Category Archives: Leaves of Absence
The Equal Employment Opportunity Commission (EEOC) recently announced a $2 million settlement in its class action disability discrimination lawsuit against nationwide retailer Dillard’s. The lawsuit was venued in the U.S. District Court for the Southern District of California and challenged two practices that the EEOC alleged violated the Americans with Disabilities Act (ADA).
Medical Documentation Policy: The EEOC alleged that Dillard’s maintained a policy that required all employees to disclose the exact nature of their medical conditions in order to be approved for sick leave. Under the policy, a simple verification from an employee’s doctor that an absence was due to a medical reason was insufficient. Many employees felt uncomfortable disclosing the precise nature of their conditions in order to justify an absence. The EEOC argued that the policy was inconsistent with the requirement under the ADA that employers can only make inquiries into the disabilities of their employees when doing so is job-related and necessary for the conduct of business.
Maximum Leave Policy: The EEOC also alleged that Dillard’s enforced a maximum-leave policy, which limited the amount of health-related leave an employee could take. In practice, Dillard’s did not regularly engage in the interactive process with employees to determine if more leave was allowed under the ADA as an accommodation for the employee’s disability. The EEOC argued that this practice was inconsistent with the ADA’s reasonable accommodation requirements.
Under the terms of the settlement, Dillard’s agreed to pay $2 million to identified victims of the policy and to create a fund to compensate additional, unidentified victims. Dillard’s also agreed to: (i) hire a consultant with ADA experience to revise the company’s policies; (ii) post documentation related to the settlement; (iii) implement training for supervisors and staff on the ADA, with an emphasis on medical inquiries and maximum leave policies; and (iv) develop a centralized tracking system for employee complaints involving disability discrimination.
Takeaways: Policies and practices that do not comply with the ADA expose employers to unnecessary risk. The Dillard’s case presents a good opportunity for employers to review their medical documentation and maximum leave policies and practices to correct any potential problems before liability arises.
Under Minnesota law, individuals who serve as election judges are entitled to be absent from work for the purpose of serving as an election judge without penalty. See Minn. Stat. § 204B.195. Here’s what employers need to know about leave for election judges:
How does an employee request election-judge leave? The employee must provide his or her employer with at least 20 days advance written notice of his or her intent to be absent from work while serving as an election judge. The written request must be accompanied by a certification from the appointing authority stating the hourly compensation to be paid to the employee for service as an election judge and the hours during which the employee will serve.
Do employees need to be paid for election-judge leave? Yes, but an employer may reduce the salary or wages of an employee serving as an election judge by the amount paid to the election judge by the appointing authority during the time the employee is absent from the place of employment.
Can an employer limit the number of employees who serve as election judges? Yes. The statute provides that an employer may restrict the number of persons to be absent from work for the purpose of serving as an election judge to no more than 20% of the total work force at any single worksite.
Takeaway: Employers who receive requests from employees for election-judge leave should ensure that employees provide the required notice and certification and that the employees are paid properly during their leave. If necessary, employers should also utilize the 20% limit on election-judge leave to minimize potential business or productivity disruptions.
Under Minnesota law, “every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election…” See Minn. Stat. § 204C.04. The statute provides that an employer may not impose a “penalty or deduction from salary or wages because of the absence.” An employer or other person “may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.”
Elections covered by Minnesota’s voting leave law include any “regularly scheduled state primary or general election, an election to fill a vacancy in the office of United States senator or United States representative, or an election to fill a vacancy in the office of state senator or state representative.”
Takeaway: Because employees are entitled to voting leave in Minnesota, employers should plan ahead for elections, to the extent possible, to minimize the impact of potential business or productivity disruptions.
Under Minnesota law, “[a]n employer shall not deprive an employee of employment, or threaten or otherwise coerce the employee with respect thereto, because the employee receives a summons, responds thereto, serves as a juror, or attends court for prospective jury service.” Minn. Stat. § 593.50, Subd. 1. Violations of the statute constitute criminal contempt and upon conviction, may result in a fine of up to $700 and/or a 6-month jail term.
An employee unlawfully terminated is entitled to reinstatement along with lost wages incurred for a maximum of six weeks in addition to attorneys’ fees.
Takeaway: While an employer is entitled to a copy of the summons for jury service to validate the need for the absence, the employer cannot not terminate the employee or take any action, which could be viewed as coercive or a threat to continued employment.
Under Minnesota law, an employer with one or more employees must grant up to ten working days of a leave of absence without pay to an employee whose immediate family member has been injured or killed while engaged in active service as a member of the United States armed forces. The amount of leave may be reduced by any period of paid leave provided by the employer. The employee must provide as much notice as practicable of the employee’s intent to use this type of leave. See Minn. Stat. § 181.947.
Under Minnesota law, any employer with one or more employees must grant an unpaid leave of absence for an employee to attend military ceremonies if the employee’s immediate family member has been ordered into active service in support of a war or other national emergency as a member of the United States armed forces. The employer may limit the amount of leave to the actual time necessary for the employee to attend a send-off or homecoming ceremony for his or her family member, not to exceed one day’s duration in any calendar year. See Minn. Stat. § 181.948.
Minnesota has a “civil air patrol leave” law, which requires that “[u]nless the leave would unduly disrupt the operations of the employer, an employer shall grant a leave of absence without pay to an employee for time spent rendering service as a member of the civil air patrol on the request and under the authority of the state or any of its political subdivisions.” See Minn. Stat. § 181.946.
What is the “Civil Air Patrol”? The Civil Air Patrol is a federally supported, non-profit corporation that serves as the official civilian auxiliary of the United States Air Force. Employees who are members of the Civil Air Patrol may be called to serve on missions relating to search and rescue, disaster relief, or homeland security operations. For more information on the Civil Air Patrol, check out the following links:
Minnesota law requires that employers with 20 or more employees at at least one work-site must grant paid leaves of absence to an eligible employee who seeks to undergo a medical procedure to donate bone marrow. See Minn. Stat. § 181.945. Here’s what employers need to know about bone marrow leave:
- Length of Bone Marrow Leave: The combined length of the leave must be determined by the employee, but may not exceed 40 work hours, unless agreed to by the employer.
- Employee Eligibility: To be eligible for bone marrow leave, an employee must work an average of 20 or more hours per week for the employer. Independent contractors are not eligible for bone marrow leave.
- Medical Verification: The employer may require verification from a physician of the purpose and length of each instance of bone marrow leave requested by an employee. If there is a subsequent medical determination that the employee does not qualify as a bone marrow donor, the paid leave granted to the employee prior to that medical determination may not be forfeited.
- No Retaliation: An employer may not retaliate against an employee for requesting or obtaining bone marrow leave.
Even if an employee is not eligible for leave under the Family and Medical Leave Act (FMLA), the employee may still be eligible for a leave of absence for the birth or adoption of a child under the Minnesota Parenting Leave statute.
Under the Minnesota Parenting Leave statute, any employer that employs 21 or more employees at at least one site must provide up to six weeks of unpaid leave to an eligible employee who is a natural or adoptive parent in conjunction with the birth or adoption of a child. See Minn. Stat. § 181.941. The leave of absence must begin within six weeks after the birth or adoption of the child; however, if the child must remain in the hospital longer than the mother, the leave may begin within six weeks after the child leaves the hospital.
Employee Eligibility for Parenting Leave: To be eligible for Minnesota Parenting Leave, the employee must: (1) be employed for at least 12 consecutive months immediately preceding the request; and (2) during those 12 months, the employee must have worked an average number of hours per week equal to one-half the full-time equivalent position in the employee’s job classification, as defined by the employer’s policies, practices, or any applicable collective bargaining agreement. See Minn. Stat. § 181.940, Subd. 2.
Continued Insurance Coverage During Parenting Leave: While an employee is on parenting leave, the employer must continue to make available any insurance or health care coverage offered by the employer to the employee and his or her dependants during the leave of absence, but the employer is not required to pay the costs of the insurance or health care coverage during the leave of absence. See Minn. Stat. § 181.940, Subd. 4.