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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

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.”

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

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

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

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

DOL Proposes to Adopt State of Celebration Rule to Determine FMLA Rights of Employees in Same-Sex Marriages

Presently, the federal government uses different rules for different purposes when determining whether a same sex marriage will be recognized. The IRS and the majority of other government agencies use the state of celebration rule for purposes of determining whether a same sex marriages will be recognized.   Under this rule, a same sex marriage is recognized so long as it was recognized in the state in which is was performed.  However, the DOL uses the state of residence rule for Family Medical Leave Act (FMLA) purposes. Under this rule, a same sex marriage is recognized only if it is recognized in the state in which the couple resides.  The resulting inconsistency is confusing and complicates administration of employee benefits.

Secretary of Labor Thomas E. Perez announced on Friday that the Department of Labor (DOL) is proposing a rule to revise the definition of spouse under the

Another Same-Sex Marriage Ban Falls: FMLA Implications

On June 6th, a Wisconsin federal district court held that state laws prohibiting same-sex marriage are unconstitutional in the matter of Wolf v. Walker.  This decision is the latest in a series of rulings in favor of same-sex marriage since the Supreme Court overturned section three of the Defense of Marriage Act in United States v. Windsor, nearly one year ago.  Since Windsor, judges in eight states (AR, ID, MI, OK, TX, UT, VA, and WI) have overturned same-sex marriage bans, and judges in four other states (IN, KY, OH, and TN) have issued more limited rulings in favor of same-sex marriage. On June 13th, the district court judge issued an injunction against enforcement of the ban, but stayed the order pending the outcome of the defendant’s appeal to the Seventh Circuit Court of Appeals.

For the employee benefits community, this decision will have an impact

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?

Wrong.

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

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

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