Unusual Situations May Require Leave Time
by Anne-Marie L. Storey, Esq.
Without question, employees are impacted by events occurring outside of the workplace and such events can have a direct effect on their work status, including requests for time off. This is a reminder of just two types of those events: 1) natural disasters/public health emergencies and 2) the return to school of an employee’s child.
First, an event such as the natural disaster in Texas or a public health emergency can result in the need for employee leave. In certain circumstances, such leave may be legally protected. For instance, an employee who experiences a serious health condition or has an immediate family member who experiences a serious health condition caused by an emergency event or natural disaster may be entitled to state or federal FMLA leave. There are many rules for an employer facing the application of this leave in such a situation so employers must act carefully. In addition to the initial assessment of eligibility and application of the leave, there may be specific rules about how that leave can be applied. For example, the federal FMLA regulations provide that if an employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, those days cannot count against the employee’s FMLA leave entitlement.
Maine also protects paid or unpaid leave from work for a public health emergency, which is defined as the “occurrence or imminent threat of widespread exposure to a highly infectious or toxic agent that poses an imminent threat of substantial harm to the population of the State.” In such a situation, an employee may be entitled to leave if he/she is unable to work because the employee is 1) under individual public health investigation, supervision or treatment related to an extreme public health emergency; 2) acting in accordance with an extreme public health emergency order; 3) in quarantine or isolation or is subject to a control measure in accordance with extreme public health emergency information or directions issued to the public, a part of the public or one or more individuals; 4) under direction given by the employee’s employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the extreme public health emergency threat; or 5) is needed to provide care or assistance to one or more of the following individuals: the employee’s spouse or domestic partner, parent; or child or child for whom the employee is the legal guardian.
Further, an employee who is a member of the National Reserve called to respond to an emergency may be entitled to leave for the time to perform that service.
Finally, an employer is prohibited from discharging or taking any other disciplinary action against an employee who fails to report for work “because the employee was responding to an emergency in the employee’s capacity as a firefighter and the employee reported for work as soon as reasonably possible after being released from the emergency.” One exception to this law is if the employee/firefighter works in regular employment as a law enforcement officer, a utility worker or medical personnel when the services of that person are essential to protect public health or safety or if the employee has been designated as essential by the employer.
Second, as unusual as it might sound, the beginning of a new school year may also raise issues of leave time. Maine does not currently require employers to provide time off for school related activities. However, leave related to such events may be required under other laws. For instance, it is possible the FMLA (state or federal) could come into play if a child experiences medical issues related to the return. While a child might experience anxiety related symptoms on returning to school, such as a stomachache, those conditions are unlikely to come under the umbrella of serious health condition sufficient to invoke FMLA coverage. However, if the symptoms are more significant and perhaps result in the child being sent home from school, the FMLA may very well apply to the employee’s resulting absences. Keep in mind as well that an employee may seek such FMLA time for his/her own child, an adopted child, or even a child for whom the employee stands in loco parentis.
These are just two reminders that each situation and reason for leave must be assessed carefully and individually. Not all of these protections may be available in every situation and there may be other leave laws or protections available to employees in such situations so each event should be dealt with individually and with caution. We expect to speak more about leave requests and appropriate responses during the Rudman Winchell Annual Employment Seminar on October 11.