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What Am I Doing Wrong?? Common FMLA Mistakes (October 2, 2019)

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the 26th blog in in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Are the DOL’s Proposed New FMLA Forms Just Another Version of Hamburger Helper?

Contrary to popular opinion, the biggest news lately out of the U.S. Department of Labor is not the fact that the agency just this week announced a final rule that would make over one million American workers newly eligible for overtime pay.

Department of Labor Affirms that FMLA Runs Concurrently with Paid Leave

On September 10, 2019, the Department of Labor (DOL) released a Family and Medical Leave Act (FMLA) Opinion Letter, FMLA2019-3-A, reinforcing the DOL’s position set out in an earlier opinion letter that “an employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.” WHD Opinion Letter FMLA2019-1-A, 2019 WL 1514982 (Mar. 14, 2019). The September letter reiterates that an employer may not delay designating paid leave as FMLA leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the FMLA designation be delayed.

Designation of FMLA Leave May Not Be Delayed, Even If Employees Prefer It, DOL Says

Employers may not delay designating paid leave as Family and Medical Leave Act (FMLA) leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers the delay, according to the US Department of Labor (DOL).

DOL Doubles-Down: Employees Cannot Decline FMLA Leave, Even if a Collective Bargaining Agreement States Otherwise

Earlier this year, the Department of Labor made clear in an opinion letter that neither an employee nor an employer may decline FMLA leave where an eligible employee is absent for an FMLA-qualifying reason. As the DOL noted in this March 2019 opinion letter, this is particularly true even where the employee would prefer that the employer delay the designation of FMLA leave.

New DOL Opinion Letter – No Delaying Designating FMLA Leave, Even When A Collective Bargaining Agreement Provides Otherwise

On September 10, 2019, the Department of Labor issued an FMLA opinion letter stating that an employer may not delay designating paid leave as FMLA leave if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed.

Company’s "point-reduction" program to erase absence points may violate FMLA.

An employer instituted a no-fault attendance policy which allowed employees’ absence points to be reduced for each 30-day period of “perfect” attendance. An employee sued the company, based on the claim that his intermittent FMLA leave kept him from fully participating in that program.

DOL Opines That Parent’s Attendance at IEP Conference Warrants FMLA Leave

In an August 8, 2019 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) shed some light on what counts as “caring for” a family member under the FMLA. In Opinion Letter FMLA2019-2-A, the WHD found that a parent was entitled to take intermittent FMLA leave to attend a meeting at her child’s school to discuss the child’s Individualized Education Program (“IEP”). Such meetings were held four times per year and were attended by a number of professionals, including a speech pathologist, school psychologist, other therapists, teachers and school administrators. The parent had been told by her employer that attendance at these meetings was not covered by the FMLA.

DOL Confirms FMLA Covers IEP Meetings With Therapists at School

On August 8, 2019, the Department of Labor (DOL) issued an opinion letter confirming that a parent is entitled to time off under the Family and Medical Leave Act (FMLA) to attend a meeting at school to discuss his or her child’s Individualized Education Program (IEP).

Do The DOL’s FMLA Forms Work For You? Now is Your Chance to Speak Up

On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”
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