Based on our experience advising hundreds of employers and closely watching court rulings on cases around the country, we offer a few tips for complying with the Family and Medical Leave Act (FMLA).

Employers should follow their own policies with respect to FMLA leave and requests for time off. To avoid potential issues, employers should ensure that they have established, formal policies in place regarding the FMLA and leave programs. These policies should include directing employees how to request FMLA leave, and a robust policy for calling out of work, among other things.

Once those policies are in place, employers should follow their policies, including by directing employees to HR when they request FMLA leaves outside the established channels. In certain situations, disputes have arisen over whether employees have satisfied their FMLA notice obligations through informal messages, such as through text or social media messages. If an informal message is received through text or social media, managers should let the employee know that they appreciate the communication, but they need to follow the company’s established channels for requesting time off work. Managers should then let human resources know of the situation for proper follow-up. Setting expectations for reporting absences and requests for time off early and often will help ensure the company’s FMLA compliance and avoid future disputes about whether proper notice was provided.

Employers should train managers and HR to recognize circumstances that may trigger FMLA and to follow and enforce the company’s established process for reporting the need for time off. Employers should ensure that their managers and supervisors are aware of and adhere to the company’s policies for attendance and FMLA leave. When employees request leave from managers/supervisors, whether formally or informally, those individuals should report those requests to HR for handling.

Jackson Lewis attorneys are available to assist employers with FMLA compliance, from drafting policies to providing creative and engaging trainings on these policies for managers and other employees.

Gender dysphoria is not excluded from the broad definition of “disability” protected under the Americans with Disabilities Act (ADA), a divided panel of the U.S. Court of Appeals for the Fourth Circuit has held. Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022). The court’s ruling likewise applies to the analogous Rehabilitation Act.  Read the full article here.

Since March 2020, COVID-19 rules have been confusing at best.  On August 11, 2022, in an effort to streamline the guidance and reflect the current state of the pandemic, the CDC once again issued updated guidance.  The new guidance focuses on individual responsibility and is designed to help the public better understand how to protect themselves and others if they are sick or exposed.

The most recent CDC COVID-19 recommendations include the following:

  • Vaccination. The CDC continues to promote the importance of being up to date with vaccination to protect people against serious illness, hospitalization, and death.  However, while the CDC continues to recommend vaccination, its guidance no longer differentiates between vaccinated and unvaccinated.
  • Quarantine.  The CDC no longer recommends quarantining following COVID-19 exposure, regardless of vaccination status.  Instead of quarantine, the CDC recommends anyone exposed to COVID-19 wear a high-quality mask for 10 days and get tested on day 6.  Previously, the CDC recommended a 5-day quarantine for anyone who was not up to date with vaccinations.
  • Isolation.  The CDC continues to recommend that regardless of vaccination status, individuals should isolate from others if they are sick and suspect that they have COVID-19 or have tested positive for COVID-19.
    • The CDC recommends that individuals with COVID-19 stay home for at least 5 days. After 5 days, if the individual is fever-free for 24 hours without the use of medication, and their symptoms are improving (or they never had symptoms) they can end isolation.
    • However, the CDC now recommends that individuals who had moderate illness (experienced shortness of breath or had difficulty breathing) or severe illness (were hospitalized) due to COVID-19 or have a weakened immune system, should isolate through at least day 10 and those who had severe illness or have a weakened immune system should consult with their healthcare provider before ending isolation.
    • The CDC also recommends that someone who has ended isolation should avoid being around anyone who is at high risk for a serious case of COVID-19 until at least day 11.
    • Finally, the CDC recommends that if an individual’s COVID-19 symptoms worsen, they should restart their isolation at day 0.
  • Testing.  The CDC no longer recommends screening testing of asymptomatic people without known exposures in most community settings.
  • Physical Distance. The CDC emphasizes that physical distance is just one component of how individuals can protect themselves and others.  The CDC recommends considering the risk in a particular setting, including local COVID-19 Community Levels and the important role of ventilation, when assessing the need to maintain physical distance.

The CDC’s focus on individual responsibility, the removal of distinctions between vaccinated and unvaccinated, the removal of quarantine recommendations and the discussion of mask wearing as an individual responsibility are good news for employers who are considering relaxing COVID-19 workplace requirements.

This likely will not be the last we hear from the CDC on this topic.  Indeed, the CDC stated that it intends to issue more specific guidance for settings such as healthcare, congregate living, and travel.

 

California’s Healthy Workplace, Healthy Family Act (the Act) requiring most employers to provide paid sick leave for covered employees went into effect in 2015. However, in 2017 and 2021, two separate California federal district courts concluded that the Act was not applicable to rail workers due to preemption by the federal Railroad Unemployment Insurance Act (RUIA). The RUIA is a federal law that provides the exclusive source of unemployment and sickness benefits to railroad employees.

Read more here.

A provision in the enacted state budget for fiscal year 2023 would have amended the Massachusetts Paid Family and Medical Leave Act (PFMLA) to provide employers and employees more flexibility to use other accrued benefits to supplement paid benefits received from the state. The governor initially returned the legislation to the legislature with a recommendation, rather than accepting the change. The legislature then passed the bill again and returned it to the governor.  The governor has not acted on the returned bill.  The bill, therefore, as of this date, has not been amended.

Read more here.

On July 19, 2022, the Michigan Court of Claims held that, in 2018, the state legislature violated the Michigan Constitution when it enacted, and within the same legislative session amended, two ballot initiatives, one to raise the minimum wage and the other to require employers to provide paid sick leave. Now, citing public concerns over the ability of employers and the relevant state agencies to immediately implement the changes required by its decision, the court has granted a stay of its order until February 20, 2023.

Read more here.

Citing legislative “sleight of hand,” the Michigan Court of Claims has held that the Michigan legislature violated the state’s Constitution when, in 2018, it adopted and then immediately amended ballot initiatives to increase the state’s minimum wage and to require employer-paid sick leave. Mothering Justice v. Nessel, No. 21-000095-MM (July 19, 2022). Therefore, the court held, the current versions of the Improved Workforce Opportunity Wage Act (IWOWA) (the minimum wage law) and the Paid Medical Leave Act are void. As a result, Michigan’s minimum wage immediately may increase to $12.00 per hour (from its current $9.87 per hour) and the state’s paid sick leave law may expand substantially.

Read more here.

As the pandemic continues to evolve, so does the EEOC’s guidance. On July 12, 2022, the EEOC once again updated its COVID-19 guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to reflect the pandemic’s changing state. The updated guidance follows CDC’s June 10, 2022 statements regarding the current state of the COVID-19 pandemic.

Read more here.

In June, San Francisco voters passed Proposition G, a new Public Health Emergency Leave Ordinance. The ordinance requires private employers to provide paid leave to employees for “public health emergencies.” The leave ordinance will be in addition to employer-provided paid leave, such as paid sick leave.

The leave ordinance will become operative on October 1, 2022.

Read more here.