Massachusetts Attorney General (1.) Releases Paid Sick Leave Employee Verification Form, Sample Policy and Poster/Employee Notice and (2.) Announces Sick Leave Law Webinars and “In Person” Information Sessions

July 10, 2015 at 12:20 pm | Posted in Employment Law, Massachusetts Sick Leave Law | Leave a comment
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1. Documents

The Massachusetts Attorney General has posted the following items on her website which will be of interest to employers across the country that have employees who work primarily in Massachusetts that are now subject to the Massachusetts Sick Leave Act (MSLA):

  1. A model employee verification form designed to allow the employee to satisfy their reporting obligations to the employer if the employee uses paid (or unpaid ) sick leave;
  2. A sample sick leave policy that an employer can customize as they see fit; and
  3. An employee notice and poster. There is a poster requirement comparable to the FMLA poster requirement and the employee notice requirement can be complied with by either providing the modal notice or putting similar content in an employee handbook.

The sample policy and verification forms will be found under the “Sample Documents” tab and the sample Poster/Notice can be found under the “Notice for Posting” tab.

A link to the webpage with the referenced forms is here: Earned Sick Time Law – Mass.Gov

2.  Webinars and In-Person Information Opportunities

Web Based Information Sessions In-Person Information Sessions
Tuesday July 14, 2015: 2pm-4pm
Wednesday, July 22, 2015: 12pm – 2pm
3 Salem Square, Worcester, MA


Tuesday July 21, 2015: 2pm-4pm
Tuesday, August 4, 2015: 2pm – 4pm
Boston Public Library, Main Library, Salon Room


Tuesday July 28, 2015: 10am-12pm
Friday, September 11, 2015: 8am – 10am
Danvers, Location:TBD


Thursday July 23, 2015: 10am-12pm

Massachusetts Amends State Maternity Leave Act to Extend Leave to Males

January 15, 2015 at 9:00 am | Posted in MMLA, Regulations, State Laws | Leave a comment
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In his last week of office, Governor Patrick signed a bill into law that amends the Massachusetts Maternity Leave Act (MMLA) by expanding parental leave in Massachusetts for both female and male employees . Currently the MMLA only permits female employees with eight weeks of job-protected maternity leave for the birth or adoption of a child. Males will be able to receive eight weeks of job protected maternity leave as well. The effective date for the change is April 7, 2015.

This change will require attention by Massachusetts employers with fewer than 50 employees who are not subject to FMLA.

Although the effective date is April 7, 2015, as a practical matter, Massachusetts employers with fewer than 50 employees should appreciate that there is federal discriminatory risk under the EEOC if they do not grant maternity leave to males now. To that end, the Massachusetts Commission Against Discrimination has cautioned employers that:

The MMLA, by its terms, provides eight weeks of maternity leave to female employees only. An employer, who complies with the MMLA by providing eight weeks of maternity leave to female employees only, does not violate a male employee’s right under Chapter 151B to be free from sex discrimination. However, an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA.


DOL Proposes to Expand “Definition of Marriage” in FMLA for Same Sex Married Couples

June 23, 2014 at 9:54 am | Posted in Department of Labor, FMLA, Same Sex Marriage | Leave a comment
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Even though almost a full year will have passed since the Supreme Court’s historic ruling on June 26, 2013 in United States v. Windsor, the Department of Labor’s (DOL) application of the Court’s ruling in an FMLA context continues to evolve. Specifically, under the FMLA’s current regulatory definition of spouse, eligible employees can take FMLA leave to care for a same-sex spouse only if they reside in a State that recognizes same-sex marriages. The DOL acknowledged that the current definition does not allow an eligible employee to take FMLA leave on the basis of the employee’s legal same-sex marriage if the employee lives in a State that does not currently recognize same-sex marriage. The DOL is now proposing to move from a state of residence rule to a rule based on where the marriage was entered into (place of celebration). A place of celebration rule would allow all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live. The DOL is encouraging interested parties to submit comments on their proposal. The full text of the proposal as well as information on the deadline for submitting comments and the procedures for submitting comments can be found at

Employer Pays $25,000 to Settle Employee FMLA Claims Arising Out of Care for the Employee’s Niece

February 7, 2014 at 1:54 pm | Posted in Compliance, Department of Labor, Employment Law, FMLA, Human Resources, Regulations | Leave a comment
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Ohio based DNA Diagnostics Center Inc. has agreed to pay $25,000 in lost wages and liquidated damages to an employee  for unlawfully denying her FMLA leave. The company  fired the employee for exercising her rights under the FMLA to care for her seriously ill 12-year-old niece, for whom the employee was standing “in loco parentis,” or in the place of a parent. Under terms of the settlement agreement, the company must expunge the employee’s record of any disciplinary references. In June 2010, the DOL issued an Administrator Interpretation clarifying the definition of son and daughter under the FMLA includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. This definition ensures that an employee who assumes the role of caring for a child receives parental rights to family leave, regardless of the legal or biological relationship.

A copy of the DOL press release is here:

DOL ANNOUNCES FMLA SAME SEX MARRIED COUPLE GUIDANCE: FMLA Available To Married Same Sex Couple Residing In A State That Recognizes Same Sex Marriage But Not Available If The Same Couple Resides In A State That Does Not Recognize Same Sex Marriage

August 20, 2013 at 9:12 am | Posted in Department of Labor, FMLA, Same Sex Marriage | Leave a comment
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Last week, the Department of Labor released updated guidance outlining the basis for taking FMLA leave and defined “spouse,” for FMLA purposes as:

Spouse: Spouse 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.

What Is The Practical Impact of the Guidance? 

An employer located in a state that does not recognize same sex marriage does not have to grant FMLA leave to a same sex married employee to care for that employee’s same sex spouse if the same sex married couple do not reside in a state that recognizes same sex marriage.  There is nothing in the DOL guidance, however, that precludes an employer in the situation above from having its own internal corporate leave policy allowing for job and benefits protected leave for a same sex spouse.  Until there is further judicial review, there will be disparate treatment of same sex married couples for FMLA leave purposes that will turn on their place of residence.

A copy of the FMLA Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act can be found here: DOL Updated Fact Sheet #28F: Qualifying Reasons for Leave under the FMLA (PDF)

Seminar: New Challenges in Health Care and FMLA

February 14, 2013 at 12:30 pm | Posted in Federal Laws, Flexible Spending Accounts, FMLA, Health Care, Regulations, Seminar | Leave a comment
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With ongoing changes to a number of regulations, interpretations, and guidance, we are pleased invite you to attend a complimentary seminar.
This seminar has been HRCI CE Certified for 1 credit.

New Challenges in Health Care and FMLA

Wednesday, March 20, 2013

Registration & Continental Breakfast: 8:00am.
Program: 8:30a.m.–12:00p.m.
Sheraton – Framingham Hotel & Conference Center
1657 Worcester Road, Framingham, MA 01701
Telephone: 508-879-7200

  • Alden J. Bianchi, Esq., Mintz Levin
  • Ellen McCann, Esq., AVP, Senior Counsel, Unum
  • George M. Thompson, Esq., The Protector Group Insurance Agency
Click here to download the Program Agenda.
Please RSVP to Tina Bisceglia, Executive Assistant, at Protector Group Insurance by Wednesday, March 6, 2013.

Employers Need To Approach Performance Reviews and Employee Termination With Caution If An Employee’s Use of FMLA May Have Impacted Their Performance

December 27, 2012 at 12:27 pm | Posted in Employment Law, FMLA, Wrongful Termination | Leave a comment
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The recent 7th Circuit Court of Appeals case Jeff Pagel v. Tin Inc. serves as an important reminder to employers of the caution and patience required when terminating an employee based on its assessment of an employee’s performance for a period of time that includes the use of FMLA leave.

Jeff Pagel worked for 10 years as an account manager for Tin Inc. making $180,000 annually with sales and account responsibility spread over Illinois and Indiana. Jeff enjoyed significant scheduling flexibility until Tin hired a new manager for its account managers in January 2006. The new manager required daily activity reports and periodic lists of sales prospects contacted in addition to other metrics from the account managers. It was made clear to all of the account managers that an employee’s compliance with the new performance metric and reporting requirements would be considered in the employee’s annual performance review.

During August and September 2006, Jeff missed several days of work because of shortness of breath. Additional absences and testing revealed that he had a heart blockage and an irregular mass in his lung which was later determined to be a false PET scan. Jeff claimed that the absences were covered by the FMLA and that he gave proper notice to his employer of his need for the leave.

On August 24, 2006, five days before a scheduled angioplasty, Jeff received a negative performance review which focused on a two-year decline in sales, and his having the worst performance for contacting potential prospects. Jeff was told that his job was at risk if his performance did not improve. Jeff contested the performance review and also claimed that the metrics regarding his diminished production of prospect calling should not have included the days he made no calls because he took FMLA leave. Jeff had never received a negative performance review prior to August 2006.

While Jeff was getting a new PET scan on September 18th, his new manager called to request a “sales ride along” ASAP so he could observe Jeff’s performance. Typically, account managers needed a week’s notice to organize a sales ride along with customers and prospects. Jeff hastily scheduled the visits in one day, however, a few client visits for later the same week that, by all accounts, did not go well. A few weeks later, Jeff was terminated by his manager because there had been no improvement since the August performance review, and the September sales ride along was a disaster.

Jeff filed suit alleging that his employer interfered with and retaliated against him for his use of FMLA leave. He argued that his termination by his employer for poor performance was simply a pretext for terminating him based on his use of FMLA leave. A federal district court judge concluded that Jeff was properly terminated by his employer for his poor performance during the September sales ride along and there were no FMLA violations. Jeff appealed the judge’s conclusion.

On appeal, Jeff emphasized that it was (1.) improper for his employer to consider prospecting reports that were missing on the days Jeff received medical treatment and that his sales expectations should have been adjusted because of the many days of treatment and FMLA leave, and (2.) his manager “set him up to fail” by insisting on the hastily scheduled sales ride along.

The Appeals Court reversed the lower court’s finding that Jeff’s employer did not violate Jeff’s rights under the FMLA. Among other reasons, the Appeals Court found that Jeff suffered from a serious health condition and was unable to perform his job several days in August and September 2007. The Appeals Court also held that there was enough evidence of Jeff’s claim that he verbally advised his manager of his health issues and his need for “days off.” Similarly, the Appeals Court found that allowing an employer to fire an employee based on the employee’s failing to satisfy full-time performance expectations in light of the reality of, in essence, less than full-time work, because of the rightful use of FMLA leave would make an employee’s leave and protection under the FMLA “illusory.” Finally, the Appeals Court found that Jeff was not given enough notice to set up the sales ride along with his manager and the quick request for the sales ride along was “suspicious.”

The ultimate effect of the different reasoning of the Appeals Court was that Jeff would be given the chance to try his case to a jury, which is not the ideal venue for Jeff’s employer to be defending a termination based on a period of performance that included the use of FMLA leave. The FMLA does not have an absolute bar that prevents employers from terminating employees who are on FMLA leave. The lesson from Pagel, however, is that the employer’s evidence for employee termination has to be overwhelming and clear and is neither potentially directly or indirectly related to the employee’s rightful use of FMLA leave.

Written Health Plan Document Trumps Corporate Practice: Self-insured employer denied stop loss coverage for health claim in excess of $250,000 because of ineligible employee

August 31, 2012 at 10:02 am | Posted in COBRA, FMLA | Leave a comment
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Clarcor, a manufacturing business in Tennessee, sponsored a self-insured health plan for its employees which it supplemented with stop-loss insurance coverage for participant health claims exceeding $250,000. Plan eligibility was conditioned on a Clarcor employee working 40 hours a week for three consecutive months. Employee Plan eligibility could be lost for a number of reasons, including termination of employment.

Irene was a Clarcor employee who, due to a medical condition, had to take FMLA leave during which time she maintained her coverage. Upon the exhaustion of FMLA leave on January 12, 2008, she decided not return to work.  Rather than terminating Irene at that time, Clarcor placed her on short-term disability and continued to have her premiums paid for health insurance and represented to the stop-loss insurer that Irene was still a covered Plan participant.  Approximately, half a year later, Clarcor terminated Irene and offered her COBRA coverage on June 23, 2008.

Irene incurred well over $250,000 in health care costs between January 12, 2008 (when she decided not to return to work) and June 23, 2008 (when she was finally terminated). The stop-loss insurer immediately questioned the claim and was told by Clarcor that they had a “corporate practice” of continuing  health coverage deductions for employees on short-term disability. There was no mention of the corporate practice in the Clarcor plan documents. The stop-loss insurer denied the claim because Irene was not an eligible employee as of January 12, 2008, the day her FMLA leave expired. Clarcor sued the stop-loss insurer alleging that (1.) Irene was an eligible employee because of the corporate practice and (2.) the stop-loss insurer was obligated to cover expenses incurred during Irene’s COBRA coverage period.

A federal district court, and later the Sixth Circuit Court of Appeals, concluded that the stop-loss insurer was correct in denying the claim. First, Clarcor’s Health Plan language was unambiguous that Plan eligibility ended upon her exhaustion of FMLA leave when she chose not to return to work. Clarcor’s corporate practice of extending health coverage during a period of short-term disability could not defeat the reality that there was no “short term disability exception” in the Health Plan document. The Court also rejected Clarcor’s argument that Irene and Clarcor’s continued payment of premium to the stop-loss insurer amounted to a waiver of the eligibility provision in the Plan document since the stop-loss insurer has no knowledge that Irene was ineligible at the time the premium was paid.

Finally, the court rejected the COBRA coverage argument advanced by Clarcor because Irene was not eligible for COBRA when it was offered on June 23, 2008 since  she was “not a covered person …on the day before the qualifying event.”  The court reasoned that Irene was not a covered person the day before June 23, 2008 since she had been on short-term disability since January 12, 2008. Clarcor should have offered COBRA to Irene on January 12, 2008 (the termination of her FMLA leave) and the subsequent offer of COBRA coverage six months later was  untimely. Consequently, the stop-loss insurer did not have to reimburse Clarcor for health provider payments made on behalf of an ineligible employee.

Is a Chiropractor a “Health Care Provider” UNDER FMLA?

June 16, 2011 at 1:47 pm | Posted in FMLA | Leave a comment
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ANSWER: Only in a limited situation. FMLA regulations recognize a chiropractor as a health care provider if the provided health care treatment consists of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.

If an employee’s disorder is not subject to verification by X-ray, even though the employee is receiving manual manipulation of the spine, then the certifying Chiropractor is not an appropriate health care provider for FMLA certification purposes.

Courts interpret FMLA chiropractor provision strictly
There have been only a few cases in which employers have challenged medical certifications by chiropractors under the FMLA, but when the question has been litigated, courts have applied the terms of the regulations strictly.

In one case, the employer discharged an employee for excessive absences. The employee had sought FMLA leave for treatment by a chiropractor, but the chiropractor hadn’t taken any x-rays at the time he certified the employee’s health condition. The court held that because he hadn’t yet taken any x-rays to demonstrate a subluxation, the chiropractor “was not acting as a health care provider within the meaning of the FMLA when he purported to excuse [the employee] from work” (emphasis added). The court therefore dismissed the case in favor of the employer. It also mentioned that the chiropractor eventually took x- rays (after the leave) that didn’t show a subluxation. Olsen v. Ohio Edison Co.

The court faced a similar situation in another case in which the employee was discharged for falsifying a timecard. She filed suit, alleging she was actually fired in retaliation for attempting to take FMLA leave. The trial court determined that although the employee’s chiropractor, a Dr. Bristow, manipulated a subluxation, she had never taken any x-rays. The court concluded, like the court in the Olsen case, that “because [the employee] must show that Dr. Bristow performed ‘manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist,’ and because Dr. Bristow did not take any x-ray . . . , the Court finds that Dr. Bristow is not a ‘health care provider’ within the meaning of the FMLA.” It then dismissed the case, a decision that was upheld on appeal. Silcox v. Via Christi Okla. Reg’l Med. Ctr.

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