This question about Maternity Leave came from one of my Massachusetts HR HelpLine clients. The answer applies to Massachusetts’ companies only, but everyone will find the interpretation of the law interesting, to say the least.
Client Question: One of our employees is pregnant with twins and is expected to deliver in September. She told us her doctor is concerned about her high blood pressure and may want her to begin her leave in June. How much leave will she be entitled to?
Answer: This is a bit complicated because we must consider both the federal Family and Medical Leave Act (FMLA) and the Massachusetts Maternity Leave Act (MMLA). (Note: this employee met all the eligibility requirements for both leave laws)
If the doctor puts her out on leave for the high blood pressure in June, she would qualify for a FMLA leave because she has a serious health condition, high blood pressure. She would be entitled to a maximum of 12 weeks unpaid leave. Potentially, if the condition did not improve she could be out until the birth of the child in September, exhausting her entire FLMA leave.
Upon the birth of the twins, she would now be entitled to leave under the Massachusetts Maternity Leave Act. Massachusetts’ law provides 8 weeks of maternity leave for giving birth. However, the Massachusetts Commission Against Discrimination (MCAD) has ruled that an employee who gives birth to twins has given birth two times and is entitled to eight weeks of leave for each child or 16 weeks in total.
So this employee may be eligible for 12 weeks of FMLA for her serious health condition, plus 16 weeks of MMLA leave for the birth of her twins, or a total of 28 weeks of unpaid leave.
If you need expert advice on employee issues, call the HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee and organizational issues. To learn more, click here.
All covered employers (50 or more employees in a 75 mile radius) are required to display and keep displayed a poster prepared by the U.S. Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.
Several of the changes to the FMLA regulations, including military caregiver leave for a veteran, qualifying exigency leave for parental care, and the special leave calculation method for flight crew employees, will be effective on March 8, 2013.
You may start using the new poster now. To download the poster, click here.
To get answers to you human resource/employee questions, contact my HR HelpLine.
Two years ago when Maine was considering mandating paid sick leave, I wrote that I thought it was bad for business. I continue to believe this. As I stated then, no one can argue that it makes sense for employees to stay home when not feeling well. The last thing anyone wants is to have someone preparing or serving your meal who is not well—and that’s what happens when the choice is between staying home and not receiving pay or working sick because you can’t live without your paycheck. It is a terrible choice to have to make.
Unfortunately, as noble as the various bills being proposed throughout the country may be, as right as it feels, it is bad policy because it undermines the businesses it purports to support and ultimately hurt all employees. Small businesses cannot afford another mandate. Mandatory sick leave will be cost prohibitive and an administrative nightmare to manage, particularly on top of the other leave policies mandated under state and federal law. Managing time-off policies are not easy. Employers still struggle making sense out of the federal Family and Medical Leave Act (FMLA) and that’s been around 20 years!
One can empathize with any worker who has to work ill. Ideally, businesses will see that sick leave benefits, voluntarily offered, provide them a competitive advantage. But mandating it is not the right thing to do. Smaller organizations often cannot afford these kinds of benefits and another mandate could potentially put them under.
What do you think? Share your comments and opinions below.
(This was reprinted from HR Magazine and authored by Allen Smith. Allen Smith, J.D., is manager, workplace law content, for SHRM)
Family and Medical Leave Act (FMLA) compliance is difficult and annoying, said Mark Oberti, an attorney with Oberti Sullivan LLP in Houston, at the National Employment Law Institute’s Annual Employment Law Conference in Arlington, Va., Nov. 16, 2012.
The U.S. Department of Labor’s FMLA regulations often aren’t much help, as they rarely make it clear when an employer may fire someone, he added.
Oberti outlined 12 compliance strategies for employers:
- When in doubt, send the employee the notice of eligibility and rights.
- Provide written notice of approval or disapproval of FMLA leave to the employee.
- Have a specific, formal policy to request leave, and adopt and enforce a call-in policy. Be reasonable about enforcing the policy, he cautioned. For example, cut employees some slack if they call in to their supervisors, instead of HR, even if the policy provides that they call HR. Continue reading
(This guest post was written by attorney Glenn Israel from Bernstein Shur)
Earlier this week, the national department store chain Dillard’s agreed to pay $2M to settle a discrimination claim based upon its policy of requiring absent employees to provide a doctor’s note stating the medical reason for the absence. The U.S. Equal Employment Opportunity Commission took the position that once a doctor confirms the employee was absent for medical reasons, the employer is not entitled to ask for any additional information. This is consistent with the approach taken by the U.S. Department of Labor with regard to Family and Medical Leave Act requests. The DOL medical certification form asks the doctor to state whether the employee has a medical condition that prevents the employee from performing one or more essential functions of his or her job and also asks the doctor to “describe other relevant medical facts” which “may include symptoms, diagnosis, or any regimen of continuing treatment.” The DOL form does not, however, require the doctor to provide any of that additional information.
In a recent case that I handled in Maine, an employer and a mid-level supervisor found themselves in front of the Maine Human Rights Commission for asking one too many questions. The supervisor noticed that one of his subordinates was acting strangely and asked the employee if she was “on drugs.” The employee said “No, but I do take medication.” The supervisor innocently asked “For what?” The employee then revealed her mental health diagnosis to the supervisor and filed a claim with the MHRC.
The take away point is don’t ask too many questions. Here are some things you can ask an employee: Continue reading
No one can be opposed to “An Act To Prevent the Spread of H1N1” unless you have to pay for it. The bill before the Maine legislature (LD 1665) will provide employees paid sick leave. No one can argue that it makes sense for employees to stay home when not feeling well. The last thing anyone wants is to have someone preparing or serving your meal who is not well—and that’s what happens when the choice is between staying home and not receiving pay or working sick because you can’t live without your paycheck. It is a terrible choice to have to make.
Unfortunately, as noble as they bill may be, as right as it feels, it is bad policy because it undermines the businesses it purports to support and that ultimately hurts all employees. Small businesses cannot afford this mandate. This bill will also be an administrative nightmare to manage, particularly on top of the other leave policies mandated under state and federal law. Managing time-off policies are not easy. Employers still struggle making sense out of the federal Family and Medical Leave Act (FMLA) and that’s been around 18 years! And to make matters worse, no other state has a paid leave policy like this proposed bill—putting Maine employers at another competitive disadvantage.
One can empathize with any workers who has to work sick. Unfortunately, the downside of this bill is much too great. The timing is wrong and the bill is bad. Maine should walk away from it now.