Happy 20th Birthday to the Family Medical Leave Act!

Wow, it is hard to believe it has been 20 years since President Bill Clinton signed into law the Family Medical Leave Act (FMLA). Despite the passing of two decades, many employers still have difficulty understanding and implementing the FMLA. The Department of Labor’s Wage and Hour Division enforces the FMLA, and has a good website with lots of helpful information, including Facts Sheets and e-tools which can assist employers in better understanding this important law.

Today, at 2:30 p.m. (EST) the Department of Labor is hosting an event with President Clinton to mark this anniversary. You can watch live via a webcast. In addition, the Wage and Hour Division will be publishing a final rule today which will implement amendments to the FMLA to expand the military family leave provisions, and a special eligibility provision for airline flight crew employees.

If you have employees who have family members in the military, be sure to review this Final Rule carefully, because it may affect how you currently handle these leaves under the FMLA.

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Are You a Covered Employer Under the FMLA?

Most private employers think if you don’t have 50 employees for each work day of 20 weeks in a calendar year, you are not a covered employer under the FMLA? Not so fast! That is not the end of the story. What about one employer who owns two companies, or one employee shared by two companies? The FMLA provides both an “integrated employer test” and a “joint employment test” for those situations.

Under these FMLA tests, whether an employer is a covered employer for purposes of the FMLA is not determined by the application of any single criteria, but rather the entire relationship is to be reviewed in its totality.

Where there are two separate companies, they will be deemed to be a single employer if they meet the “integrated employer test.” These factors include:

  • Whether there is common management of both entities?
  • What is the interrelationship between operations?
  • Is there centralized control of labor relations?
  • What is the degree of common ownership/financial control of the two entities?

Where one employee works for two separate entities, the “joint employment test“ factors will be considered. These include:

  • Whether there is an arrangement between employers to share an employee's services or to interchange employees?
  • Whether one employer acts directly or indirectly in the interest of the other employer in relation to the employee? or
  • Whether the employers are in some way associated with respect to the employee's employment and may be deemed to share control of the employee, directly or indirectly? Factors considered in determining which employer is the primary employer in a joint employment relationship include the authority or responsibility to: hire and fire; make payroll; and provide employment benefits.

Employers should analyze the facts of their circumstances and their business to accurately determine whether they are a covered employer under the FMLA. You can start with the brief on-line test offered by the United States Department of Labor.   

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June 27, 2012 - Free Webinar on the Family Medical Leave Act

From 1:00 p.m. – 2:00 p.m. (CST) tomorrow, the U.S. Department of Labor (DOL) is putting on a free webinar to help workers and employers better understand the Family Medical Leave Act (FMLA). Viewers will be allowed to submit questions which will be answered by a FMLA expert. The DOL has also prepared a booklet explaining the FMLA.

Who isn’t interested in free training? If your business has more than 50 employees, it is to your benefit to view this webinar to make sure you understand and correctly apply the FMLA. You don’t want to inadvertently violate it and be penalized.

Click here to register for the webinar.

Little Known Minnesota Employee Leave Laws: Part 1

Minnesota workplaces are required to provide time off to employees for a variety of ten little known leaves of absence. While most employers are familiar with the federal Family Medical leave Act (FMLA), and military leave law, few realize Minnesota has a variety of state leave laws which cover some very unique and dare I say, unusual circumstances.  The potpourri of leave laws include four which cover family, health and children matters. The last six cover a variety of individual employee issues, including two newer military leaves for family members of service members. 

To determine which leave laws apply to any particular workplace, it is important to review the definition of employer in each situation. Some of the statutory leaves define an employer as a business employing one person, while other statutes require a workplace to employ at least 20 employees for the leave law to apply. Some of the unique employee leaves only apply to public sector workplaces such as cities and counties, while other leave laws apply to every workplace including private businesses. The important point is to determine which state leave laws apply to your workplace. The first four employee leave laws are:

  • Parenting Leave: This law provides up to six (6) weeks of unpaid time off for the birth or adoption of a child. It applies to employers who have 21 or more employees, and is like a mini-FMLA. Employees must work for at least 12 consecutive months and at least half time prior to making the leave request. The employer must continue to make health coverage available during the leave, however there is no requirement the employer pay the costs of the health coverage during the parenting leave.
  • Leave for Adoptive Parents: If an employer provides maternity/paternity time off to employees, they must also provide a minimum of four weeks paid or unpaid time off for the adoption of a child. This statute has a broader application than parenting leave above, and is not restricted to employers of 21 or more employees. It applies to all employers. There is also no restriction on the length of time an employee must work to qualify for the leave.
  • School Conference and Activities Leave: Employers are required to grant up to 16 hours of unpaid leave time during any 12 month period, to attend school conferences or activities of the employee’s child, which cannot be scheduled during non-work time. It applies to all public and private sector employers in Minnesota who employ at least one employee. Employees are permitted to use vacation or PTO for any time taken under the statute.
  • Sick or Injured Child Care Leave: If an Employer provides sick leave benefits for the absence of an employee, the employee is permitted to use sick leave to care for an ill or injured child. It applies to employers who have 21 or more employees, and requires employees to have worked at least 12 consecutive months and at least half time prior to making the sick leave request. Sick leave benefits do not  mean short or long term disability.

After checking the definition of employer, it is also a good idea to carefully check the definition of family member and child to determine who has what rights, and who is covered by each particular statutory leave. If you determine a particular leave applies to your workplace, it is a good idea to include mention of it in the Employee Handbook.  Don't forget to revisit the statutory leave laws as your workplace grows in size to remain in compliance. 

Stay tuned for Part 2 covering organ, bone marrow, and blood donation, as well as two newer  military leave laws covering military ceremonies and caring for an injuured service member.

FMLA Covers Any Employee Who Assumes the Role of Caring for a Child

In a news release last week, the U.S. Department of Labor announced the Wage & Hour Division had issued an Administrator’s Interpretation (No. 2010-3) clarifying the definition of “son or daughter” as it applies to an employee standing “in loco parentis” to a child under Section 101(12) of the Family and Medical Leave Act (FMLA).

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter, . . .[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,. . . and to care for a son or daughter with a serious health condition.” See 29 U.S.C. § 2612(a)(1)(A) - (C). The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

“It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. . . . Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.”

If an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or a statement indicating the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations of in loco parentis where there is no legal or biological relationship.

Employers may have more “parents” working for them than they think. Not only biological mothers and fathers qualify for FMLA leave, but other adults may qualify in loco parentis as well. If you are an employer and you aren’t sure if an employee qualifies for FMLA leave, request documentation or a statement from the employee about the familial relationship.

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