When Can an Employer Ask for a Second Opinion for FMLA Leave?

Posted on September 1, 2010 by Suzanne M. Boy

Recently I was asked when an employer may seek a second opinion to verify an employee's serious health condition for purposes of Family Medical Leave Act ("FMLA") leave.  The folks at the FMLA Insights blog addressed this very question in their recent post, FMLA FAQ - When to ask for a Second Opinion.

Like the post suggests, the short, rules-based answer is that an employer who "doubt[s] the validity of a medical certification" can ask for a second opinion.  29 CFR 825.307.  This does not mean, however, that an employer should make a regular practice out of asking for a second opinion.  Take a more conservative approach, and only request a second (or third) medical opinion when you have a solid reason to doubt the medical certification provided by the employee.

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DOL Clarifies Definition of "Son or Daughter" in FMLA

Posted on June 23, 2010 by Suzanne M. Boy

In an Administrative Interpretation issued yesterday, the Department of Labor clarified the definition of "son and daughter" as it applies to an employee standing "in loco parentis" to a child under the Family and Medical Act for purposes of non-military leave.  The Interpretation was intended to ensure an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.  With the Interpretation, the DOL made clear the FMLA, which allows employees to take leave for the birth or adoption of a child, extends to the various parenting relationships that exist in today's world. 

The definition of "son or daughter" includes a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."  In loco parentis includes those with day-to-day responsibilities to care for and financially support a child.  Employees who have no legal or biological relationship with a child may nonetheless stand in loco parentis, and thus be entitled to FMLA leave. 

The Interpretation clarifies that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support.  The Interpretation lists several examples, including an employee who provides day-to-day care but does not financially support his or her unmarried partner's child with whom there is no legal or biological relationship.  It also lists, as an example, an employee who will share equally in the raising of an adopted child with a same-sex partner, but who does not have a legal relationship with the child.

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FLSA, Severance Agreements, FMLA, and more: New Issue of HFSH Employment Law Update Online Now

Posted on February 15, 2010 by Suzanne M. Boy

The Employment Law Practice Group is pleased to provide the February 2010 edition of the Employment Law Update, which features the following articles:

  • Did you know that Florida ranks second only to California in the number of wage and hour suits brought against employers?  Robert Shearman provides employers with a timely update and advice in "Taking Care of Business and Working Overtime: FLSA Lawsuits on the Rise."
  • Whether an employee is terminated because of a depressed economy or poor performance, severance agreements are important for employers and employees alike. John Agnew explains in "Why a 'Golden Parachute' Can Be As Good For The Employers As It Is for the Employee, Especially in Difficult Economic Times."
  • In the article "Amendment to FMLA Expands Military Family Leave," Joanne Lashey explains how FMLA policies should be reviewed and revised to comply with changes to exigency leave, contingency operations and caregiver leave requirements.
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An Employer's Obligation to Provide Domestic Violence Leave

Posted on January 11, 2010 by Suzanne M. Boy

The Shelter for Abused Women & Children in Naples recently launched a new website intended to assist victims of domestic violence, a recent Southwest Florida News-Press article reports. The website includes a variety of information, including tips on how victims can stay safe at work. Tips suggest, among other things, that victims show a picture of the abuser to supervisors/security guards, have telephone calls screened, and ask security or a coworker to escort the victim to his or her car.

These are good tips employers can use to help employees who may fall victim to domestic violence. It also provides us an opportunity to remind larger employers of an additional requirement: if an employer has 50 or more employees it is obligated to do more than simply assist its employee-victim.

Florida Statute 741.313 requires an employer who employs 50+ employees to permit an employee to take up to three working days of leave in any 12-month period to deal with domestic violence-related issues. This applies not only in situations where the employee is the victim of domestic violence, but also when a member of the employee’s family or household is the victim of domestic violence.

The law only covers employees who have worked for the employer for at least three months. The employee can use the leave to handle various legal and/or medical issues, including seeking a protective injunction against the abuser; obtaining medical care, mental health counseling, or services from a victim services organization; and securing the employee’s home or seeking new housing to escape the abuse. An employer is prohibited from discharging, demoting, suspending, or discriminating against an employee in any way for his or her exercise of rights under the statute.

Domestic violence leave may be with or without pay, at the employer’s discretion. Before receiving leave under the statute, the employee must exhaust all of his or her annual or vacation leave, personal leave, and/or sick leave if available, unless the employer waives this requirement.

Employers with 50 or more employees should include a domestic violence related leave policy in their employee handbook. This policy should address, among other things, whether the leave is paid or unpaid, and whether an employee must exhaust other types of leave before using domestic violence related leave. Employers should also take steps to ensure that any information regarding the request for domestic violence leave is kept confidential. Finally, all employers should take care to comply with any local codes or ordinances that may apply.

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