Employment law, Chapter 11 -Work-Life Conflicts and Other Diversity Issues

qualifying events under the FMLA

The birth of a son or daughter of the employee placement of son or daughter with the employee by adoption or foster care the need to care for a spouse, son, daughter, or parent with serious health condition the inability of an employee to perform the functions of his job due to a serious health condition the need to care for a service member who suffered a serious injury or illness while on active duty ("military caregiver leave") Any "qualifying exigency" (e.g. short notice deployment, military events, financial and legal arrangements, counseling, post-deployment activities) arising from the fact that a family member in the military is, or soon will be, placed on active duty

pregnancy Discrimination Act (PDA)

a law which states that discrimination based on pregnancy, childbirth, or related medical conditions is sex discrimination and violates Title VII

continuous leave

all in one block with no work occurring between the beginning and end of leave

assuming that the employer offers a group health plan, that coverage must remain in place, including

any coverage of family members, with the employer paying what it usually pays for the coverage and the employee on leave paying whatever employee share is normally paid

A serious health condition involving inpatient care includes not only the actual period of hospitalization but also

any period of incapacity (inability to work, attend school, or engage in other regular daily activities) and time needed for subsequent treatment of the condition

serious health condition

are medical conditions that involve either impatient care in a hospital (or similar medical facility) or continuing treatment by a health care provider

employers of any size are prohibited from discriminating against people who

are members of, apply to become members of, or have obligations to serve in a uniformed military service

key employee

are salaried employees who are among the top 10 percent of a company's employees in pay.

A parent eligible to take leave to care for a child (and for birth of a child as well) need not have a

biological or legal relationship to that child. Instead, multiple individuals, including same sex partners, who act as parents can qualify for such leave.

employers may, and generally should, require that requests for leave based on serious health conditions be supported by

certifications from health-care providers. Employees must be given at least fifteen days to obtain this medical documentation.

Leave to care for sons or daughters generally applies to

children under 18 years of age unless the children are disabled and incapable of self-care.

an employee cannot be deemed ineligible for leave that would

commence in the future simply because the duration of hours requirement is not currently met.

an employee or job applicants accent can be lawfully considered in making employment decisions when

communication is a significant part of the job in question and the individuals accent substantially interferes with the ability to communicate. The critical issue is comprehension and not that the person sounds different of "foreign" or that understanding the person require extra effort on the part of the listeners.

employers cannot refuse leave to key employees but can

decline to restore them if restoration would "cause substantial and grievous economic injury" to the employers operation

employers must refrain from

discriminating (retaliating) against employees for taking FMLA leave or otherwise interfering with, restraining, or denying the exercise of FMLA rights

If the need for leave is foreseeable, such as birth or planned medical treatment where at least the approximate leave dates are known,

employees can be required to provide thirty days advance notice. failure to provide adequate notice when the need for leave is foreseeable can result in delay of the leave until the thirty-day notice requirement is satisfied

reduced schedule leave

employees normal daily or weekly hours are reduced

Parental and medical leave policies must be consistent with the provisions of the FMLA, although

employers are free to exceed the laws minimum requirements

Pregnant employees are entitled to continue working for as long as they can perform their jobs

except in those rare cases where not being pregnant is a bona fide occupational qualification

The DOL regulations call for employers to provide written notice to employees requesting leave that the leave is being designated as FMLA leave,

generally within five business days after notification of the need for leave

Employers are not required to grant leave so that employees can provide care for

grandparents, aunts/uncles, or even in laws.

key employees must be informed of their status when they seek leave, and

if they employer decides that their restoration would cause substantial and grievous economic injury, they should be given reasonable amount of time to return from leave.

The right to take leave for serious health conditions of family members is limited to

immediate family members

employers cannot base adverse employment actions on the taking of FMLA leave "no-fault" attendance policies which count absences without regard to the reasons for them are inherently

in conflict with the FMLA and must be eliminated or allow for exceptions

The family and medical leave act

is the principal federal law governing the provision of leave to employees for parental and medical reasons. All government agencies, regardless of their size, are covered by this law, as are private sector employers with at least fifty employees.

employees are responsible for notifying their employees that a qualifying event has occurred for which leave is needed. This notification can be verbal and need not specifically refer to FMLA, but

it must provide enough information to alert the employer that the FMLA might apply.

leave

means that the employee is relieve of all work duties and the obligation to come to work.

If used at all, English only rules should be

no broader than absolutely necessary to accomplish legitimate business purposes. Enforcement of the rules should not be rigid, and employees must be clearly notified that the rules are in effect

When the information provided is deemed inadequate, employers are required to

notify the employee in writing, indicate what information is missing and afford the employee at least seven calendar days to provide the information. employers are also permitted, at their own expense to require employees to obtain second medical certifications from other doctors. If the first and second conflict, employers have the option of requiring a third assessment by a different health care provider approved by both parties. The third opinion is final and binding.

equivalent position

one that is virtually identical to the employees former position in terms of pay, benefits, and working conditions, including privileges, perquisites and status.

fluency in English should be considered

only to the extent that it is job related

Department of Labor (DOL) regulations state

ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

intermittent leave

periods of leave mixed with periods of work

A person taking leave based on the serious health condition of a family member must actually

provide physical or psychological care

If the need for leave isn't foreseeable, such as when a serious health problem suddenly emerges employees are responsible for

providing notice as soon as practicable

On return from FMLA leave, and employee must be

restored or reinstated to the same position held when leave was taken or to a position that is equivalent in pay, benefits, terms, and conditions of employment.

employers must generally provide employees with time off to

serve on juries and to vote

Under the FMLA, employees may choose-or their employers may require them-to

substitute paid leave for unpaid FMLA leave.

employers are prohibited from requiring pregnant employees who can perform their jobs to

take leave or from establishing arbitrary timelines for when parental leave must commence or end

The FMLA specifically requires that health benefits be maintained under the same conditions

that would pertain if the employee did not take leave.

If an eligible employee experiences a qualifying event and notifies her employer that she needs to take leave,

the employer must grant leave. The amount of leave that must be provided is the amount needed by the employee, up to a total of twelve work weeks over a twelve month period

If sick leave, disability leave, or other forms of paid or unpaid time off are available to a company's employees,

the same forms of leave on the same terms must be available to its pregnant employees. This is also true regarding reassignment to light-duty positions or other alternative working arrangements if these are made available to employees with other temporarily disabling conditions

Entitlement to FMLA leave depends on a number of factors including

the size of the employer, the duration of the employees tenure with that employer, the number of hours worked by the employee in the twelve months preceding the taking of leave, the occurrence of a "qualifying event" for which leave is needed and provision of adequate notification to the employer of the need for leave

Employers must adopt one method for defining the twelve month periods and

use it consistently and notify employees regarding their choice of method

Decisions adversely affecting employees on FMLA leave or recently returned from leave should be

very closely scrutinized

What does the FMLA require employers to provide?

1. Up to a total of twelve workweeks of leave over a twelve-month period (however, when the qualifying event is the serious injury or illness of a service member incurred during active duty, the maximum period of leave is extended to twenty six weeks) 2. maintenance of health insurance under the same conditions as if they employee has not taken leave 3. restoration to the same position held before leave commenced or to an equivalent position with the same pay, benefits, and other terms and conditions of employment

employers have four options for defining the twelve month period

1. the calendar year 2. any other fixed twelve month period 3. a twelve month period measured forward from the first day that an FMLA leave is taken by the employee 4. A rolling twelve month period measured backward from the most recent day which leave was used The latter two are more complex but prevent employees from stacking periods of leave on top of one another (12 weeks at the end of a calendar year followed by 12 weeks at the beginning of the next year)

The FMLA provides a _______ standard for the leave policies of covered employers.

Minimum