DOL Updates Definition of Spouse in FMLA Regulations

Originally posted February 24, 2015 by Rick Montgomery, JD on

On June 26, 2013, in U.S. v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013), the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional under the Due Process Clause of the Fifth Amendment. Immediately following the decision in Windsor, the U.S. Department of Labor (DOL) announced what the then-current definition of “spouse” under the Family and Medical Leave Act (FMLA) allowed, given the decision: Eligible employees could take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriage. This has been commonly referred to as the “state of residence” rule.

In order to provide FMLA rights to all legally married same-sex couples consistent with the decision in Windsor, the DOL issued a Final Rule on February 25, 2015, revising the definition of spouse under the FMLA. The Final Rule amends the definition of spouse in 29 C.F.R. §§ 825.102 and 825.122(b) to include all individuals in legal marriages, regardless of where they live. More specifically, the definition of spouse is now a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”) rather than where the individual resides, and specifically includes individuals in same-sex and common law marriages. The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.

The Final Rule goes into effect on March 27, 2015.

To assist employers, the DOL has released a Fact Sheet and Frequently Asked Questions about the Final Rule.

Employer mistakes with leave of absence policies can be costly

Originally posted September 18, 2014 by Linda Hollinshead on
The Family and Medical Leave Act and the Americans with Disabilities Act have been in effect for more than two decades. Yet, these laws continue to present challenges for employers seeking to balance the legal entitlements of employees against the need to meet operational and workload demands.

While both FMLA and ADA provide employees with the right to take a leave of absence under qualifying circumstances, employers often lose sight of the fact that the combination of these laws, as well as state leave law obligations, may increase employer responsibilities. When employers fail to consider their legal responsibilities under each law, the potential for legal exposure increases significantly.

Leave of absence issues can be frustrating for employers – particularly when a recently hired employee develops a medical issue that results in an inability to work. Most employers would like to tell new employees that their short tenure disqualifies them from leave. Yet, even where an employee does not meet the FMLA eligibility requirements because he has not worked for the employer for a total of 12 months, worked 1250 hours in the 12 month period preceding the commencement of the leave, or works at a small work site, that new employee, if disabled, may still be entitled to a leave of absence under ADA or applicable state law.

Likewise, even after an employee has exhausted FMLA leave, employers must be careful not to prematurely terminate an employee who cannot resume duties immediately and on a full-time basis.

The ADA and applicable state law require an employer to consider whether additional leave is a reasonable accommodation or presents an undue hardship and must be prepared to consider providing other types of reasonable accommodations (e.g., adjusted work schedule, work from home arrangements or the removal of non-essential job functions) to enable the employee to return to work.  The failure to consider the potential leave obligations to an employee both before and after the use of FMLA leave creates significant legal exposure for employers.

Another area of concern for employers is the new EEOC guidance regarding pregnancy discrimination. The FMLA provides leave to employees related to the birth and care of a child. Moreover, while under the ADA, pregnancy is generally not considered an impairment and, therefore, not a disability, employees may have other medical conditions or impairments related to their pregnancy (e.g., diabetes) that are covered disabilities and for which an employee may be eligible for leave or other reasonable accommodations.

More recently, in considering an employer’s obligation under the Pregnancy Discrimination Act not to discriminate against employees on the basis of pregnancy, the EEOC has emphasized that an employer is obligated to provide leave and hold a position open for an employee with a pregnancy related absence for the same length of time that positions are held open for employees on temporary disability leave.

As an enforcement matter, the EEOC appears to be taking the position that pregnant employees with medical conditions are eligible for leave as an accommodation, even if not disabled. Similarly, some state and local non-discrimination laws (e.g., New Jersey and Philadelphia) have more recently expanded employers’ obligations to accommodate pregnant employees.

This trend requires that employers view their obligation to provide leave to pregnant employees more broadly than just the FMLA and should be prepared to consider and grant leave requests (and provide job protection benefits) to such employees even where FMLA is not applicable.

In many instances, an employee seeking a leave of absence for his or her own medical condition has also applied for short term disability or workers compensation benefits. Employers should be cautious not be base their decision on whether to approve an employee’s leave request on an insurance carrier’s decision regarding insurance benefits.

For example, while an individual may be denied short term disability benefits under an insurance plan’s definition of a covered condition, this does not diminish the fact that the employee may still have a serious health condition necessitating a leave of absence. Similarly, when an employee is denied workers compensation benefits while the carrier investigates whether the injury was work-related, the employee may still be disabled under the law, and therefore, entitled to a leave as an accommodation.

Given the varying definitions of qualifying conditions under the insurance contracts, employers should not rely on the carriers to make a determination of leave eligibility. Instead, employers take control of the leave approval process and require employees to directly provide supporting medical documentation.

In light of the complexities of managing the various leave laws, employers should regularly review and update their leave policies to ensure they adequately address obligations under the FMLA, ADA and state law. In particular, references to a fixed leave period after which employment is terminated should be removed and descriptions of the availability of disability and workers compensation insurance benefits should be clearly stated as insurance benefits, not leave entitlements.

Finally, managers should be trained to report all employee requests for leave to human resources to enable the prompt assessment of the obligation to provide leave.

New proposal would make same-sex partners eligible under FMLA

Originally posted June 23, 2014 by Lynette Gil on

No one should have to choose between succeeding at work and being a loving family caregiver, according to the Labor Department's Secretary, Thomas E. Perez. That's why the Labor Department proposed a rule that any employee in the private-sector is eligible for leave to care for a same-sex spouse under the Family and Medical Leave Act (FMLA) regardless if the state they live in recognizes their marital status. Officials did not say how many employees would fall under this rule.

Meanwhile, the Office of Personal Management issued its own proposal, which extends the same benefits to federal employees. However, this rule won't apply to those who work in Social Security or veteran benefits offices because their eligibility is based on the law where the employees live, instead of where they celebrated their marriage.

According to the Washington Post, the Obama administration will call on Congress this Friday to pass a handful of bills "aimed at extending those benefits to same-sex couples in states that don't recognize gay marriage."  And the director of the American Civil Liberties Union (ACLU) Lesbian Gay Bisexual and Transgender Project, James Esseks, said that Congress needs to pass legislation so that "LGBT Americans who have been paying into the [Social Security] system for decades" can take advantage of it.

Understanding FMLA Basics

Originally posted May 21, 2014 on

Is your organization subject to the requirements of the Family and Medical Leave Act (FMLA)? Do all of your employees qualify? What would it take for both your organization and your employees to qualify? And what does all of this mean in terms of employer obligations?

Let’s start with the basics: What employers are subject to the FMLA regulations?

Here are the basics of what employers are covered:

  • For private companies, the employer must have at least 50 employees to be subject to the FMLA, and these employees must have worked at least 20 or more workweeks in the current or prior calendar year.
  • Additionally, there must be at least 50 employees within a 75-mile radius for that location to be covered.
  • Public (government) agencies and schools are subject to the FMLA regardless of the number of employees.

What this means in practice is that any private employer with fewer than 50 employees does not have to provide FMLA leave. And even employers with more than 50 employees do not have to provide FMLA leave to employees who work in locations where there are fewer than 50 employees within a 75-mile radius, even if all other employees are covered.
Bear in mind, an employer with fewer employees than this threshold could still choose to allow unpaid leaves that are in alignment with the FMLA standards, but they would not be required to do so by law.

Now let’s look at employees: Which employees qualify to take FMLA leave?

What must an employee do to qualify under the FMLA?

  • First, the employee must have been employed by the employer (the same employer who is subject to the FMLA leave based on the criteria above) for at least 1 year. This requirement does not have to be the preceding year calendar year and need not be consecutive. For example, if an employee worked for the employer in the past, that time could count toward this requirement as long as it was fewer than 7 years ago (or if the absence of more than 7 years was due to military obligations).
  • The employee must have worked at least 1,250 hours for the employer in the preceding 12 months. Vacation or PTO time does not count toward this requirement.
  • The employee must work at a location that has 50 or more employees within a 75-mile radius, as we noted above.
  • Finally, the employee must have a qualifying condition. This includes:
    • The employee’s own serious health condition.
    • The need to care for an immediate family member with a serious health condition. “Immediate family member” refers to a spouse, child, or parent.
    • Placement or birth of a child. (The right to leave in this instance extends for up to one year after the birth or placement of the child.)
    • Any qualifying exigency related to an immediate family member being in the military on “covered active duty.”

And if both the employer and the employee qualify, what does that mean the employee is entitled to?

If the employer is subject to the FMLA leave and the employee qualifies for it, then the employee has the right to up to 12 workweeks of unpaid leave in a 12-month period, which can be taken in one or more blocks of time. For some conditions, when medically necessary, the leave could also be taken intermittently or on a reduced schedule.
The FMLA also entitles the employee to:

  • Job reinstatement upon return from leave, in the same or equivalent role.
  • Continuation of group health benefits during the leave period. The employee is still obligated to pay his or her insurance premium contributions during that time.
  • Up to 26 total weeks of leave (instead of 12) in the case of caring for a covered service- member with a serious injury or illness.

Beyond employee entitlements, covered employers also have an obligation to:

  • Post an FMLA notice explaining employee rights under the FMLA program.
  • Give all new employees information about the FMLA, either in the employee handbook or separately upon hire.
  • Tell an employee when he or she may have an FMLA-qualifying leave, as soon as the employer reasonably should know that an absence or leave request may qualify.
  • Give employees an official eligibility notice for FMLA leaves.
  • Explain the employee’s rights and responsibilities under the FMLA.
  • For all FMLA leaves, note the FMLA designation and how much of the total leave allotment will be deducted from the employee’s leave bank.

These basic components of the FMLA can help employers to understand their obligations under the FMLA. Of course, this is just the tip of the iceberg; proper FMLA administration will require a more in-depth understanding of how to ensure employees are qualified, how to curb FMLA abuse, and how to ensure employees are treated fairly and consistently under the program.

Employer Tips For Managing FMLA Compliance

Source: Mondaq Business Briefing

By A. Kevin Troutman

Marking the 20th anniversary of the Family and Medical Leave Act, about a year ago the U.S. Department of Labor trumpeted a survey concluding that the law "continues to make a positive impact on the lives of workers without imposing an undue burden on employers." According to the DOL, 85 percent of employers reported that FMLA compliance was easy or had no noticeable effect on their administrative processes - fewer than two percent of employees taking intermittent leave were off work for a day or less and, perhaps most striking, less than three percent of covered worksites reported they suspected FMLA abuse.

A year later, those statistics still seem to fly in the face of reality, particularly from the perspective of the very people who are responsible for ensuring that employers are in compliance. For example, before military leave provisions were even added or the DOL issued several hundred more pages of "clarifying" regulations addressing the existing law, human resources professionals reported numerous headaches related to FMLA compliance.

In a survey commissioned by the Society for Human Resource Management ("SHRM"), the world's largest organization for human resources professionals, 63 percent of respondents described FMLA compliance as somewhat or very difficult overall. They also reported concerns over difficulty tracking intermittent leave (73 percent); chronic abuse of intermittent leave (66 percent); vague documentation in medical certifications received from health care professionals (57 percent); and uncertainty about the legitimacy of leave requests (57 percent). In fact, 39 percent said that due to DOL interpretations, they had granted what they considered illegitimate requests for FMLA leave.

Anecdotal evidence, informal surveys and practical experience show that the management of FMLA leave - particularly intermittent leave - still present very significant challenges. It also shows that about half of covered employers actually provide more benefits and protections than the FMLA requires.

Among the thorny scenarios that frequently arise, it is not unusual for an employee on intermittent leave to become predictably absent on Mondays or Fridays, hence the touch-in-cheek "Friday-Monday Leave Act" moniker sometimes used to describe the law.

Likewise, it is not unusual for a poor job performer to suddenly request FMLA leave, based upon a vague diagnosis of a stress-induced disorder. And, of course, there are garden-variety malingerers who seize every opportunity to exploit covered leave by prolonging it.

The FMLA aspires to the noble goal of permitting eligible employees of covered employers to take unpaid, job-protected leave for specified family or medical reasons, with continuation of health insurance under the same terms and as if the employee had not taken leave.

Eligible employees may generally take up to 12 workweeks of leave during a 12-month period for a qualifying reason. Additionally, the spouse, child, parent or next of kin of a covered servicemember may take up to 26 weeks of leave during a 12-month period to care for the servicemember's serious injury or illness. So for human resources professionals and supervisors, the challenge is how to comply with the law's intent and specific provisions without allowing significant numbers of employees to game the system. Experience shows that the following tips can go along way toward helping employers meet these goals.

Tip No. 1: Ensure That Your Polices and Practices are Up-to-Date and Compliant

For good reason, current regulations make employers responsible for detailed, ongoing communication with employees requesting or taking FMLA leave. This helps confirm employee eligibility and the employee's understanding of her rights and responsibilities while taking leave.

Among other things, the regulations require designation of FMLA and explanations of what information the employee is required to provide throughout the process. Among the most important document is the certification form, to be completed by the health professional caring for the employee or family member with a serious health condition.

The certification form literally provides a roadmap for the employee and employer, including the expected duration of the leave and, especially important for intermittent leave, the circumstances under which time off will be covered. Despite the importance of this form, and employers' rights to ensure that it is complete and clear, it is surprising how many times leaves are approved based on late, incomplete or ambiguous certification forms. So it is critical to require complete forms to be submitted - failure to do so can legally result in delay or denial of FMLA leave.

It is important to ensure that the health care practitioner's documentation is clear and complete. For example, a leave request for follow-up physical therapy appointments does not give an employee carte blanche to miss work. The employee must still follow established call-in procedures and, to be covered by the FMLA, the employee's absence must be for the reason certified.

It is of course critical to ensure that policies, practices and communications with the employee are clear. Equally important, supervisors must treat all policy violations consistently, whether or not they are covered by the FMLA. Beyond the specific requirements of the FMLA itself, employees taking FMLA leave have no more, or fewer, rights than employees taking non-FMLA leave.

If an employee appears to be abusing an approved leave, employers can and should seek clarification of the certification. This could occur, for example, if a medical certification states that an employee may need intermittent leave two-to-three times a month, but the actual frequency of leave turns out to be substantially greater.

In that case, the employer may ask the health care provider to clarify the certification or whether the employee's circumstances have changed. Used properly, clarification can be an extremely effective tool in curbing FMLA abuse. Under appropriate circumstances, when abuse is suspected, employers can consider using even more creative tools, such as surveillance of a suspected abuser. Whatever techniques the employer chooses, the key is often consistent, even-handled application of them.

Tip No. 2: Train Supervisors to Spot and Respond to Situations Potentially Involving the FMLA

Although it is clear that employees need not explicitly mention the FMLA or use particular magic words to invoke FMLA protections, supervisors still frequently fail to notify their human resources department of potential covered situations. This creates tremendous headaches because the threshold for triggering an employer's legal duty to make further inquiry is very low. In fact, all an employee must do is provide enough information to suggest that FMLA leave may be needed. Supervisors should develop a standard practice of timely reporting such situations to their human resources representative. And, of course, the human resource or a designated employee health representative - not the supervisor - should make further inquiry when warranted.

Supervisors should not question employees about their medical condition or contact the employee's medical provider. They certainly should not discipline or terminate an employee for any absence that may be covered by the FMLA.

To avoid misunderstandings or worse, supervisors should also minimize email communications regarding employee's possible leave. If email communication is necessary, it should be objective and succinct, completely free of conjecture and opinion. Too often, rapidly-composed or speculative communications can be present in a manner that supports a claim of FMLA interference or retaliation (e.g., "John is absent from work again. How long is this going to go on?")

So the focus of supervisor training should actually be on spotting and timely reporting to human resources when a potential FMLA situation arises. Such training can save employers considerable time and money.

Tip No. 3: Destigmatize the FMLA

More than one commentator has astutely observed that employees too often shy away from having time off classified under the FMLA, apparently fearing that the designation somehow reflects negatively on them. Such misperceptions can lead to misunderstandings or even hard feelings. It is therefore important to use new employee orientation, follow-up training, policies and other communications to make it clear that certification and tracking of the FMLA is simply a routine part of doing business. Employees must understand that these activities are merely part of their employer's overall compliance with the law. However, postings, letters and other communications should not only reflect the company's commitment to, but also its pride in complying with these laws.

Along this line, it should go without saying that employers must never tolerate even the appearance of retaliation or a suggestion that it frowns upon any employee who exercises these rights. As the Americans with Disabilities Act and/or state workers' compensation issues often arise in connection with FMLA leave, regular refresher training on all three of these topics will help managers effectively navigate these potentially tricky scenarios. And it will help engrain the concept that doing so is just a regular exercise of management's duties.

To support the employer's compliance efforts, it can be very helpful to publish occasional reminders about employee rights in these areas and off course to ensure that employees know where and how to obtain answers to related questions. As more employers are recognizing each year, employee hotlines or similar tools can effectively support compliance in these and other areas. Such tools also promote positive employee relations.

Tip No. 4: Investigate Before Taking Action

It is becoming increasingly common for questions to arise about the activities of employees while they are on FMLA leave, with varying and sometimes disastrous results. For example, when an employer legitimately received photos of an employee on FMLA leave apparently enjoying herself in Las Vegas, it made the mistake of terminating her employment before finishing a complete investigation. The company wound up losing a lawsuit when it turned out that the employee was providing care for her terminally-ill mother, who was in fact in Las Vegas on a last wish trip.

Other courts have similarly concluded that it does not matter where an employee is providing care or support for an immediate family member with a serious health condition, only that the employee was indeed providing such care pursuant to a medically-certified reason. These cases are very fact-specific and the results can vary, but they illustrate the importance of a thoughtful, case-by-case investigation before drawing conclusions.

These situations further illustrate the importance of destigmatizing, or perhaps "de-mystifying," the FMLA. Once again, it is helpful for all employees - not just those taking FMLA leave - to understand the fundamentals of the law. And they should be reminded periodically that each employee's medical and/or personal circumstances are private, and therefore not to be addressed in gossip or speculation. In other words, while the employer welcomes good faith questions and reports of possible misconduct, it will carefully investigate before reaching any conclusions - and those conclusions will remain private.


Notwithstanding the DOL's rosy report regarding the ease of FMLA compliance, the law exists for good reasons and its requirements are the law of the land. Hundreds of pages of regulations aside, compliance does not require companies to allow malingerers or abusers to game the system either. Effectively managing the FMLA, however, requires employers to ensure that their policies are up-to-date, that their practices match those policies and that they periodically remind supervisors and all other employees of their practical application.

This article appeared on March 13, 2014 on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Labor Department Releases New FMLA Model Forms and Notice Poster

Source: Jackson Lewis

The U.S. Department of Labor has released revised model Family and Medical Leave Act (“FMLA”) forms to administer federal FMLA leave and a notice poster. The updated forms should be used by employers immediately, although they include no substantive revisions despite recent rule-making on the FMLA military caregiver leave provisions (see our article DOL Publishes Final Regulations Addressing Military Family Leave Provisions). The new forms expire on February 28, 2015. Following are links to the revised model forms:

Employers should keep in mind that family and medical leave obligations under state/territorial laws may provide for a greater leave entitlement than the FMLA and (most notably in California, Connecticut and Washington, D.C.) require employers to provide other forms or information.

The DOL notice poster summarizes major provisions of the federal FMLA and tells employees how to file a complaint. By March 8, 2013, all covered employers must display the new notice poster in a conspicuous place where employees and applicants for employment can see it. The poster must be displayed at all locations even if there are no employees eligible for FMLA at the location (e.g., there are fewer than 50 employees employed within a 75-mile radius of the worksite). Electronic posting also is permitted to satisfy the posting requirement, as long as it otherwise meets the requirements of the regulations.

The poster may be accessed here:

Benefit Aspects of Employee Leaves of Absence

Employee leaves of absence raise a number of difficult questions under federal employment laws.  Must a requested leave be granted?  Under what conditions?  Must the employee's position be held open so that the employee may return to it after the leave?

In addition to those questions, employers often must address the benefits-related aspects of any leave of absence. Complicating a benefits manager's task are a host of federal laws, including the Family and Medical Leave Act, COBRA and more.

Learn what you need to know to cope with leave-related challenges from your workforce. Please contact us for more information.