Employees Should Not Be Working While on FMLA Leave

Q: Can I require an employee to do work while the employee is on FMLA leave?  What if the employee volunteers to work while on leave?

A: Under most circumstances, employees should not be required or permitted to perform work while on leave.  The Family and Medical Leave Act (FMLA) provides eligible employees a maximum of twelve weeks unpaid, job-protected leave for specified family and personal medical reasons in a twelve month period.  During that time, employers are prohibited from interfering with, restraining, or denying the exercise of or the attempt to exercise, any rights provided under the FMLA.

This does not mean that an employee must be left alone completely. While an employee is on leave, employers are permitted to inquire about the location of documents, the status of an assignment, and pass on institutional knowledge.  However, employers should keep communication with employees on leave to a minimum.  It is recommended that when communicating with an employee on leave, the employer should make it clear that it is not requiring or requesting the employee to work.

Some ways that employers may be found to have interfered with an employee’s leave include forcing an employee to complete an assignment, and denying or discouraging an employee from taking leave. Although interference is determined on a case-by-case basis, employers should be mindful that allowing an employee to work on leave may constitute impermissible interference.

Employers who pay for FMLA leave but allow or require employees to perform work while on paid leave also put themselves at risk of a claim for interference with leave. Although the employee is being paid, the basis for the leave is a medical necessity.  Thus, the employee would be entitled to the protections provided under the FMLA even though he or she is being paid.

As a general practice, employees on leave should not be asked or allowed to work on any assignments. If an employee does perform work while on FMLA leave, any hours spent completing assignments should not count towards the protected twelve week period.  To ensure compliance with the FMLA, employers should include a section in their personnel policies that discusses what conduct is appropriate while an employee is on leave.

Renee C. Manson

 

New Jersey Becomes Tenth State to Enact Paid Sick Leave

Q.  Do I need to provide paid sick leave to employees in New Jersey?

A.  Last week, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, mandating paid sick leave for full and part-time workers in the Garden State. Similar to the laws in other states, the New Jersey law provides for employees to earn one hour of paid sick leave for every 30 hours worked. Employees may use up to 40 hours of earned sick leave in a benefit year.  They may also carry over up to 40 hours of earned sick leave from one year to the next.  Earned sick leave is not paid upon termination, unless a company policy or collective bargaining agreement provides otherwise.

Employees begin to accrue sick leave on their hire date, and are eligible to use them beginning on the 120th calendar day of employment. The employee may subsequently use earned sick leave as soon as it is accrued.  Employees must be paid for earned sick leave at the same rate of pay with the same benefits as the employee normally earns, so long as the pay rate is at least minimum wage.

Earned sick leave may be used for the employee’s own health condition and time off for preventative medical care, and to take care of or coordinate preventative medical care for family members. The term “family member” is defined broadly to include the employee’s child, grandchild, sibling, spouse, domestic or civil union partner, parent, grandparent, in-law, grandparent or sibling of the employee’s spouse, domestic or civil union partner, and “any other individual related by blood to the employee or whose close association with the employee is equivalent of a family relationship.”

Employees also may use earned sick leave for absences as a result of the employee or a family member being the victim of domestic or sexual violence.  In addition, employers must allow employees to use earned sick leave for school closures and to attend school conferences.  Employees may not be subject to discipline for using earned sick leave.

If the need to use earned sick leave is foreseeable, an employer may require up to seven days of advance notice before the leave is taken. Employers must make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the company’s operations.  If the employee uses earned sick leave for three or more consecutive days, the employer may require a doctor’s note supporting the need for leave.

Companies may not require employees to find replacements as a condition of using earned sick leave. While the employer and the employee may mutually agree to allow the employee to work additional hours or shifts to make up the missed time, employees are not required to do so.

What Employers Should Do

The Paid Sick Leave Act goes into effect on November 2, 2018, and preempts all existing city and county sick leave laws in the state. To get ready for the new Act, employers should analyze their current paid time off policies or draft a new earned sick leave policy to ensure that time off is accrued and may be used in the manner provided by the Act.  New Jersey employers also should review their record-keeping policies to make sure that they retain records documenting hours worked and earned sick leave taken by employees for at least five years.

Tracey E. Diamond

Maryland Paid Sick Leave Law Now In Effect

Q: I have employees working in Maryland. What do I need to know and do in order to comply with Maryland’s new paid sick leave law?

 A: The Maryland Healthy Working Family Act (the “Act”) went into effect on February 11, 2018. In short, the Act requires employers with 15 or more employees working in Maryland to provide paid sick and “safe” leave for qualified employees. Employees eligible for paid leave are entitled to be paid at the same rate the employee normally earns. Employers with 14 or fewer employees are required to provide unpaid sick and safe leave. All covered employers with employees whose primary work location is in Maryland are required to provide earned leave, regardless of where the employer is located.

Employees may use earned “sick and safe” leave to treat their own mental or physical injury, illness, or condition; to obtain preventive medical care for themselves or their family member; to care for a family member’s physical injury, illness, or condition; for maternity or paternity leave; or if the absence from work is necessary due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member, and the leave is being used by the employee or employee’s family member to obtain certain services offered to victims of domestic violence, sexual assault, or stalking.

Under the Act, employees are able to accrue one hour of leave for every 30 hours that an employee works. An employee is entitled to accrue up to 40 hours of sick and safe leave in a year, regardless of the number of hours worked. Rather than awarding leave as it accrues throughout the year, an employer is permitted to “frontload” and award the full 40 hours of earned sick and safe leave that the employee would earn over the course of the year at the beginning of the year. Further, an employee is entitled to carry over earned but unused sick and safe leave from one year to the next, up to a maximum of 64 total hours. Of course, employers may allow employees to accrue more than 40 hours of leave in a year. There is no requirement for an employer to compensate employees for unused earned sick and safe leave when an employee leaves the employer’s employment.

Not all employees are covered under the Act. For example, employees working less than 12 hours a week and individuals under the age of 18 are exempt from the Act. There is also a carve-out for construction industry employees if an employee is covered by a bona fide collective bargaining agreement in which the requirements of the Act are clearly and expressly waived.

Employers are not required to modify existing paid leave policies if the existing policy allows employees to accrue and use leave under terms and conditions that are equal to the leave provided for under the Act. Employers also are required to provide notice of the Act’s requirements by posting information about the new law. Employers can meet this requirement by posting the Employee Notice found here. Additionally, employers may still require employees using sick and safe leave to comply with the employer’s regular notice and procedural requirements.

The Maryland Healthy Working Family Act is a complex law with multiple facets, including recordkeeping and tracking requirements. For further information regarding the Maryland Healthy Working Family Act or for assistance in developing policies compliant with Maryland law, contact any member of the Pepper Hamilton labor and employment team.

Lee E. Tankle

 

Interplay of FMLA and ADA Precludes Employers from Automatically Terminating Employees at End of FMLA Leave

Q: Can my company fire an employee once the person has exhausted his or her FMLA leave entitlement?

A: Many employers are surprised to learn that they may not necessarily terminate an employee if he or she does not return to work at the end of FMLA leave.  Under the Family Medical Leave Act (FMLA), an employee is eligible for up to 12 weeks of unpaid job-protected leave.  Upon returning from FMLA leave, except in a few limited situations, an employee is guaranteed the right to return to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment that the employee held before the leave commenced.  Under FMLA regulations, however, an employee does not have a right to return to work if he or she is unable to perform the essential duties of the position.

But what if the employee asks for more time off after the FMLA leave period has expired?

Once an employee has exhausted his or her FMLA leave, the Americans With Disabilities Act (ADA) requires employers to consider whether an extension of leave is warranted as a reasonable accommodation of a disability. An extended leave may be a reasonable accommodation if it is for a finite period of time to receive treatment or to recover from a disability.  Employers must consider each situation on a case-by-case basis, engaging in the interactive process with the employee to determine whether the employee has a disability within the meaning of the ADA, and whether an extended leave would be a reasonable accommodation to enable the employee to perform the essential functions of the job once he or she returns to work.  Employers also must determine whether there are any applicable state laws or worker’s compensation laws that are implicated.

In addition to considering the application of the ADA to each employee’s situation, employers should ensure that their employee handbooks do not contain return to work policies that violate the law. Language that calls for automatic termination after the employee has been absent for a certain period of time may give rise to liability for failure to consider the impact of the ADA.

Renee C. Manson

 

California’s New Parental Leave Law Adds to the Complexities of Administering Leaves of Absence for National Employers

Q: I heard there is a new parental leave law in California.  How does it compare to other states’ laws and will it affect my business if I have employees in California?

A: Parental leave laws are one of the most complicated aspects of employment law to administer and track.  There are federal, state, and local laws at play, and there is very little uniformity across the laws and across the states.  Even within one state, there may be multiple laws applicable to parental leave, and it can be difficult to navigate the interaction and overlap between the laws.  California’s new parental leave law continues to add to this complexity.

As a starting point, it is important for employers to understand the difference between laws that provide leave entitlement and laws that provide compensation during leave. Laws that provide leave entitlement generally provide eligible employees with a certain amount of leave for qualifying reasons.  The leave is unpaid, but most laws and/or employer policies require or allow employees to use accrued paid time off for part or all of the leave.  Many states also have laws that provide compensation for time off, but do not necessarily provide a leave right.

California’s new parental leave law is an entitlement leave law.  Effective January 1, 2018, employers with 20 to 49 employees nationwide must provide up to 12 weeks of unpaid leave for baby bonding.  In essence, this expands to smaller employers the obligation to provide baby bonding leave under the California Family Rights Act (“CFRA”), which applies to employers with 50 or more employees nationwide.  To qualify for leave,  employees must have worked for the employer for at least 1,250 hours in the past 12 months, and work at a worksite where the employer employs at least 20 employees within 75 miles.

In addition to baby bonding leave (as mentioned above), the CFRA, a leave entitlement statute, provides employees up to 12 weeks off to care for an immediate family member with a serious health condition, or for the employee’s own serious health condition. A third California leave entitlement law – the California’s Pregnancy Disability Leave Law (PDL) – entitles an employee to up to 16 weeks of leave for disabilities related to pregnancy.   The PDL applies to employers with five or more employees nationwide, and there is no minimum requirement of number of hours or years worked for an employee to be eligible.

California’s leave entitlement laws work in conjunction with the state’s Paid Family Leave (“PFL”) program. California PFL is a compensation law, and provides up to six weeks of partial pay to employees who take time off from work to care for a family member with a serious health condition or to bond with a new child.  California PFL applies to all employers who employ one or more employees, and have been paid wages of $100 or more in any quarter of the previous calendar year.  There is no minimum number of hours or days worked for employees to qualify for California PFL benefits.  California PFL is only a compensation law, however, and not a leave entitlement law – thus, it does not create any rights to leave, but rather provides partial pay for leave taken under leave entitlement laws and/or employer policies.  If the leave taken under FMLA, CFRA and/or PDL is for baby bonding or to care for a family member with a serious health condition, the employee can partially fund the leave for up to six weeks through California PFL.

For employers with employees in more than one state, it is important to understand the differences between the statutes of each state, as well as the leave entitlement provided by the federal Family and Medical Leave Act (FMLA), and administer them accordingly.   New Jersey, for example, has an existing paid family leave law (PFL), which is similar to California’s law.  To be eligible for New Jersey PFL (a statute that provides compensation rights but not leave rights), an employee must have worked at least 20 calendar weeks or earned at least $7,150 during the 12 months preceding the leave.  New Jersey also has a leave entitlement law, but does not provide a leave entitlement for an employee’s own serious health condition.

As discussed in an earlier post, New York also has a new family leave law that is effective January 1, 2018.  Like California and New Jersey PFL, New York PFL provides partially paid leave for an eligible employee who is providing care for a family member with a serious health condition, and for bonding with a child.  New York PFL also covers  time off for reasons associated with a spouse, child, or parent’s active military duty.  However, unlike California and New Jersey PFL, New York PFL provides both leave entitlement and compensation entitlement.

Given the complexities around leaves, employers should ensure their Human Resources personnel are thoroughly trained, and have access to legal counsel for consultation.

Jessica Rothenberg