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Total Articles: 54

Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead

Ena Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp. She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of complications caused by her pregnancy.

FMLA FAQ: Can an Employer Force an Employee on FMLA Leave When the Employee Wants to Continue to Work?

Q: This week, one of our employees professed her love to one of her co-workers (who is married) and announced to everyone that they had been dating. The problem is — it’s not true.

DOL Issues Updated Guidance Affirming Rights of Same-Sex Spouses Under the FMLA

On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that federal laws that apply to opposite-sex spouses must apply equally to same-sex spouses. In doing so, the Court invalidated a key provision of the Defense of Marriage Act (DOMA), defining marriage under federal law as a “legal union only between one man and one woman as husband and wife.”

Employer Can Enforce Strict Call-In Procedures under 2009 Changes to FMLA, Federal Circuit Court Rules

An employee who did not follow his employer’s call-in requirements under its attendance policy or provide an appropriate medical certification supporting his need for leave under the federal Family and Medical Leave Act has failed to establish a claim for interference with his FMLA rights, the federal appellate court in Cincinnati has ruled. Srouder, et al. v. Dana Light Axle Mfg, LLC, No. 12-5835 (6th Cir. Aug. 7, 2013). Affirming summary judgment in favor of the employer, the Court ruled that an employer may enforce its customary notice and attendance procedures against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the requirements.

NEW FMLA REGULATIONS

On February 6, 2013, the United States Department of Labor (DOL) issued new Family and Medical Leave Act (FMLA) regulations. The new rules went into effect on March 8, 2013, and make several key changes to military caregiver leave, qualifying exigency leave and leave eligibility for airline flight crew employees. The regulations also clarify how to calculate intermittent FMLA leave and provide guidance on employers’ recordkeeping requirements.

DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe.

DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe.

WOO-HOO! New FMLA regs take effect today. Here's all you need.

Another set of FMLA regs, effective today! Par-TAY!

DOL Celebrates FMLA’s 20th Anniversary with New Regulations

The federal Family and Medical Leave Act (“FMLA”) turned 20 years old on February 5, 2013. In celebration, the U.S. Department of Labor (“DOL”) issued new regulations. The new regulations cover 1) leave related to members or veterans of the military and 2) leave for airline flight crew employees. This article focuses on the former.

DOL Publishes Final Regulations Addressing Military Family Leave Provisions

The U.S. Department of Labor (DOL) has published final regulations clarifying several amendments to the Family and Medical Leave Act (FMLA) which expand the law’s military family leave provisions. The agency’s final rule—released on the FMLA’s 20-year anniversary—also implements changes enacted through the Airline Flight Crew Technical Corrections Act and contains other modifications to the prior regulations, described below.

DOL Releases New Regulations Expanding Leave Entitlement for Military Caregivers and Flight Crew Members

On February 6, 2013, the U.S. Department of Labor (DOL) published new regulations that implement the federal Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for FY 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act. Both laws were enacted in 2009 and entitle more employees to family and medical leave under the FMLA. The regulations become effective on March 8, 2013.

DOL Issues Final Rule Implementing FMLA Amendments Expanding Military-Related Leave Entitlements and Availability of Leave for Flight Crew Members

The Department of Labor has released a final rule that implements the Family and Medical Leave Act (FMLA) amendments made by the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The final rule also revises certain existing regulatory provisions, and removes the FMLA optional-use forms from the appendices of the FMLA regulations. The rule will become final 30 days after publication in the Federal Register.

DOL Issues Final Rule Implementing FMLA Amendments Expanding Military Family Leave and Leave for Airline Flight Crew Members

This week, the Department of Labor released its final rule implementing the Family and Medical Leave Act amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The final regulation also revises a handful of existing regulatory provisions, and removes the model FMLA forms from the appendices of the regulations. I reported on these proposed changes in greater detail in a previous blog post last year. The final rule takes effect March 8, 2013.

DOL Issues Final Rule Regarding FMLA Changes for Military Caregivers and Flight Crew

On February 6, 2013, the U.S. Department of Labor (DOL) published a final rule to implement amendments to the Family and Medical Leave Act (FMLA) made by the National Defense Authorization Act for Fiscal Year 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). To assist employers with compliance, the DOL has created a web page with a FAQ sheet on the final rule, a new FMLA poster, and a new Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave–Form WH-385-V.

BREAKING: DOL issues Final Rule on FMLA to address military, aviation amendments . . . and other things

The U.S. Department of Labor yesterday issued its Final Rule on the Family and Medical Leave Act. This will replace the rule issued by the Bush Administration in 2009 and is primarily intended to address amendments to the FMLA that were enacted by Congress after the the 2009 rule took effect. However, the Notice of Proposed Rulemaking for the newest version, issued in February 2012, also proposed amending provisions of the 2009 regulations that were not affected by the subsequent congressional action.

U.S. Department of Labor Issues Guidelines on Parents' Rights to FMLA Leave for Adult Children Care

Since its enactment in 1993, an unresolved issue under the Family and Medical Leave Act ("FMLA" or "the Act") was exactly how the definition of "son or daughter" under Section 101(12) of the Act applied to adult children, 18 years of age or older and incapable of self-care because of a mental or physical disability. In interpretive guidelines just issued by the U.S. Department of Labor ("USDOL"), which enforces the FMLA, the federal agency clarified that the age of a son or daughter at the onset of a disability is not relevant in determining a parent's entitlement to FMLA leave. Employers need to be aware that the new guidelines will expand the number of employees who will now be eligible to take FMLA leave to care for adult children.

Legal Alert: Department of Labor Issues New Guidance Clarifying FMLA Qualifying Leave

Executive Summary: The Department of Labor (DOL) has clarified the definition of "son or daughter" to now permit an eligible employee to take leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is incapable of self-care because of a disability, regardless of how old the child was when the disability commenced. This clarification also impacts the FMLA's military caregiver provision.

New FMLA Interpretation by DOL Expands Protections for Employees with Adult Children with Disabilities

The number of employees who may take FMLA-protected leave to care for adult children with disabilities is likely to increase under an interpretation of the federal Family and Medical Leave Act issued by the Wage and Hour Division (“WHD”) of the U.S. Department of Labor. The Interpretation, the first of the New Year for the Division, confirms that the age of a son or daughter at the onset of a disability is not relevant in determining an employee-parent’s entitlement to leave to care for a child with a disability, even if that child is an adult. Wage and Hour Division, Administrator’s Interpretation No. 2013-1 (Jan. 14, 2013). The Interpretation also adopts the broad definition of “disability” under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) for FMLA purposes, and clarifies the availability of FMLA leave for parents to care for a child who becomes disabled during military service.

DOL Provides Guidance on Availability of FMLA Leave to Care for Adult Children

The Department of Labor’s Wage and Hour Division has issued an Administrator’s Interpretation (AI) clarifying the definition of “son or daughter” under the Family and Medical Leave Act (FMLA) when leave is sought to care for an adult child incapacitated by a mental or physical disability. The guidance explains that the FMLA entitlement applies regardless of when the mental or physical disability in the child began; discusses how the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) – which expanded the definition of disability under the Americans with Disabilities Act (ADA) – affects the employee’s ability to take leave to care for an adult child; and examines the availability of FMLA leave to care for an adult child who becomes disabled due to military service.

DOL Issues Guidance on "Caring for an Adult Child" Under the FMLA

Yesterday, the U.S. Department of Labor issued an Administrator's Interpretation (AI) to clarify the factors an employer must consider when an employee requests leave to care for an adult child.

An Employee Requests and is Denied Vacation Leave but Later Takes FMLA Leave for the Same Time Period. What Recourse Does an Employer Have?

This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve. Due to seniority or the employee's last minute request for time off, her leave request is denied. However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can't work due to a flare up of her chronic bad back.

Hurricane Sandy and the FMLA (Part II): How Do Employers Calculate FMLA Leave When the Workplace Closes Because of the Storm?

Thanks for the great feedback we received on our post earlier this week about Hurricane Sandy's impact on employers when it comes to issues arising under the Family and Medical Leave Act. In your feedback, I received several requests to address the following question:

Visit to doctor for prescription refill is not "treatment" for purposes of FMLA.

The Family and Medical Leave Act (FMLA) provides unpaid leave time to eligible employees under specific circumstances, including the serious health condition of the employee. It is a violation of the FMLA for an employer to interfere with an employee’s use or attempted use of FMLA leave time. The 7th U.S. Circuit Court of Appeals has held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.

Is Time Spent Filling Your Prescription at Walgreens Covered by FMLA?

Take Bob. He is a machine operator. Bob suffers from back and leg pain as well as bouts of anxiety. As a result, he typically visits with his physician every couple of months and is on prescription medication. He's been approved for intermittent FMLA leave as a result of his serious health condition(s).

DOL's New Employee Guide to the FMLA Issued: What's the Impact on Employers?

Earlier this week, the U.S. Department of Labor issued a 16-page FMLA guide that the DOL says is "designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides." Entitled "Need Time? The Employee's Guide to the Family and Medical Leave Act," the Guide apparently was created out of DOL's belief that "too many workers don't know about their rights under the FMLA and fail to take advantage of its protections," as stated in a DOL press release earlier this week.

It's a Fact: Employers Often Can Designate FMLA Leave in Longer Increments Than the Actual Leave Taken

In a recent post, I discussed an employer's obligation to designate leave under the Family and Medical Leave Act even though the employee did not want it to be classified as FMLA leave.

Taking FMLA leave does not affect employee's obligations under non-FMLA attendance policies.

Employment termination during an employee’s leave under the Family and Medical Leave Act (FMLA) may constitute “interference” with that leave. However, an employer typically does not violate the FMLA if it terminates an employee for failing to comply with the company’s policies regarding absences, even if those absences occur during a protected FMLA leave. A recent decision by the 3d U.S. Circuit Court of Appeals reminds us that the FMLA is not a law that can remedy an employee’s failure to follow a company’s sick leave policies. Pellegrino v. Communications Workers of America, AFL-CIO, CLC, 3d Cir., No.11-2639, April 19, 2012.

New Federal FMLA Forms Finally Released

After a long wait, the Department of Labor finally revised six important Medical Certification Forms used by most employers. The old forms expired on 12/31/2011, leaving a very confusing situation for employers who wondered if it was still acceptable to use an expired form for its FMLA administration. The new forms are: Notice of Eligibility and Rights and Responsibilities, Designation Notice, Certification of Health Care Provider for Employee's Serious Health Condition, Certification of Health Care Provider for Family Member's Serious Health Condition, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave. The expiration date on the new forms is 2/28/2015.

US DOL Proposing New FMLA Regulations

The U.S. Department of Labor has issued a notice of proposed regulations regarding a couple of FMLA issues. The draft regulations implement recent modifications to the FMLA contained in the 2010 National Defense Authorization Act.

DOL's Model FMLA Forms Now Approved Through 2015. Details Here...

As I reported last month, the Department of Labor has been working with the Office of Management and Budget to extend the life of its model FMLA forms, which expired on December 31, 2011. If you checked the DOL website today, you would find that the Department now has approval to use its model FMLA forms through February 28, 2015.

Best Practices: FMLA Leave to Care for an Adult Child

Perhaps it's just me, but I recently have received several calls from clients inquiring about an employee's right to take FMLA leave to care for an adult child (i.e., age 18 or older). Some examples include: Can a grandparent take FMLA leave to care for her daughter after the birth of her baby? Or can an employee take leave to care for an adult child suffering from depression? The answer is not always an easy one. What are an employer's obligations when an employee seeks leave under the Family and Medical Leave Act to care for an adult child? (I apologize in advance for the length of this post, but I hope it's worth the read.)

Employee's FMLA Claim Dismissed After Taking a Trip to Cancun

Employees should think twice before setting off on a Cancun vacation while out on FMLA leave. In an FMLA decision that smacks of pure common sense, a federal court has upheld an employer's reasonable work rules that restricted an employee's travel outside the immediate vicinity while on FMLA leave.

Are Employees Eligible for FMLA Leave When A Natural Disaster Strikes?

Natural disasters like the kind we recently have witnessed in the flood-ravaged areas of the southern United States raise a host of issues for employers. Some wonder whether they are required to pay their employees during suspended operations; others are unsure whether and to what extent health benefits should be offered.

FMLA FAQ - Does a phone call to the doctor count as "treatment"?

An employee recently missed five days of work due to the flu. She did not visit the doctor, but did call in to the doctor's office while she was out. Based upon the call, the doctor wrote her a prescription for some medication. Does this count as FMLA leave?

Where FMLA Bonding Leave is at Issue, Unmarried Parents Have More Generous Leave Rights

The folks at the California Public Agency Labor and Employment blog yesterday raised an issue that has popped up from time to time with our own clients: When it comes to "baby bonding" leave, does the Family and Medical Leave Act provide more generous benefits for unmarried parents than it does for married parents? In short, the answer is Yes.

Employee's Failure to Return Supervisor's Phone Calls Dooms FMLA Claim

When an employee's request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA. When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection.

Employee's failure to respond to phone calls from employer regarding his request for FMLA leave precludes a claim against employer under that Act.

Most employers recognize that the Family and Medical Leave Act (FMLA) prohibits them from denying, restraining, or interfering with an employee’s rights to qualified leave. Last week’s Update addressed a situation in which an employer’s frequent phone calls to the employee asking when she would return to work while she was on FMLA leave may have interfered with that employee’s FMLA rights.

FMLA FAQ - Does Travel Time Count as FMLA Leave?

One of our employees has asked for leave to care for a family member in another state. Does the travel time to and from the family member count as part of the FMLA leave?

Federal Court Rules Hospital Employee's Faith-Healing Vacation is Not Protected FMLA Leave

An employee’s seven-week trip to the Philippines with her husband, who suffered from multiple ailments, was not protected leave under the Family and Medical Leave Act, the federal appeals court in Boston has ruled. Tayag v. Lahey Clinic Hosp., Inc., No. 10-1169 (1st Cir. Jan. 27, 2011). The FMLA entitles employees to 12 workweeks of unpaid leave annually “to care for the spouse … of the employee, if such spouse … has a serious health condition.” During their trip, the employee and her husband visited family and friends, went to Mass and met with Catholic church officials. This, the Court determined, did not comprise medical care for the employee’s husband within the meaning of the FMLA. The Court determined the employer did not violate the FMLA by terminating the employee for taking unapproved leave and affirmed summary judgment for the employer.

Employer can require compliance with call-in policy, even during FMLA leave.

The 8th U.S. Circuit Court of Appeals has held that an employee who was fired for repeatedly violating her employer’s call-in policy cannot proceed with her lawsuit under the FMLA.

FMLA FAQ - How do I calculate FMLA leave around the holidays?

I have an employee who is certified for FMLA leave. Our office is closed for Thanksgiving next Thursday and Friday. Do those days count as FMLA leave.

Impaired Employee May Be Excused From Heightened Reporting Requirement for FMLA Leave.

The 5th U.S. Circuit Court of Appeal has held that an impaired individual may not be required to comply directly with her employer’s heightened reporting requirements associated with FMLA leave. Saenz v. Harlingen Medical Center, LP, 5th Circ., No. 09-40887, August 2, 2010.

DOL to Conduct "FMLA survery": Is More Regulatory Change on the Horizon?

On the campaign trail, then candidate Barack Obama promised to work aggressively on work-family balance if he was elected president. In doing so, he clearly signaled a movement toward pursuing additional rights for employees to permit them to better balance their workplace duties and their personal and family lives. This "movement," however, has been stalled by the health care debate, the conflict in Iraq, and the Gulf Oil mess.

New FMLA and New York Employee Privacy Requirements.

New U.S. Department of Labor (DOL) regulations regarding the Family and Medical Leave Act (FMLA) take effect on January 16, 2009. They implement two types of new military family leave (Military Caregiver leave and Qualifying Exigency leave) and update and clarify the existing FMLA regulations. In addition, a recent amendment to the New York Labor Law, effective January 3, 2009, restricts an employer’s use and disclosure of an employee’s personal identifying information, including an employee’s social security number.

New FMLA Regulations Take Effect.

The Family and Medical Leave Act (FMLA) regulations issued late last year by the U.S. Department of Labor (DOL) took effect on January 16, 2009. According to Al Robinson, a shareholder with the firm's Washington, D.C. office and the former acting Administrator of the DOL's Wage and Hour Division (which enforces the FMLA): "The new regulations change the pro-vision of family and medical leave in the workplace, particularly the new basis for leave for families of individuals in the military. As a result, employers must become familiar with these changes and adjust their policies accordingly."

DEPARTMENT OF LABOR FINALIZES NEW FMLA REGULATIONS (pdf).

On November 17, 2008, the U.S. Department of Labor (DOL) issued the first new regulations governing the Family and Medical Leave Act (FMLA) since the law’s 1993 enactment. The final regulations, which take effect January 16, are intended to be more “user-friendly” for both employers and employees.

...and HEEEEEEEERE they are! FMLA Final Regulations.

The final regulations for the Family and Medical Leave Act are out and will take effect January 16, 2009. What follows is a summary of the highlights of the changes.

New Family and Medical Leave Act Regulations Issued.

On November 14, 2008, the U.S. Department of Labor issued the long-awaited new Family and Medical Leave Act (“FMLA”) regulations. The new regulations provide direction concerning “qualifying exigency” and “servicemember” leaves which were added to the FMLA as a result of amendments in January 2008, and also provide significant clarification in a number of other areas. The new regulations are effective January 16, 2009. Some of the highlights are set forth below.

Final FMLA Regulations To Be Published Monday.

On Monday, November 17, the U.S. Department of Labor will issue its final regulations on the Family and Medical Leave Act. The new regulations, reportedly 750 pages long, will address the new military provisions enacted in January 2008 and fine-tune the old FMLA regulations, issued in 1995. According to Victoria A. Lipnic, Assistant Secretary of Labor, and other news sources, the following are some highlights of the new regulations.

Third Circuit Rejects Controversial FMLA Regulation.

Joining other federal courts, the Third Circuit recently rejected a Department of Labor regulation, 29 C.F.R. §825.110(d), which deems an employee eligible for FMLA leave, even if the employee does not satisfy the FMLA’s eligibility requirements, when an employer fails to advise an employee of his/her eligibility after leave is requested. Here, the plaintiff had not worked the required 1,250 hours in the 12 months preceding her requested leave, but her employer failed to respond to her request for FMLA leave for the birth of her child.

FMLA: Labor Department Releases Revisions (pdf).

Highlights of the proposed changes.

DOL Publishes Long-Awaited Proposals to Update FMLA Regulations.

For some time now, business groups have been calling for a substantial overhaul of FMLA regulations that have proven to be unduly vague, cumbersome, and in some cases, completely out of touch with the realities of today’s workplace. It seems that those requests are no longer falling on deaf ears. On February 11th, the Department of Labor took a substantial step toward regulatory reform by publishing a Notice of Proposed Rulemaking in the Federal Register. Once implemented, the final rules will contain regulatory language based upon comments submitted during the review process. Although a final set of new regulations is still months away, a spokesperson for the administration expressed her desire to implement changes by the end of President Bush’s term. The proposed rules will remain open for public comment through April 11, 2008.

New Proposed Regulations for the FMLA.

The federal Family and Medical Leave Act of 1993 has been around for about 15 years. The law provides eligible employees with up to 12 weeks of job-protected leave. The reasons for leave include their own or a covered relation’s “serious health condition,” or to care for a newborn or adopted child. While the law is fairly easy to describe, employers usually find it hard to administer according to its terms. Employers have hired entire teams of employees whose entire job is devoted to administer leaves. Some large employers even have “outsourced” leave management to third party administrators.

DOL to Publish FMLA Proposals: Changes to Existing Regulations and Comments on New Military Family Leave.

On Monday, February 11, 2008, the U.S. Department of Labor (DOL) is expected to publish in the Federal Register a dual-purpose proposal on the Family and Medical Leave Act (FMLA). The DOL's first purpose is to propose revisions to certain existing FMLA regulations. These are the first proposed changes to the existing regulations since the FMLA was passed in 1993. The other reason for the proposal is to request public comments on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act. The DOL will use these comments to issue final regulations for these new military family leave entitlements.
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