On March 10, 2022, the Department of Labor (DOL) issued Field Assistance Bulletin 2022-02 (FAB) providing examples of prohibited retaliation under the Family and Medical Leave Act (FMLA) and Executive Order (EO) 13706, “Establishing Paid Sick Leave for Federal Contractors,” among other federal laws and orders enforced by the Wage and Hour Division (WHD).
Two examples of retaliation that would violate the FMLA:
Scenario 1
A worker receives negative attendance points under his employer’s no-fault attendance plan for each day of approved FMLA leave taken to care for a child.
Guidance
The negative attendance points must be removed.
Scenario 2
A worker’s scheduled hours are reduced after taking approved FMLA leave on three occasions for migraine headaches that prevent her from working.
Guidance
The worker’s schedule, plus back pay and liquidated damages must be restored.
EO 13706 requires federal contractors to provide covered employees with up to 56 hours of paid sick leave yearly, including for family care. In the example given in the FAB, a maintenance worker on a federal contract loses a promotion and has his schedule changed after he asks about the availability of paid sick leave to attend spousal medical appointments. The FAB says a WHD investigation could result in the promotion being granted, a restoration of the worker’s original schedule and back wages.
Employer Next Steps
Employers subject to FMLA, EO 13706 or other related laws and orders (detailed in the FAB) should take note of the recent guidance to avoid these issues and potential consequences.
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This blog and its contents are not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.
