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FMLA/Leave Update Presented for: Inland Press Association 2015 HR Conference March 10, 2015 Joan E. Casciari firstname.lastname@example.org] 312 460 5862
©2015 Seyfarth Shaw LLP Absences Are Costing Employers - SHRM Survey The direct cost for full time employees, accounting for wages, OT, and replacements was nearly 15.5 % of payroll. Supervisors spent an average of 4.2 hours per week dealing with absences! (5.3 weeks per year) 72% of respondents noticed more unplanned absences on Fridays and Mondays, before holidays, sporting events and national events OT is used to cover nearly half of the absences More than one fourth of the respondents reported annual costs of administering FMLA of $10,000 to $20,000 2
©2015 Seyfarth Shaw LLP FMLA Regulations Amended Effective March 27, 2015 DOL issued a revision to the FMLA regulations changing the rule with regard to same sex spouses Old rule – no FMLA to care for a same sex spouse because of DOMA and spouse was determined by state in which employee resided (not worked) Interim rule – state of marriage celebration Final rule – state of marriage celebration instead of being determined by the state where the employee resides 3
©2015 Seyfarth Shaw LLP Impact on FMLA Policies If your current policy already states that FMLA is provided to care for a parent, child or spouse, then no need to revise Make sure those who administer FMLA are aware that same sex spouses are now “covered” family members under the FMLA. Domestic partners/civil union partners are not covered under the FMLA 4
©2015 Seyfarth Shaw LLP Impact on FMLA Policies (cont.) It’s always permissible to have a policy that provides broader leave rights than those mandated by FMLA But if you cover those who are not covered family members, the leave cannot be counted as FMLA leave. Make sure you are treating same sex spouses the same as you treat opposite sex spouses E.g., you may require documentation, but must do so for everyone Note that DOL regulation (29 CFR 825.122(k) gives the employee the option of providing a “simple statement asserting that the requisite family relationship exists.” 5
©2015 Seyfarth Shaw LLP No change in the in loco parentis rule In June 2010, DOL recognized that FMLA eligible employees can take leave to care for the employee’s domestic partner (same sex or opposite sex) so long as the employee either: provides day to day care for the child, or provides financial support for the child This rule has not changed. 6
©2015 Seyfarth Shaw LLP FMLA Forms Have expired Current DOL forms (certifications, notice of rights, designation, etc.) “expire” on March 31, 2015. You can continue to use these forms until further notice from DOL 7
©2015 Seyfarth Shaw LLP FMLA Cases Continue to be Filed Cases are very fact driven Interference claims are strict liability Difficult to win on Summary Judgment No exhaustion and 2/3 year statute of limitation 8
©2015 Seyfarth Shaw LLP Recent/Interesting FMLA cases Working while on leave. In Smith-Schrenk v. Genon Energy (S.D. Tex. 2015), a manager who was required to work while on FMLA leave and then quit. Court ruled that she had claim for FMLA interference and constructive discharge. Beware of allowing/requiring those on FMLA leave to work while on leave, especially if they are not being paid! Doctors notes for intermittent leave. In Oak Harbor Freight Lines, Inc. v. Antti (D. Ore. 2014), the court found the employer practice of requiring doctor’s note for each intermittent absence violated FMLA even where abuse of FMLA leave was shown. 9
©2015 Seyfarth Shaw LLP Recent/Interesting FMLA Cases Notice – Case law continues to be highly fact driven! See Hurley v. Kent of Naples (11 th Cir. 2014) (notice of potentially qualifying leave is not sufficient) Designation – Escriba v. Foster Poultry Farms, Inc. (9 th Cir. 2014), holding that the employer could open itself to liability for forcing FMLA on the unwilling employee. Caring for a family member – Ballard v. Chicago Park District (7 th Cir. 2014)– traveling with sick elderly mother to Las Vegas qualified as “caring for” parent under FMLA. Serious health condition – Hurley – depression/anxiety and need for vacation not necessarily a SHC. 10
©2015 Seyfarth Shaw LLP ADA/Leave Cut Off EEOC Agenda: Case by case assessment Job protected leave (not equivalent job!) No leave cutoffs Note that not all courts agree, including our 7 th Circuit, which covers IL, IN and WI. 11
©2015 Seyfarth Shaw LLP ADA Cases Are Harder to Defend 2009 amendment to ADA puts burden on employer to show hardship in most cases. Financial hardship is almost always a loser Co-worker “jealousy” is nearly always a loser Must make the case as to why it’s not feasible Job descriptions are even more important when defending ADA cases. Many employers have not updated in years Beware of generic job descriptions Job descriptions should align with job postings 12
©2015 Seyfarth Shaw LLP Illinois Human Rights Act Change- Pregnancy Effective 1/1/15, IHRA was amended with regard to pregnancy If you are in IL, make sure you have your poster posted as well as information in your handbook about this law. Previously, state law was one of “non-discrimination” Creates special rights for pregnant employees Goes beyond the EEOC’s July 2014 Guidance! 13
©2015 Seyfarth Shaw LLP High Points of Amendment It is unlawful to: Fail to reasonably accommodate a pregnant employee absent hardship Require a pregnant employee to accept an accommodation which the employee did not request and the employee chooses to decline Require a pregnant employee to take leave under any leave law or policy if another reasonable accommodation can be provided 14
©2015 Seyfarth Shaw LLP High Points of Amendment It is unlawful to: Fail to reinstate a pregnant employee to her original job or to an equivalent position upon her signifying intent to return or when need for accommodation ceases (absent hardship) Fail to post notice or include information about the law in a handbook Retaliate because an employee requested or was provided an accommodation 15
©2015 Seyfarth Shaw LLP Reasonable Accommodation Reasonable Accommodations Include: More frequent or longer bathroom breaks Breaks for increased water intake Breaks for periodic rest Private bathroom space for expressing breast milk and breastfeeding Seating Assistance with manual labor Light duty Temporary transfer to a less strenuous or hazardous position 16
©2015 Seyfarth Shaw LLP Reasonable Accommodation Accessible worksite Job restructuring Part-time or modified work schedule Adjustment/modifications of exams, training materials or policies Reassignment to a vacant position Time off to recover from pregnancy Leave necessitated by pregnancy 17
©2015 Seyfarth Shaw LLP Mandates the Interactive Process The employee and employer shall engage in a timely, good faith, and meaningful exchange to determine effective reasonable accommodations 18
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