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CFRA Covered Employee’s Leave to Care for Adult Sister Prior to Expanded Law

CFRA Covered Employee’s Leave to Care for Adult Sister Prior to Expanded Law

The California Highway Patrol (CHP) violated the California Family Rights Act (CFRA) when it fired a worker in 2014 after he took leave to care for his adult sister, a California appeals court ruled. The employee was entitled to take family leave because he stood “in loco parentis” to his sister, the court said. In 2014, the CFRA did not cover an employee’s leave of absence to care for a sibling. At that time, however, an employee was entitled to take leave to care for an adult dependent, including one to whom the employee stood in loco parentis. An employee stands in loco parentis if he or she acts in the place of a parent or is otherwise charged with a parent’s rights and responsibilities. Notably, there does not have to be a biological or legal relationship between the employee and the dependent. In this case, the employee’s immediate family included his mother and sister. He moved to the United States from Haiti in 1995. Eleven years later he began work as a CHP peace officer. Over the next eight years, performance reviews showed that he performed proficiently or higher in all categories.The employee cared for his 80-year-old mother who lived with him. His sister, who had paranoid schizophrenia, remained in Haiti. The employee created a private health care facility for her in the family home. He traveled there frequently to help with her care. He maintained regular contact with his sister’s treating physician, who considered him to be her caretaker.The employee paid the property taxes on the family home. He also paid for his sister’s food, daily necessities, medical care and health insurance. He employed and supervised an in-home caretaker for his sister. On Nov. 9, 2014, the employee learned that his sister had left the family home and was wandering the streets of Port-au-Prince, Haiti. He was also told that local law enforcement required him to file a report in person as his sister’s next of kin. Later that day, the employee told his supervisor that he might need an emergency leave of absence. He had previously taken emergency leave from his CHP duties to care for his sister, once in 2007 when she experienced a medical crisis, and again in 2010 after an earthquake. The following day, the employee told his supervisor that his sister was missing in Haiti and requested a two-week leave of absence. His supervisor notified the CHP captain that the employee needed to “go out of the country to attend family matters.” He left the next day, Nov. 11.When the employee did not show up for work on Nov. 14, CHP labeled him absent without leave. When the employee returned to work on Dec. 4, he submitted documentation about his leave, including:Medical records confirming his sister’s condition and ongoing medical treatment.Police reports showing that he was his sister’s next of kin and had initiated a police search to help find her.Financial records demonstrating the employee’s long-standing financial support for his sister.CHP refused to …

Viewpoint: When Employers Fail to Designate FMLA Leave

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Viewpoint: When Employers Fail to Designate FMLA Leave

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy workers’ compensation absence. For one reason or another, Johnny’s one-week leave of absence turns into one month, then six months.One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny’s nine months away as leave taken under the Family and Medical Leave Act (FMLA).What You Should Have DoneWhen an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and of Rights and Responsibilities under the FMLA (which is usually accompanied by a blank medical certification form). Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice. If you don’t send these notices to your employees, you risk an FMLA violation.But take some heart in a recent FMLA case, Jeanette Jergens v. Marias Medical Center. In Jergens’ situation, she took a leave of absence for alleged anxiety which, interestingly enough, coincided with her employer’s decision to keep her on an administrative leave of absence while it investigated her alleged workplace misconduct. However, Jergens’ employer failed to provide her with a Notice of Eligibility. It didn’t send her a medical certification form and a designation notice, either.It literally sent her nothing.Jergens was terminated a short time later for reasons not related to her leave of absence. When she filed suit against his former employer, she claimed—among other things—that her employer violated the FMLA because it did not provide her proper or timely FMLA notices.Employee Must Show Notice Failure Caused HarmThe court reviewing Jergens claim took a rather pragmatic approach. On one hand, the employer technically violated the FMLA when it failed to provide Jergens with proper and timely FMLA notices, but this inaction does not create a standalone FMLA claim.On the other hand, Jergens failed to provide any evidence that she actually was harmed by the employer’s failure to provide proper notice. For the court, nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.Case dismissed.Insights for EmployersThe employer dodged a bullet here. I share this case not to highlight employer best practices (clearly, the employer’s actions here are not a model for us to follow), but as a reminder that the way to go—indeed, the best practice—is to provide proper and timely FMLA notices:When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and of Rights and Responsibilities. When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.Let’s dig in a bit more though.Catching the Oversight Soon EnoughIf we have missed the deadlines …

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Missouri Law Requires Leave for Victims of Domestic Violence

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Missouri Law Requires Leave for Victims of Domestic Violence

​Effective Aug. 28, Missouri employers with at least 20 employees in the state must provide unpaid leave for employees who are victims of domestic or sexual violence—as defined by state statute—or have family or household members who are victims of such violence. Covered employers must also notify current employees of their right to leave under the law by Oct. 27 or upon commencement of employment for future employees.The new law—titled the Victims Economic Safety and Security Act (VESSA)—provides employees with protected leave time to: seek abuse-related medical attention and counseling, or recover from abuse-related injuries (physical or psychological); obtain services from a victim services organization; participate in safety planning; temporarily or permanently relocate to a safer living space, or take other actions to increase the safety of the employee (or family or household member); and/or pursue legal remedies to ensure the health and safety of the employee (or family or household member), including preparing for civil and criminal actions resulting from the violence. Of note, not only may employees take VESSA leave relating to their own experience with domestic or sexual violence, they may also take leave to deal with such abuse suffered by a “family or household member,” including individuals who reside in the same household as the employee, immediate family members by blood or marriage, and people who “share a relationship through a son or daughter.”Similar to the FMLA and other protected leave frameworks, an employee who takes VESSA leave must be returned to the same or other equivalent position upon their return to work, and the employer may not deprive them of any employment benefits they had before the leave. Unique to VESSA, the amount of leave available will vary depending on the employer’s number of employees. Specifically:1-19 employees = no leave entitlement.20-49 employees = 1 week unpaid leave per year.50 or more employees = 2 weeks unpaid leave per year.The employee’s VESSA leave need not be used on consecutive days, but the employee is required to give the employer at least 48-hour notice of anticipated leave usage. If prior notice is not practicable under the circumstances, the employee may provide a certification that the unscheduled absence was VESSA-related within a “reasonable period” after the absence, though “reasonable period” is not defined in the statute. Employers may require employee certification of the reason for leave in either situation and may request periodic updates from the employee regarding their expected return date. Types of permissible employee certification are outlined in the statute.In addition to leave, employers must provide reasonable safety accommodations to employees affected by domestic or sexual violence to the employee (or their family or household member) so long as the accommodation does not pose an undue hardship on the employer’s operations. The statute provides that reasonable safety accommodations include actions such as adjustment to a job structure, work facility, or work requirement—for example, transfer, reassignment, modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, implementation of a safety procedure, or assistance in documenting actual or threatened domestic violence that occurs in the workplace or work-related settings. In determining whether a safety accommodation is reasonable, employers may consider any exigent circumstances or danger facing the employee or the worker’s family or household member. Employers may require employees who request safety accommodations to provide a written statement—signed by the employee or an individual acting on the employee’s behalf—certifying that the accommodation is for an authorized purpose.Finally, as noted above, covered employers must notify all current employees of their rights under the law on or before Oct. 27 or upon commencement of employment for future employees. The new law does not contain a penalty for failure to comply with the notice requirement, but compliance is relatively straightforward to achieve and may be provided to employees electronically. The Missouri Department of Labor and Industrial Relations has also published a poster that must be posted in common areas along with other required employee notices.Employers should take action to implement VESSA-related leave and accommodations policies, and prepare to meet the notice requirement on or before Oct. 27. In addition, employers should educate and train supervisors on identifying situations that may trigger an obligation to provide VESSA leave or accommodations to employees. Jennifer Chierek Znosko is an attorney with Littler in St. Louis. Whitney L. Fay is an attorney with Littler in Kansas City, Mo. © 2021 Littler. All rights reserved. Reposted with permission. 

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