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FMLA Rules for Couples: So, Who’s Not Covered?

FMLA Rules for Couples: So, Who’s Not Covered?

March 27, 2015

Authored by: Christy Phanthavong and Chris Rylands

Couple with DogThe U.S. Department of Labor’s issuance of a final rule amending the definition of “spouse” in the federal Family and Medical Leave Act (“FMLA”) regulations has inspired us to prepare a new series of FMLA-related blog posts on the subject of “FMLA Rules for Couples.”

We start our discussion by asking what may not seem like the obvious question in light of the new rule: Which couples do not have FMLA rights under the new definition of spouse?

The answer is relatively straight-forward: Couples who are not legally married under U.S. laws, or whose lawful marriage outside the U.S. could not have been entered into in at least one U.S. state, are not considered “spouses” for purposes of the FMLA.

Thus, while opposite-sex couples in lawful marriages, same-sex couples in lawful marriages, and even couples married under common law all have FMLA rights as spouses, the FMLA does not provide the rights of a husband or wife to:

  • Individuals in a civil union;
  • Individuals who are domestic partners;
  • Individuals who are dating, living together, friends with benefits, etc. (i.e., not married).

Keep in mind, of course, that we are talking about the FMLA rights of spouses. The above rules do not mean, for example, that an unmarried parent (mother or father) would not be entitled to FMLA leave to bond with his or her newborn, or newly

It’s Open Enrollment: Have You Notified Employees on FMLA Leave?

It’s Open Enrollment: Have You Notified Employees on FMLA Leave?

November 10, 2014

Authored by: Christy Phanthavong and Chris Rylands

Enroll NowOpen enrollment has likely begun at your company, often bringing it with changes to employee health plans. When communicating benefits-related information, it is important to ensure that all employees – including those currently away from the workplace on FMLA leave – receive the same communications and opportunity to select the new or changed coverage.

The FMLA regulations provide that:

If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits to the same extent as if the employee were not on leave. . . . Notice of any opportunity to change plans or benefits must also be given to an employee on FMLA leave.”

Reiterating this requirement, the IRS regulations provide the following guidance concerning the effects of the FMLA on the operation of cafeteria plans:

FMLA requires that an employee on FMLA leave have the right to revoke or change elections (because of events described in § 1.125-4) under the same terms and conditions that apply to employees participating in the cafeteria plan who are not on FMLA leave. Thus, for example, if a group health plan offers an annual open enrollment period to active employees, then, under FMLA, an employee on FMLA leave when the open enrollment is offered must be offered

Ebola and the FMLA

Ebola and the FMLA

October 22, 2014

Authored by: Christy Phanthavong and Chris Rylands

519410079By now, many U.S. employers are heavily involved in preparing for workplace issues implicated by Ebola.  From a benefits perspective, make sure your planning gives appropriate consideration to the Family and Medical Leave Act (FMLA).

Undoubtedly, an employee who is eligible for FMLA leave will be entitled to such leave if the employee contracts Ebola, based on having a serious health condition that requires leave from work.  Similarly, an eligible employee whose covered family member contracts Ebola is likely to be entitled to leave to care for such family member (even if such “care” involves only psychological care and not physical care).

But what about the employee who is exposed or potentially exposed to Ebola, and, as a result, is requested or required – or even just volunteers, based on potential exposure – to be in quarantine?  And what about employees who have not been exposed but who are fearful of contracting Ebola in the workplace and refuse to come to work?

 An argument could be made that an eligible employee who is in quarantine based on exposure or a reasonable belief of potential exposure to Ebola is entitled to leave under the FMLA.  This is because the definitions of “serious health condition,” “incapacity,” and “unable to perform the functions of the [employee’s] position” include situations in which an employee must be absent from work to receive “treatment.”  “Treatment” in turn

Quirky FMLA Counting Rules: Leave Prior to Eligibility

Quirky FMLA Counting Rules: Leave Prior to Eligibility

October 15, 2014

Authored by: Christy Phanthavong and Chris Rylands

488281517Continuing our discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), today we address these questions: May leave granted to an employee who is not eligible for FMLA leave be designated as FMLA leave? And may that leave be counted against the 12-week FMLA leave entitlement.

The short answer (to both) is:  No.

This question typically arises because an employer is trying to be generous.  For example, the employee is a newer employee and needs leave, but has not yet worked for the employer for 12 months or 1,250 hours.  Or perhaps the employer has various office locations and wants to allow employees in smaller offices (which do not meet the 50 employees in 75 miles eligibility rule) to take FMLA leave just like employees in larger offices are able to do.

But while an employer is certainly permitted to provide an employee with leave when not otherwise required by the FMLA, the regulations are clear that such leave is not FMLA leave and may not be counted against an employee’s 12-week FMLA entitlement.

So, for example, if an employee is permitted to begin a leave prior to reaching the 12 months of employment threshold, such leave cannot be designated as FMLA leave at any time.  Instead, if and when the employee reaches the 12 months of employment threshold, only leave that occurs after the eligibility requirement

Quirky FMLA Counting Rules: Light Duty

Quirky FMLA Counting Rules: Light Duty

October 8, 2014

Authored by: Christy Phanthavong

Recently, we began a discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), starting with issues relating to overtime hours.  Today, we continue the discussion by addressing the “quirky” counting aspects involved in the intersection of the FMLA and “light duty” work.

The FMLA regulations are clear that, if an eligible employee submits the required paperwork certifying the employee’s need for leave due to a serious health condition, the employer cannot force or otherwise “coerce” the employee to instead accept a light duty position.

Of course, the FMLA doesn’t preclude an employer from offering a light duty position, and if the employee’s provider approves, there can certainly be benefits to both the employer and the employee of the employee returning to work as soon as possible.

Not surprisingly, when an employer offers, and an employee voluntarily accepts, a light duty assignment, the time spent working in the light duty assignment is not counted against the employee’s 12-week FMLA entitlement.  After all, the employee is working, not on leave.

Worker OKNonetheless – and here’s the catch – during the period that the employee is working in the light duty position, the employee remains protected by the reemployment rights under FMLA.  That is, the employee has an FMLA-protected right to be restored to his or her same position (or to an equivalent one), assuming the

Quirky FMLA Counting Rules: Overtime

Quirky FMLA Counting Rules: Overtime

October 1, 2014

Authored by: Christy Phanthavong

Of all the administrative challenges posed by the Family and Medical Leave Act (“FMLA”), the most difficult may be ensuring that you are correctly determining FMLA hours available and taken for each employee.  Figuring out how to apply the general FMLA counting rules is hard enough, but add in the some of the “quirky” FMLA counting rules, and the situation can be downright maddening.

492303039One such quirk relates to overtime hours.  You are probably aware that overtime hours are considered “hours worked” for purposes of the eligibility requirement relating to 1,250 hours worked.  That is, overtime hours are counted on an hour-for-hour basis when determining whether the employee has worked at least 1,250 hours during the 12 month period immediately preceding the commencement of the leave.

And you may also be aware that, for qualifying situations, FMLA can be used to protect leave during what would otherwise be overtime hours (potentially including a general “no overtime” request).

But do you know whether and how to count such missed overtime hours against an employee’s 12-week FMLA leave entitlement?  And whether overtime hours must be factored into the amount of FMLA leave entitlement in the first place?

The FMLA regulations speak to these issues.  Specifically:

  • If the overtime that the employee missed was voluntary overtime, then the missed time may not be counted against the employee’s FMLA leave entitlement.

FMLA – Auditing the Administrator

FMLA – Auditing the Administrator

June 11, 2014

Authored by: Christy Phanthavong and Lisa Van Fleet

A few weeks ago, we discussed audits from the perspective of the Employer as the audit target.  Today our discussion is from the perspective of the Employer as auditor rather than audit target.

For many companies, the sheer size and complication of the task of Family and Medical Leave Act (“FMLA”) administration has led to a decision to outsource the work to a third-party administrator.  Whew, you can rest easy now that someone else is in charge of the hassle of FMLA forms, notices, tracking, etc., right?


As the employer, it will be you that is on the hook for FMLA violations, even when such violations occur as a result of a third-party administrator failing to properly perform FMLA administration.  You may have an indemnity clause, but such clauses may have limits and, in any event, won’t prevent the costs of fighting a claim in the first place.

Given this potential liability, have you taken steps to ensure that your third-party administrator is handling FMLA matters correctly?  Have you audited the administrator’s process?  Asked tough questions about how complicated situations are handled?  Inquired into the administrator’s training process for the representatives assigned to your account?  Ensured that the administrator is knowledgeable concerning your policies and preferences with respect to leave issues?

You have a right to expect your third-party administrator to be an FMLA expert and

For ACA, Don’t Stop At Your Benefits Plans: Remember To Check Your Handbook

179246136Employers have been diligently working on revisions to their benefits plans and summary plan descriptions to comply with the requirements of the Affordable Care Act.  After those revisions are in place, it is critical to remember an additional step:  Make sure that applicable employee handbook language is also revised to reflect these changes.

Generally, it is best to keep any discussions of benefits to a minimum in employee handbooks, so as to avoid confusion and the potential for conflict with plan documents and summary plan descriptions.  However, employers usually desire to include some benefits-related information in their handbooks, if only to point employees in the right direction for obtaining additional information.

Thus, if your handbook contains benefits-related information, you should consider reviewing that information and make any necessary revisions so that the information is both consistent with the Affordable Care Act and consistent with your plans and other communications.

For example, if you chose to exclude “part-time” employees (i.e. those who work less than 30 hours a week) from your health plan, make sure that exclusion is stated in your handbook. If you are using lookback measurement periods allowed by the regulations, you should also make mention of them in the handbook.  The level of detail you include will depend on your preference, but as with other benefit plan discussions, it is probably best not to get into too deep of a

Designating Leave To Care For A Same-Sex Spouse As FMLA Leave Can Create Unintended Consequences

159289576Generally, benefits and employment attorneys emphasize the need for consistency in how employees are treated, whether such treatment relates to benefits, policies, or work rules.

But sometimes, “consistency” may not be the best answer.

Take, for example, the question of whether to designate leave taken by an employee to care for a same-sex spouse as leave under the Family and Medical Leave Act (“FMLA”).

Currently, some states recognize same-sex marriage, while others do not.  Under the FMLA regulations, the “place of residence” rule determines whether a same-sex spouse meets the definition of “spouse” under the FMLA.  Thus, an employee is entitled to take FMLA leave to care for the employee’s same-sex spouse only when the state in which the employee resides recognizes same-sex marriage.

Despite the current FMLA definition, some employers, desiring to treat employees consistently – most times either out of a concern for fairness or for purposes of easing administration – choose to define “spouse” in their employment policies to include same-sex spouses.  Such employers then permit employees to take what they call “FMLA leave” to care for a same-sex spouse, even if the individual is not recognized as a “spouse” under applicable state law.

The potential problem with this approach is that only leave that fits within the circumstances that qualify for FMLA leave is permitted to be designated by an employer as FMLA leave and counted

Forget Spring – Government Audits Are In The Air!

Forget Spring – Government Audits Are In The Air!

May 1, 2014

Authored by: Christy Phanthavong and Lisa Van Fleet

Employers are all too familiar with the more common investigation efforts by government agencies, such as an EEOC investigation blossoming from a single employee Title VII or ADEA charge into an onsite investigation of purported pattern and practice violations, or HHS turning a self-reported breach into a broad review of HIPAA compliance.  But the government is increasingly expanding and using its investigation tools in less common areas.  Audits are in the air – are you ready?

Consider whether your policies, practices and files are in order on the following subjects:

  • Health Plan Audits under the Health Benefits Security Project (“HBSP”):  This audit initiative is part of the Employee Benefits Security Administration (“EBSA”) National Enforcement Projects.  It includes a broad range of healthcare investigations as well as enforcement of the Affordable Care Act (“ACA”). More specifically, EBSA will review plans for documentary and operational  compliance with the protections of Part 7 of ERISA which includes the Women’s Health and Cancer Rights Act, the Newborns’ and Mothers’ Health Protection Act, the Mental Health Parity and Mental Health Parity Addiction Equity Act, the Genetic Information and Nondiscrimination Act and Michelle’s Law – as well as the Health Insurance Portability and Accountability Act’s portability and nondiscrimination requirements.  EBSA’s  ACA compliance review encompasses market reforms, patient protections, extension of dependent coverage, internal claims and appeals, external reviews and grandfathered plans.  In addition, the HBSP continues EBSA’s long standing commitment to identify and eliminate abusive multiple employer welfare
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