By: Jane Lewis Volk, Esquire jlv@muslaw.com
A recent case in a Pennsylvania federal district court should remind employers that even employees who don't meet the eligibility requirements for leave under the Family and Medical Leave Act are still eligible for protection under that law.
The Act entitles employees with a minimum of 12 months on the job to take unpaid leave of up to 12 weeks for the care of a newborn or adopted child or an immediate family member with a serious health condition, or for the employee's own serious health condition. The Act only covers employers with more than 50 employees.
In the case in question, an employee who had been working for only 6 months informed her employer that she planned to take maternity leave in 6 months' time. Although she was not yet eligible for leave at the time of her notice, she would be eligible by the time of the requested leave.
Shortly after she announced her pregnancy, the employer fired her. She filed a lawsuit claiming that the firing was unlawful retaliation under the Act. A district court agreed that the anti-retaliation provision of the Act protects employees who give notice, as long as they will be eligible for the leave by the time it starts.
Wednesday, January 28, 2009
Tuesday, January 13, 2009
FMLA News
By: Antoinette C. Oliver, Esquire aco@muslaw.com
On January 28, 2007 the Family and Medical Leave Act (FMLA) was expanded for the first time in 15 years, with the enactment of the National Defense Authorization Act.
Employees who need time off to care for a recovering family member who served in the military are eligible for up to 26 weeks, rather than the standard 12 weeks of FMLA leave within a 12 month period. A recovering service member is defined as a Member of the armed services who falls ill or is injured during active duty and, as a result, is unable to perform his or her duties. To qualify for leave, the employee must be the spouse, parent, child or nearest blood relative of the injured service member.
An employee is also qualified for leave due to “any qualifying exigency” that arises out of a family member’s service in the Armed Forces or because a family member is called to duty. A family member under this provision is limited to spouse, parent or child. Notably, the term “any qualifying exigency” is yet to be defined by the Secretary of Labor, and therefore is not yet effective. In the meantime, the Department of Labor (DOL) is encouraging employers to provide this type of leave for employees until the act is effective. Employees who take leave under “qualifying exigency” will be entitled to 12 weeks of FMLA leave.
Employers should be sure to update their handbooks in order to comply with these amendments. Because the DOL has not yet promulgated regulations for the expansion, there is little guidance to assist employers. In the meantime, employers are expected to act in good faith in complying with the new law.
On January 28, 2007 the Family and Medical Leave Act (FMLA) was expanded for the first time in 15 years, with the enactment of the National Defense Authorization Act.
Employees who need time off to care for a recovering family member who served in the military are eligible for up to 26 weeks, rather than the standard 12 weeks of FMLA leave within a 12 month period. A recovering service member is defined as a Member of the armed services who falls ill or is injured during active duty and, as a result, is unable to perform his or her duties. To qualify for leave, the employee must be the spouse, parent, child or nearest blood relative of the injured service member.
An employee is also qualified for leave due to “any qualifying exigency” that arises out of a family member’s service in the Armed Forces or because a family member is called to duty. A family member under this provision is limited to spouse, parent or child. Notably, the term “any qualifying exigency” is yet to be defined by the Secretary of Labor, and therefore is not yet effective. In the meantime, the Department of Labor (DOL) is encouraging employers to provide this type of leave for employees until the act is effective. Employees who take leave under “qualifying exigency” will be entitled to 12 weeks of FMLA leave.
Employers should be sure to update their handbooks in order to comply with these amendments. Because the DOL has not yet promulgated regulations for the expansion, there is little guidance to assist employers. In the meantime, employers are expected to act in good faith in complying with the new law.
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