The recently-enacted Tax Cut and Jobs Act (the “Tax Act”) includes a provision that eases the burden for employers who adopt paid family and medical leave policies. The Tax Act added a new federal tax credit available through 2019 to employers that adopt a paid family and medical leave policy to all of their “qualifying employees”. The credit is available only if the employer pays its qualifying employees at least 50% of their regular compensation during the leave period. In addition, the policy must provide for at least two weeks of paid leave for a full-time employee, with a reduced period required for part-time employees. The specifics of the credit are a bit too complicated to detail in a blog post, so if you already have paid family leave in place, or you are considering implementing one, be sure to consult with your tax attorneys.
Having a chronic serious health condition doesn’t entitle an employee to take leave whenever he chooses. Even if the leave would be medically beneficial, it has to correspond to a period of incapacity. In Hurley v. Kent of Naples, Inc., No. 2:10-cv-00334-JES-SPC, 2014 WL 1088293 (11th Cir. Mar. 20, 2014), an employee’s doctor recommended he take vacation, so he informed his employer he would be taking 11 weeks of vacation over a two-year period. When the employer denied the request, there was a falling out and the employee was ultimately terminated for insubordination and poor performance. One week after the termination, the employee’s doctor filled out FMLA paperwork citing the employee’s depression, but was unable to determine the duration and frequency of any incapacity. The employee filed suit claiming he’d been terminated for exercising his FMLA rights.
After inexplicably escaping summary judgment, the employee was awarded $200k in damages despite the jury finding that the leave request didn’t cause his termination. The Eleventh Circuit reversed finding the vacation request was not a request for FMLA leave. “Potentially qualifying” for leave isn’t enough to support an FMLA claim. The employee argued the requested leave was medically necessary, but he was not unable to work and he admitted his wife picked the leave days without input from a doctor. “Needing a vacation” and being “incapacitated from work” are different concepts. If the two concepts were the same, many more of us would qualify for FMLA protection!
In 2007, Maria Escriba requested and received two weeks of vacation from her employer to travel to Guatemala to care for her ailing father. When Escriba did not return to work at the end of her leave, the employer discharged her. Escriba sued, alleging that her employer unlawfully interfered with her right to take FMLA leave because her reason for taking a vacation – to care for her father – automatically entitled her to the FMLA’s protection. The employer argued that although Escriba provided an FMLA-qualifying reason for her vacation request, she specifically declined to have her vacation count as FMLA leave. Consequently, she could not assert a claim under the FMLA.
The Ninth Circuit Court of Appeals recently disagreed with Escriba. Escriba v. Foster Poultry Farms, Inc., No. 09-CV-01878 (9th Cir. Feb. 25, 2014). It held that Escriba could decline FMLA leave and rely only on her vacation leave when taking time off to care for her father, thus preserving all twelve weeks of her FMLA leave for future use.
Many employers require available paid leave to be used at the outset of any unpaid FMLA leave, with the paid leave running concurrently with the unpaid FMLA leave. For example, an employer might require an employee who takes twelve weeks of unpaid FMLA leave to use three weeks of available vacation leave at the outset the time off, resulting in three weeks of paid leave and nine weeks of unpaid leave. Does the Ninth Circuit’s decision mean that an employee can refuse to take paid leave and FMLA leave concurrently, even when an employer requires it? Probably not, but expect to see this argument crop up in future cases.
By Bill Wright
The Chicago-based 7th Circuit Court of Appeals ruled that where an employee provides care for a family member with a serious health condition does not matter under the Family and Medical Leave Act (“FMLA”). The employee was the principal caregiver for her mother. As an end-of-life wish, a charity gave the mother a trip to Las Vegas, and the employee asked for leave to continue providing care to her mother during the trip. The employer denied the leave and, counting the unexcused absence against the employee, terminated her several months later. In the lawsuit that followed, the employer maintained that taking leave for a free trip to Las Vegas is not covered by the FMLA, but the 7th Circuit Court saw it differently. The employee continued to provide the same care for her mother in Las Vegas that she provided at home. The location where the care is provided doesn’t matter. Like many 7th Circuit opinions, the result sounds obvious when you hear it, but the decision creates a different rule in the 7th Circuit than the rule in the 9th Circuit and the 1st Circuit. We might hear more about this before it is over. Ballard v. Chicago Park District, No. 13-1445 (Jan. 28, 2014).