Oh, oh, is my drug testing policy really going up in smoke now?

Gonna sit down in the kitchen
And fix me something good to eat
And make my head a little high
And make this whole day complete
‘Cause we gonna lay around the shanty, mama
And put a good buzz on

 Jonathan Edwards – Shanty

 If you are from Grand Rapids or the surrounding areas and if you grew up when I did, you know those lyrics as the “Friday Song.”  That’s because WLAV plays that song multiple times every Friday, and every Friday when I’m listening I turn it up and sing along at the top of my lungs.  A bit of my misspent youth remembered.

And, if you still live in Michigan like I do, for the very first time and very soon, the recreational use of marijuana is going to be legal . . . at least in your shanty.  On November 26, the Board of State Canvassers certified the November election results.  That means that on December 6 (some) recreational marijuana use became legal in Michigan and Michiganders are now able to “sit around the shanty and put a good buzz on.”

So what does that mean for employers?  Well, I’m glad you asked that.  First, don’t forget that we have been through something like this before.  Back in 2008, Michigan legalized Medical Marijuana.  Remember, see here.  In 2011, the Court in Casias, held that an employer could still fire an employee for violating its drug testing policy even if the employee had a valid medical marijuana card, you can see that here.  In 2014, we discovered that if you fired an employee for using medical marijuana that employee might still get unemployment, see here.  And then in 2017, we saw Rhode Island go a different way entirely, see here.  All of that raises the question for employers, “Where are we now?”  And that is a really good question

Let’s start with what the Michigan Regulation and Taxation of Marihuana Act (yes, they spelled it wrong again) allows.  Here is the summary:

Persons 21 or older may:

  • Possess, use or consume, internally possess, purchase, transport, or process 2.5 ounces or less of marijuana.
  • Within person’s residence, possess, store and process not more than 10 ounces of marijuana, and cultivate not more than 12 marijuana plants.
  • Assist others 21 or older in any of the above.
  • Give away or transfer without remuneration up to 2.5 ounces of marijuana so long as transfer is not advertised or promoted to public (anybody need a gift idea for that ne’re-do-well nephew?).

Any of these acts are not grounds for “arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege.”

That seems pretty broad, that “deny any other right or privilege” language.  Does that mean if I am an employer that I can’t prohibit use?  No, it does not mean that at all.  The act specifically states:

“Sec. 4.1 (h)(3): This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marijuana.”

OK, so we can all breathe a sigh of relief, that seems pretty clear.  We can refuse to hire or fire somebody who violates a “workplace drug policy” OR “was working while under the influence.”  Now remember, in Casias, the court held that the language, “(c) Nothing in this act shall be construed to require: . . . (2) An employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana”  which is contained in the Michigan Medical Marihuana Act (spelling again) did not prohibit Wal-Mart from firing Mr. Casias when he tested positive for marijuana even when he had a card.  The language in the recreational statute seems even clearer to me.  In Casias, it seems to me the ACLU (they represented Mr. Casias) could have argued that he did not use at work and there was no proof he was “under the influence.”  Because the recreational statute allows an employer to fire for using at work and also for violation of a “workplace drug policy” OR “working under the influence” even that argument should not be available and the language actually seems to me to be more employer friendly.

Does that mean that all of you employers out there are free and clear?  Well not necessarily, don’t forget Braska.  You can see my discussion of that here.  In Braska, the Michigan Court of Appeals questioned the decision in Casias and gave the plaintiff’s unemployment.  Now they did that for two reasons:  First, because the Medical Act has a broad preemption provision in it that says:  “‘[a]ll other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act.”.  Well guess what, the recreational act has similar language: “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”  And second the Court of Appeals stated that unemployment was state action so the employer’s conduct was not in question the states conduct was.  Can an employee make that same argument here?  Well you can make any argument you want, but what is different here is that the medical act as noted above does not require employers to “accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana.”  The recreational statute is broader and also allows employers to take “an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy . . .”  So if an employee violated my drug policy have they committed “misconduct” under the unemployment act prohibiting them from getting benefits?  I would argue they do, but we will have to see.

 

So, before all of this causes you to “sit down in the kitchen” take a deep breath and we will see.  Of course, we will be keeping an eye on all of this, so stay tuned.

What? Intermittent Leave or Reduced Schedule Leave….Part 2

One more from Jarrod.  Then I have to start writing them myself again. . . . or do I.

Let’s look at some other qualifiers for medical necessity for intermittent or reduced schedule leave.

(1) Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

(2) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a health care provider. See §§ 825.113 and 825.127.

29 CFR 825.202(b)

These provisions give us some concrete situations where an employee may be entitled to intermittent or reduced schedule leave, and also gives examples of what qualifies as intermittent leave. Intermittent leave is appropriate to care for a family member, one’s own serious health concerns, or for a covered servicemember when treatment by a healthcare provider is needed, but isn’t continuously needed. Either intermittent or reduced schedule leave may also be taken when the employee or the employee’s family is incapacitated due to a serious health condition even if the employee or family member does not receive treatment by a healthcare provider.

Another situation where reduced or intermittent leave may be permissible is in the case of birth or placement of a child for adoption or foster care.

(c) Birth or placement. When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer’s agreement, works part-time after the birth of a child, or takes leave in several segments. The employer’s agreement is not required, however, for leave during which the expectant mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. See § 825.204 for rules governing transfer to an alternative position that better accommodates intermittent leave. See also § 825.120 (pregnancy) and § 825.121 (adoption and foster care).

29 CFR § 825.202(c)

Note that only if the employer agrees, following the birth of a child or the placement of a child for adoption or foster care, may an eligible employee take intermittent or reduced schedule leave. If the employer does not agree, the employee may still be eligible for continuous leave. The employer has no say in the matter, however, if the expectant mother or the child has a serious health condition.

(d) Qualifying exigency. Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule basis.

29 CFR § 825.202(d)

An eligible employee is entitled to take intermittent or reduced schedule leave for that as well.

Lastly, it is worth noting that if an eligible employee is planning leave for medical treatment, and plans on take reduced schedule or intermittent leave, the employee must take reasonable steps to not disrupt the employer’s operations.

Eligible employees may take FMLA leave on an intermittent or reduced schedule basis when medically necessary due to the serious health condition of a covered family member or the employee or the serious injury or illness of a covered servicemember. See § 825.202. Eligible employees may also take FMLA leave on an intermittent or reduced schedule basis when necessary because of a qualifying exigency. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.

29 CFR 825.203

The rest of the language in this regulation is basically repeating what has already been said throughout this section.

What? Intermittent Leave or Reduced Schedule Leave….Part 1

We have discussed for what reasons an eligible employee may take leave and for how long, but we have yet to look at how an employee may take FMLA leave. I know what you’re thinking, what kind of question is that? Doesn’t the employee just not show up for work? And the answer to that is one lawyers love to give and everyone else in the world hates: it depends.

(a)  Definition. FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.

29 CFR § 825.202(a)

That’s right, in addition to taking leave for a continuous block of time, there are two other types of leave under FMLA, intermittent or reduced schedule. However, an eligible employee is not always entitled to intermittent and reduced schedule leave. Sometimes employer approval is required whereas other times it is not. Let’s look at the first possible reason an eligible employee may take intermittent or reduced schedule leave under FMLA.

(b) Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one’s own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See §§ 825.306, 825.310. Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember’s serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember’s serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

29 CFR § 825.202(b)

This is one of the situations where the employer really has no say in the matter. If the employee has a serious health condition, or needs to care for family member or a covered servicemember, then the employee may be entitled to intermittent or reduced schedule leave. Whether or not an eligible employee would need such leave is determined by medical necessity, which in turn is determined by a healthcare provider. Common reasons for reduced intermittent or reduced schedule leave are for medical treatment or to provide physical and psychological care to family members or covered servicemembers.

Why? Care for a Parent with a Serious Health Condition

I’m running out of Jerrod posts.  I may actually have to start working on this thing again.  And that is a bummer.

So after a quick recess to discuss how long employees may take leave, we are back on the issue of reasons why eligible employees may be entitled to leave. This time we are discussing leave to care for a parent.

(a) General rule. An eligible employee is entitled to FMLA leave if needed to care for the employee’s parent with a serious health condition. Care for parents-in-law is not covered by the FMLA. See § 825.122(c) for definition of parent.

29 CFR § 825.201(a)

Well that’s pretty explicit, an eligible employee may take FMLA leave to care for a parent with a serious health condition, but not for an in-law. Previous posts such as the one here have discussed what qualifies as a serious health condition, but let’s make sure we know what a parent is. I know, questions you never thought you would actually need to ask, but hey that’s the law for you.

(c) Parent. Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (d) of this section. This term does not include parents “in law.”

29 CFR § 825.122(c)

Not too complicated, a parent is generally what someone would expect a parent to be. But there is that crazy Latin phrase that has popped up a couple of other times in this blog: “in loco parentis.” As a reminder for those who don’t read and write a dead language, this translates to “in the place of a parent.” FMLA gives us the following definition:

(3) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

Therefore, someone is considered a parent under FMLA if that person cared for and financially supported the eligible employee on a day-to-day basis when the employee was a child.

Caring for a parent is one of those things that falls within the 12 workweeks allotted for leave under 29 CFR § 825.200(a)(3), but don’t forget that those 12 workweeks must split between all of the reasons that an eligible employee may be entitled to leave under § 825.200(a). To add some additional confusion to the mix, if an employee and the employee’s spouse work for the same employer and are both entitled to FMLA leave, those 12 workweeks may have to be split between them.

(b) Same employer limitation. Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where the spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a parent, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. See also § 825.127(d).

29 CFR 825.201(b)

The last couple sentences are really important because it makes it clear that even though spouse employees may have to share the 12 weeks for certain leave related reasons, such as caring for children or parents, other leave related reasons aren’t shared between the spouses. Instead, these are counted individually based on that spouse’s own amount of time actually taken off, rather than the time taken off by the other employed spouse.

How much? Amount of Leave an Eligible Employee May Take….Part 3

So because Jarrod has been writing these and because I was not paying attention I published part 3 of this series as part 2.  So this one, which is labeled part 3 should really be part 2 . . . OK now even I’m confused, but if you are following these closely they are going to look out of order.  Don’t worry, its all here.  Steve.

The employer must choose one of the 29 CFR § 825.200(b) options to apply to all employees of the business, and may only change options after providing all of its employees 60-day notice. That is, unless the employer is a multi-State employer in a State which has a family and medical leave statue, then in those States, the employer must comply with the State requirement and may choose any of the other options to apply to the rest of the employees in other states. Employers must also make sure that any change does not deprive an eligible employee of its full 12 weeks of leave.

(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.

(2) An exception to this required uniformity would apply in the case of a multi-State employer who has eligible employees in a State which has a family and medical leave statute. The State may require a single method of determining the period during which use of the leave entitlement is measured. This method may conflict with the method chosen by the employer to determine any 12 months for purposes of the Federal statute. The employer may comply with the State provision for all employees employed within that State, and uniformly use another method provided by this regulation for the leave entitlements described in paragraph (a) for all other employees.

29 CFR § 825.200(d)

But what if an employer fails to choose one of the options listed?

(e) If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period for the leave entitlements described in paragraph (a), the option that provides the most beneficial outcome for the employee will be used. The employer may subsequently select an option only by providing the 60-day notice to all employees of the option the employer intends to implement. During the running of the 60-day period any other employee who needs FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period the employer may implement the selected option.

29 CFR § 825.200(e)

So basically, if the employer doesn’t choose an option, the employee, individually, gets to use the most beneficial option for them. This can be confusing because an employer can end up with a lot of different 12-month periods calculated in different ways. Thankfully, an employer can remedy this for all future employees by providing a 60-day notice to all employees of the employer’s option. However, during that 60-day period any eligible employees taking leave may still use the option most beneficial to them.

How much? Amount of Leave an Eligible Employee May Take….Part 2

Jarrod’s back.  I know you are all glad its him and not me.  

Now for those who have been following the blog closely (good job by the way) you remember leave to care for a covered servicemember with a serious injury or illness is 26 weeks in a 12-month period. Thankfully, in case you forgot or aren’t following on the blog closely (in this case you need to step up your game), we are reminded of that here.

(f) An eligible employee’s FMLA leave entitlement is limited to a total of 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. An employer shall determine the single 12-month period in which the 26-weeks-of-leave-entitlement described in this paragraph occurs using the 12-month period measured forward from the date an employee’s first FMLA leave to care for the covered servicemember begins. See § 825.127(e)(1).

29 CFR § 825.200(f)

Notice that this 12-month period for the 26 weeks is mandated to be calculated from the date that the eligible employee first takes leave to care for that servicemember, regardless of the 12-month option selected by the employer above.

Though we have discussed this in our previous post as well, it is again worth noting that 26 workweeks is the limit of entitled leave for the employee and it does not stack with the 12 weeks.

(g) During the single 12-month period described in paragraph (f), an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason. See § 825.127(e)(3).

29 CFR § 825.200(g)

An employee may take the full 26 weeks to care for the covered servicemember, or it may use up to 12 of those weeks for the reasons listed in 825.200(a).

Now you may be wondering how holidays factor into this leave period, because that would really seem to throw a wrench into calculating a workweek. Thankfully the drafters thought of that.

(h) For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday. Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Methods for determining an employee’s 12-week leave entitlement are also described in § 825.205. See § 825.802 for special calculation of leave rules applicable to airline flight crew employees.

29 CFR § 825.200(h)

So now we know that holidays have no effect if they occur during a week taken off for leave, or said another way the employee is not considered as having taken one less day of leave just because a holiday falls within a week that have taken off. However, if an employee does not take off a full week, then the holiday won’t count as FMLA leave unless the employee would have had to work that holiday. Also, if the employer is not conducting business activity for certain weeks and employees aren’t expected to be at the workplace, those weeks don’t count towards an employee’s FMLA leave.

And that brings up a really interesting point that we have talked about before.  Remember an employee is entitled to 12 (or 26) workweeks of leave.  Not 84 days and not 480 hours, 12 workweeks.  Don’t forget that and if you have questions about it, give me a call.

Steve.

How much? Amount of Leave an Eligible Employee May Take….Part 1

This week Jarrod switches gears . . . 

In the past few posts we have been talking about the reasons why an eligible employee may take leave. Now we are switching gears to how much leave an eligible employee may take.

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

(1) The birth of the employee’s son or daughter, and to care for the newborn child;

(2) The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;

(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 one or more of the essential functions of his or her job; and,

(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 status (or has been notified of an impending call or order to covered active duty).

29 CFR § 825.200(a)

In previous posts we have gone into more depth with each of the reasons discussed, but our focus here is not on those reasons. We are looking at the total amount of FMLA leave eligible employees may take. The standard, except in the case of leave to care for a covered servicemember with a serious injury or ilness, is that an eligible employee is entitled for up to 12 workweeks of FMLA leave during a 12-month period for most reasons. The employer has a few options for determining how that 12-month period is calculated.

(b) An employer is permitted to choose any one of the following methods for determining the 12-month period in which the 12 weeks of leave entitlement described in paragraph (a) of this section occurs:

(1) The calendar year;

(2) Any fixed 12-month leave year, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date;

(3) The 12-month period measured forward from the date any employee’s first FMLA leave under paragraph (a) begins; or,

(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave as described in paragraph (a).

29 CFR § 825.200(b)

All these options seem pretty easy to understand, but none the less, the regulators have taken it upon themselves to give us a couple lengthy run on sentences to make themselves clear.

(c) Under methods in paragraphs (b)(1) and (b)(2) of this section an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under the method in paragraph (b)(3) of this section, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period. Under the method in paragraph (b)(4) of this section, the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA protected.

29 CFR § 825.200(c)

I know you didn’t read that. My eyes glazed over the first time I looked at that paragraph too. So let me break it down for you. Under (b)(1) or (b)(2) the employer sets a 12-month period within which employee gets to take the 12 weeks of leave in. At the end of that 12-month period, the leave renews and the employee can take another 12 weeks. (b)(3) is similar, except the date is not determined by the employer but by the date the employee first takes leave. Under (b)(4) the employee has a 12 week stock that replenishes on the anniversary of each date of leave taken.

 

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 5

Heeeeeres Jarrod . . . Again.

Now what if spouses work for the same employer, can they each take 26 weeks to care for a covered servicemember or for other qualifying leave? This may seem fair because they’re separate people, but let’s take a look.

(f) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the single 12-month period described in paragraph (e) of this section if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 26 workweeks of FMLA leave.

29 CFR § 825.127(f)

The answer to the above question is no. If both spouses are eligible for FMLA leave, and are employed by the same employer, they are entitled to a combined 26 workweeks (or 12 weeks if that is applicable) of leave within one 12-month period for the reasons listed including to care for a covered servicemember with a serious injury or illness.

Lastly, how should leave taken be designated by the employer?

(1)  In all circumstances, including for leave taken to care for a covered servicemember, the employer is responsible for designating leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the designation to the employee as provided in § 825.300. In the case of leave that qualifies as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section, the employer must designate such leave as leave to care for a covered servicemember in the first instance. Leave that qualifies as both leave to care for a covered servicemember and leave taken to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section must not be designated and counted as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. As is the case with leave taken for other qualifying reasons, employers may retroactively designate leave as leave to care for a covered servicemember pursuant to § 825.301(d).

29 CFR § 825.127(e)

Employee notice requirements under 29 CFR § 825.300 will be covered in a future post, and believe me you don’t want all that information crammed here anyway. Other than that, the crux of the language above basically says that in the event that care for a servicemember also qualifies as care for a family member with a serious health condition, the care needs to be designated as leave to care for a covered servicemember. The leave should not be designated as both leave to care for a servicemember and leave to care for a family member with a serious health condition.

That about wraps things up regarding circumstances when an eligible employee is entitled to leave. Next, we’ll be looking at the amount of leave employees may take under FMLA.

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 4

OK another from Jarrod.  I’m really digging having this summer help.  And you need to pay attention here.  While we all really hope that this is not a type of leave that will come along very often in our workplaces, the amount of leave that an employee can take and the 12 month period we use to measure that leave are different from the normal 12 weeks and from the rolling 12 month period that I bet most of you use.

Because we now understand which eligible employees are qualified for leave to care for a servicemember, we can turn to how long those employees may take leave.

(e) An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a single 12-month period.

29 CFR § 825.127(e)

Well that is easy to understand, but it still leaves us with a lot of questions. For example, when does that 12-month period start? And what if the employee doesn’t use all the 26 weeks?

(1) The single 12-month period described in paragraph (e) of this section begins on the first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks of leave entitlement for other FMLA-qualifying reasons. If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered servicemember during this single 12-month period, the remaining part of his or her 26 workweeks of leave entitlement to care for the covered servicemember is forfeited.

29 CFR § 825.127(e)

That answers both of those questions, 12 months from the date the employee starts FMLA leave and any unused workweeks are forfeited. But what if the employee cares for more than one servicemember, or what if that servicemember is subsequently seriously injured or acquires another serious illness?

(2) The leave entitlement described in paragraph (e) of this section is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with a subsequent serious injury or illness, except that no more than 26 workweeks of leave may be taken within any single 12-month period. An eligible employee may take more than one period of 26 workweeks of leave to care for a covered servicemember with more than one serious injury or illness only when the serious injury or illness is a subsequent serious injury or illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single 12-month periods corresponding to the different military caregiver leave entitlements overlap, the employee is limited to taking no more than 26 workweeks of leave in each single 12-month period.

29 CFR § 825.127(e)

So regardless of the number of servicemembers cared for or subsequent injuries or illness, a single employee is still only entitled to take 26 workweeks of leave in one 12-month period. However, they may be entitled to take additional leave in subsequent 12-month periods due to care for other service members or subsequent injuries or illnesses. Now how does this interact with other, unrelated leave that an eligible employee is qualified to take under the FMLA?

(3) An eligible employee is entitled to a combined total of 26 workweeks of leave for any FMLA-qualifying reason during the single 12-month period described in paragraph (e) of this section, provided that the employee is entitled to no more than 12 workweeks of leave for one or more of the following: because of the birth of a son or daughter of the employee and in order to care for such son or daughter; because of the placement of a son or daughter with the employee for adoption or foster care; in order to care for the spouse, son, daughter, or parent with a serious health condition; because of the employee’s own serious health condition; or because of a qualifying exigency. Thus, for example, an eligible employee may, during the single 12-month period, take 16 workweeks of FMLA leave to care for a covered servicemember and 10 workweeks of FMLA leave to care for a newborn child. However, the employee may not take more than 12 weeks of FMLA leave to care for the newborn child during the single 12-month period, even if the employee takes fewer than 14 workweeks of FMLA leave to care for a covered servicemember.

29 CFR § 825.127(e)

Clear right . . . yea, clear as mud.  So let’s go over that again:  An employee is only eligible for a maximum of 26 workweeks of FMLA leave in a 12-month period, even if they are entitled to leave for reasons other than to care for a servicemember. Further, the employee can only take up to 12 weeks of FMLA leave for reasons not related to caring for the servicemember, and the remaining period of the 26 weeks must be used to care for the servicemember.

 

Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 3

Here is Jerrod’s third post.  He is doing a great job don’t you think?

29 CFR § 825.112(a)(6) also makes it clear that the employee must have a certain type of relationship with the covered servicemember to qualify for FMLA leave. These relationships must be that of a spouse, son, daughter, parent, or next of kin. Simple right? But what is the law without definitions of what people consider to be common sense and every day words?

Let’s look at the simple definitions first.

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

29 CFR § 825.102

That is what the reg still says, but remember the Supreme Court in Obergfell ruled that marriage is a fundamental right, so same sex marriage is now legal in every state.

Alright, so if the servicemember is married to the employee legally, they are a spouse. No surprise there. What about son, daughter, or parent?

(1) Son or daughter of a covered servicemember means the covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age.

(2) Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents “in law.”

29 CFR § 825.127(d)

Again, pretty straight forward. A son, daughter, or parent is typically what one would think of as a son, daughter, or parent. But what is a legal ward? And what about this phrase “in loco parentis?” A dash of Latin always makes things clearer instead of more confusing, right?

Legal ward is not defined, but the Department of Labor has stated:

“[A]n employee is entitled to FMLA leave to care for a legal ward only to the extent that the employee had a relationship with the ward that is similar to that of a parent or child. If, for example, a child becomes the legal ward of his or her aunt, uncle, or parents’ best friends because of the death of his or her biological parents, we believe that such legal wards fall within FMLA’s definition of son or daughter. We do not believe, however, that the definition of “son or daughter” can be interpreted to encompass relatives such as parents-in-law.”

WH Admin. Op. FMLA-96 (June 4, 1998), Wage & Hour Manual 99:33106.

In loco parentis, or “in place of a parent,” has a similar meaning.

(1) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

So it seems that if an employee had a relationship with someone that was much like that of a typical parent or child relationship, but is not biologically or legally related to the person, then they still may be qualified for leave due to legal ward or in loco parentis relationships.

We have one more qualified relationship to go, and that is next of kin.

Next of kin of a covered servicemember means the nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. For example, if a covered servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the covered servicemember’s next of kin. Alternatively, where a covered servicemember has a sibling(s) and designates a cousin as his or her next of kin for FMLA purposes, then only the designated cousin is eligible as the covered servicemember’s next of kin. An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered servicemember pursuant to § 825.122(k).

29 CFR § 825.127(d)

Again, this is wordy, but not as complicated as it seems. Next of kin means the nearest blood relative according to the hierarchy indicated, with siblings being the highest and cousins the lowest. An employee falling in one of these rolls may be the only next of kin or may be one of multiple if they are in the same level of hierarchy, and all may be qualified for leave. An exception is if someone is specifically designated as the servicemember’s next of kin, then only the designated person qualifies for leave.

Next Page »