Ivo is a partner in Obermayer’s Labor Relations & Employment Law Department. He focuses his practice on representing employers, including advising companies on how to handle employee issues, and defending employee claims...Read More by Author
Back to School, Back to Work – Parental and Family Rights in the Workplace
The end of August marks the beginning of the yearly “back to school” ritual. Working parents in particular are hoping for a smooth transition, as this is also the time of year when vacations end and workloads tend to pick up. But as those of us with children know, balancing work and family responsibilities can be anything but predictable – even when school is in session. Here is what employers should know about what the law requires with respect to employee family obligations.
The Family and Medical Leave Act (“FMLA”)
Under the FMLA, employers with more than 50 employees may need to provide unpaid, job-protected leave to employees who have worked for at least 12 months, and have worked at least 1250 hours during the past 12 months. The FMLA applies to an employee’s absences to care for a spouse, child or parent with a “serious health condition.” Occasional absences to care for a child with a stomachache or fever may not trigger the FMLA. However, if an employee notifies the employer that absences are due to something more serious (such as a child being hospitalized or diagnosed with a chronic condition), the employer may be obligated to provide the employee with a notice of FMLA eligibility – even if the employee does not specifically mention the FMLA. If the employee provides an appropriate medical certification, the employer may be required to offer FMLA leave on an intermittent basis, which could then be used to cover future absences for symptom flare-ups or doctor visits.
Paid Sick Leave
While there is currently no federal law requiring employers to provide paid sick leave, some states (including California, Connecticut, Massachusetts, and Washington D.C.) require employers to provide employees with paid sick leave in varying amounts per year. Municipalities have also joined in this trend. For example, Philadelphia, and nine cities in New Jersey, have paid sick leave ordinances. In most cases, these laws allow employees to use paid sick leave to care for children or other family members.
School-Related Parental Leave
Some states (including Massachusetts, Minnesota, and Vermont) also provide leave for parents to participate in school or educational activities. California provides the most leave for this purpose: 40 hours per year (but no more than 8 hours per month).
Familial Status Discrimination
There is no federal law prohibiting employers from discriminating against employees with children or family responsibilities. Once again, a handful of states (including Alaska and Minnesota), and some counties and cities have stepped into the breach, passing laws barring “family responsibilities discrimination” in the workplace.
Even in the absence of these laws, employers should be cautious when managing employees with parental responsibilities, as these employees may be protected in other ways. In its Enforcement Guidance regarding employees with caregiving responsibilities, the EEOC points out that, while caregiving itself is not protected under federal law, stereotyping or other forms of discrimination against caregivers can constitute unlawful gender or disability discrimination. The EEOC has issued employer best practices regarding workers with caregiving responsibilities, including: providing reasonable personal or sick leave to allow employees to engage in caregiving (even if the FMLA does not apply); permitting employees to take leave for unforeseen emergencies; granting leave in short increments; and allowing employees to donate unused leave time to co-workers.
There is no one law that governs how employers should treat employees balancing work and family responsibilities. Employers with questions about how to handle these issues should consult with experienced employment counsel to make sure that they understand the laws that may apply to them, and that their employee policies and handbooks are in compliance. In many cases, employers will not be legally required to provide flexibility for employees with family responsibilities, but may find that doing so is in the best interest of employee recruitment, morale, and engagement. HR Legalist wishes readers a happy and productive back-to-school season!