Monthly Archives: June 2019

FMLA: Forgetting Minutiae Leads to (legal) Actions (Part III)

After providing a general overview of the convoluted maze that is the FMLA, explaining  which employers are subject to the FMLA, and describing which employees are eligible for leave, we now continue our journey by addressing when an employee can take FMLA.

Eligible employees of covered employers may take up to 12 workweeks of leave during any
12-month period for one, or more, of the following reasons:

1. The birth of the employee’s son or daughter, or to care for the newborn child.
2. For placement with the employee of a son or daughter for adoption or foster care.
3. To care for the employee’s spouse, son, daughter, or parent with a serious health
condition.
4. Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job.
5. Because of any qualifying exigency arising out of the fact that the employee’s spouse,      son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status).

These reasons—along with a few others involving military service members that we will address in a future blog post—are known as “qualifying reasons” under the FMLA. Some of these qualifying reasons are straightforward while others involve important nuances. For today’s post, we’re going to address the issues that come up with points 1 and 2 above (the birth, adoption, or fostering of children) through another series of questions and answers.

I have an employee who qualifies for FMLA leave, and the employee is about to have a new child. What rights does that employee have?

As noted above, an employee who qualifies for FMLA can take up to 12 workweeks of leave during a 12-month period for the birth or care of a newborn child.

Does an employee have to take all the qualifying leave at one time?

It depends. An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy child or placement of a healthy child for adoption or foster care, but only if the employer agrees.  If the employer does not agree, then the time off will be all at one time.

Does an employee need to take all of their FMLA leave for the birth of the child right after the child is born?

Not necessarily, an employee can take leave for the birth of a child any time up to 12 months after the child’s birth.

 Are both parents entitled to leave for the birth of their child?

Generally, both parents are entitled to leave for the birth of the employee’s child. However, if both spouses work for the same employer, the total combined leave taken by both spouses for the birth of the child or to care for the child after birth may be limited to a combined total of 12 weeks of leave during any 12-month period. In other words, both spouses have 12 weeks combined for the newborn child. Thus, the mother and father could both take 6 weeks each. Or the mother could take 9 weeks, and the father 3 weeks. Alternatively, if the mother takes 12 weeks, then her spouse would not be entitled to any FMLA leave.

Where both spouses use a portion of the total 12-week FMLA leave entitlement for the birth of a child, each spouse would be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes.

The foregoing is also true for the placement with the employee of a child for adoption or foster care. For purposes of the FMLA, a spouse includes a married husband or wife (husband or wife refers to the other person with whom an individual entered into marriage), which includes same-sex spouses.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The next FMLA post in this series will address the qualifying reasons involving an employee’s own serious health condition or the serious health condition of family members.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Planning for Hurricane Season: Employee Pay During and After a Storm

With the onset of the 2019 hurricane season and the effects of Hurricanes Michael and Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Healthcare employers also have ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s article, “Senior Living Providers: Are You Ready for Andrea, Barry, and Chantal?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558