws to administer.  In fact, a great number of the FMLA calls I get are, in some way, related to intermittent leave. 

For each question, I start my answer in the same way--with the basics.  Sometimes I find that, even the most knowledgeable HR professionals will skip the basics when there is a particularly unusual set of facts involved.  To make sure we don't overlook the forest for the trees, sometimes it's helpful to start at the beginning. 

What is Intermittent Leave?

The regulations prove that an eligible employee may take "intermittent leave" or go onto a "reduced leave schedule."

Intermittent leave is multiple instances of leave taken in separate blocks of time as opposed to one chunk of time, such as X days or weeks.  All of the instances of leave, though, are due to a single qualifying reason.

A  reduced leave schedule is a leave schedule that reduces an employee's
usual number of working hours per workweek, or hours per workday.  A
reduced leave schedule is a change in the employee's schedule for a
period of time, normally from full-time to part-time.

 Leave for Birth of a Child or Placement of a Child for Purposes of Adoption or Foster Care.  In this case, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. But remember that the employer does not have the discretion to "agree" if leave is need for an employee who has a serious health condition related to the birth of her child, or where the leave is related to her newborn's serious health condition. 

Planned Medical Treatments.  Intermittent leave may be taken for a serious health condition that requires periodic treatment by a health care provider.  In this instance, leave could be needed on an occasional basis for medical treatments, i.e., weekly kidney dialysis, or it can involve leave taken in blocks of days spread over a period of months, i.e., chemotherapy.  A common example of leave taken for planned medical treatments is a pregnant employee who takes intermittent leave for prenatal examinations. 

Recovery from Medical Conditions or Treatments.  Remember that time spent recovering from these treatments is also entitled to intermittent or reduced-scheduled leave.  For example, an employee may need a reduced schedule following radiation therapy until he develops the strength to work a full workweek.

Unanticipated Need for Leave.  An otherwise-FMLA-eligible pregnant employee suffering from morning sickness also would qualify for intermittent leave.  Pregnancy meets the standard for a serious medical condition for which the employee is under the care of a health care provider.

Immediate Family Members.  An eligible employee may take intermittent leave to care for an immediate family member who has, is being treated for, or is in recovery from a serious medical condition.  Just like leave for the employee himself, he may need unanticipated leave to care for his family member.  And remember that "caring for" is not limited to providing medical care in the strict sense.  Just providing psychological comfort, as we all know, can qualify as health care. 

Leave Where No Treatment Is Being Provided.  Intermittent or reduced schedule leave may be taken where the employee or the family member is incapacitated or unable to perform the essential functions of the job--even if not receiving treatment from a health care provider.  If an employee's parent, for example, has a terminal illness, the employee can take leave to "care," i.e., to provide comfort for, his parent, regardless of whether or not the parent is still being treated for the illness. 

FMLA 102, part of the HR Summer School, Back-to-Basics Program, reviews the conditions that entitle an employee to take FMLA-qualified leave.  The Course Materials are attached for your reference. 

I. Generally

The Family and Medical Leave Act of 1993 (“FMLA”) was enacted primarily to balance the demands of the workplace with the needs of families. It entitles eligible employees of covered employers to take up to 12 weeks of unpaid leave per 12-month period for:

ª the birth, adoption, or assumption of foster care of a child;

ª caring for an eligible family member with a serious medical condition;

ª caring for their own serious medical condition.

In its simplest form, the FMLA requires covered employers to give leave to covered employees for up to 12-weeks per year under any of the above three conditions. Employers must not only permit the employee to take leave, but also cannot take any retaliatory action as a result of the leave or request for leave.

 

II. Childbirth, Adoption, and Foster Children

 

A. Childbirth

Both fathers and mothers of newborns are entitled to take FMLA leave for the birth of a child.

The mother may take leave for childbirth, prenatal care, and to care for the newborn. She also may take FMLA leave for morning sickness and other pregnancy-related conditions that amount to serious health conditions.

The father may take leave for his wife’s serious, pregnancy-related health condition and to care for his newborn child.

If both spouses work for the same employer, the 12-week maximum is calculated in the aggregate. They can split up the leave as they want , and it can overlap, but the total combined leave cannot exceed 12 weeks.

B. Pregnancy-Related

Pregnancy itself is not a serious health condition. But conditions related to pregnancy are automatically serious health conditions under the FMLA if they prevent an employee from doing her job.

The FMLA protects intermittent and long-term leave for:

ª prenatal care and doctor visits;

ª bed rest on a doctor’s or midwife’s orders;

ª morning sickness; and

ª the birth of the child.

If an employee experiences complications from her pregnancy that incapacitate her and amount to a serious health condition, she is eligible for FMLA leave on that basis.

 

C. Adoption and Foster Care

Employees may use FMLA leave before actually getting the child if they must miss work to attend appointments, such as attorney meetings and court appearances that are required for the placement. Leave may also be taken to pick up the child. Employees do not have to wait for the adoption to become final before taking leave—they are eligible when they first begin caring for the child.

 

III. Medically Related FMLA Leave

The FMLA allows an employee to take protected leave to care for his or her own serious health condition. it also allows provides for leave to care for certain family members who suffered from a serious health condition.

A. Covered Family Members

Not all “family members” are included for the purposes of the FMLA. Only a spouse, son or daughter, or parent are considered to fall within this definition. A son or daughter can include a biological, adopted, foster, or stepchild, legal ward, or child for whom the employee stands in placer of a apparent. Parents do not include parent-in-laws.

B. Serious Health Condition

One of the biggest, yet unanswered questions with respect to the FMLA is what exactly is a “serious health condition.” Although there is no comprehensive definition that seems to apply in all situations, it is best to think of whether the condition has a serious effect on the individual employee. There are five categories of illnesses, injuries, impairments, and conditions. If the condition fits into one of the five categories, then it is covered by the FMLA.

Inpatient Care: Conditions requiring an overnight stay in a health-care facility (such as a hospital or hospice), automatically qualify as serious medical conditions. FMLA covers the time in the facility and any subsequent period of incapacity or follow-up treatment in connection with the same condition.

Incapacitation for More than Three Days: Conditions that incapacitate the employee for more than three consecutive calendar days are considered serious provided that he or she is under the “continuous treatment” of a health-care provider. “Continuous treatment” can mean

ª Two or more treatments by a health-care provider within the period of incapacitation; or

ª One treatment by a health-care provider that results in a regiment of continuing treatment under the provider’s supervision.

Chronic Serious Health Conditions: These conditions incapacitate a person but don’t last more than three straight days. It requires periodic visits for treatment by a health-care provider and continues over an extended period of time. The employee need not visit a health-care provider for each absence. Examples of chronic conditions could include diabetes, asthma, and epilepsy. Treatment may include prescription medications. Treatment does not include actions that the employee can do without a visit to a health-care provider, such as taking over-the-counter medications, or bed rest.

Long-Term Incapacity: A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective. For example, Alzheimer’s, stroke, or terminal disease.

Treatment to Prevent Incapacitation or for Restorative Surgery: This category includes absences that are taken to receive multiple treatments by health-care providers for reconstructive surgery after an accident or injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if left untreated. Chemotherapy and radiation treatments are examples.

Congratulations to Jon Hyman, of the Ohio Employment Law Blog, who celebrated the birth of his son, Donovan Joseph Hyman, earlier this week!!  And, wouldn't you know it, being the dedicated blogger that he is, Jon actually tied the joyous occasion to an employment-related topic--the FMLA!  And, if you can even believe it, earlier this week, my office cheered on William W. Bowser, a partner in our Group, when he managed to pull off the unimaginable--tying together Brangelina and the birth of their twins, to the FMLA!  I kid you not.

So, to read about a real-life FMLA scenario that can match just about any set of facts your employees might throw at you, check out William W. Bowser post, Brad + Angelina + twins = One Great FMLA Hypothetical .  And, for the scoop on intermittent leave under the FMLA, see Jon's post called, Dads Get FMLA, too, (and while you're at it, drop a comment with a congratulations on his exciting arrival!).

And for more about guys and babes (the swaddled type), here are some other interesting posts from the blogosphere:

"Daddy Track" Is a Major Concern for Law School Grads, Study Says (Martha Neil at the ABA Journal)

From winning the bread to spreading peanut butter on it:  Confidence in themselves, along with family support, helps stay-at-home dads get in the groove (Boston Globe)

Some Days It Would Be Better to Be In Management (by the dad who Stays at Home with Triplets

Happy Father's Day to Fathers Across the County (Delaware Employment Law Blog)

HR Summer School is back again. We've finished two ADA courses, so it's time for the FMLA.  This is the first of five FMLA "courses" in the HR Summer School series.  The course outline is attached for your reference. 

I. Covered Employers

The easy answer is that private employers with 50 or more employees are covered by the FMLA. Of course, there’s nothing easy about the FMLA, which is why there is a much more detailed explanation of this seemingly simple statement.

The FMLA covers private employers that have:

• at least 50 employees;
• for at least 20 weeks;
• in the current or preceding calendar year.

A. “Employees”

So who actually counts as an “employee” for purposes of determining whether a business is covered by the FMLA?

• Full- and part-time employees
• Temporary employees, even if you don’t pay them.
• Employee’s located at all work sites within 75 miles.
• Employees with no regular office are assigned to the office to which they ordinarily report.
• Employees “acquired” as part of the sale of a business.

The last type of employee applies only to “successor employers.” If you’ve acquired or taken over all or part of a business that was covered by the FMLA, you are considered a successor employer and may have to grant FMLA leave to certain employees even if the part of the business you’re operating has fewer than 50 workers. You must honor the leave request of any employee who had provided notice to the previous employers and you must follow the FMLA’s rules on maintaining benefits and reinstating employees who were on leave when you acquired the business.

B. Relevant Time Period

The FMLA covers only employers with 50 or more employees (as defined above). But what about employers who fluctuate just around 50 employees, or who had 50 employees but recently reduced staff? To determine the number of employees for FMLA purposes, employers can’t simply look to one specific date on the calendar, such as the first or last day of the year. A more complicated evaluation is required.

The FMLA applies, even if the employer does not currently have 50 employees, where the employer had 50 or more employees for at least 20 weeks in the current or preceding calendar year. This requires the employer to look at both years, week by week. Any week in which there were 50 or more employees on each working day (usually Monday through Friday), will count towards the 20-week minimum.

 

II. Covered Employees

Once an organization determines that it is covered by the FMLA and bound by its provisions, it will next need to determine whether the specific individual requesting leave is a covered employee.

To be eligible for FMLA leave, an employee must:

• be employed by the employer for at least 12 months; and
• work at least 1,250 hours in the 12 months before the leave would start.

The 12 months of employment do not have to be consecutive. And the 1,250 hour requirement must be satisfied by the time the employee would take the leave—not at the time the employee requests the leave.

It's official. The "Brangelina" clan, headed by Brad Pitt and Angelina Jolie, has grown by two. And what's the first thing that comes to mind?  The Family Medical Leave Act (FMLA), of course!  Ok, maybe not. 

The (Somewhat Complicated) Family Tree

The proud parents have announced that Vivienne Marcheline and Knox Leon were born on Sunday in a hospital in the South of France.  The unmarried Pitt and Jolie have four other children.  Jolie adopted Maddox in 2002 and Zaharah in 2005.  Pitt adopted the two in January 2006, which was followed by the birth of the couple's first child together, Shiloh who was born in Nambia in 2006.  The couple adopted Pax in 2007. 

It's safe to say that this family is a long way from what was once considered a traditional family unit.  What if Brad or Jolie were not motion-picture superstars but, instead, were your employees?  How would the FMLA be applied to situations occurring in their family?

The Family and Medical Leave Act (FMLA) is one of the most complicated employment laws for HR professionals to administer. It's hard enough to determine whether the Act applies to an employee who requests leave because of his own serious health condition. It can be even more challenging when leave is requested to care for a new or sick family member.

ABCs of the FMLA

The FMLA generally provides that certain employers (companies that employ 50 or more workers) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave for one of the following the birth of a child or to take care of the newborn; placement of a child for adoption or foster care; or to care for a spouse, child, or parent with a serious health condition.

Rock-a-Bye Baby

Both male and female employees may take leave for the birth and care of a newborn child. This type of leave has nothing to do with the medical condition of the newborn or the mother. As a result, Brad and Angelina are simply entitled to take leave as a result of the birth of the twins.

There are only three real limitations to this type of leave. First, the leave must be taken within a year of the child's birth. Second, it must be taken in a single block of full days off. In other words, Brad can't take leave three weeks after the birth of the child and then wait several months to take the remaining nine weeks. Similarly, this type of leave can't be taken intermittently or for partial days unless you agree to that arrangement. And finally, if Brad and Angelina both worked for you, they are entitled to a total of 12 weeks jointly.

The FMLA also requires you to grant leave when a child is placed with your employee for adoption or foster care. According to U.S. Department of Labor (DOL) regulations, FMLA leave may be used before the employee actually gets the child. She may take FMLA leave to attend meetings with an attorney, doctor's visits, and court appearances or to fly out of the country to pick up the child. Thus, Brad and Angelina could have taken FMLA leave off to fly to Cambodia, Vietnam, or Ethiopia in connection with the adoption of Maddox, Pax and Zahara.

Are You My Mother?

The FMLA allows employees to take unpaid leave to care for certain family members who are suffering from a "serious health condition." The law severely restricts the family members for whom leave can be taken, however. An employee can take leave "to care for" his spouse, son or daughter, or parent, but not for siblings, grandparents, or grandchildren. While it might seem that determining whether leave must be granted for a family member is straightforward, the definitions of "spouse," "child," and "parent" can make figuring out whether leave is required harder than it looks.

First, a "spouse" is either a husband or wife defined by the law of the state where the employee resides. That's a particular challenge for Delaware employers that have employees living in Pennsylvania. That state recognizes "common-law marriage," while Delaware doesn't. As a result, Brad could not take FMLA leave to care for Angelina if they lived in Delaware, but might if they lived in Pennsylvania and their relationship constituted a "common-law marriage."

The regulations define "child" as either a biological child, an adopted child, a foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (that's Latin for "in place of the parents"). In other words, the employee must have day-to-day responsibility for taking care of and financially supporting the child. The child must also generally be under 18 or incapable of caring for herself because of a mental or physical disability. All the Brangelina kids meet this definition one way or another.

The FMLA regulations define "parent" to include the employee's biological parent or the person who stood in loco parentis to him when he was younger. As a result, an employee can have more than two "parents" for FMLA purposes. As a result, the adopted kids might someday be eligible to take care of Brad and Angelina, but also their biological parents.

For more information on the basis of FMLA and what it requires, check in at HR Summer School for FMLA 101.

The Delaware Employment Law Blog will be posting a series of "Back-to-Basics" articles over the next couple of months.  Each class in the series will focus on the basics of the covered topic.  The posts can be printed and assembled for a handy reference.

After much thought, we've selected the topics that we'll cover.  We've decided to tackle what we think are the Top 3 Toughest Topics in Employment Law, the ADA, the FMLA, and the FLSA.  These are the statutes that give our clients the biggest headaches but we're going to try to reduce the agony with the Back-to-Basic series. 

There will be several mini-topics in each course.  Generally, we expect the "schedule" to look something like this:

ADA 101

• 101  Who Is Covered?
• 102  What Does the ADA Require?
• 103  What Is a "Reasonable Accommodation"?
• 104  What Certification Can I Require?
• 105  Special Disciplinary Problems and Abuses

FMLA 101

• 101  Who Is Covered?
• 102  What Is a "Serious Medical Condition"?
• 103  Do I Have to Act If I Think an Employee May Qualify for FMLA Leave?
• 104  How Do I Handle Intermittent Leave?
• 105  Special Disciplinary Problems and Abuses

FLSA 101

• 101  What Does the FLSA Actually Cover?
• 102  What Is the Difference Between Exempt and Nonexempt?
• 103  What Types of Exemptions Are There?
• 104  How Do I Determine If My Employees Are Exempt?
• 105  Special Disciplinary Problems and Abuses

Get those pencils sharpened and we'll see you in class!

The FMLA's newly proposed regulations are a serious attempt to address employer concerns and have already drawn criticism from unions and employee advocates. Through the new regulations, the Department of Labor (DOL), has addressed some of the most complained-of provisions, but not all.

The newly proposed regulations with contain provisions that:

• Fine-tune procedures regarding required notices, medical and fitness-for-duty certifications, and designation of leave

• Clarify the eligibility requirements for employees who are jointly employed

• Clarify when an employee’s inability to work overtime exhausts FMLA leave

• Establish that light duty does not exhaust FMLA leave

• Allow employers to deny bonuses (such as perfect attendance or hours worked awards) to employees who don’t qualify for them because they took FMLA leave

• Allow employers to require employees to comply with the terms and conditions of their paid leave policies in order to substitute paid leave for FMLA leave

• Allow employees and employers to voluntarily settle claims of past FMLA violations

• Provide very minimal clarification of the definition of a "serious health condition"

This FMLA Update briefly reviews the second new type of FMLA leave offered to servicemembers and their families, Military-Caregiver Leave.

The two new FMLA leave types are designed to protect members of the Armed Forces and their families. Both types of leave enable a family member of a servicemember to take protected leave in two circumstances. The first, Active Duty Leave, was discussed in an earlier post. The second, is known as Military-Caregiver Leave. This new protection grants time off to the family member to care for a related servicemember who is ill or injured due to active duty.

• Employees may take an unprecedented 26 weeks of FMLA leave when a spouse, parent, child, or other blood relative for whom they are "next of kin" incurs a serious injury or illness on active duty in the Armed Forces.

• This 26 week total includes regular FMLA leave.

• Leave may be taken intermittently, but must be completed in a 12-month period.

• This is a one-time leave entitlement.

• "Next of kin" is an entirely new category of family member; it applies only to this specific type of leave.

• "Serious injury or illness" is much broader than the typical serious health condition; it applies only to this specific type of leave. Your speaker will provide a detailed definition.

• As with other FMLA leave, employers may require employees to take this type of leave concurrently with paid leave such as vacation, personal, or sick leave.

• Employers may require certification of servicemember’s health condition.

The FMLA now provides two completely new categories of leave for employees who are related to a servicemember who is called to active duty or injured in the military.

The first type of leave is triggered when the employee's relative is called to active duty. It is designed to enable servicemembers' family to get FMLA time off to make the arrangements necessary for the servicemember's departure. Below is a short summary of the need-to-know points for this first type of new FMLA leave.

Active-Duty Leave:

• Covers employees who have a spouse, parent, or child who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience "any qualifying exigency." While “qualifying exigency" is yet to be defined by DOL, but it probably will include -- at a minimum -- covering necessary family and childcare responsibilities of the servicemember when that family member is called to active duty.

• Employees who request this type of leave are subject to most of the same requirements as other forms of FMLA leave, including employee eligibility and notice requirements, maintenance of benefits, and job reinstatement.

• Employers may require certification that the employee’s family member is on active military duty in accordance with guidance to be provided by the Secretary of Labor.

• Employers should grant these leave requests liberally until DOL defines the term "qualifying exigency".

* * * *
Pregnancy discrimination is making international headlines. Our friend and fellow Employers Counsel Network editor, John Phillips, posted an interesting article today on his blog, titled, "Questions About Pregnancy," regarding pregnancy discrimination and Spain’s pregnant defense minister.

He poses some interesting questions about balancing an employer’s interests versus those of a pregnant woman in the workplace.

See my earlier post, “More Than Hollywood Noticing Baby Bump” regarding the alarming increase in pregnancy discrimination claims.

What exactly are your obligations to a pregnant employee?

Under the Pregnancy Discrimination Act (PDA), you're prohibited from treating pregnant employees differently than other employees with temporary restrictions. For example, if a pregnant employee is restricted from lifting more than 20 pounds during her last trimester, you must treat her the same as a male employee who suffered a back injury and was temporarily unable to lift the same amount.

The PDA does not require you to make special accommodations like the Americans with Disabilities Act does. It only requires you to treat pregnant employees the same as you would treat nonpregnant employees with temporary restrictions.

What can you do to avoid violating the PDA?

Here are some basic guidelines:

• Don't discuss an applicant's pregnancy with her at the employment interview or base your hiring decisions on her pregnancy or absences that may be caused by pregnancy.

• When an employee informs you that she's pregnant, congratulate her. Don't start interrogating her about the leave she will need or make any other comments about how her pregnancy might affect her job.

• Provide optional alternative jobs if the pregnant employee's current position could be harmful to her fetus. Be aware, however, that the decision to change duties is hers, not yours.

• If a pregnant employee is unable to perform her job or requests light duty, treat her like you would any other employee in a similar situation.

• If you take any performance-related disciplinary actions during an employee's pregnancy or maternity leave, do so cautiously! Make sure to document your actions, providing legitimate non-discriminatory reasons for the action.

Of course, dealing with pregnant employees may implicate other employment laws, including the Americans with Disabilities Act, and the Family and Medical Leave Act. I will be presenting When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims in Las Vegas and Nashville, TN at the upcoming Advanced Employment Issues Symposium. Click here for more details about the Symposiums.

Family and Medical Leave has hit New Jersey employers. The N.J. Senate passed legislation that would make the Garden State only the third state (after California and Washington) with state-sponsored paid family and medical leave. Governor Corzine said he intends to sign the bill, so employers should start preparing now.

The New Jersey Division of Civil Rights, the state agency charged with enforcing the bill, has posted a helpful Q&A on the NJ FMLA on its website.

The criteria for employee coverage will be the same as for coverage under the state’s unemployment compensation law. Employers are covered if they are covered under the New Jersey Temporary Disability Benefits law, that is, if they have one or more employees who earned at least $1,000 in the current or preceding calendar year. Employees will be entitled to benefits in the amount of two-thirds of their weekly pay, up to $524 per week, for up to six weeks in any 12-month period.

Benefits are payable for time off taken to care for a seriously ill family member, or in connection with childbirth or adoption. Benefits will be funded by an additional tax on employees of about $.48 per employee per week, beginning on January 1, 2009. Benefits will begin to be available on July 1, 2009.

The law does not include any job restoration guarantees, and provides that employers with fewer than 50 employees (who are not covered by the federal FMLA) will not be liable to a discharged employee.

Our Annual Seminar for Employers was held today at the Chase Center on the Riverfront in Wilmington, Delaware. The attendance at the seminar was our best ever, with more than 130 of Delaware's best human resource professionals, labor relations specialists, senior managers, and small business owners.

Our many thanks to The Honorable Mary Pat Thynge, who spoke candidly about the federal mediation process. Her comments were direct and insightful for everyone, including for the attorneys!

Another thanks to all of the attendees who completed and submitted a survey at the end of the day. We're looking forward to reviewing your comments. Our objective is to make the seminar as effective and enjoyable as possible. Your opinion really tells us what we can do to better to maximize the client experience. We are especially interested to learn what topics most interest you for future seminars. If you were in attendance today but did not have an opportunity to submit an evaluation, just let us know and we'll send you one that can be completed and returned electronically--no stamp necessary!

Again, thank you to all of our clients, colleagues, and new friends, who gave us your attention and participation for a very full day on a variety of employment-law topics.

Now that President Bush has signed into law the National Defense Authorization Act (NDAA), which amends the Family and Medical Leave Act (FMLA), employers must update their FMLA postings.

Under the FMLA, all covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

A copy of the standard FMLA poster prepared by the Department (WH 1420) is available for posting in the workplace at the DOL's website. The poster is also available in Spanish.

The DOL has also published a single-page insert poster, which includes the NDAA amendment. The insert is also available at the DOL's website. It's available here for download and use.

F-M-L-A.

Four little letters that strike terror in the hearts of HR Managers around the country. And it's not for want of trying. Employers want to comply--they really do. But the FMLA doesn't make it easy. Enacted with good intentions, the statute and its enforcement regulations have become one of the biggest employer complaints. Business groups have been calling for a substantial revision of the "FMLA Regs" for some time. The Regs have made compliance cumbersome and difficult to truly understand. Unfortunately, they have also enabled the statute to be grossly misused by not-so-well-intended employees.

On February 8th, the Department of Labor took a major step towards an answer to the cries of employers and business-protection organizations by publishing new proposed regulations. Getting here has been a long time in the making. In 1996 and again in 2001, the DOL published studies on how the FMLA was being administered. Several decisions from the Supreme Court and countless lower court rulings have also had a great impact on how the Regs have been interpreted. And, in 2006, the DOL posted a Request for Information (RFI), in response to which it received 15,000 public comments, which were summarized in the DOL's June 2007 Report on the RFI.

The Notice of Proposed Rulemaking (NPRM) is intended to be the culmination of these sources of comment and feedback.

At this stage of the rulemaking process, the proposed Regs are open for comment until April 11, 2008. Comments can be made online through the Federal eRulemaking Portal. After the commenting period closes, the DOL will review the comments and, at some point, publish new regulations.

Employers are encouraged to post their comments to the proposed regs as we work towards a clarified and improved set of FMLA rules.

On January 28, 2008, President Bush signed into law the National Defense Authorization Act for FY 2008 (NDAA). One section of the NDAA is an amendment to the Family and Medical Leave Act of 1993 (FMLA). The NDAA became effective immediately following the President's signature. The Department of Labor (DOL) has not issued regulations, though. Until they do, the DOL announced that it will not look to enforce the Act so long as employers are complying "in good faith."

And what exactly is "good faith" mean in this context? A likely starting point are the FMLA regulations. The two Acts are similar in purpose--both dealing with protected leave. By using the FMLA standards for notice and certification requirements, employers have a solid starting point for applying the NDAA.

And just what does the NDAA provide? There are similarities and differences between the two:

1. Like the FMLA, the NDAA provides for protected leave.

2. But the FMLA's provisions are expanded to include a “spouse, son, daughter, parent, or next of kin” of a "member of the Armed Forces."

3. Instead of the 12 weeks' leave provided by the FMLA, the NDAA guarantees employees can take up to 26 workweeks of leave.

4. And, though not a tremendously signficant expansion, the NDAA does not borrow the FMLA's "serious-medical-condition" language. Instead, the NDAA can be employed to care for a military family member, "who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

As complicated as the FMLA has been in application, there is now another element with similar-but-different requirements. HR Professionals should be sure to keep up with these changes as the new law continues to develop.