The new decade brings Schiff Hardin’s Labor & Employment Group’s annual legislative update, summarizing new legislation in 2020 under federal law and in Illinois, California, New York, Michigan, and the District of Columbia.
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As spring turns into summer and the weather warms up, employers may notice an increase in employee absences. While spotty or unpredictable attendance can cause staffing issues and frustration for employers, certain absences, even irregular ones, may be protected under the Family and Medical Leave Act (“FMLA”). The FMLA entitles eligible employees to twelve workweeks of unpaid leave during any twelve-month period, either consecutively or on an intermittent basis in certain circumstances, including when medically necessary to care for a seriously ill family member or because of the employee’s own serious health condition.
While intermittent leave is designed to serve the needs of employees who need to be absent from time to time to address legitimate health problems, occasionally, employees’ use of intermittent leave can create serious headaches for employers and raise concerns about FMLA abuse. Below are two common scenarios of possible FMLA abuse and strategies for employers to address these issues.
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Beginning on March 27, 2015, individuals in lawful same-sex marriages will be entitled to leave under the Family and Medical Leave Act (FMLA) to care for their same-sex spouses regardless of the state in which they reside.
The FMLA requires employers to give eligible employees up to twelve weeks of unpaid leave for the employee’s own serious medical condition, or the serious health condition of a spouse, son, daughter, or parent.
Historically, same-sex married couples were not entitled to FMLA benefits because Section 3 of the Defense of Marriage Act (DOMA) limited the definition of “spouse” to persons of the opposite sex who are a husband or a wife. After the U.S. Supreme Court’s 2013 decision in United States v. Windsor, the U.S. Department of Labor (DOL) interpreted the definition of spouse in the FMLA to include same-sex married couples domiciled in a state that recognized same-sex marriage. However, same-sex couples who lived in a state that did not recognize same-sex marriage were not eligible for FMLA leave to care for their same-sex spouse under this rule.
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In a case that will prompt many employers to double-check their leave of absence policies, the Sixth Circuit U.S. Court of Appeals has held that an employee who was not eligible for leave under the Family and Medical Leave Act (FMLA) might nonetheless be able to prove entitlement to FMLA benefits due to the FMLA language in the employer’s employee handbook. Tilley v. Kalamazoo Country Road Commission, et. al., No. 14-1679 (6th Cir. January 26, 2015).
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