Articles Posted in Family Medical Leave

Earlier this month, bills were reintroduced in the U.S. House and the Senate that would amend the Family and Medical Leave Act (FMLA) so that it would protect employees who take time off from work due to the death of a child. The bill is called the Parental Bereavement Leave Act/Sarah Grace-Farley-Kluger Act.

The FMLA currently provides job-protected leave to eligible employees upon the birth or adoption of a child but not the death of a child. Maine’s family medical leave law similarly does not provide for job-protected leave due to the death of a child unless that death occurs in the course of military duty.

The Parental Bereavement Leave Act has been introduced in Congress before but this is the first time that it has garnered bipartisan support in the House with sponsors Steve Israel (D-NY) and Paul Gosar (R-AZ).

The legislatures in Connecticut and Vermont are considering bills that would further expand the availability of paid sick leave for workers. As we’ve reported before, paid sick leave laws are beginning to pop up in various parts of the country. However, Maine, unlike some of its neighboring New England states, does not require employers to provide paid sick leave.

In Connecticut, service workers who work for employers with 50 or more employees already have the right to paid sick leave. They can use this paid sick leave to attend to their own medical needs and to the medical needs of a spouse or child. The Connecticut legislature is debating a bill that would expand this law to employers with fewer than 50 employees. The bill would also require employees to pay for their paid leave by contributing %0.25 of their weekly salaries to a fund that they would access when they needed to take sick leave. As we previously reported, this payment mechanism is similar to the mechanism that Rhode Island uses.

In Vermont, the legislature is debating a bill that would require all employers to provide at least three paid sick days per year and five days after the employee had worked for the employer for two years. Even this relatively modest proposal has drawn criticism from the business community who say that this sick leave law would overly burden small businesses. Supporters of the bill have emphasized the benefits to public health. “Do you want a sick food-service worker serving you food?” Rep. George Till asked his colleagues. “Do you want a sick child-care worker taking care of your child? I don’t. It turns out those are two of the areas where the vast majority of workers do not have paid leave. It also turns out those are two areas where infectious diseases are commonly transmitted.”

The United States is one of the few countries in the world that does not require employers to provide paid maternity leave to employees.  A U.N. study of 185 countries found that the United States, Papua New Guinea, and Oman are the only countries that do not provide paid maternity leave.  The United States offers unpaid maternity leave in some circumstances but, even if mothers qualify for it, many families cannot afford to go long without the mother’s income.  So, after having a baby, many American families stress and worry about money during a mother’s maternity leave; many mothers must return to work before they or their newborn babies are ready; and many mothers must leave the workforce because they aren’t entitled to maternity leave at all.

Although there is no federal law in the United States that requires employers to offer paid maternity leave, California, New Jersey, and Rhode Island have laws that require employers to offer mothers some pay during their maternity leaves.  Even so, according to data from the U.S. Bureau of Labor Statistics, only about 12 percent of U.S. workers have access to paid maternity leave.

Even though they are not legally required to, some employers have instituted paid maternity leave policies. These employers include Google and now Vodafone.

Last month, the U.S. Sixth Circuit Court of Appeals held that a reasonable jury could determine that the defendant-employer violated the Family and Medical Leave Act (FMLA) when it fired the plaintiff-employee after she returned from medical leave related to a knee replacement surgery.  The FMLA, among other things, requires employers to permit eligible employees to take medical leave, sometimes called “FMLA leave,” when they need it for serious health conditions; and the law prohibits employers from retaliating against employees who take FMLA leave.

The plaintiff-employee in this case, Jeanne Lee Wallner, claimed that the defendant-employer, a financial brokerage firm called Hilliard Lyons Asset Management, fired her because she had taken FMLA leave.  Hilliard Lyons fired Wallner, a 27 year employee of the firm, a mere nine days after she returned from FMLA leave.

The Sixth Circuit was called upon to rule in this case because a trial judge denied Wallner the opportunity to present her case to a jury.  The trial judge thought that no reasonable jury could find in Wallner’s favor and, for that reason, dismissed her case.  The Sixth Circuit disagreed with the trial judge.  The Sixth Circuit concluded that Wallner presented circumstantial evidence that her FMLA leave served as one of multiple reasons for her termination and, as such, a reasonable jury could find in her favor.

Last week, the U.S. Seventh Circuit Court of Appeals, in Chicago, affirmed a trial court’s holding that two United Airlines contractors, Trans States Airlines and GoJet Airlines, jointly employed former employee Darren Cuff under the Family and Medical Leave Act (FMLA).

The FMLA requires covered employers to provide medical leave to eligible employees.  The FMLA does not cover employers who have fewer than 50 employees.  Trans States and GoJet argued that Cuff only worked for Trans States and, as such, he was not entitled to FMLA leave because Trans States had less than 50 employees.  However, according to regulations issued by the U.S. Department of Labor, when two employers jointly employ an employee, the total number of employees who work for both employers must be counted to determine FMLA coverage.

The court held that Trans States and GoJet jointly employed Cuff and, thus, Cuff was entitled to FMLA leave because Trans States and GoJet, together, employed over 350 employees.  Cuff was the Regional Manager for both Trans States and GoJet.  He represented both companies in dealings with United Airlines as well as O’Hare Airport, in Chicago.  His business card contained the logos of both Trans States and GoJet.  Cuff’s supervisor notified United and other airlines in 2008 that, “[e]ffective immediately, Darren Cuff, Regional Manager, Trans States Holdings, Inc. [sic: his official employer was Trans States Airlines] will be your go to person if there are any operational issues or concerns with Trans States or GoJet Airlines flights operating in and out of your cities.”

In most places in the United States, including Maine, employers do not have to provide paid leave to employees who need to take time off from work because they are sick, to care for a sick family member with, or to care for a newborn child.  The federal Family and Medical Leave Act (FMLA) and most state laws only require employers to provide unpaid leave.  But there is a growing trend in some states and cities to provide employees with paid sick and family leave. 

California, New Jersey, and Rhode Island already have state-run insurance programs, funded through employee payroll deductions, which provide insurance payments to employees who need to take family leave from work, such as leave to care for a sick family member.  New York State lawmakers are currently debating a bill that would create a similar insurance program.  An advantage to these programs is that employers do not have to pay for the entire cost of the paid family leave since employees contribute to the insurance program.    

Connecticut has a law that requires employers to provide certain employees with paid sick leave.  Some large cities, such as New York City, San Francisco, and Washington, DC, have similar paid sick leave laws. While these laws have faced stiff criticism from some segments of the business community, the laws so far have not significantly impacted profits.  According to Bloomberg Business Week, “preliminary research shows the laws have little, if any, downside for profits.  And many small businesses say they don’t find complying with the laws a burden.  Many already gave employees paid sick time before the laws were passed.  And having paid sick time makes employees happy.”