The Department of Labor has published a new form for use in connection with “qualified exigency” leave under the FMLA’s recently added military family leave.
By way of background, on January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA).
The NDAA amends the FMLA in two ways. First, it allows an employee to take up to 26 workweeks of leave to care for certain family members in the military who suffer a serious injury or illness in the line of duty.
Second, the NDAA permits an employee to take up to 12 weeks of FMLA leave for “any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” The family member must be a member of the National Guard or Reserves (not regular military).
Recently published regulations define “qualified exigency” to include the following:
(1) short-notice deployments (seven or fewer days notice);
(2) military events (e.g. ceremonies, briefings);
(3) childcare/school (e.g. time making arrangements on account of call to duty);
(4) financial/legal arrangements related to the call to duty;
(5) counseling related to the call to duty;
(6) R & R leave (up to five days);
(7) post-deployment activities (e.g. arrival ceremonies, briefings);
(8) additional activities if permitted by the employer.
The Department of Labor’s new form is for employers’ use when determining whether an employee is eligible for this type of leave.
The form can be found here: Link to DOL Qualified Exigency Leave Form
The Department of Labor has published a four page general summary of the new FMLA regulations. The summary provides a good overview of some of the more significant changes.
The summary can be downloaded in pdf format from this link: DOL Summary of New FMLA Regulations
I have also published a somewhat more extensive summary on my website. Please follow this link: Barker Olmsted & Barnier Summary of FMLA Regulations
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
On May 21st, President Bush signed The Genetic Information Nondiscrimination Act of 2008 (“GINA”) into law. According to the National Institutes of Health’s National Human Genome Research Institute, “GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers.” (Click here for more NIH comments.)
The new law is the culmination of a decade-long debate and a series of legislative efforts to deal with the specter of genetic discrimination. Supporters of the law cited a few instances of genetic discrimination, but not widespread abuse.
GINA prohibits employers from discriminating against employees on the basis of genetic information.
The term “genetic information” means information about (i) an employee’s genetic tests, (ii) the genetic tests of family members of an employee, and (iii) the manifestation of a disease or disorder in family members of an employee.
Employers are prohibited from acquiring genetic information, with certain exceptions. Some exceptions include: (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee; (2) indirectly, as part of a wellness program; (3) as part of an FMLA medical certification; (4) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and in a few limited other circumstances.
In the event that an employer does acquire genetic information, the new law requires strict confidentiality, in the manner dictated by the ADA.
Employees who violate GINA will be vulnerable to employee lawsuits and government agency enforcement actions.
Employer advocates complain about the litigation provisions. They have also voiced concerns that GINA further complicates the confusing maze of state and federal medical privacy laws, as well as the numerous state genetic nondiscrimination laws.
Employers and legal counsel have ample time to evaluate the impact. The parts of the law relating to health insurers will take effect by May 2009, and those relating to employers will take effect by November 2009.
According to the NIH, “the law was needed to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.”
Although there are no reports of widespread genetic discrimination, employee medical exams are common. As reported by the AP here, “a 2001 study by the American Management Association showed that nearly two-thirds of major U.S. companies require medical examinations of new hires. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer, and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history.”
During the next 18 months, undoubtedly employment law attorneys and HR experts will distill the new law and offer compliance advice. To get a head start, read the text of GINA here.
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
California Employment Law • Disability Discrimination • Employment Law • FMLA • Human Resources • Labor Law • Week in Review •
The Seventh Circuit held that an employer’s FMLA policy violated the statute because it required the use of vacation pay when the employee already was receiving disability benefits. In Repa v. Roadway Express, the employee took FMLA for surgery. Under the employer’s policy, she was required to use vacation and sick time as a “substitute” for FMLA leave. However, she also received $300 per week from a union’s disability insurance plan. Although she received both forms of pay, she sued Roadway, claiming that the requirement that she use paid sick and vacation benefits violated the FMLA because of a DOL regulation, 29 CFR 825.207(d)(1). The Seventh Circuit agreed, rejecting all of Roadway’s arguments that the regulation was not applicable. The Court refused to consider Roadway’s argument that the regulation is invalid because Roadway did not make the argument in the district court.
The U.S. Department of Labor has solicited comments about the current regulations implementing the federal Family and Medical Leave Act of 1993. The deadline for submitting comments has been extended from February 2 to February 16, 2007. Here’s how to go about sharing your views.