labor lawAdivision of labor law center

Reversing a recent trend to extend broader coverage to employees under FMLA, the 8^th Circuit Court of Appeals recently ruled that while treatment for alcoholism is covered by FMLA, a five-day drinking binge is not.

In Scobey v. Nucor Steel-Arkansas, a steel mill employee was no-call, no-show on April 10. The following day the employee, Talmadge Scobey, spoke briefly to his supervisor on the phone. Scobey sounded intoxicated, and told the supervisor he was not coming to work because he had suffered a nervous breakdown. However, when the supervisor tried to get more information, Scobey hung up.

The employee was also absent on April 12, 13 and 14. On April 14, the employee again phoned the supervisor, saying that he wanted to get help. The employee was referred to the HR manager, but did not contact her until April 19. At that point, the employee was referred to Nucor Steel’s employee assistance program, and entered an inpatient alcohol treatment program.

The employee argued that the employer should have known that his absence was for an FMLA-related reason due to his statements on April 11 that he had “a nervous breakdown” and the very colorful expression he used to mean that he was intoxicated at the time.

While employers should still err on the side of caution when providing (more…)

A new law signed by President Barack Obama on October 28, 2009 expands FMLA for military families even more than the NDAA or National Defense Authorization Act of 2008.

This change in the law will require every employer to update the Military Caregiver poster, even if they do not have any employees who qualify.

The  National Defense Authorization Act for 2010 provides for two  major changes to current FMLA regulations: 

• Families of Armed Forces members on active duty are covered, not just family members of the National Guard and Reserve
•  Military caregiver leave is expanded to cover the families of some veterans 

It appears that these changes are retroactive, according to Matthew Effland, an Indianapolis attorney specializing in FMLA issues.

Active Duty Included

Under the new law, when a member of the Armed Forces is deployed to a foreign country, his or her spouse, son, daughter, parent, step-child, or step-parent can take up to 12 weeks of unpaid, job-protected FMLA leave for any “qualifying exigency.”

Many employers have already been granting this leave to military families, and not just the families of Reserve or National Guard members who are called to active duty. In fact, it is unclear why the U.S. Department of Labor interpreted the original law so narrowly in the final days of the second Bush administration.

Under the current regulations, qualifying exigencies include attending military-sponsored functions, making appropriate financial and legal arrangements, handling details of a short-notice deployment, attending counseling, and making alternate childcare arrangements. In addition, an employee can take up to 5 days of FMLA for rest and recreation or R&R under the law. The employee can also use FMLA up to 90 days following deployment for arrival ceremonies, post-deployment ceremonies and other military events.

Military Caregiver Leave Expanded to Veterans

The NDAA also permits an employee who is the son, daughter, spouse, or parent to take up to 26 weeks of unpaid, job-protected FMLA during a 12-month period to provide care for a service member who has been injured or contracted a disease in the line of duty.

This extended FMLA leave also applies to the injured soldier’s next-of-kin, regardless of the relationship. This means in some cases that an in-law, grandparent, sibling, aunt, uncle or cousin could qualify for military caregiver leave.

The new law permits the (more…)

Illinois Governor Pat Quinn recently signed three new employment bills into law. The laws address wage discrimination at the state level, and increase the rights of victims of domestic abuse.

Expanded Leave Rights

Every Illinois employer needs to be aware of an amendment to the Illinois Victims Economic Security and Safety Act. The new law requires employers to extend unpaid, job-protected leave to victims of domestic violence or sexual violence.

Under the new law, effective August 24, 2009, employers with 50 or more workers must provide up to 12 weeks of FMLA-type leave to employees who are victims of rape, sexual assault or another type of sexual violence. The law requires employers with 15 to 49 employees to provide  8 weeks of unpaid leave.

Employers must also extend the same benefits to victims of domestic violence of any kind.

This new law is notable because Illinois has no family leave law at the state level – so this is the state’s first intrusion into expanding FMLA to smaller employers. Currently, there is no Illinois law that requires an employer with 15 to 49 workers to provide leave for any reasons other than sexual violence or domestic violence.

New Illinois Discrimination Law

Under a new Illinois discrimination law, victims of stalkers, domestic violence and other crimes are protected from employment discrimination. The amendment to the Illinois Human Rights Act prohibits the employer from discriminating against an employee who is protected by an order of protection or a similar order issued in anther state.

Under the law, which goes into effect on January 1, 2010, the employer cannot make employment decisions based entirely or in part on whether a worker is shielded by an order of protection.  For example, the employer could not refuse to hire Jane, a teacher, simply because she has an order of protection against her ex-husband Ted. (more…)

There are several changes in the Wisconsin labor laws that employers need to be aware of, including those regarding the Wisconsin family leave law, domestic partnerships, smoking ban, and discrimination .

On June 29, 2009 Governor Jim Doyle signed the Wisconsin domestic partnership law. The law, a portion of the state budget, permits registered domestic partners to enjoy the employment benefits currently offered to married couples. These include taking unpaid Wisconsin FMLA (called WFMLA) to care for a domestic partner with a serious health condition, and group health insurance coverage for partners.

The Wisconsin domestic partnership law goes into effect on August 3, 2009. Domestic partners will complete a declaration in their home counties, and can dissolve the partnership through a termination process at the county clerk’s office.  

So despite the fact that gay marriage is still illegal in Wisconsin, many gay couples will still benefit from the same privileges including being able to make end-of-life decisions for each other, and having hospital visitation rights.

The law also extends domestic partner benefits including health insurance to state employees.

Earlier in the year, (more…)

The new 2009 FMLA regulations present a particular headache for California employers.

That is because most employers in the state are covered by the CFRA, the California Family Rights Act. That law, passed in, was actually the model for the federal FMLA passed in 1993.

The dilemma is that the CFRA specifically adopted the 1995 FMLA regulations – the “old” regulations, to many employers. Meanwhile, the new FMLA regulations apply to many of the same employers.

There are several conflicts between the two sets of regulations. For example, the 2009 FMLA regulations give employers the right to require that an employee produce a fitness-for-duty certificate every 30 days when there are reasonable concerns about the employee’s physical safety due to a serious health condition, and the employee is using FMLA intermittently.

The California regulations do not permit this.

When both federal and state law apply, the employee is entitled to coverage under whichever law provides the greater benefit – to the employee. (more…)