Senator Marco Rubio (R-FL) and first daughter Ivanka Trump have teamed up to develop a paid parental leave program in the United States.  While the plan is in its infancy, Senator Rubio reportedly envisions a plan similar to a proposal from the Independent Women’s Forum, calling for a parental leave program funded by new parents’ future Social Security benefits.  Under that proposal, parents could receive up to 12 weeks of benefits to take paid leave at any time in the first year of their new child’s life in exchange for what the Independent Women’s Forum hopes would be six weeks of Social Security benefits in the future.

The Rubio-Ivanka proposal is not without criticism.  Some conservative commentators say the plan would unfairly burden Social Security’s limited resources.  Further, because the Rubio-Ivanka plan would be available regardless of the size of a new parent’s employer, the leave would not be protected under the FMLA if the parent’s employer does not have 50 or more employees within a 75 mile radius.  Liberal critics believe that the proposal will negatively affect women, who generally receive less Social Security benefits than men for reasons of gender-related pay inequity.

While paid family leave is a concept with bipartisan support, proponents disagree about how to fund such a program.  The president’s recent budget plan, which calls for six weeks of family leave paid for by unemployment insurance, appears to be at odds with the Ivanka-Rubio idea.   The Democrat-sponsored Family and Medical Insurance Leave Act (the FAMILY Act) would provide up to 12 weeks of income through a payroll tax on employers and employees.  Employers should continue to monitor discussions and developments in this rapidly changing area.

In a decision that will be celebrated by employers in the Seventh Circuit struggling with employee requests for post-Family Medical Leave Act (“FMLA”) leave as an accommodation under the American with Disabilities Act (“ADA”), the Seventh Circuit in Severson v. Heartland Woodcraft, Inc., 2017 U.S. App. LEXIS 18197 (7th Cir. Sept. 20, 2017), recently held that an employer did not violate the ADA by firing an employee instead of extending his leave after he exhausted all leave under the FMLA.  This holding – finding that extended long-term leave is not a reasonable accommodation under the ADA – is not only contrary to the Equal Employment Opportunity Commission (“EEOC”)’s position regarding extended leave as a reasonable accommodation, but also conflicts with several other federal Circuit courts that had previously ruled on the same issue (holding that extended/post-FMLA leave can be a reasonable accommodation under the ADA).

In Severson, the plaintiff was diagnosed with back myelopathy, which negatively affected his back, neck, and spinal cord.  While plaintiff generally could perform his duties without incident, he did experience several “flare ups” which made it difficult for him to walk, bend, lift, stand, and work.  As a result of his disability, plaintiff injured his back and went on FMLA leave, with several continuations of leave, totaling 12 weeks, approved by defendant.  After exhausting all FMLA leave, plaintiff informed defendant that he would undergo disc compression surgery and would require at least an additional two months of leave for recovery time.  Instead of extending plaintiff’s leave, defendant informed plaintiff that his employment would terminate on the date that his FMLA leave expired.

In reaching its holding that leave for an extended period of time is not a reasonable accommodation under the ADA, the Seventh Circuit reaffirmed its analysis in an earlier case – Byrne v. Avon Prods., Inc. 328 F.3d 379 (7th Cir. 2003) – that a long-term leave of absence could not be a reasonable accommodation under the ADA.  Although EEOC guidance “Employer-Provided Leave and the Americans with Disabilities Act” states that employers should consider long-term leaves of absence as reasonable accommodations, the Seventh Circuit disagreed, stating that such an interpretation was untenable and would transform the ADA into “a medical-leave statute – in effect, an open-ended extension of the FMLA.”  (A previous article on the guidance can be found here.)  Moreover, the Court in Severson stated that long-term medical leave does not enable an individual to perform the essential functions of the job and, therefore, cannot be considered a reasonable accommodation because at the time it is required the employee is not a qualified individual with a disability.  Finally, the Court noted that the ADA only requires “reasonable accommodations” and not “effective accommodations”, finding the a request for extended leave is only the latter.  Thus, the Seventh Circuit rejected plaintiff’s argument (which had been joined by the EEOC) that defendant should have granted him a reasonable accommodation of additional leave.

This case represents a stark deviation from both the EEOC’s guidance and the rulings of multiple other Circuit courts throughout the country setting forth that employers must evaluate requests for leave (including those extending beyond FMLA leave) under the ADA on a case-by-case basis to analyze whether granting the leave would be an undue hardship, so long as the request is not for indefinite leave. While this may change the way employers in the Seventh Circuit approach their analysis of leave as a reasonable accommodation under the ADA, employers should be careful not to over-extend this ruling:

  • First, the Severson holding itself does not totally preclude any post-FMLA as an accommodation under the ADA. Indeed, the holding leaves open the possibility that leave spanning a few days or even a couple of weeks could be a reasonable accommodation.
  • Second, some state and local laws governing disability discrimination and accommodation may have different language and standards that could result in a contrary decision. (And now, more than ever, state and local laws that are more restrictive than federal law are being passed on a regular basis.)
  • Third, employers outside the Seventh Circuit should remain diligent in individually analyzing requests for extended leave as an ADA accommodation, particularly in jurisdictions that follow the EEOC’s guidance or where Circuits have expressly ruled contrary to Severson.

No matter what jurisdiction an employer operates in, it is always important for employers to communicate with employees regarding expiration of leave and expected return dates while the employee remains out on leave.

Retailers should note that the Department of Labor’s Wage and Hour Division (“DOL”) has just released a new Family Medical Leave Act (“FMLA”) poster and The Employer’s Guide to The Family and Medical Leave Act (“Guide”).

New FMLA Poster

The FMLA requires covered employers to display a copy of the General FMLA Notice prominently in a conspicuous place. The new poster is more reader-friendly and better organized than the previous one. The font is larger and the poster contains a QR code that will connect the reader directly to the DOL homepage. According to the DOL, however, the February 2013 version of the FMLA poster can continue to be used to fulfill the FMLA’s posting requirement.

The Employer’s Guide to The Family and Medical Leave Act

According to the DOL, the Guide is intended to provide employers with “essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.” The Guide reviews issues in chronological order, beginning with a discussion of whether an employer is covered under the FMLA, all the way through an employee’s return to work after taking FMLA leave. The Guide includes helpful “Did You Know?” sections that shed light on some of the lesser-known provisions of the FMLA. The Guide also includes hyperlinks to the DOL website and visual aids to improve the reader’s experience. Overall the Guide helps navigating the complex FMLA process; however, it does not provide any guidance beyond the existing regulations.

One day before the U.S. Department of Labor’s Family & Medical Leave Act (“FMLA”) same-sex spouse final rule took effect on March 27, 2015, the U.S. District Court for the Northern District of Texas ordered a preliminary injunction in Texas v. U.S., staying the application of the Final Rule for the states of Texas, Arkansas, Louisiana, and Nebraska.  This ruling directly impacts employers within the retail industry who are located or have employees living in these four states.


In United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional, finding that Congress did not have the authority to limit a state’s definition of “marriage” to “only a legal union between one man and one woman as husband and wife.”  Significantly, the Windsor decision left intact Section 2 of DOMA (the “Full Faith and Credit Statute”), which provides that no state is required to recognize same-sex marriages from other states.  Further to the President’s directive to implement the Windsor decision in all relevant federal statutes, in June 2014, the DOL proposed rulemaking to update the regulatory definition of spouse under the FMLA. The Final Rule is the result of that endeavor.

As we previously reported, the Final Rule adopts the “place of celebration” rule, thus amending prior regulations which followed the “place of residence” rule to define “spouse.”  For purposes of the FMLA, the place of residence rule determines spousal status under the laws where the couple resides, notwithstanding a valid out-of-state marriage license.   The place of celebration rule, on the other hand, determines spousal status by the jurisdiction in which the couple was married, thus expanding the availability of FMLA leave to more employees seeking leave to care for a same-sex spouse.

The Court’s Decision

Plaintiff States Texas, Arkansas, Louisiana, and Nebraska sued, arguing the DOL exceeded its authority by promulgating a Final Rule that requires them to violate Section 2 of the DOMA and their respective state laws prohibiting the recognition of same-sex marriages from other jurisdictions.  The Texas court ordered the extraordinary remedy of a preliminary injunction to stay the Final Rule pending a full determination of the issue on the merits.

The court first found that the Plaintiff States are likely to succeed on at least one of their claims, which assert that the Final Rule improperly conflicts with (1) the FMLA, which defines “spouse” as “a husband or wife, as the case may be” and which the court found was meant “to give marriage its traditional, complementarian meaning”; (2) the Full Faith and Credit Statute; and/or (3) state laws regarding marriage, which may be preempted by the Final Rule only if Congress intended to preempt the states’ definitions of marriage.

The court then held that the Final Rule would cause Plaintiff States to suffer irreparable harm because, for example, the Final Rule requires Texas agencies to recognize out-of-state same-sex marriages as valid in violation of the Texas Family Code.

Lastly, although finding the threatened injury to both parties to be serious, the court decided that the public interest weighs in favor of a preliminary injunction against the DOL.  The court found in favor of upholding “the stability and consistency of the law” so as to permit a detailed and in-depth examination of the merits.  Additionally, the court pointed out that the injunction does not prohibit employers from granting leave to those who request leave to care for a loved one, but reasoned that a preliminary injunction is required to prevent the DOL “from mandating enforcement of its Final Rule against the states” and to protect the states’ laws from federal encroachment.

What This Means for Employers

Although the stay of the Final Rule is pending a full determination of the issue on the merits, the U.S. Supreme Court’s decision in Obergefell v. Hodges likely will expedite and shape the outcome of the Texas court’s final ruling.  In Obergefell, the Supreme Court will address whether a state is constitutionally compelled under the Fourteenth Amendment to recognize as valid a same-sex marriage lawfully licensed in another jurisdiction and to license same-sex marriages.  Oral arguments in Obergefell are scheduled for Tuesday, April 28, 2015, and a final ruling is expected in late June of this year.

Before the U.S. Supreme Court decides Obergefell, however, employers in Texas, Arkansas, Louisiana and Nebraska are advised to develop a compliant strategy for implementing the FMLA—a task that may be easier said than done.  Complicating the matter is a subsequent DOL filing in Texas v. U.S. where the DOL contends that the court’s order was not intended to preclude enforcement of the Final Rule against persons other than the named Plaintiff States, and thus applies only to the state governments of the states of Texas, Arkansas, Louisiana, and Nebraska.

While covered employers are free to provide an employee with non-FMLA unpaid or paid job-protected leave to care for their same-sex partner (or for other reasons), such leave will not exhaust the employee’s FMLA leave entitlement and the employee will remain entitled to FMLA leave for covered reasons.  We recommend that covered employers that are not located and do not have employees living in one of the Plaintiff States amend their FMLA-related documents and otherwise implement policies to comport with the Final Rule, as detailed in EBG’s Act Now Advisory, DOL Extends FMLA Leave to More Same-Sex Couples.  Covered employers who are located or have employees living in one of the Plaintiff States, however, should confer with legal counsel to evaluate the impact of Texas v. U.S. and react accordingly, which may depend on the geographical scope of operations.

Scheduling around employees taking frequent or extended leaves of absences can be complicated for retail companies looking to staff the floor during peak shopping periods.  But retail employers considering requests for leave under the Family and Medical Leave Act should be aware of a recent decision from the District of Columbia Circuit Court of Appeals finding that an employee can pursue an FMLA interference claim even though she received the leave requested.  In Gordon v. United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who discourages an employee from taking FMLA leave may be liable for an interference claim, even if that discouragement was “ineffective.”  The lesson: don’t bully, discourage, or make employees jump through unnecessary hoops if they ask for FMLA leave.

Judy Gordon, an officer with the Capitol Police, was granted FMLA leave to address intermittent periods of severe and incapacitating depression.  Before her leave commenced, Gordon’s superiors ordered her to submit to a “fitness for duty examination” because of her FMLA request.  While waiting for the examination, Gordon was reassigned to administrative duties, resulting in a loss of $900 (the equivalent of three days’ pay).  Gordon passed the examination, was reinstated to her prior post, and took the requested FMLA leave and returned without incident.  Nonetheless, Gordon sued, asserting claims of interference and retaliation under the FMLA, and alleging that the presence of the “fitness for duty examination” on her permanent record would be detrimental to her prospects for pay increases, promotions, and transfers.

Addressing an issue of first impression for the D.C. Circuit, the court considered whether Gordon could proceed with her FMLA interference claim even though she was granted and ultimately took the requested leave.  Drawing an analogy between the interference provisions of the FMLA and the NLRA – which courts have interpreted to permit NLRA Section 8 claims based on actions that have a “reasonable tendency” to interfere with employees’ rights, regardless of whether they actual did – the court held that “an employer action with a reasonable tendency” to interfere with an FMLA right may support a valid interference claim “even where the action fails to actually prevent such exercise or attempt.”

Here, the D.C. Circuit reinstated the inference claim because it found that subjecting Gordon to a fitness for duty examination, which resulted in her loss of $900 and potentially impacted her future career prospects, would have a “reasonable tendency” to interfere with an employee’s exercise of FMLA rights.  The court also appeared to be influenced by allegations in the complaint that upper-managers frowned upon FMLA leave generally and were looking for ways to prevent Gordon from taking leave.

In its decision, the court set a low threshold for what constitutes an adverse action sufficient to support an FMLA retaliation claim.  One of the elements of a prima facie case of FMLA retaliation is a showing that the plaintiff was adversely affected by an employment decision.  The court refused to decide whether that element requires a showing of “material adversity” – as articulated for Title VII claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68-70 (2006) – or something less, such as any monetary loss, no matter how small – as suggested in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).  Rather, the court concluded that the loss of $900, the equivalent of three days’ pay, was more than de minimis and met the higher “material adversity” threshold, allowing the FMLA retaliation claim to proceed.

This decision is a reminder to employers, particularly those with operations in Washington, DC, to tread carefully when processing requests for leave under the FMLA.  Although leaves of absence can be disruptive to the workforce, and employers are within their rights to make certain inquiries into the need for leave, the mere fact that FMLA leave is ultimately granted will not insulate an employer from potential liability for conduct that has the potential to dissuade an employee from requesting leave.  To avoid unnecessary litigation, employers should instruct their leave administrators and supervisors to refrain from openly questioning or criticizing an employee’s request for leave and from requiring additional certifications beyond those contemplated by the law.

 By Anna A. Cohen

In its Agency Rule List for Spring 2014, the U.S. Department of Labor (DOL) has proposed to amend the Regulations implementing the Family and Medical Leave Act (FMLA) by revising the definition of “spouse” in light of the United States Supreme Court’s decision in United States v. Windsor, No. 12-307 (U.S. June 26, 2013).   In Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex couples.  The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take FMLA leave, among other reasons, to care for the employee’s spouse who has a serious health condition.

1. Place of Residence Definition

In August 2013, the DOL issued updated FMLA guidance documents as a result of President Obama’s directive to the DOL to coordinate with other federal agencies to implement the Windsor decision.  This initial guidance removed references to DOMA, affirming the availability of spousal leave based on same-sex marriages under the FMLA; however, the DOL only expanded benefits to same-sex married couples residing in states that recognize same-sex marriage.  For example, updated DOL Fact Sheet # 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act defines a “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.”  This narrow definition of “spouse” is significant to retailers with locations in multiple states since only 19 states, to date, recognize same-sex marriage, whether by court decision, legislation or popular vote.  If the DOL codifies the place of residence definition of “spouse,” retailers with employees in a same-sex marriage who work in a state where their marriage is legally recognized, but live in a state where it is not, would not be entitled to FMLA benefits to care for their spouse. 

2. Place of Celebration Definition

Another option would be for the DOL to broaden the definition of “spouse” to recognize legally married individuals under any state law, regardless of the employee’s residence.  This definition would be consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act (ERISA).  In its ERISA Guidance, the DOL defined the term “spouse” as any “individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages.”  If the DOL were to adopt the broad place of celebration definition of “spouse” contained in its ERISA Guidance when it amends the FMLA Regulations, FMLA benefits would be available to all legally married spouses, regardless of the definition of “marriage” in the state where the employee lives or where the employer operates.  Accordingly, employers would look to the place of celebration to determine whether employees are entitled to spousal benefits under the FMLA.  For example, retailers with employees who legally enter into a same-sex marriage in the Northeast would be considered legally married for purposes of the FMLA in all of the retailer’s locations, even if they subsequently live or work in a state which does not recognize that marriage.  

Regardless of the definition adopted by the DOL, employers in all states must be alert to this impending change.  Once the FMLA Regulations are amended, employers should review all FMLA-related policies, procedures, forms and notices.  Employers should also be aware of their obligations under state and local leave laws that may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in civil unions or domestic partnerships. We will continue to monitor the DOL’s position on same sex marriage as it affects the FMLA and other laws and regulations.

Our blog contributor Anna A. Cohen, an Associate in the Labor and Employment practice at Epstein Becker Green, was quoted in an article titled “TGI Fridays Busted for Family Leave Violations.”

Following is an excerpt:

The leave policy of TGI Fridays violates the Family and Medical Leave Act, and the popular restaurant chain has agreed to change its company-wide policy and pay one employee back wages, according to the Department of Labor (DOL).

The DOL announced the company’s agreement on Aug. 7, following an investigation of a TGI Fridays restaurant in Shreveport, La. There, an employee took FMLA-covered leave but the company didn’t reinstate the employee to the same or equivalent position, as required by the law.

“If violations cannot be resolved, the Department of Labor may bring an action in court to compel compliance,” explains Anna Cohen, an employment lawyer with Epstein Becker Green in New York. “An employee may also file a private action against an employer for violations.”

In this case, it appears that while the initial complaint was likely made by the employee who was denied immediate reinstatement after taking protected leave, the DOL’s investigation uncovered problems with the way the restaurant was notifying its employees of their rights under the FMLA.

Under the FMLA, according to Cohen, employers must:

  • post, in conspicuous places, a notice explaining the Act’s provisions and provide information concerning the procedures for filing complaints with the WHD
  • include the notice in employee handbooks or other written guidance to employees when they are hired
  • notify employees of their eligibility to take FMLA leave within five business days once a request is made
  • explain to employees taking leave their rights and responsibilities including their specific expectations and obligations and any consequences of failing to meet them
  • notify employees in writing whether or not the leave will actually be counted as FMLA leave

“As a general rule, it is important for employers to ensure that their FMLA policies and procedures are in compliance with the law,” Cohen points out.