Articles Posted in Family and Medical Leave

On October 17, 2018, the New York City Council passed several bills, referred to as a parental empowerment package, which will likely be signed by the mayor. These bills require employers with 15 or more employees to provide a “lactation space” and “lactation accommodation” for employees who need to express and store breast milk.  Specifically, employers will be required to designate a private sanitary place that is not a restroom for purposes of expressing milk. Although since 2008 New York State law has required employers to allow nursing mothers with breaks to express milk, New York City will require a dedicated room for this purpose. In addition to providing a lactation space, which must be in reasonable proximity to the employee’s work area, the law will also require that employers provide a refrigerator that is suitable for breast milk storage.

For employers that are unable to designate a room solely for lactation purposes, the law will permit employers to use a room that is also used for other purposes provided that the primary function of the room will be as a lactation space. An employer will be exempt from the requirement of providing a lactation space if the employer can demonstrate that it would pose an undue hardship in the form of “significant expense or operational difficulty.” Nevertheless, the standard for demonstrating an undue hardship would be high and employers would still be required to accommodate the needs of the employee.

The law will go into effect 120 days after the mayor signs it. In the meantime, employers should prepare now to identify a room that qualifies as a lactation space, and revisit their lactation policies, which will be required to conform to the law’s specific requirement. We are available to answer questions on this law, and as always, will keep you posted on developments, including the effective date of the proposed law.

On October 17, 2017, the New York City Council passed a bill amending the New York City Earned Sick Time Act (which took effect on April 1, 2014)  to require paid time off for victims of family offense matters, sexual offenses, stalking and human trafficking, and their family members.  The amendment would take effect 180 days after Mayor Bill de Blasio signs it into law, which he is expected to do.

Reasons for Using Safe Time

Once passed, the law, which would be renamed the “Earned Safe and Sick Time Act,” would require employers to allow employees to use safe time for the following reasons:

Some states, such as Connecticut, provide for unpaid family and medical leave greater than that provided by federal FMLA. New York is about to join California in providing paid family leave.

Beginning on January 1, 2018, New York State will provide employee-funded paid family leave for qualifying employees.  The New York State Paid Family Leave Benefits Law (PFLBL) provides full and part-time private sector employees with job-protected paid leave in certain situations after having worked for the employer for a specified period of time.  Paid family leave will be covered by an employer’s disability insurance policy, and the premium for this coverage will be paid through employee payroll deductions.  Although not yet required, employers have been permitted to take such deductions since July 1, 2017.

On July 19, 2017, New York State adopted final regulations further implementing and clarifying the PFLBL.

The Family and Medical Leave Act (“FMLA”) provides eligible employees with twelve workweeks of unpaid leave  in connection with the birth or adoption of a child, caring for an immediate family member with a serious health condition, the employee’s own serious health condition, and exigencies relating to an employee’s or a family member’s service in the National Guard, Reserves, or Regular Armed Forces.  Among the FMLA’s protections is an eligible employee’s entitlement to be protected from interference and retaliation by an “employer” for the exercise of FMLA rights.

Until just last week, it was unclear in the Second Circuit (New York, Connecticut and Vermont) whether an individual supervisor or other management official could be sued under the FMLA as an “employer” for interference and retaliation.  On March 17, 2016, the United States Court of Appeals for the Second Circuit in Grazadio v. Culinary Institute of America, No. 15-888-cv, ruled that an individual management employee could be considered an employer under the FMLA and held  liable for violating an employee’s FMLA rights.

In Graziadio, the plaintiff had sought to take two separate leaves relating to her childrens’ serious health conditions.  The first approved leave was taken in connection with her son’s diabetes, and the second leave was sought and taken about a week after she returned to work as a result of her other son having suffered a leg fracture, necessitating surgery.  The plaintiff had promptly informed her supervisor that she would need to take an immediate second leave and that she would return approximately 10 days later “at least part time.”  Ultimately, the plaintiff sought approval to return to work from this second leave on a reduced schedule and asked whether the employer needed “any further documentation” from her concerning the leave that she had taken.

Last month, the New York City Council voted in favor of legislation that would require some employers to provide paid sick days to their employees. Excluded from the law’s coverage are employers in the manufacturing industry. Also, some employers would only be required to provide unpaid sick leave. Depending upon the New York City economy, the law would take effect on April 1, 2014 for those employers that employ at least 20 employees, and October 15, 2015, for employers with less than 20 employees but at least 15 employees. Employers who employ at least 1 worker would be required to provide unpaid sick leave effective April 1, 2014 and paid leave effective October 15, 2015.

Under the New York law, employees, other than domestic workers, would accrue 1 hour of sick time for every 30 hours worked, with a maximum paid sick time accrual of 40 hours in a consecutive 12 month period.

Employers that already provide paid sick time equivalent to that required by the legislation, in the form of personal days and vacation, will not be required to provide additional days under the law as long as the paid time policy covers the same reasons for leave set forth in the law. The law will also prohibit retaliation against employees for exercising their rights under the law.

The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.

On January 15, 2013, a federal court in Connecticut held that an employee who was fired for excessive absences based upon taking off several days to care for his wife following her hip replacement surgery and their son who was ill, suffered unlawful retaliation under the Family and Medical Leave Act (FMLA). Notably, the employee never asked for FMLA leave. However, the court in McNamara v. Trinity College held that where an employer is on notice of an employee’s request for time off, and such time could potentially qualify as FMLA leave, then the employer may not terminate the employee for taking such leave. Of course, if the employer is unaware of the reasons for taking time off, then it would be difficult for an employee to prove that he or she was fired for taking FMLA leave.

On January 14, 2013, the Wage and Hour Division of the U.S. Department of Labor issued guidance in the form of an Administrator Interpretation, which seeks to clarify the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”) as it pertains to a child 18 years old or older and is incapable of self-care.

The FMLA entitles eligible employees of covered employers to take unpaid leave for a medical or family reason. Among other things, the FMLA entitles an eligible employee to twelve weeks of leave in a 12-month period to care for the “serious health condition” of a son or daughter. In situations where the son or daughter is 18 years old or older, an employee is not permitted to take leave to care for such child unless the child is incapable of self-care because of a mental or physical disability at the time the FMLA leave begins.

In determining whether the condition qualifies as a mental or physical disability, employer considering leave requests must look to the Americans with Disability Act and related regulations issued by the Equal Employment Opportunity Commission, which provide a definition of such disabilities.

Today, the United States Department of Labor announced that the Wage and Hour Division has issued a Notice of Proposed Rulemaking to implement and interpret certain statutory amendments to the Family and Medical Leave Act (“FMLA”). Specifically, the regulations are intended to address the recent amendments to the FMLA, which expanded military family leave provisions, as well as incorporating a special eligibility provision for airline flight crew employees.

Today, the U.S. Department of Labor Wage and Hour Division released three new fact sheets addressing the topic of retaliation under the Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Each of these statutes contain provisions prohibiting an employer from retaliating against an employee for asserting rights covered by each of the statutes.

Fact Sheet #77A, Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at

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