Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan A. P. Woodhouse, Littler
- Nebraska does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- While not required, if an employer provides a leave of absence to employees for the birth of a child, the same leave must be provided to an adoptive parent following the commencement of the parent-child relationship, subject to several limitations. See Adoption Leave.
- Nebraska law requires covered employers to provide family military leave to eligible employees. See Family Military Leave.
- Other types of leave may be available to Nebraska employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Interaction of Leave Laws.
Family and Medical Leave
Nebraska does not currently require state family and medical leave for employees of private sector employers. However, Nebraska employers with 50 or more employees will likely be required to adhere to the federal Family and Medical Leave Act (FMLA).
Retaliation: A Nebraska employer should be wary of potential liability for FMLA retaliation under the cat's paw theory, under which an employer can be held liable for employment discrimination based on the discriminatory animus of a lower-level manager or supervisor who influenced, but did not make, the final employment decision. The 8th Circuit Court of Appeals (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) extended the cat's paw theory to an FMLA retaliation claim in Marez v. Saint-Gobain Containers, Inc., +688 F.3d 958 (2012). See FMLA: Federal.
The Supreme Court ruled that the 14th Amendment requires a state to do the following:
- License a marriage between two people of the same sex; and
- Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
Same-sex marriage is legal nationwide and couples lawfully married in any state, including Nebraska, are entitled to FMLA spousal leave benefits.
An employer should be careful if it seeks to confirm an employee's spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in Nebraska should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.
While not required, if an employer provides a leave of absence to employees for the birth of a child, the same leave must be provided to an adoptive parent following the commencement of the parent-child relationship. However, a leave of absence is not required if the child being adopted is:
- A special needs child over the age of 18;
- A child over eight who is not a special needs child;
- A stepchild being adopted by a stepparent;
- A foster child being adopted by a foster parent; or
- A child under voluntary placement who is being adopted by the person with whom the voluntary placement was made.
Commencement of the parent-child relationship means when the child is placed with the employee for purposes of adoption.
Employers covered under the federal Family and Medical Leave Act (FMLA) are also required to provide eligible employees with leave for the placement of a child with the employee for adoption. Where Nebraska law and the FMLA overlap, leave taken should run concurrently.
An employer should consider including an adoption leave policy in its handbook to educate employees, including supervisors, about the availability of adoption leave and to show its compliance with Nebraska law.
Pregnancy Leave and Accommodation
Female employees affected by pregnancy, childbirth or related medical conditions must be treated the same for all employment-related purposes, including receipt of employee benefits and leave, as other persons similar in their ability or inability to work. +R.R.S. Neb. § 48-1111(2).
The Nebraska Fair Employment Practice Act (NFEPA) requires an employer to provide reasonable accommodations to employees due to pregnancy, childbirth and related medical conditions. A reasonable accommodation may include time off to recover from childbirth. Although the law does not expressly specify a leave of absence during pregnancy as a reasonable accommodation, an employer should be prepared to consider leave as an option if it offers leave as an accommodation in connection with other temporary disabilities. For more information on pregnancy accommodation, please see Disabilities (ADA): Nebraska.
Family Military Leave
Nebraska's Family Military Leave Act requires a covered employer to provide family military leave to eligible employees.
A Nebraska employer with 15 or more employees must provide family military leave. Because the scope of the state law is broader than that of the FMLA (i.e., Nebraska law extends to persons employing 15 or more employees, in contrast to the FMLA's coverage of employers with 50 or more employees. See FMLA: Federal, smaller Nebraska employers should be mindful that they may be subject to state-law requirements to provide leave.
A covered employer should consider including a family military leave policy in its handbook to educate employees, including supervisors, about the availability of family military leave and to show its compliance with Nebraska law.
To be eligible for family military leave, an employee (including independent contractors) must:
- Have been employed by the Company for at least 12 months;
- Have worked for the Company at least 1,250 hours during the 12-month period immediately preceding the leave; and
- Be the spouse or a parent of a person called to military service lasting 179 days or longer with the state or the US, pursuant to orders of the Governor or the President.
Employees in same-sex marriages are eligible to take FMLA family military leave in connection with their servicemember spouse's military service. However, same-sex spouses would not be eligible for family military leave under Nebraska's law.
Purpose and Length of Leave
The length of family military leave depends on the number of employees the employer has. An employer with between 15 and 50 employees (including independent contractors) is required to provide up to 15 days of unpaid family military leave to the parent or spouse of a person being called to federal or state active duty longer than 179 days. Employers with more than 50 employees must provide up to 30 workdays of unpaid family military leave to an employee during the time federal or state deployment orders are in effect.
Benefits During Leave
During leave, the employer must make it possible for employees to continue their benefits at the employee's expense. The employer and employee may negotiate for the employer to maintain the benefits at its expense.
Taking leave may not result in the loss of any employee benefit accrued before the date leave began. Nothing in the Nebraska family military leave law is to be construed to affect or diminish the contract or seniority rights of any other employee. +R.R.S. Neb. § 55-504; +R.R.S. Neb. § 55-505.
Notice and Certification
An employee who requests leave for five or more consecutive workdays is required to give the employer at least 14 calendar days' notice prior to the time the leave is to begin. When able, the employee must consult with the employer to schedule the leave so as to not unduly disrupt the employer's operations.
Employees taking leave for fewer than five consecutive days must give the employer advance notice as is practicable. +R.R.S. Neb. § 55-503. This requirement differs from the federal FMLA where eligible employees are required to provide 30 days' advance notice where leave is foreseeable.
If 30 days' notice is not possible, then notice must be given as soon as practicable. Therefore for employees eligible for leave under the federal FMLA and the Nebraska family military leave law, the shorter notice requirement will be sufficient. See Employee Leaves > FMLA > Requesting Certification of the Need for Leave.
The employer may require certification from the proper military authority to verify the employee's eligibility for the family military leave requested. +R.R.S. Neb. § 55-503.
When the leave ends, the employee must be restored to the position previously held or to a position with equivalent seniority status, benefits, pay, etc., except when the employer proves the employee is not restored due to reasons unrelated to taking leave. +R.R.S. Neb. § 55-504.
Collective Bargaining Agreements
Family military leave rights cannot be diminished by a collective bargaining agreement (CBA). However, an employer may comply with a CBA that provides greater leave rights. +R.R.S. Neb. § 55-505.
An employer should not:
- Interfere with, restrain or deny an employee's exercise or attempt to exercise any right under the Family Military Leave Act; or
- Terminate, fine, suspend, expel, discipline or discriminate against any employee who exercises a right or opposes any unlawful practice under the Act.
If an employer violates any provisions of the Act, an employee can sue the employer in district court.
Interaction of Leave Laws
Other types of leave may be available to Nebraska employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Nebraska. While some of these laws can run at the same time, others cannot.
Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
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