Recent Leave Law Developments

September 20, 2013

This employment law alert addresses some important new developments with regard to employee leave of absence laws.

Unauthorized 5-Week Leave as Religious Accommodation for Funeral:  In the case Adeyeye v. Heartland Sweeteners, LLC, the United States Seventh Circuit Court of Appeals recently ruled that an employee had sufficient evidence to proceed with a claim that his employer unlawfully terminated him for taking an unauthorized 5-week leave to travel to Africa for his father’s funeral and related ceremonies. The court noted that employers may be required to provide leave as a form of religious accommodation, and that the availability of temporary workers to cover during the employee’s absence undercut the employer’s undue hardship argument. The court found that the employee said enough to alert the employer that he was seeking a form of religious accommodation by referencing the “funeral ceremony,” “funeral rite,” and a variety of spiritual and ceremonial activities (e.g., an animal sacrifice ritual in the third week of the ceremony). This case highlights the importance of training managers to “issue spot” when an absence may be protected by law, such that the employer must initiate an interactive process to determine whether the employee is legally entitled to the leave. Also, due to the complexity and sometimes surprising reach of employee leave rights, it is often unclear to an employer whether and when the law permits termination due to a potentially protected absence. In these cases, we recommend obtaining a legal risk assessment before proceeding with termination.

Same-Sex Marriage: The United States Department of Labor recently clarified that same-sex spouses are now covered under the FMLA when the employee resides in a state that recognizes same-sex marriage. The United States Supreme Court ruling in United States v. Windsor, which struck down a key provision of the Defense of Marriage Act, spurred the clarification. Consistently, the DOL amended its Field Operations Handbook to provide that, under FMLA, “[s]pouse means a husband or wife as defined or recognized under state law for purposes of marriage in the State where the employee resides, including common law marriage and same sex marriage.” Existing California law already extended family care leave to domestic partners and spouses. Employers may choose to offer family care leave to employees in same-sex relationships in other states that do not recognize such rights under state law, but such leave may not be counted against the employee’s 12-week FMLA entitlement. We recommend that all employers review their policies and practices at this time, both to ensure legal compliance, and to consider how they will treat requests for leave in states that do not currently recognize same-sex marriage.

A New California Leave Law: California Governor Jerry Brown recently signed Assembly Bill 11, which provides a new form of leave: up to 14 days of leave per year for emergency rescue personnel and reserve peace officers to take training. Previously, the law only allowed time off for emergency rescue personnel and reserve peace officers to perform their duties, but not for training. The new law applies only to employers with 50 or more employees. We recommend that employers with 50 or more employees revise their leave policies to include this new form of leave, and alert managers of employees who serve as emergency rescue personnel or reserve peace offers of these expanded leave rights.

Employers seeking further guidance on any of these issues may contact any of the firm’s lawyers listed below.

Raymond H. Hixson, Esq. ([email protected]; 408-486-9977)

Brian K. Nagatani, Esq. ([email protected]; 408-486-9988)

Mary Wang, Esq. ([email protected]; 408-486-9933)


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