Federal Contractors Required to Provide Paid Sick Leave Starting in 2017

This past Monday, President Obama signed an Executive Order that, beginning January 1, 2017, mandates all federal contractors and subcontractors to provide up to 30 hours of paid sick leave for their employees. Workers for contractors subject to this Executive Order will be entitled to earn 1 hour of paid sick leave for every 30 hours of work performed, up to a maximum of 56 hours (7 days) of paid sick leave per year. 

Workers who earn paid sick leave will be entitled to use that time to cover absences resulting from: 

1. illnesses, injuries, or medical issues; 
2. the need to obtain diagnoses, care or treatment from a healthcare provider; 
3. the care for a child, parent, spouse, domestic partner or "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship" [read, non-adopted step-children, step-parents, etc.], who is seeking a medical diagnosis, or is in need of medical care or treatment; or
4. domestic violence, sexual assault, or stalking.

If a federal contractor already has a collective bargaining agreement in place, or is subject to a state law that provides greater mandatory leave entitlements than this Executive Order, then the provisions of the collective bargain agreement or state law will govern. 

If you are an employer who does any contract work with any federal agency, these requirements will start appearing in your contracts after January 1, 2017, so plan accordingly as that date nears.

Remember also that the provisions of this Executive Order do not supplant or supersede a qualifying employer's obligations to provide reasonable accommodations to a disabled employee under the Americans with Disabilities Act, or provide eligible workers with FMLA leave when necessary. Beginning in 2017, these new paid sick leave requirements will need to be incorporated into federal contractors' existing legal leave obligations. For example, even though federal FMLA leave is not mandated to be paid, if an employee of a federal contractor accrues 56 hours of paid sick leave time under this Executive Order, then takes FMLA leave for his or her own serious health condition, the first seven days of the FMLA may have to be paid. Federal contractors will have to decide whether they want to implement new policies to address these types of issues, such as requiring employees to exhaust all accrued paid-sick-leave under this Executive Order while on an FMLA-qualifying leave. 

"Split Happens:" 3rd Circuit Finds Supervisors at Public Agencies Can Be Personally Liable for FMLA Violations

Yesterday, in the case of Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit Court of Appeals determined, for the first time in this Circuit, that supervisors who work at public agencies can be held personally liable for violations of the Family and Medical Leave Act (FMLA).  


The facts of this case and the analysis employed by the Court in reaching its decision are not overly exciting.  In short, Debra Haybarger worked as an office manager for Lawrence County Adult Probation and Parole, and suffered from Type II diabetes, heart disease and kidney problems.  Her health problems forced her to miss work often for medical appointments, and the Director of the Adult Probation and Parole, William Mancino, expressed dissatisfaction with Haybarger's frequent illness-related absences.  Mancino informed Haybarger that she needed to "cut down" on the days she was taking off and began to ask her why she needed to visit the doctor so much.  Haybarger was then formally disciplined by Mancino for her frequent medical absences and eventually terminated by the Adult Probation Office on Marcino's recommendation.  Haybarger then sued Lawrence County, Lawrence County Adult Probation and Parole and Marcino for various employment law violations, including the FMLA. 


After a complex procedural history, which saw many of Haybarger's claims dismissed, Marcino sought to have Haybarger's FMLA claims against him dismissed as well, arguing that the statutory language of the FMLA did not allow for personal liability.  After engaging in a thorough (and none-too-thrilling) parsing of the operative statutory language that defines who is an "employer" under the FMLA, the Third Circuit concluded that this definition includes an individual employed by a public agency who (1) exercises supervisory authority over a complaining employee and (2) was responsible, either in whole or in part, for the alleged FMLA violation.  The Third Circuit then examined the specific facts in this case and concluded that enough evidence existed to allow a jury to conclude that Marcino fit this definition as it related to Haybarger. 


What really makes this case interesting and important (aside from the fact that this issue had never been decided by the Third Circuit before), is that it widens a Circuit-split that previously existed on this question.  In its decision, the Haybarger Court noted that the Sixth and Eleventh Circuits had already arrived at the opposite conclusion - that the FMLA does not permit individual liability for supervisors at public agencies.  Additionally, the Eleventh Circuit has similarly held that there is no individual liability for public officials under the FMLA because "an individual officer lacks sufficient control over an employee's employment."  The Haybarger Court, however, rejected these rationales and instead chose to follow the lead of the Fifth Circuit, which had previously concluded that individual liability under the FMLA can attach to supervisors at public agencies.  


So, we now have at least three Circuits finding no grounds for individual public supervisor liability, and at least two that have taken the opposite tack.  With that schism, it seems likely (if not inevitable) that the U.S. Supreme Court will now have to take up this question and determine it once and for all.  As they say in show business, "stay tuned folks... there's more after this."


You can read the full Third Circuit opinion in Haybarger v. Lawrence County Adult Probation and Parole here: http://www.ca3.uscourts.gov/opinarch/103916p.pdf

Federal Court Rejects Employer's Claim of "Rolling" FMLA Policy and Allows Employee's FMLA Suit To Go To Trial

In a recent decision handed down in the case of MacFarland v. Ivy Hill, No.: 09-cv-2246 (E.D. Pa. 7/28/2010), the U.S. District Court for the Eastern District of Pennsylvania denied an employer's motion for summary judgment in a claim brought against it by a former employee who alleged that he was terminated in violation of his leave rights under the Family Medical Leave Act (FMLA). The issue before the court was whether the employee's FMLA leave expired on April 8, 2008, or sometime thereafter.

Plaintiff, Alan MacFarland, was an employee of Ivy Hill, who was eligible for FMLA leave. On October 23, 2007 Mr. MacFarland took two weeks of FMLA leave through November 7, 2007. In January of 2008, Mr. MacFarland suffered a stroke and requested FMLA leave, which listed his anticipated date of return as April 8, 2008. Plaintiff later testified that he told Ivy Hill that his April 8, 2008 doctor's appointment in which he was to recieve clearance to return to work, had been rescheduled for April 16, 2008. Plaintiff also testified that he was never informed by Ivy Hill that he would be terminated if he did not return to work by April 8, nor was he ever told by Ivy Hill that he was not eligible for additional FMLA leave past April 19, 2008.

Mr. MacFarland did not report to work on April 8, 2008, and on April 10, Ivy Hill terminated Mr. MacFarland for failing to do so. Mr. MacFarland sued, alleging improper interference with his FMLA leave rights. Specifically, Mr. MacFarland argued that he was entitled to 12 weeks of FMLA leave beginning in January of 2008, i.e., 12 weeks per calendar year, and as such, the FMLA leave following his stroke did not expire until well after April 8, 2010.

Ivy Hill argued that it employed a "rolling" FMLA period for the company, which did not run on a calendar-year basis, but provided that an employee's available FMLA leave would be counted backwards from the first date the employee took approved FMLA leave. So in this case, for example, Ivy Hill maintained that Mr. MacFarland's 12-week FMLA allowance was properly calculated beginning with his two-week FMLA leave from October 23 through November 7, which left Mr. MacFarland with 10 weeks of FMLA leave remaining when he went out in January, 2008. Therefore, his FMLA leave for his stroke would have expired on April 8, 2010.

The Court rejected Ivy Hill's argument, finding that despite its claims, Ivy Hill had failed to introduce any evidence establishing its official policy concerning FMLA leave time. While it appeared that Ivy Hill had employed a "rolling" method of calculating Mr. MacFarland's FMLA leave time, it did not produce "any evidence that demonstrated that this policy was officially chosen or that it was the policy that was applied to all employees." The Court noted that Mr. MacFarland also testified that he was never specifically informed by Ivy Hill that his FMLA leave would expire on April 8, nor that his leave could not be extended. In denying Ivy Hill's motion for summary judgment, the Court noted that while an employer is free to determine the twelve-month period in which its employees are eligible for their 12 weeks of FMLA leave, if the employer fails to make a selection, the method of calculation that is most favorable to the employees will be applied.

Therefore, an employer needs to make sure that if it chooses to select the method of calculation for eligible employees' FMLA leave, its selection needs to be properly documented and applicable to all employees. An employer should also make sure that it informs all of its employees of the selection and get employees to acknowledge that they have been so informed of the selection.

Dept. of Labor Holds That Same-Sex Couples Have FMLA Rights For Child Leave

In a decision published on June 22, 2010, the U.S. Department of Labor formally clarified that the phrase "a parent standing in loco parentis," to a child for purposes of FMLA leave encompasses all individuals who exercise day-to-day responsibilities to care for and financially support a child, regardless of that person's biological relationship to the child.

An eligible employee may request FMLA leave for the birth of a son or daughter or to care for a son or daughter with a serious health condition. The FMLA statute defines "son and daughter" as including within its scope "a child of a person standing in loco parentis." The DOL regulations further define "in loco parentis" to include those indiviuals who provide day-to-day care and financial support for a child. In its June 22 decision interpreting this regulation, the Department formally stated that "employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave." In providing examples of this interpretation, the Department stated that "an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child . . . because the employee stands in loco parentis with the child." The Department also noted that in situations where a child's biological parents divorce and then each remarries, the two biological parents and the two non-biological step-parents would all have "equal rights to take FMLA leave to care for the child."

The Department also noted that when an employer has questions as to whether an employee's relationship is covered under the FMLA, the employer may require the employee to provide "reasonable documentation or statement of the family relationship."

A link to the full Department of Labor decision can be found here: http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.pdf

Lay Testimony May Supplement Medical Testimony in FMLA Cases

In Schaar v. Lehigh Valley Health Services, Inc., the Third Circuit Court of Appeals held, in an FMLA suit concerning the denial or applicability of FMLA leave, that an employee may use his/her own lay testimony to supplement the medical testimony of a health care professional in order to allow a jury to ultimately determine whether the employee was suffering, or had suffered, from a "serious health condition," at the time the FMLA leave was requested or taken.

The Court of Appeals noted, however, that contrary to the rules in the Fifth and Ninth Circuits, in an FMLA case concerning a "serious health condition," lay testimony of the employee by itself is insufficient to allow the employee's claim to proceed to a jury.

3rd Circuit - Accrued "Comp" Time" Counts Towards FMLA Leave

On September 23, 2009, the Third Circuit Court of Appeals in Erdman v. Nationwide Ins. Co., held that "comp" time (or "compensatory" time) that is accrued by an employee for overtime hours worked, may be included towards the 1,250 minimum hours of service needed to be eligible for Family Medical Leave, where enough evidence exists to show that the employer had either actual or constructive knowledge that the employee was accruing "comp" time hours.

In this case, the plaintiff, Brenda Erdman, sued her former employer, Nationwide Insurance Company, alleging that she was terminated from her position in 2003 in retaliation for requesting FMLA leave in order to care for her daughter, who has Down Syndrome. Nationwide argued that Erdman was fired for unrelated behavioral problems, such as allegedly using profanity on a phone call that was being monitored for quality control.

Before the trial court, Nationwide moved to dismiss Erdman's FMLA claim, alleging that she had not accrued the requisite 1,250 hours of service over the previous 12 month period necessary to become eligible for FMLA leave in the first place. Erdman calculated that she had accrued 1,298.25 hours within the relevant time period, which included "comp" time hours that she accrued from extra work performed at home in 2002. Nationwide disputed the inclusion of Erdman's "comp" time hours, arguing that in 2002, it had no knowledge, either actual or constructive, that Erdman had been working extra hours and accruing "comp" time, and that in February, 2003, Erdman's supervisor specifically told Erdman that she could no longer use extra hours for "comp" time. Nationwide also pointed to a conversation between Erdman and her former supervisor, wherein Erdman was told to "put in the hours that you're supposed to put in and nothing more than that." The trial court agreed with Nationwide and excluded Erdman's "comp" time from the FMLA hours calculation.

On appeal, the Third Circuit disagreed, and vacated the dismissal of Erdman's FMLA claim. The Court of Appeals held that on the evidence presented, a reasonable jury could conclude that Nationwide did, in fact, possess actual or constructive knowledge that Erdman was accruing "comp" time in 2002. The Court held that the conversation relied upon by Nationwide in which Erdman was told to only "put in the hours that you're supposed to put in," was not supportive of Nationwide's position, as it made no specific reference to "comp" time accrual. The Court also pointed to an email that was sent by Erdman to her supervisor during the relevant period, in which Erdman sought to clarify whether she was still authorized to work extra hours for "comp" time, but to which she received no reply. On this evidence, the Court of Appeals concluded that Erdman's FMLA claim should should have been sent to a jury, to determine whether Nationwide intended to prohibit all out-of-the-office work, or whether Nationwide had only intended to preclude Erdman from earning overtime, while still allowing her to accrue "comp" time.