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The First 100 Days: Expanding Employees’ Right to Alternative Work Arrangements

Date

February 1, 2009

Read Time

6 minutes

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January 29: Expanding Pay Discrimination Laws
February 6: The Employee Free Choice Act (EFCA)
This Week: Expanding Employees' Right to Leave & Alternative Work Arrangements
Next Week: Other Legislation on the Horizon

SUMMARY

There can be no question: employers' obligation to provide employees with leave is growing, and requirements relating to alternative working arrangements may not be far behind. The new Family and Medical Leave Act (FMLA) regulations, which took effect on January 16th, set forth the requirements and standards for employees taking leave to care for an injured member of the armed services, or on the occasion of certain "qualifying exigencies." In addition, provisions requiring employers to provide employees with paid sick leave are being considered by Congress and are already in effect in Milwaukee and San Francisco. We also expect legislation that would encourage – or force – employers to provide alternative work arrangements, such as flexible work schedules and locations. Paid sick leave laws and requirements relating to alternative work arrangements would significantly curtail employers' oversight of their workforces, and open the door to increased employee abuse of leave and paid time off programs. Developments in this area also may significantly increase the leave rights of employees, and expose employers to greater liability.

ACTION ITEMS

  • Train the individuals who oversee FMLA leave so that they are prepared to respond to requests for leave to care for a service member or due to a "qualified exigency."
  • Revise FMLA forms so that your company is taking advantage of new opportunities to obtain better information from employees seeking to take FMLA-covered leave.
  • Make sure that your employee handbook includes the FMLA notice required by law.
  • If you are changing, or considering changing, your paid leave policy, consider a plan that provides separate vacation and sick days, rather than an all-encompassing paid time off (PTO) program.
  • Take a more deliberate approach to employee requests for alternative work arrangements, standardizing the procedure for such requests and documenting the reasons for the decisions on such requests.
  • Be sure to consider state and local leave laws before addressing leave requests.

DISCUSSION

The Family & Medical Leave Act Regulations: The new FMLA regulations (implementing a 2008 amendment to the FMLA), expand employee leave entitlement by defining two new types of FMLA- covered leave: leave to care for a covered service member with a serious illness or injury and Qualifying Exigency Leave.

Leave to care for a covered service member with a serious illness or injury varies from traditional FMLA leave in two critical ways. First, while traditional FMLA leave provides up to 12 weeks of leave per year, leave to care for a covered service member with a serious illness or injury provides qualifying employees with up to 26 weeks of leave in each 12 month period. Likewise, while traditional FMLA leave only applies if the individual requiring care is the employee's spouse, parent, or child, leave to care for a covered service member with a serious illness or injury is much broader. Under this new type of leave, the spouse, parent, and child of the covered service member are eligible for leave from work, but so too are the service member's next of kin. If the service member has not specifically designated his or her next of kin, all family members who are at the same level of relationship closest to the service member other than his or her parent, spouse or child (i.e. all aunts and uncles or all first cousins) are deemed to be his or her next of kin. Thus, if a covered service member has no siblings but 3 aunts, all three of his aunts would be eligible to take leave to care for him or her. The impact of leave to care for a covered service member is thus two-fold: it extends the circle of family members who are eligible to take leave, and it extends the length of that leave.

The availability of Qualifying Exigency Leave also expands employee leave entitlements. Qualifying Exigency Leave provides up to 12 weeks of leave per year to an employee whose spouse, child or parent is called from the reserves or retirement to active duty. Qualifying Exigency Leave may be taken in order to attend to issues relating to the service member's deployment or active duty, including:

  • Attending to issues arising out of the service member being deployed with seven or fewer calendar days of notice
  • Attending military events and related activities
  • Attending family support, assistance programs or counseling
  • Arranging for alternative childcare, or providing childcare on an immediate need basis
  • Enrolling a child in school or attending school meetings
  • Making or updating financial or legal arrangements, or appearing in the service member's stead for such purposes
  • Spending time with a service member who is on a short term leave during his or her deployment
  • Attending arrival ceremonies and other briefings and events related to the service

Paid Sick Leave: Employee advocacy groups have long sought legislation requiring that employers provide paid sick leave. In fact, employers in Milwaukee and San Francisco are already required to provide paid sick leave, and other jurisdictions are likely to follow. The Healthy Families Act (HFA), which was supported by President Obama during the campaign, would expand paid sick leave nationwide. As currently drafted, the HFA would require employers with 15 or more employees to provide most employees with 7 paid sick days per year. Unfortunately, the most recent version of the HFA does not contain adequate safeguards against employee abuse. The HFA has not yet been reintroduced; however, with President Obama's support and Democratic majorities in the House and Senate, it seems likely that some version of the HFA will move forward during President Obama's first term.

Alternative Work Arrangements: Another area where employee rights groups appear to be gaining momentum is with respect to alternative work arrangements. Their efforts are seen in the Working Families Flexibility Act (WFFA), which President Obama co-sponsored when he was in the Senate. The WFFA, as drafted, would give employees the right to request a change in their hours of work, time of work, and worksite. It would also mandate how employers must respond to an alternative work request and allow employees to challenge the sufficiency of the employer's reasons for denying a request. If WFFA were to become law, it would open the floodgates on litigation claiming that employers failed to comply with the required procedures and/or that the employers' stated reasons for denying a request are insufficient.

If you have any questions regarding these issues, please contact Laura Friedel or any member of the Labor & Employment Service Group.


Filed under: Employment & Executive Compensation

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