Category Archives: Regulatory Activity

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Got an Employee Who Doesn't Follow Your FMLA Call-in Policy? Apparently, You Now Have to Ask Him Why He Couldn't

I recently had an interesting call with a DOL investigator, and I wanted to share it with you. First, let me set the background. I represent a large national employer with multi-state locations, including several on the east coast. One of these east coast locations employed Johnny [name changed to protect the guilty], a serial … Continue Reading

Does Paid Leave Become Reality in a Trump Administration? And Who is His Likely Choice to Head the Department of Labor?

Every other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical … Continue Reading

Managing Repeated Requests for Leave as an ADA Reasonable Accommodation: Takeaways from My Webinar with EEOC Commissioner Feldblum (Part I)

Last Thursday, I had the pleasure of conducting a webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here. In addition … Continue Reading

EEOC Issues New Resource Document Addressing Leave as a Reasonable Accommodation under the ADA. What's the Impact on Employers?

For years, employers across America have been clamoring for guidance from the EEOC about how they should manage an employee’s request for extended or intermittent leave from work and how much leave is considered as a reasonable accommodation under the ADA. This week, employers received an answer. Well, kind of. Yesterday, the EEOC issued a resource document — … Continue Reading

Paid Family Leave Becomes Law in New York Through an Insurance-Style Scheme. Will Other States Follow?

Could this be a game-changer when it comes to paid family and sick leave? Yesterday, New York Governor Andrew Cuomo signed into law what is being dubbed the country’s longest and most comprehensive paid family leave program, which allows employees partially paid leave to care for a family member or a newborn child. New York follows other … Continue Reading

Can Employees Be Disciplined When They Exceed the Frequency or Duration on Their FMLA Medical Certification?

One of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees. Take, for example, Joe, who suffers from irritable … Continue Reading

A Big Yawner? DOL Issues FMLA Fact Sheet Regarding Joint Employers

Joint employer issues are all the rage right now. Recently, the National Labor Relations Board (NLRB) put the screws to McDonald’s in finding that the Company is liable “jointly” along with their franchisees for alleged labor violations. So, it’s not shocking to learn that the U.S. Department of Labor recently jumped on the bandwagon, putting in its … Continue Reading

DOL Continues to Warn Employers of Investigation of Systemic FMLA Issues

Earlier this month, I had the pleasure of presenting on complex FMLA issues at the American Bar Association’s Annual Labor and Employment conference. During the session, entitled “The FMLA 20 Years Later,” we covered key FMLA notice and medical certification issues and other difficult FMLA scenarios. Notably, one of my co-panelists, Andrea Appel, Regional Counsel for Civil … Continue Reading

Is Amazon the Scapegoat in the Debate on Employee Leave Entitlements? What's the Lesson Here for Employers?

Amazon has been making headlines lately.  And it’s not because the company is offering generous discounts on Amazon prime delivery. Over the past few weeks, Amazon has been hit hard in the media after several current and former employees made allegations that the company pushes its employees to the brink and effectively forces out employees who take leaves of absence.  In a … Continue Reading

DOL and EEOC Explain How They Will Approach FMLA and Reasonable Accommodation Enforcement

This week, I had the pleasure of presenting with Department of Labor and EEOC officials on key developments out of Washington with respect to leave management and accommodations.  Our presentation was part of the annual conference of the Disability Management Employer Coalition. If you’re an employer and not a member of DMEC, you’re doing yourself a disservice.  Find out more … Continue Reading

Now That Same-Sex Marriage is a Constitutional Right, How Do Employers Administer FMLA Leave?

On Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution. So, I’ll give you one guess as to the topic of my blog post today. How is the FMLA Impacted by the Supreme Court’s Ruling on Same-Sex Marriage? Earlier this year, the … Continue Reading

EEOC Commissioner Offers Helpful Guidance to Employers on Providing Accommodations to Pregnant Employees

Last week, I had the pleasure of presenting with EEOC Commissioner Victoria Lipnic on the EEOC’s pregnancy discrimination guidance and how employers should address pregnancy accommodations in the workplace.  Our presentation was part of an outstanding FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access Bloomberg BNA’s coverage of our presentation here (pdf). From … Continue Reading

DOL Will Not Enforce Final FMLA Regulation Regarding Same-Sex Spouses in Four States

Last week, I reported that a federal district court in Texas had halted the DOL’s enforcement of its final rule that would allow employees to take FMLA leave for their same-sex spouse. Following that court order, the DOL now has represented that it will not enforce the rule in the four states covered by the decision — Texas, … Continue Reading

Texas Court Puts a Halt on DOL Enforcement of the New FMLA Rule Extending Leave Rights to Same-Sex Couples

A federal judge in Texas granted an injunction on Thursday that (for the time being) has stopped enforcement of the DOL’s final rule regarding the definition of spouse.  Under the new rule, which was scheduled to take effect today, the FMLA would cover same-sex spouses if the marriage occurred in a state that recognizes same-sex marriage and … Continue Reading

DOL Issues Final Rule Extending FMLA Leave Rights to Same-Sex Couples: Here's Everything Employers Need to Know

The Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  This rule change will impact the manner in which employers administer FMLA leave, so I’ll quickly get down to the … Continue Reading

When an Employee Requests FMLA Leave for a Workplace Injury, Is the Employer Required to Report it as an OSHA Event?

An issue that implicates both the FMLA and OSHA? Normally, I’d yawn and take a cat nap along with you. But this one is sufficiently interesting: If an employee returns FMLA medical certification confirming the need for FMLA leave because of a workplace injury or illness, is the employer required to record the event on … Continue Reading

Obama Administration Announces Proposed Rule Extending FMLA Leave Rights for Same-Sex Couples

The Department of Labor announced today a proposed rule that would allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  As expected, the DOL has adopted a “state of celebration” rule, in which a spousal status for purposes of … Continue Reading

DOL Issues ERISA Guidance on Same-Sex Marriage; Is FMLA Guidance Next?

We have been sitting on the edge of our seat [ok, perhaps I’m on the seat alone] as we await the Department of Labor’s anticipated regulations interpreting how the Supreme Court’s DOMA decision impacts the definition of “spouse” under the Family and Medical Leave Act. As you may recall, I predicted earlier this year that … Continue Reading

How Can Congress Improve the FMLA? Let's Count the Ways...

Over the past month, as we recognized the 20th Anniversary of the Family and Medical Leave Act, advocates for employees and employers have been clamoring for changes to the Act.   On one hand, employee advocates are calling for a broad expansion of the FMLA that would allow for paid leave or broader coverage (e.g., … Continue Reading

Employers Must Begin Using Updated FMLA Forms and Poster Starting March 8, 2013

Earlier this month, the Department of Labor issued final new rules regarding the amendments to military family leave, flight crew eligibility and a handful of other relatively minor issues.  At the time, I covered those changes at some length here.  Perhaps a bit lost in the changes to the regulations, however, is the obligation to begin using updated FMLA notice and … Continue Reading

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 … Continue Reading

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.   As we know, an otherwise eligible employee is entitled to FMLA leave to care for a child with a serious health condition. Under the … Continue Reading
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