What Employers Can Do Right Now To Prepare For Westchester County’s Earned Sick Leave Law

By Francis P. Alvarez, Susan M. Corcoran and Arin M. Liebman on

Companies should begin preparing now for the new Westchester County Earned Sick Leave Law (“WCESLL”), which becomes effective on April 10, 2019. Here are five steps to get employers started.

1. Determine Whether Your Company Must Provide Employees More Paid Time Or Expand The Reasons Employees Can Use Paid Time Benefits.

Employers should confirm they provide eligible employees with the minimum amount of leave they are entitled to under the WCESLL. At the start of employment, or on July 9, 2019, whichever is later, all eligible employees, except domestic workers, are entitled to accrue a minimum of one hour of sick leave for every 30 hours worked, up to 40 hours per year. Rather than calculate the accrual of earned sick leave, employers can provide eligible employees with a combined 40 hours or more of sick leave and other paid time off (“PTO”) benefits per year. Eligible employees who work for companies with five or more employees are entitled to paid sick leave and eligible employees who work for companies with less than five employees are entitled to unpaid sick leave. Employers must allow eligible employees to use sick leave for all the reasons outlined in the WCESLL, not just absences due to an employee’s own illness. Unionized employers must review their collective bargaining agreements and the specific WCESLL rules that apply to collective bargaining agreements.

2. Develop A Process To Track Employees Who Only Work In Westchester On An Occasional Basis.

Companies may have to comply with the WCESLL even if their employees are not “based” in Westchester. Absent clarifying regulations or guidance, it appears any employee who works 80 hours or more in a calendar year in Westchester County is eligible for sick leave. Thus, employees who only work in Westchester on an occasional basis (e.g., sales calls or covering shifts) may become eligible for sick leave as soon as they reach the 80-hour threshold. Tracking such time will be a considerable challenge for many if not most employers.

3. Update Your Sick Leave And Paid Time Policies And Procedures.

Employers should update their sick leave and paid time policies to ensure they satisfy the minimum standards under the WCESLL. For example, employers must allow employees to carry over up to 40 hours of unused accrued sick leave into the next year. Additionally, an employer can only delay an employee’s ability to use earned sick leave until they have worked for the employer for 90 days. Employers also may have to modify the process employees follow or documentation employees submit to support sick leave requests. Employers with NYC operations should keep in mind that the WCESLL is not identical to New York City’s Earned Sick and Safe Time Law; for example, the reasons for leave under the WCESLL are not as expansive as NYC law.

4. Prepare For The Notice And Posting Requirements.

On the start of employment or by July 9, 2019, whichever is later, employers must give employees a copy of the WCESLL and written notice of how the law applies to them. Employers must also display a copy of the WCESLL and a poster in English, Spanish and any other language deemed appropriate by the County of Westchester, in a conspicuous location. A carefully drafted written policy describing how employees can request to use sick leave is recommended and will go a long way to ensure employees understand their rights and obligations under this law.

5. Coordinate WCESLL Benefits With FMLA, NYPFL And Voluntary Leave Benefits.

In some instances, time covered under the WCESLL will overlap with leave provided under the federal Family and Medical Leave Act (FMLA), the New York Paid Family Leave Act (NYPFL), and/or voluntary paid or unpaid leave benefits. Employers should confirm that they are coordinating these leaves properly to ensure time covered under the WCESLL is not being counted improperly during such leaves while, conversely, avoiding any unnecessary “stacking” of such leaves.

Please contact Arin Liebman, Susan Corcoran, Frank Alvarez or the Jackson Lewis attorney with whom your regularly work to discuss ways your organization can prepare for the Westchester County Earned Sick Leave Law given your company’s unique operational needs.

Pittsburgh Now Requires Pregnancy Accommodations for Employees and Partners

By Sheri L. Giger and Sean P. Dawson on

In major news for employers in Pittsburgh, the City Council just unanimously passed a new ordinance greatly expanding protections for pregnant employees and imposing several new requirements on private employers, much like those under the federal Pregnancy Discrimination Act, Americans with Disabilities Act, and related EEOC guidance.

The ordinance also makes Pittsburgh one of the first cities nationwide to offer protections for partners of pregnant women—which is defined broadly to mean a person of any gender with whom a pregnant woman has a relationship of mutual emotional and/or physical support (and does not require a marital or domestic relationship). Committee members called the legislation “trailblazing” and “leading the way nationwide.”

Section 659.02 of Article V, Chapter 659 of the Pittsburgh City Code, the City Fair Practices Provisions, already treats pregnancy discrimination as a form of sex discrimination—forbidding employers with 5 or more employees from discriminating on the basis of “sex including pregnancy, childbirth, or a related medical condition.” The new ordinance amends and supplements these existing provisions, elevating protections for pregnant workers by making pregnancy its own protected class. It also makes nearly all of the law’s antidiscrimination provisions apply to partners of pregnant workers, as well.

Under the new ordinance, Pittsburgh employers can be liable for discrimination if they fail to reasonably accommodate their pregnant employees, unless they can prove that doing so would cause undue hardship. Examples of reasonable accommodations listed by the ordinance include, among other things, schedule modifications, granting leave requests, modified duties and job requirements, and modified work stations.

The ordinance requires employers to initiate an interactive process with pregnant employees who are having an issue with their work performance or conduct at work related to their or a partner’s pregnancy, childbirth, or related medical condition —regardless of whether the employee has asked for an accommodation. In addition, it limits when employers may request medical documentation from pregnant workers and forbids retaliation against employees who request reasonable accommodations under the new law.

The Pittsburgh Commission on Human Relations is the City agency tasked with investigating complaints under this ordinance.

We will provide updates as additional information and guidance becomes available.

What Am I Doing Wrong?? Common FMLA Mistakes

By Sheri L. Giger on

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 21st blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Dictating the documentation an employee provides to establish a family relationship.

It is common knowledge that employees can take FMLA leave due to a serious health condition of an immediate family member, which is defined under the law as a spouse, parent, and son or daughter.

The FMLA regulations also permit an employer to request documentation confirming the relationship, within certain parameters.

An employer may choose to require an employee to provide reasonable documentation of the covered family relationship when an employee seeks leave for the care of a family member with a serious health condition.  This documentation may take the form of a simple statement from the employee, a child’s birth certificate, a court document, etc. The employer is entitled to examine the documentation, and the employee is entitled to the return of the official document submitted for this purpose. 29 CFR § 825.122(k).

According to the U.S. Department of Labor, it is the employee’s choice whether to provide a simple statement or other documentation. Therefore, an employer should not dictate the specific type of documentation it wants to review. Further, employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise FMLA rights. Therefore, such a request should be reasonable based on the particular situation.

This is a discrete issue under the FMLA, and case law on this particular regulation is virtually nonexistent. However, employers should be aware of their ability to confirm covered family relationships, and how to properly do so, in accordance with the FMLA regulations.

Broad Workers’ Compensation Release Agreement Bars Disability Discrimination Claims

By Catherine A. Cano on

The District Court for the Eastern District of Louisiana dismissed an employee’s disability discrimination claims based on a broad release in her workers’ compensation settlement agreement with the employer. Peddy v. Aaron’s, Inc. Case No. 02:18-cv-1625 (E.D. La. Feb. 21, 2019). The Court also ruled in favor of the employer on its counterclaim for breach of the settlement agreement, and determined the employer was entitled to its attorneys’ fees and costs to defend the lawsuit.

The employee sustained a workplace injury in 2009, and filed a workers’ compensation claim. The employer accommodated the employee’s resulting medical restrictions for several years following the accident. However, according to the employee, the employer stopped accommodating and terminated her employment in 2016. The employee subsequently filed suit alleging failure to accommodate, disability harassment, disability discrimination and intentional infliction of emotional distress. Her workers’ compensation claim was still pending at the time she filed her disability discrimination lawsuit.

The employee settled her workers’ compensation claim after she filed the disability discrimination lawsuit, but before serving it on the employer. The settlement agreement released the employer from “all liability of any nature whatsoever, whether past, present or future, . . . including all claims arising under . . . the laws of Louisiana . . . the laws of the United States . . . [or] the Louisiana tort law, as a result of the [2009 workplace injury].” The settlement agreement also prohibited the employee from filing any claims against the employer “arising from” the 2009 workplace injury.

The defendant asserted counterclaims against the employee for breach of contract and indemnification under the agreement. After the parties filed their respective answers, the employer moved for judgment on the pleadings. The Court held that the dispute was ripe for judgment on the pleadings since it involved contractual interpretation.

The Court first determined that the employee released her disability discrimination and tort claims when she signed the workers’ compensation settlement agreement. The Court reasoned, “[the employee’s] disability and tort claims plainly arise ‘as a result’ of [workers’ compensation injury], because she frames her injuries as a ‘but-for’ cause of her claims.” The employee specifically claimed that the accident caused permanent disabilities, “and that [the employer] created a hostile work environment and discriminated against her because of her disabilities.”

The Court also found that the employee breached the terms of the settlement agreement by maintaining the lawsuit after she signed the settlement agreement. Thus, the employer was entitled to its attorneys’ fees and costs in defending the action. The employer was not, however, entitled to judgment on its indemnification claim, based on the language of that provision.

This decision reinforces the importance of considering other potential claims, and particularly disability discrimination claims, when resolving a workers’ compensation dispute. A general release is not appropriate in every situation. However, in workers’ compensation cases involving former employees or employees who cannot return to work (with or without reasonable accommodations), including a general release of employment and tort claims prevents an employee from pursuing disability discrimination claims on the heels of receiving a workers’ compensation settlement. Employers should consult with counsel about including a general release of claims in a workers’ compensation agreement to ensure the release is appropriate under the circumstances and supported by adequate consideration.

Flesh Eating Bacteria Ate My Homework

By Daniel P. Schwarz on

If you’re like most folks, you’ve been wondering “when am I going to see a story mentioning both flesh eating bacteria and reasonable accommodation.” Wonder no more.
Gary Brunckhorst worked for the City of Oak Park Heights Minnesota for more than fifteen years. In April 2014, he was serving as the Senior Accountant/Payroll Technician (Senior Accountant), a position that paid $72,000 per year and required him to perform payroll and information technology (IT) functions. Because the City is a small organization with approximately twenty-one employees, Brunckhorst also performed back-up duties for accounts payable and utility billing, assisted the front office in answering phones, and covered for other employees during their lunch breaks. Although Brunckhorst performed his job at City Hall, he was able to perform certain IT functions from a computer at his home.

In April 2014, Brunckhorst contracted Fournier’s gangrenous necrotizing fasciitis—a rare, life-threatening disease commonly known as “flesh-eating” bacteria. Brunckhorst requested and was approved for leave under the FMLA that expired on July 15, 2014. He was then offered and accepted a series of additional unpaid leaves pursuant to a City ordinance. By January, however, the City had decided it did not need a Senior Accountant. Rather than eliminating the position and offering a severance package, the City assigned Brunckhorst to the position of Utility Billing Clerk/Accounting Technician so that he would have a job when he returned, albeit at a lower salary of $50,000. The new position included the same benefits and was classified for union representation.

Brunckhorst was not happy and insisted that he be returned to his original position. Brunckhorst still had not returned to work by February 25, 2015 and the City sent him a letter asking him to request any reasonable accommodations he might need to perform the essential functions of the new position by March 23, 2015 and confirm that he could assume the position by April 23 or his employment with the City would be terminated.

Brunckhorst refused and insisted on being returned to his original position and be allowed to work from home for the first 120 days. He submitted a Work Ability Report from his physician that restricted him to four-hour work days with some physical limitations beginning March 18 and ending on May 18. The physician did not limit Brunckhorst to working from home.

The City informed Brunckhorst that he could not return to his original position, nor could he work from home because he could not perform the essential functions of the new position from a remote location. The City instead offered to allow Brunckhorst to work at City Hall four hours per day from April 20 to May 18. Brunckhorst refused. The City fired him and he sued.

In his lawsuit, Brunckhorst claimed that the City violated the ADA and the state analog because, among other things, it failed to offer him a reasonable accommodation and failed to engage in an interactive dialogue. The District Court for the District of Minnesota—Minneapolis, granted the City’s Motion for Summary Judgement. On appeal, the Court of Appeals for the 8th Circuit affirmed.

The Court of Appeals found that because Bronckhurst did not return to work prior to the expiration of his FMLA leave he was not entitled to be restored to the Senior Accountant position. In doing so, the court rejected the Enforcement Guidance from the EEOC stating that the ADA requires that an employer hold open the original position of an employee that has been granted leave unless the employer can demonstrate that holding open the position would impose an undue hardship. The Court held that the EEOC document was not binding authority.

The Court also held that Brunckhorst’s request that he be allowed to work from home was not a reasonable accommodation in light of his testimony that he could work at City Hall but that it “would have been easier” to work from home and the form filled out by his physician did not state that he must work from home. Instead, the City’s proposed accommodation was consistent with the doctor’s decision that Brunckhorst be allowed to work four hours per day up to May 18, 2015.

The Court of Appeals also held that Brunckhorst failed to show that he could have performed the essential functions of his job remotely. He testified that others at work would have needed to perform some of his duties. Careful readers of this Blog know that an employer is not obligated to hire additional employees or reassign existing workers to assist an employee to perform his essential duties.

Finally, the court found that no reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempted to narrow the window of the interactive process to the last few days prior to his termination but the record showed that for months regarding his return to work, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions.

Unsettled Waters at the Accommodation of Last Resort

By Jonathan A. Roth on

In 2019, we are poised to learn where the Fourth Circuit stands on reassignment as an accommodation—an issue that has split the Circuits.

Before discussing where courts are divided, let’s start with the consensus.  First, the Americans with Disabilities Act (“ADA”) clearly requires employers to make reasonable accommodations to the limitations of an employee with a disability unless an employer can show that the accommodation would impose an undue hardship.  The statutory text of the ADA states that the term “reasonable accommodation” may include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).  Thus, if during the interactive process an employer is unable to identify a reasonable accommodation that will enable an employee with a disability to continue performing the essential functions of his or her current job, an employer may need to consider reassigning the employee to a vacant position—often referred to as the accommodation “of last resort.”  It is here, when we get to the meaning of “reassignment,” where courts diverge.

Does reassignment mean that the employee seeking accommodation gets the vacant position if he or she is qualified for it?  Or, does the ADA only require that the employee be allowed to compete equally with other applicants for the position?  Or, is the answer somewhere in the middle?

The Supreme Court has held that, in the run of cases, an employee with a disability seeking an accommodation is not entitled to a vacant position over a worker with superior rights to bid for the job under an employer’s seniority system.  US Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2002).  The Supreme Court, however, has not addressed the rights of an employee with a disability seeking a reassignment outside this seniority system context.

A recurring, critical question is whether an employee with a disability seeking an accommodation is entitled to a vacant position over someone more qualified for the job, particularly when an employer has a practice or policy, like most employers do, of hiring the most qualified person for the job.  According to the Equal Employment Opportunity Commission (“EEOC”), reassignment means the employee with the disability seeking reassignment gets the vacant position if qualified for it even if another individual is more qualified.  EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002).

Circuit Courts of Appeals are split on this issue.  Compare Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (“[T]he ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”), and EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 (11th Cir. 2016) (“Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’”), with EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) (“[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”), Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc) (“[R]equiring the reassigned employee to be the best qualified employee for the vacant job is judicial gloss unwarranted by the statutory language or its legislative history.”), and Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) (explaining that the word “reassign” in the ADA’s statutory text “must mean more than allowing an employee to apply for a job on the same basis as anyone else.”).

In Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018), the Tenth Circuit recently reiterated its position that “in most situations, an employer must award the [vacant] position to the disabled, but qualified, employee.”  The Tenth Circuit, however, explained that an employer’s policy of hiring the most qualified applicant for vacant positions is relevant and an “employer could point to its policy and argue that while the employee was technically qualified for a given position, the employee’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.”

The Fourth Circuit Court of Appeals, like several other Circuit Courts, has never squarely addressed this issue, but it could soon because of an appeal pending in Elledge v. Lowe’s Home Ctrs., LLC, No. 5:16-cv-00227-RJC-DCK (W.D.N.C. Dec. 20, 2018).  Elledge sought reassignment to multiple positions after his knee condition left him unable to perform the essential functions of his current job, which required frequent traveling, walking, and standing.  Lowe’s, like many employers, had a hiring policy requiring that jobs be posted and that individuals apply and compete for vacant jobs.  While Elledge applied for multiple vacant jobs, the evidence showed that Elledge did not obtain these positions because other applicants were more qualified.

Elledge brought suit alleging that Lowe’s violated the ADA by failing to reassign him to the vacant positions sought.  The district court dismissed Elledge’s claims on summary judgment.  The district court explained that Elledge “should not have enjoyed a privileged status in the job application process . . . . He was required to adhere to Lowe’s standard policy and compete on equal footing with other employees and outside applicants.” Elledge recently appealed the decision, and a ruling from the Fourth Circuit should come later this year.

Given the Circuit split on the extent of an employer’s obligation to reassign an employee with a disability to a vacant position as a reasonable accommodation, the Supreme Court may soon resolve this issue should the appropriate case come before it.  Until then, employers should stay up to date on the evolving law in the jurisdictions where they operate and consult with legal counsel when considering reassignment as an accommodation.

Village of Glenview Latest Municipality to Opt Back In to the Cook County Earned Sick Leave Ordinance

By Jody Kahn Mason on

On February 7, 2019, the Village of Glenview, Illinois, voted to opt back in to the Cook County Earned Sick Leave Ordinance, effective July 1, 2019. In doing so, Glenview joins the growing list of suburban municipalities to reconsider their previous opt-outs, including Wilmette, Northbrook, and Western Springs. (Of note, Glenview also voted to opt back in to the Cook County Minimum Wage Ordinance.)

Glenview’s decision followed on the heels of a non-binding advisory referendum on the ballot in November in which Glenview voters overwhelmingly voiced their support of the Cook County sick leave and minimum wage ordinances. However, the Glenview ordinance includes a provision which provides that the ordinance will be nullified and repealed if state-wide sick leave legislation is enacted.

The question remains: in light of the growing uncertainty among Cook County municipalities, will the state legislature take the bait?

What Did She Say? Dispute Over Content of Voicemails Requires Jury Trial on FMLA Claims

By Tasos C. Paindiris on

An employee seeking the protection of FMLA leave must give adequate and timely notice of the need for leave.  In situations where the leave is due to a qualifying reason for which the employer previously provided the employee FMLA leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

In Holladay v. Rockwell Collins, Inc., (S.D. Iowa, Jan. 24, 2019) the company approved Ms. Holladay for intermittent FMLA leave for migraines.  When Ms. Holladay was absent from work four consecutive days she left a voicemail for her supervisor to report her absence each day.  However, the parties disagreed as to the details she provided in those voicemails.  Ms. Holladay testified that she said “I had a migraine and I would not be in that day.”  According to the company, Ms. Holladay never specified migraines and only stated she would be absent due to either an “illness” or “doctor’s visits.”  Ms. Holladay’s supervisor testified that she “write[s] down in a steno book when somebody calls in and what they leave.”  In connection with Ms. Holladay’s absences the supervisor wrote “ill/out,” “ill out,” “DR,” and “DR,” respectively.  She did not recall if Ms. Holladay mentioned migraines.

Additionally, for absences of more than three consecutive working days company policy required employees to submit a doctor’s note prior to the start of the employee’s shift on the fourth day of absence.  Ms. Holladay did not submit the note before the start of her shift and she was terminated for violation of the attendance policy.

Ms. Holladay claimed the company interfered with her FMLA rights by not designating her absences as FMLA.  The Court concluded that if Ms. Holladay cited migraines as the reason for her absences in the voicemails then the company should have designated her absences as FMLA.  If Ms. Holladay only said that she was ill her notice was deficient and her FMLA claim fails.  Because there was competing evidence on both sides the Court held that a jury must decide in a trial.

The company also argued that Ms. Holladay failed to comply with the company’s policy requiring a timely doctor’s note and therefore the FMLA leave could be denied for her failure to follow its usual notice and procedural requirements.  The Court agreed with Ms. Holladay that the policy imposed a burden that is more onerous than the medical certification requirements under the FMLA, therefore the policy could not be used to deny FMLA.

This case demonstrates how an employee can avoid summary judgment dismissal of her lawsuit by testifying that she specifically referenced the FMLA when calling in her absences.  It is a good reminder for employers to revisit their process for documenting what employees are reporting as the reason for the absence and whether the employee is required to contemporaneously confirm what was reported.  Additionally, employers must be careful not to discipline employees using FMLA for failure to follow the employer’s process for submitting a doctor’s note if no medical documentation is otherwise required by the FMLA.

Do I Have to Grant Leave for Employee Requests to Attend Their Children’s School Activities? Maybe in California

By Susan E. Groff and Ariel Beverly on

School children are back at school following winter break, and that may mean employee requests for time off for parent-teacher conferences, school assemblies, and more.  While less known, California law has a collection of statutes affording parents protected time off. One of those protections is California Labor Code section 230.8, which provides parents, and other parental figures, with protected time off to attend to child related activities.

 

Planned and Foreseeable Absences

Under California Labor Code section 230.8, parents of covered employers may take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school or with a licensed child care provider, or to participate in activities of the school or child care provider.  To exercise their protected time off, parents must provide their employer with reasonable notice before any planned absence. Additionally, any time off incident to school or child care enrollment or child related activities coordinated by the school or child care provider must not exceed eight (8) hours in any calendar month of the year.  Although the code leaves child related school and care activities undefined, its broad enough to include activities such as field trips, parent-teacher conferences, and school assemblies.

Emergency Absences

Parents may also use the annual 40 hours of job-protected leave for unplanned absences resulting from “emergency” situations.  A child care provider or school emergency is one in which the child cannot stay in the care of the school or child care provider because:

  • the school or child care provider has unexpectedly requested that the child be picked up
  • behavioral or discipline problems
  • unexpected closure or unavailability of the school or child care provider
  • natural disasters such as fire, earthquake, or flood.

Parents must still notify their employers of their unplanned absence as soon as practicable.

Covered Employers and Employees

The provision applies to employers who employ 25 or more people at a single location. Parents, for purposes of section 230.8, includes a natural parent, guardian, stepparent, foster parent, or grandparent of a child of the age to attend kindergarten or grades 1 through 12 or a licensed child care provider—i.e., non-adult children.

Employer Verification and Intersection with Other Employer Policies

An employer may request that the employee obtain documentation from the school or child care provider verifying that the employee engaged in one of the specified child related activities on a particular date and time.

The employee may use his or her existing vacation for any planned time off related to enrollment or school and child care organized activities, but the employer need not independently offer paid time off to accommodate absences under section 230.8.

* * * *

Please do not hesitate to contact your Jackson Lewis attorney should you have questions regarding employee leaves of absence.

How the Government Shutdown Impacts Employee Leave Requests

By David S. Mohl on

As of midnight December 21, 2018, 380,000 federal employees were placed on furlough.  An additional 420,000 are considered “excepted” and have continued working without pay.  Federal employers and employees should be aware of how the government shutdown impacts both paid time off requests as well as approved FMLA leaves.

According to the Office of Personnel Management Guidance for Shutdown Furloughs, employees who are furloughed are on a leave without pay.  Therefore, there is technically no job to take leave from.  All paid time off during a shutdown furlough period is cancelled as the requirement to furlough supersedes employee leave requests and other paid time off rights.  This is because paid time off creates a debt to the government that is not legally authorized.  This rule extends to both furloughed and “excepted employees,” which include employees who are (1) performing emergency work involving the safety of human life or the protection of property, (2) performing minimal activities as necessary to execute an orderly suspension of agency operations related to non-excepted activities, or (3) performing certain other types of excepted work.

Any previously scheduled FMLA leave will be treated as a leave without pay and will not be counted towards an employee’s FMLA entitlement.  If an excepted employee faces circumstances that would normally qualify them for FMLA leave, the employee is placed in a furlough status, which does not count against their FMLA leave entitlement.  This means that if the government is shut down during a furloughed employee’s FMLA leave, the furloughed employee will be entitled to his or her full leave once their employing agency or department resumes operations.

Federal employers should ensure that they are properly administering FMLA leaves during the government shutdown.

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