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#34760 - 09/26/02 06:42 PM Family Medical Leave Policy
rexinaudit Offline
Gold Star
rexinaudit
Joined: Dec 2001
Posts: 292
New England
Our bank's Family Medical Leave Policy includes this provision:

"Parental Leave of Absence(male & female employees: Birth of a child:
Female employee- All accrued sick days and all accrued vacation days must be used prior to going on unpaid leave of absence. Accrued sick days will be applied before vacation days.

"Male employee- Accrued sick days cannot be used; all accrued vacation days must be used prior to going on unpaid leave of absence.

"Placement with the Employee for Adoption or Foster Care:Male and Female- Accrued sick days cannot be used; all accrued vacation days must be used prior to going on unpaid leave of absence."

Does this raise any gender discrimination issues since the male employees may not use accrued sick days? Eligible employees can qualify for up to 12 weeks family medical leave in a 12-month period.
_________________________
My opinions are not legal advice, not my employer's, and may change anytime.

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Human Resources
#34761 - 09/27/02 03:32 PM Re: Family Medical Leave Policy
Bob McComas Offline
Platinum Poster
Bob McComas
Joined: Sep 2002
Posts: 570
Dallas, Texas
It sure does if the bank is a qualified employer under the Act (i.e. 50 or more employees within a 75 mile radius.) If it is, there is indeed a problem with the way they are administering the Act.

The FMLA provides gender equality in the administration of the act.

Section 825.207 Subpart B of the Act states (specifically paragraph (b):

"(a) Generally, FMLA leave is unpaid. However, under the
circumstances described in this section, FMLA permits an eligible employee to choose to substitute paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for FMLA
leave.
(b) Where an employee has earned or accrued paid vacation, personal or family leave, that paid leave may be substituted for all or part of any (otherwise) unpaid FMLA leave relating to birth, placement of a child for adoption or foster care, or care for a spouse, child or parent
who has a serious health condition."

Therefore, an employer cannot distinguish between the sexes with regard to allowing paid time off or not. The bank is ripe for a gender discrimination claim if it is a qualified employer under the Act, and they need to change this ASAP.

If the bank does not qualify for the FMLA provision but has a separate provision for family leave, it must be available to both fathers and mothers. If you offer a benefit that can be used solely by women -- like paid family leave -- you can be sued for discrimination.

Bob McComas
EVP - Human Resource Regulatory Compliance
Financial Professionals
Last edited by Bob McComas; 09/27/02 03:44 PM.
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#34762 - 09/27/02 05:39 PM Re: Family Medical Leave Policy
rexinaudit Offline
Gold Star
rexinaudit
Joined: Dec 2001
Posts: 292
New England
Thank you for your insights. I tend to agree that this looks like discrimination. However, the FMLA section you cite seems to be silent about genders, and unequal treatment of them.
_________________________
My opinions are not legal advice, not my employer's, and may change anytime.

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#34763 - 09/27/02 06:22 PM Re: Family Medical Leave Policy
Bob McComas Offline
Platinum Poster
Bob McComas
Joined: Sep 2002
Posts: 570
Dallas, Texas
You have to step back and look at the whole law to get a more definitive answer to my response. I didn't want to go to great lengths on a thread, and hopefully I conveyed enough information to answer your question. When Congress passed the FMLA in 1993, it wanted to counteract past gender discrimination. It included in the act the wording "to take reasonable leave...for the care of a child, spouse, or parent who has a serious health condition" in "a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring that leave is available for...compelling family reasons on a gender-neutral basis." 29 U.S.C.2601 (b) (2) and (4).

In effect, there are numerous equal protection laws incorporated into the FMLA that have to be reviewed collectively to insure compliance. This is why the FMLA is one of the most onerous laws ever enacted. It has certainly caused me to have a few more gray hairs and a few long nights toiling with the wording and contextual issues.

Bob McComas

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#34764 - 09/27/02 07:24 PM Re: Family Medical Leave Policy
rexinaudit Offline
Gold Star
rexinaudit
Joined: Dec 2001
Posts: 292
New England
Thank you again for your help. The Findings and Purposes section of the FMLA surely does make non-discrimination a key issue.
_________________________
My opinions are not legal advice, not my employer's, and may change anytime.

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