In late July, a bill was introduced into Congress that would add grieving for the death of a son or daughter as an additional qualifying reason to take Family and Medical Leave Act (FMLA) leave. Dealing with the death of a child is a painful ordeal that bereavement leave (typically only 3 days or so) cannot typically adequately cover.
Senator Jon Testerof Montana, who introduced the bill, S1358 The Parental Bereavement Act of 2011, said, “the last thing parents should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss.”
If the bill passes, an eligible employee would be entitled to a total of 12 workweeks of unpaid leave during any 12-month period due to the death of a child, the same as with the birth or adoption of a child, the serious health condition of the employee or immediate family member, and military exigency leave.
The impetus for the bill was created by two grieving fathers, Barry Kluger and Kelley Farley, who started a petition to lobby Congress. During the week of September 12th, the two will travel to Washington, DC to meet with a number of members of Congress. To read more about the evolution of this bill, check out Mr. Kluger’s article on Scottsdale.com.
Should this bill pass, it will augment the current FMLA law that requires protected, unpaid leave for an employee to care for a sick child but, ironically, not if the child should die. The FMLA generally applies to employers with 50 or more employees while similar state laws may be applied to employers with fewer employees.
New York recently joined Illinois and Delaware on the growing list of states that allow same-sex marriage or civil unions between same-sex partners. Organizations that have operations in one or more of these states have a somewhat more complicated task when it comes to legal compliance since federal law recognizes neither same-sex marriage nor civil union partnerships.
One example of such administrative complexity is under the Family and Medical Leave Act (FMLA) which provides for protected leave and benefits for covered employees who have, among other qualifying events, a need for time off from work to care for an immediate family member, including a spouse, in the case of serious illness. Under this law, the definition of spouse is simply “husband or wife, as the case may be.” Of course, employers may choose to be more generous than the law provides for and institute a policy that includes family leave to care for civil union partners, same-sex marriage partners, or even opposite sex domestic partners, if they wish.
Speaking of FMLA and immediately family members, another issue that will impact employers more and more as the nuclear family continues to diminish as an American norm, is the FMLA amendment that expands the definition of child. In addition to “a biological, adopted, or foster child, a stepchild, a legal ward”, son or daughter refers to “a child of a person standing in loco parentis.” The term, in loco parentis, means “in place of a parent.” In practical terms, this means that if your employee has some parental-type responsibilities for a child, he or she can qualify for FMLA leave the same as a biological parent would. This person might be a grandparent, a civil union partner of the child’s biological or adoptive parent, or even a domestic partner of the child’s biological or adoptive parent. The deciding factor is whether or not the employee plays a parental role with the child. So while a civil union or same-sex marriage partner doesn’t qualify federally as a spouse, the person could still qualify For FMLA leave as related to a child in loco parentis.
It may seem a complicated task to stay abreast of such distinctions which is why it’s so helpful for employers to have HRSentry® at hand. Check under the HR Resources tab, then HR Topic Modules, to find the FMLA kit and other helpful kits to assist you. All the information you need, both federal and state, will be right at your fingertips.
Join us on Thursday September 16th, 2010 for a webinar on the three major leave laws. The Family and Medical Leave Act, Workers Compensation and The Americans with Disabilities Act are all confusing on their own – but when they combine its the Perfect Storm for the HR Dept! Join us to learn how to stay in compliance with all 3 laws and how to coordinate them to best serve your organization and your employees legally!
The webinar will take place on Thursday, September 16th from 2:00-3:00 p.m. and it will be presented by Brenda JM Sabin, CHP HRSentry’s Director of Operations and Site Administration.
The Wage and Hour Division (WHD) of the US Department of Labor has provided an Administrator’s Interpretation of the terms “son” and “daughter” as they apply to the Family and Medical Leave Act (FMLA). It is important to have clarification of these terms, because they are defined beyond the traditional scope of parent and child relationships. The clarification of these terms ensures that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.
The WHD concluded that either day-to-day care or financial support may establish an in loco parentis (in place of parent) relationship where the individual intends to assume the responsibilities of a parent with regard to a child. However, all cases are different and whether an employee stands in loco parentis to a child will depend on the particular facts of that case.
In addition to in loco parentis, an aunt or uncle who is caring for their young niece or nephew when their single parent has been called to active military duty may exercise their right to family leave. Likewise, a grandparent who assumes responsibility for their sick grandchild when their own child is debilitated will be able to seek family and medical leave from their employer. The final clarification is in regards to an individual who intends to share in the supporting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.
Understanding the Family and Medical Leave Act can be a challenge, but it is important for both employers and employees to grasp the scope of the law and how it can and cannot be used. For a further clarification of terms, HR Made Simple Users should log in and search “Son and Daughter in the Family and Medical Leave Act.” For relevant documents, visit HR Resources Now.
Final Changes on Family Medical Leave Act – Effective January 16, 2009
The U.S. Department of Labor has announced the Final Regulations on updates to the Family Medical Leave Act (FMLA). The main purpose of the regulations is to clarify rules for workers and employers. Here is a summary of some of the changes.
Employee Notice:
Under the final rule, employees must follow the employer’s normal and customary call-in procedures for FMLA notification, unless there are unusual circumstances. The final rules modify the previous provision that had been interpreted to allow some emlpoyees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner.
Employer Notice Obligations:
When an employee requests FMLA leave, or the employer acquires knowledge that an employee’s leave may be for a FMLA qualified leave reason, the employer must notify the employee of their eligibility to take FMLA leave within 5 business days (previously 2 business day), absent extreme circumstances.
Medical Certification Process:
The new rule recognizes the applicability of HIPAA’s medical privacy rule to communications between employers and employees health care providers. The rule adds a requirement that limits who may contact the health care provider and bans an employee’s direct supervisor from making the contact.
Serious Health Conditions:
The rule clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur with 30 days of the period of incapacity. It also defines periodic visits to a health care provider for chronic serious health conditions as at least two visits to a health care provider a year.
Military Caregiver Leave
Implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 work weeks of leave in a 12-month period.
Leaves for Qualifying Exigencies for Families of National Guard and Reserves:
The new ruling allows families of National Guard and Reserve personnel on active duty to take FMLA-job-protected leave to manage their affairs for qualifying exigencies. Qualifying Exigencies are defined as:
Short-notice deployment
Military events and related activities
Childcare and school activities
Financial and legal arrangements
Counseling
Rest and recuperation
Post-deployment activities
Additional activities where the employer and employee agree to the leave.
As always, HRSentry recommends that you consult with an attorney should your organization have concerns or questions related to these new rules.
To learn more about these and other ongoing HR issues, log into your HRSentry account today.
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