As the country heads into the second half of fall fraught with holiday breaks and the prospect of a second wave of COVID-19 on the horizon, child-care concerns remain prevalent. The holiday season brings vast uncertainty about school closings and the availability of other childcare options, normally, but this year that uncertainty is ratcheted up by adding in COVID-19. Therefore, it seems appropriate to discuss the Families First Coronavirus Response Act (“FFCRA”) and how it could help some employees navigate the season as our country continues to slog through this pandemic. The FFCRA was passed in mid-March of 2020 to try and provide relief to employees. This aid was partly carried out through the “Emergency Family and Medical Leave Expansion Act” or “expansion act,” which expands the Family Medical Leave Act (“FMLA”) to allow for some employees to take leave to care for their children. Below, there is a brief discussion on who gets to take this new child-care leave, how this new child-care leave operates, and what that means for employees who are attempting to take advantage of the new provisions.
In recent decades, employers have become increasingly interested in their employees’ private lives. One question that comes up often is the extent to which employers can look into and use their employees’ medical information. The COVID-19 pandemic has only made these sorts of inquiries more common, so it is important that you as an employee understand your legal rights and responsibilities.
For starters, the default rule is that your employer cannot ask you about medical conditions or demand medical documentation for just any reason. According to the Americans with Disabilities Act (and specifically, 42 U.S.C. § 12112(d)) your employer can ask about medical conditions (including disabilities) or ask you to undergo a medical exam only if doing so is “job-related and consistent with business necessity.” What does that mean? Generally, your employer must reasonably believe that you have a health condition that impairs your ability to do your job or that poses a direct threat of harm to others. It is entitled only to information on those things. However, this does mean that you employer can ask for a doctor’s note for things like going out on and returning from sick leave.
The Family and Medical Leave Act gives eligible employees the right to up to 12 weeks of protected, unpaid leave during any 12-month period. Probably the most important part of FMLA leave is the “protected” aspect—the right, when your leave ends, to be restored to your old job or an equivalent position. Unfortunately, that is not always as straightforward as it sounds, and many employees have been surprised by what was waiting for them at the end of their FMLA leave. An employer that does not return you to work as required by law may be liable for interfering in your FMLA rights.
Many Texas employers require potential applicants and current employees to submit to drug testing. Federal and Texas laws permit private employers to adopt and implement broad drug and alcohol testing policies for their employers, with minimal limitations. However, according to the Texas Workforce Commission (TWC), government employers must show a compelling justification for drug testing.
The consequences of a failed drug test can be life-altering for an applicant or employee. In some cases, employers will provide rehabilitation services, but more commonly, employers will refuse to hire a potential applicant or terminate an employee. Additionally, employers are allowed to release the test results to the TWC, and this can affect a person’s unemployment compensation. Employees who believe their employer impermissibly drug tested them may have some legal protections.
Most employers should provide their employees with a written drug testing policy that outlines what results will be a violation, which employees require drug testing, and what measures will be taken after a violation. Unfortunately, Texas employers can fire employees that refuse to sign an acknowledgment of the drug testing policy. However, employers need to provide the employee with a warning that there is a risk of termination if they fail to sign the policy. Additionally, the policy needs to be enforced in a non-discriminatory manner.
The Family and Medical Leave Act (FMLA) is a labor law that provides eligible employees with the right to take job-protected, unpaid leave for up to 12 weeks per year for family and medical reasons. Under the FMLA, eligible employees who take this leave will retain their group health benefits. Generally, employees are eligible if they worked for their employer for 12 months, for at least a minimum of 1,250 hours, and at a location where the organization employs at least 50 employees within 75 miles. Employees can take leave in specific situations, including during and after the birth of their newborn, after a child is placed with the employee for foster care or adoption, to care for a spouse, child, or parent with a severe medical condition, or when the employee cannot work because of a critical medical condition. Additionally, in 2008, the FMLA afforded additional benefits to military families through the Military Family Leave provision.
The “Exigency Leave” portion of the FMLA provides additional protections to qualifying employees whose spouses, parents, or children are deployed or going to be deployed to a foreign country. Similar to typical FMLA requirements, individuals who want to use this leave must work for a qualified employer and meet eligibility requirements. This leave allows the individual to take a total of 12 workweeks of leave to address issues that often arise when a family member is facing deployment. For example, the leave is designed to allow family members to arrange for daycare or attend official military ceremonies.
Additionally, Military Caregiver Leave allows qualifying spouses, parents, children, and next-of-kin to care for their military family members if they are suffering from qualifying injuries or illnesses. An employee can take this leave as long as they meet eligibility requirements and work for a qualified employer. This leave provides caregivers with the right to take a total of 26 workweeks of unpaid leave during a single 12-month period.
Employee handbooks typically outline an employer’s expectations, as well as the consequences an employee may expect if they fail to meet the employer’s expectations. However, employee handbooks may also outline other important information, including:
- an employer’s overtime policy;
- the benefits offered by the employer;
- various types of leave available to employees;
- guidelines for employee performance reviews;
- the expected process for an employee to resign from their position; and
- policies for promotion, termination, and transfers.
Employees should be able to rely on the language in the handbook and be confident that, if they avoid the prohibited conduct listed in the handbook, they will not be unfairly disciplined or terminated. Similarly, an employee should be able to rely on the listed benefits and procedures outlined in an employee handbook throughout the course of their employment. However, that is not always the case.
Routinely, Texas employers terminate employees for conduct not listed as prohibited or discouraged in an employee handbook. Similarly, it is not uncommon for an employer to renege on the benefits mentioned in an employee handbook or otherwise not follow the procedures outlined in an employee handbook. When this occurs, an employee may be able to pursue an employment claim against their employer.
In today’s society, more people realize the value in maintaining a manageable work-life balance. And with healthcare costs continually on the rise, now more than ever prospective employees are looking beyond a position’s salary when seeking employment. Because of this, employers realize they must provide a comprehensive and attractive benefits package to recruit and retain quality employees.
A major issue for many employees is an employer’s policy for personal time off (PTO). Paid time off, or personal time off, is generally accrued as an employee works. While employers often allow employees to use PTO for the year before they actually accrue it (to avoid everyone using their PTO at the end of the year) many employees accrue more PTO than they use. This often results in an employee having a surplus of PTO.
When it comes time to leave a job, many employees wonder whether they must be paid out for their remaining unused PTO. Given that many employees carry large balances of PTO, the payout an employee receives upon their termination can be considerable. Employers may try to limit the amount of PTO they pay an employee upon termination; however, this is not always allowed.
In some cases, an employer may ask a returning employee to take a fitness-for-duty examination to ensure that the employee is mentally and physically able to perform the tasks of their job. However, these fitness-for-duty exams can be intrusive and may reveal confidential information about an employee’s disability. Generally speaking, an employer’s ability to request a fitness-for-duty examination depends both on the nature of the injury that necessitated the employee’s leave as well as the specific functions of the employee’s job. When the employee’s underlying condition is one that qualifies as a “disability” under the Americans with Disabilities Act (ADA), employers are limited in their ability to require fitness-for-duty examinations.
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” If the reason for the employee’s leave was not considered a disability under the ADA, and the employee’s condition is one that could reasonably affect their ability to perform their job, then employers generally will have broad discretion in requiring a fitness-for-duty examination. However, even when an employer is able to require a fitness-for-duty examination, the employer must follow the procedural requirements outlined in 29 CFR § 825.310. This includes providing adequate notice to the employee as well as a list of the “essential functions” of the employee’s position. Of course, a fitness-for-duty exam can only be required as it relates to the specific health condition that caused the employee’s absence.
When an employee suffers from a disability as classified by the ADA that necessitates they take FMLA leave, an employer can only request a fitness-for-duty examination if the examination is related to the employee’s job and is required by business necessity. Typically, this requires that an employer be able to show that the employee’s condition either prevents them from performing the necessary functions of their job or that the employee poses a direct threat to their own safety of the safety of others. Importantly, an employer’s belief must be based on concrete facts, rather than stereotypes or assumptions about an employee’s condition. For example, an employer could not require a fitness-for-duty examination for a returning employee who suffered from debilitating depression based on the belief that all people who suffer from depression present a potential risk in the workplace.
Having a child, especially your first, is an exciting time but also one that presents seemingly endless questions and challenges. One of the most common concerns for all new parents is how to juggle their careers with the new responsibilities of being a parent to a newborn child. Inevitably, parents will have to figure out who will stay home with the baby, for how long, and what impact this will have on the family’s finances.
Over the past few decades, the traditional fixed gender roles of parents have progressed. This welcome change has recognized both a mother’s valuable role outside the home as a breadwinner, as well as a father’s role at home with the children. Along with this shift, lawmakers are beginning to address a father’s need or desire to stay home with his newborn baby and also to take care of the mother .
Texas, unfortunately, is somewhat behind the curve as it pertains to paid paternity leave. In fact, only a few states currently offer paid paternity leave. Of course, this does not stop an employer from offering paid paternity leave on their own. And if an employer chooses to make paid paternity leave available for some employees, it must be provided in a non-discriminate manner without regard to an employee’s age, race, or religion. Unpaid paternity leave is a different matter and is available to many Texas fathers under the federal government’s Family and Medical Leave Act (FMLA).
For many Texas employees, monetary pay is only a part of the overall compensation package offered by employers. For employees who have children or care for a sick family member, the paid- and unpaid-leave benefits provided by many employers are just as important as one’s salary or wages. Unfortunately, Texas employers are not required under any state or federal law to provide paid-leave benefits to employees, except under certain circumstances.
As a general rule, a Texas employer can decide whether to offer benefits to its employees. There are times, however, where an employer is required to provide certain benefits to its employees. One example is where an employer’s written policy provides benefits to employees, but the employer denies a qualifying employee access to these benefits. The Texas Payday Law states that an agreement to provide paid or unpaid leave is an enforceable term of the wage agreement. Thus, an employer who may not be required by law to offer benefits becomes obligated to provide them if there is a written policy offering benefits to qualifying employees.