Articles Posted in Family and Medical 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 http://www.dol.gov/whd/regs/compliance/whdfs77a.htm.

The New York City Council has proposed a law that would provide paid sick days to all private sector workers.
According to the Department of Justice Office of Domestic Social Development, as of February 2009, 76% of low wage workers and 48% of full-time private sector workers are not paid for sick days.

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Under the federal Family and Medical Leave Act of 1993 (“FMLA”), an eligible employer is entitled to take up to 12 weeks of unpaid leave per year in connection with, among other things, a “serious health condition.” Upon return from such leave, such employee is entitled to be restored to the same or equivalent position. Recently, the United States Court of Appeals for the Second Circuit (which embraces New York, Connecticut and Vermont) held in Roberts v. The Health Association that an employer does not violate the FMLA where it terminates an employee while on FMLA leave, where it is clear that the employee would not have been able to return to work upon the expiration of the 12 week leave.

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In Peters v. Gilead Securities Inc., the 7th Circuit sent out a warning to employers using employee handbooks, that their provisions may be held legally binding due to the contract liability theory of promissory estoppel. Specifically, the court ruled that although a company may not be subject to the Family Medical Leave Act they may still be liable if their Employee Handbook states employees are eligible for such a leave.

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