Another consequence of the decision legalizing same-sex marriage is that same-sex spouses are eligible for FMLA leave to take care of a spouse with a serious health condition. This raises some difficult practical questions, such as how FMLA leave works for same-sex couples that include:
Can an employer ask for a marriage certificate when an employee asks for leave to take care of a same-sex spouse?
The answer to this question is probably yes. The U.S. Department of Labor states that an employer can ask for a verification of marriage so long as they don’t discriminate in the requirement. An employee with a newly legally recognized same-sex marriage may feel inconvenienced that they have to prove their marital status to get FMLA leave. They might also feel they are being discriminated against because heterosexual individuals aren’t asked to provide a marriage certificate when they take FMLA leave to take care of their spouse. However, if an employer requires heterosexual couples to verify marriage through a producing a marriage certificate for insurance purposes, it could make sense that a heterosexual person is not asked to produce a marriage certificate to take family leave, if they have already done so for insurance purposes.
Taking family leave can be stressful, and I am sure there are some human-resources officials who hold anti-LGBT attitudes. But even if an employer doesn’t request a marriage certificate for heterosexual couples to verify FMLA leave, employees should assume that the request is made in good faith. Courts favor individuals who comply with the requests of their employers, even if those requests aren’t made within the letter of the law.
In states where marriage was same sex marriage was legalized by Obergefell, when do FMLA protections start?
In states like Nebraska, where the Obergefell decision legalized same-sex marriage, an interesting question is whether an employer is required to retroactively count family leave as FMLA if the leave started before the marriage was formally legalized in that state but the individual’s same-sex marriage was recognized in another state. This is a pertinent issue in Nebraska, since many same sex-couples were married in nearby Iowa, which has recognized same-sex marriage since 2009. The U.S. Department of Labor would likely argue that if you married your same-sex partner in Iowa that you would have had FMLA protections in Nebraska to take care of your spouse even if Nebraska didn’t recognized same marriage until June 26, 2015. But courts may not give much weight to the opinion of the U.S. Department of Labor. This issue is a legal toss-up. The best thing that same-sex couples can do to protect their rights to FMLA leave is to not give their employer any valid excuses for terminating them for taking FMLA leave.
Please click here to read part one of this series. Feel free to contact our office if you have questions about the issues raised in these two posts.
As shown by a recent post from LexisNexis Legal Newsroom, workers’ compensation insurers and employers are finally starting to understand the Americans with Disabilities Act (ADA). Hopefully the days of employers firing employees after their 12-week FMLA leave when the employee can’t come back to work “full duty” and/or “with no restrictions” are behind us. But just because most employers and workers’ compensation insurers are now complying with basic requirements, doesn’t mean that injured workers will be able to successfully defend their rights under the ADA and their ability to maintain employment.
Employers and insurers understand the importance of the “interactive process” and how it should involve the employee and the employer. But this is too simple. The process involves a doctor who may or may not know the employer’s true job restrictions. The insurer/employer can also be represented by a nurse case manager who is familiar with medical terminology, practice and might even have a pre-existing relationship with the doctor. That nurse case manager could also be in communication with an employer and have an idea of a job that the employee can be placed into.
In this situation, the employee is at a disadvantage. The employee usually doesn’t understand medical terminology or know the doctor. In addition, an employee probably won’t have a job description to present to the doctor so they will be at a disadvantage in return to work. This situation can be made worse if an employee appears to a doctor as if they don’t want to go back to work.
So what can an employee do?
1. Ask for actual copies of job descriptions. This way an employee is armed with the facts about the job. Furthermore, they can tell the doctor if the job description is accurate. Assuming the employee is credible in what they tell the doctor, they will have more basis than a nurse case manager in being able to describe the job.
Next, an employer has an obligation to engage in a “good faith interactive process.” If management decides that they won’t give out written job descriptions to injured workers who request them for the purpose of determining work restrictions, then that would be evidence of bad faith on the part of the employer.
2. If you can, pick your own doctor or surgeon. Unfortunately, some doctors are generally unwilling to give injured workers a fair break and can be way too cooperative with insurers or major employers. In Nebraska, employees can pick their own treating doctor and can pick their surgeon even if they give up their initial right to pick their doctor. Exercising doctor choice at least gives employees some control over their medical care and it makes it more likely that they will find a doctor who will be cooperative in regards to the ADA.
Can a trucker working for a large trucking company be excluded from the Family Medical Leave Act (FMLA)? The answer is possibly yes, but drivers who know the law may be able to preserve their rights.
The FMLA only covers employees that work within 75 miles of a company worksite that employs 50 or more people. Some trucking companies have tried to exclude their employees from the FMLA by getting creative with the definition of a “worksite.” This issue has been litigated and the courts are clear about what constitutes a worksite.
In the case of Cobb v. Contract Transport, the U.S. Court of Appeals for the 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, gave its interpretation of the Department of Labor’s regulations about the definition of a worksite. The court determined that a worksite (as defined by the FMLA) is a terminal that is owned and operated by the company. For example, if a driver reports to a truck stop but is dispatched out of company headquarters, a court that follows the Cobb decision would find the driver’s worksite to be company headquarters where the driver is dispatched. This would likely make the driver eligible for FMLA. You can read full text of the law the court cited here: 29 CFR § 825.111.
Of course, if a driver is dispatched out of a small satellite terminal, then a court could determine that the smaller facility is the true worksite and the employer may be able to exclude the driver from FMLA. The reason for this is that if a driver has to miss work for extended period of time, he or she may inconvenience the company if they would not have enough drivers dispatched out of that small terminal to cover all their routes.