Ms. Pohlid

Hospitality Law

Family and Medical Leave Act Update Synopsis

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

The Family and Medical Leave Act (FMLA) of 1993 provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year and requires that their group health benefits be maintained during those periods. Since its enactment, it is estimated that over 50 million employees have taken FMLA leave, primarily for their own illness or that of a family member. Recently, changes have extended FMLA to apply to military family member's service related incidents and to include persons in non-traditional families who assume parental caregiving responsibilities. Because any employee may potentially seek to utilize FMLA, it is important that hotel establishments review their policies to ensure they are compliant. This article provides a brief synopsis of the FMLA and recent developments:

FMLA Qualifying Events

Employers covered under federal FMLA must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee's spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on "covered active duty;" or
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember's spouse, son, daughter, parent, or next of kin (military caregiver leave).

FMLA Coverage

Hotel establishments that employ 50 or more employees during 20 or more calendar workweeks in the current or preceding calendar year are required to comply with the FMLA. Those who do not meet this threshold are cautioned that several states - for example, California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, Wisconsin, along with the District of Columbia - have state law FLMA provisions. Since state FMLA laws may be more stringent than federal law requirements, establishments must also be aware of their state jurisdictional requirements. Additionally, hotel establishments should also be aware that FMLA coverage applies to joint employer relationships in which two or more entities exercise some control over the work or working conditions of the employee. In such instances, all of the entities comprising the joint employer relationship are obligated to comply with the FMLA and the employees are counted for coverage purposes even if they are not on an entity's payroll.

Employee Eligiblity

Employees are eligible for leave if they have worked for their employer at least 12 months, for at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. The 1,250 minimum hours of service is determined based upon the Fair Labor Standards Act provisions for hours worked. For example, in Farrell v. HRI Lodging, Inc., Slip Copy 2011 WL 2413467, No. 11-21 (ED La. June 10, 2011), the court rejected the assertion made by an employee at a New Orleans hotel that his FMLA eligibility was to be determined from the date the hotel offered him his job. The court held that the employee's "start date, not the date employment was offered, is the proper measure of when his employment commenced." In Farrell, the court also recognized that many courts have held an employee is covered under the FMLA even if they are not eligible at the time they request leave, but they will become eligible when that leave will commence.

Eligibility for Qualifying Military Service Incidents

Under the FMLA amendments in 2008, employees who have a spouse, child or parent in the military reserves are permitted to use FMLA leave for caregiving responsibilities of the servicemember and for qualifying exigencies in connection with their family member's overseas deployment. On October 28, 2009, the President signed the National Defense Authorization Act for Fiscal Year 2010, which extends the application of the qualifying exigency leave and military caregiver leave to employees who have family members in the regular Armed Forces. On February 15, 2012, DOL issued proposed rules to implement these amendments.

Eligibility for Persons In Loco Parentis

On June 22, 2010, DOL issued Administrator Interpretation 2010-3, clarifying the definition of "son or daughter" based upon its experience that "many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship." DOL's interpretation did not change the definition of "son or daughter," which is defined under the FMLA as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is- (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability."

Focusing on the in loco parentis provision, DOL confirmed its interpretation that an employee who is otherwise qualified for FMLA leave is not required to satisfy the biological or legal definition if the employee can establish that the parental responsibilities have been met.

DOL's interpretation poses a significant obligation upon employers to ensure that their FMLA coverage extends to employees acting in loco parentis. Under DOL's interpretation, employees who have day-to-day responsibility for caring for the child of their same-sex partner may be considered in loco parentis even if they do not provide financial support for the child. This interpretation with respect to same-sex relationships is confined to the in loco parentis context and does not apply to permit FMLA leave to care for a same-sex partner. DOL's interpretation may also apply to other family situations, including a grandparent or extended relative or step-parent or other person who assumes the responsibilities for care of the child. Additionally, the fact that a child is receiving care from a biologic or legal parent does not diminish the FMLA right of an employee who is acting in loco parentis with respect to that child.

DOL's interpretation is intended to reflect the reality that in many families do not fit the traditional "nuclear" model and that in today's workforce many employees assume care taking responsibilities for children where no biological or legal relationship exists.

Eligibility Rules for Flight Crews

On February 15, 2012, DOL issued proposed rules with a notice and comment period expiring April 16, 2012. The proposed rule includes rules implementing amendments to the FMLA passed by Congress on December 21, 2009 pursuant to the Airline Flight Crew Technical Corrections Act. If the proposed rules go into effect, airline flight attendants and crew members will satisfy the hours-of-service requirement if during the previous 12-month period they (1) worked or were paid for at least 60 percent of their applicable total monthly guarantee (or the equivalent), and (2) worked or were paid for at least 504 hours, not including personal commute time, or time spent on vacation, medical, or sick leave.

Clarifications under the 2008 Employee FMLA Releases

The 2008 final rules issued by DOL contained several clarifications needed as a result of court decisions. These included:

  • Confirmation that while prospective waivers of FMLA rights are prohibited, employees may voluntarily settle or release prior or existing FMLA claims without court or DOL approval;
  • Removal of categorical penalty provisions for employer failure to notify and designate FMLA leave, clarifying that employers continue to be liable for employee injury due to the failure to comply with the notification requirements;
  • Clarification that "light duty" does not count as FMLA leave;
  • Clarification that employers may implement a leave substitution policy whereby employees seeking to use FMLA leave must use other available leave concurrently with FMLA leave;
  • Permitting employers to adopt a uniform "perfect attendance" awards based upon "perfect attendance of employees" without absence, treating "in an identical way" all forms of leave, including FMLA and non-FMLA leave; and
  • Clarifying rules for medical certification and return to work and employer and employee notices. The DOL website contains updated forms and notices for employers to utilize in complying with the FMLA responsibilities: http://www.dol.gov/whd/forms

Anti-Retaliation & Discrimination Provisions

The FMLA prohibits employers from discriminating and retaliating against employees who have or may use FMLA leave. Employees who use FMLA leave shall be entitled, on return from such leave, to be restored to the position of employment held or an equivalent position. Employers are prohibited from discriminating against employees or prospective employees who have used FMLA leave. An employee who alleges discrimination under the FMLA may prevail by establishing that the employer's adverse action was more likely than not "motivated, at least in part, by a discriminatory reason." This makes it imperative that hotel establishments train their employees on FMLA requirements and ensure that the decisions, comments and actions by supervisors do not reflect a potential discriminatory animus.

For example, in Mullins v. Bondib Hotels, Inc., 2011 WL 6434328 No. 10 Civ. 4069 (S.D. N.Y. Dec. 22, 2011), a federal court held that a front-desk employee of Poughkeepsie hotel sufficiently stated a claim for discrimination under the FMLA when she was terminated during her absence for maternity leave. Despite the fact that numerous guests had complained about the employee's attitude and rude behavior and the hotel presented evidence that her position had been eliminated due to a slow season, the court allowed the employee's complaint to proceed based upon comments made by her supervisor who expressed "worry" and concern about the employee would be able to raise her child on her own. This decision underscores the importance of establishments ensuring that their managers and supervisors are trained in FMLA provisions.

Hotel establishments should ensure that their leave policies comply with current federal and state FMLA laws, that notification is provided to employees and that management and supervisors are trained in these policies.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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