California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave.  In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly

Last week, representatives of the business community and employee groups completed negotiations to create a paid family and medical leave insurance program in Washington. Many details need to be worked out, the actual legislation has not yet been drafted, and the Washington Legislature has a number of other issues demanding its attention. Nonetheless, there are substantial prospects that this compromise program will be enacted during this legislative session. If so, the Employment Security Department would begin collecting premiums in 2019, and benefits would become available in 2020.
Continue Reading Washington State to Consider Paid Family Leave

Under the Ninth Circuit’s recent holding in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), many employees now have greater flexibility to extend family and medical leave beyond the typical 12-week limit under the Family and Medical Leave Act (“FMLA”). While the Escriba court’s holding was intended to benefit the employer in that case, Foster Farms, its impact on other employers may have the opposite effect.

Maria Escriba sought two weeks of leave from her employment with Foster Farms in order to care for her ailing father in Guatemala. Although Ms. Escriba informed her supervisors of the FMLA-qualifying reason for the leave, she expressly requested that the time be deemed as vacation leave, rather than family leave. When Ms. Escriba failed to return to work after the expiration of her vacation leave, Foster Farms terminated her employment. 

Ms. Escriba filed suit, alleging that Foster Farms violated the FMLA and the substantively identical California Family Rights Act by terminating her employment. Specifically, she claimed that Foster Farms was required to designate her leave as FMLA leave, regardless of whether she declined FMLA leave, arguing that an employee cannot waive her rights under the FMLA.Continue Reading Ninth Circuit Approves Employees’ Right to Strategically Decline FMLA Leave In Escriba v. Foster Poultry Farms

The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA").  This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues.

Irritable Bowel Syndrome Makes It Hard To Be At Work–Can Telecommuting Be The Answer?

Jane Harris had worked at Ford since 2003 as a resale buyer, acting as an intermediary to ensure there was no gap in steel supply to parts manufacturers. Although the job duties included such tasks as updating spreadsheets and making site visits, the main function of the job was group problem-solving, which required communication and collaboration with the resale team and others in the supply chain. Harris’ managers determined that such interactions were best handled face-to-face.

Harris suffered from irritable bowel syndrome, which caused fecal incontinence, and began taking intermittent FMLA leave when her symptoms flared up. Her job performance suffered after she began to take leave. Harris was unable to establish consistent working hours, and frequently made mistakes because she could not access suppliers while working nights and weekends. Her co-workers and manager were forced to pick up some of the slack. Eventually, in February 2009, she formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Although Ford had a policy permitting telecommuting up to four days a week, the policy also stated that such an arrangement was not appropriate for all positions or managers. However, some of Harris’ counterparts telecommuted one day a week.Continue Reading Court Rules That Telecommuting May Be a Reasonable Accommodation Under the ADA

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”) 

This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise.  (Shameless self-promotional plug:  these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar.  For details on other Stoel Rives seminars and breakfast briefings, click here.)Continue Reading FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

As almost everyone knows, the U.S. Supreme Court  issued two blockbuster decisions on gay marriage, U.S. v. Windsor, which struck down the Defense of Marriage Act’s ("DOMA") definition of marriage for the purposes of federal law, and Hollingsworth v. Perry, which struck down California’s "Proposition 8" prohibiting same-sex marriage in that state.  Those decisions will likely have significant effects on employers, such as with respect to employee benefits, health care and tax issues related to employees with same-sex partners.  For example,read here for a detailed discussion of how the Supreme Court’s decisions may impact employee benefits.

Those decisions, particularly Windsor, also will have an immediate impact on employee coverage under the federal Family Medical Leave Act ("FMLA"), which requires covered employers to provide up to 12 weeks per year of unpaid leave to eligible employees for qualifying reasons (more leave may be required in certain situations, such as leave related to military duty).  One such qualifying reason entitles an employee to take leave to care for a family member, such as a family member with a serious health condition.  FMLA specifically defines family members to include a "spouse," which is further defined to mean a "husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized."  29 CFR 825.122.  Despite the fact that states have begun recognizing same-sex marriage in recent years, because the DOMA specifically defined marriage as only between a man and woman for the purposes of federal law, the DOMA basically overrode those states’ laws for the purposes of FMLA coverage to spouses.Continue Reading U.S. Supreme Court’s Decisions on DOMA Extend FMLA Definition of “Spouse” To Same-Sex Partners In States Recognizing Gay Marriage

As a friendly reminder, employers must update two key employment forms this month.  As of March 8th, employers must begin using the most recent FMLA poster issued by the Department of Labor.  The updated poster reflects the DOL’s final rule concerning military related leave available under FMLA.  The DOL has also issued new FMLA forms to

Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice is provided confirming the dates of leave or when the employee has resumed his or her usual schedule. But an employer’s compliance with federal law includes the obligation to maintain adequate records related to the leave. Failure to do so can have significant consequences.

What Records Must You Keep?

FMLA recordkeeping requirements can be found in a single regulation, 29 C.F.R. § 825.500. That regulation requires employers to keep and preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA).  Records must be retained for no less than three years. Although no particular order or form is required, the records must be capable of being reviewed or copied. 

Covered employers with eligible employees must also maintain records that include basic payroll and data identifying the employee’s compensation. Failure to maintain accurate records can have significant consequences for employers, who have the burden of establishing eligibility for leave. Accuracy is important:  for example, the regulations demand that records document hours of leave taken in cases of leave in increments less than a full day.  Lack of suitable records documenting when leave was taken can also doom an employer’s defense to claims for leave. Special rules apply to joint employment and to employees who are not covered by or are exempt from the FLSA.Continue Reading Recordkeeping: The Often Overlooked Element of FMLA Compliance