baby-yawn.jpgJoint 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 two cents on joint employers.

Last week, the DOL quietly issued a new Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers. Although the AI focuses largely on the Fair Labor Standards Act, the DOL issued Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.  This new AI and FMLA fact sheet were highlighted on the DOL’s own blog!

What precisely is a joint employer, you ask? The DOL sums it up in one sentence: “When a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute.”

Where a joint employer relationship exists under the FMLA, one employer is considered the primary employer, while the other is the secondary employer. As the DOL points out, “determining whether an employer is a primary or secondary employer depends upon the particular facts of the situation.”  The main factors include:

  • who has authority to hire and fire, and to place or assign work to the employee;
  • who decides how, when, and the amount that the employee is paid; and,
  • who provides the employee’s leave or other employment benefits.

Keep in mind: According to the FMLA regulations, where a temporary placement or staffing agency provides employees to another company, the staffing agency is most commonly the primary employer.

In its AI, and as provided in the FMLA regulations, the DOL outlines the FMLA responsibilities for both primary and secondary employers:

Responsibilities of Primary Employers

  • Providing required FMLA notices to its employees, and providing FMLA leave
  • Maintaining group health insurance benefits during the leave
  • Restoring the employee to the same job or an equivalent job upon return from leave, and
  • Keeping all records required by the FMLA with respect to primary employees

Responsibilities of Secondary Employers

  • Prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA
  • Restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer, and
  • Maintaining basic payroll and identifying employee data with respect to any jointly-employed employees

Generally, a yawner of an AI. Come on, you have to agree, yes?

That said, the DOL did include in its AI this handy-dandy chart that at least looks pretty and contains links to other relevant fact sheets.  It’s worth a look.

FMLA Responsibilities of Joint Employers Primary Employer Secondary Employer
Count jointly-employed employees for coverage and eligibility determinations (Fact Sheet #28) Yes. Yes.
For employee-eligibility determination, use its worksite for the eligibility test (50 employees within 75-miles of the worksite)(Fact Sheet #28) Yes, unless the employee has physically worked at the secondary employer’s facility for at least one year. No, unless the employee has physically worked at the secondary employer’s facility for at least one year.
Provide FMLA notices to the jointly-employed employee (Fact Sheet #28D) Yes. No; however the secondary employer must provide FMLA notices to its own employees.
Provide FMLA leave to the jointly-employed employee (Fact Sheet #28F) Yes. No; however the secondary employer must provide FMLA leave to its own eligible employees.
Maintain benefits for the jointly-employed employee (Fact Sheet #28A) Yes. No; however the secondary employer must maintain benefits for its own employees who take FMLA leave.
Restore the jointly-employed employee to work (Fact Sheet #28A) Yes. No, unless the secondary employer is continuing to use the placement agency and the agency places the employee with that secondary employer.
Not retaliate, discriminate or interfere (Fact Sheet #28A and Fact Sheet #77B) Yes. Yes.
Keep records Yes, the primary employer keeps all required records. Yes, the secondary employer keeps payroll data and identifying employee information.

Insights for Employers

Any practical insight gleaned from this AI is nicely outlined by my friend, Marti Cardi, in her article on the new AI.  In short, Marti encourages us to:

  • Analyze your worker arrangements that are not straight-up employer-employee relationships
  • Inquire about the FMLA practices/procedures of any staffing or labor agency you use to ensure it is fulfilling its FMLA obligations
  • Coordinate FMLA compliance with any other employer with which you share workers.  Do it now so that you’re not deciding as on the fly
  • Joint employer obligations extend beyond FMLA obligations – don’t forget compliance with the wage and hour rules established by the Fair Labor Standards Act and its state law counterpart

Edepartment-of-labor-300x300arlier 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 Rights in the Department of Labor’s Philadelphia office, reminded employers of the DOL’s key focus on systemic FMLA problems during their investigations of employers’ FMLA practices.  As I have reported in my previous blog posts, the DOL’s interest in systemic issues means that the agency will regularly broaden its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.  With increasing regularity, the DOL will move beyond a single complainant to an entire group, department, employer location and onto multiple employer locations to ensure compliance across a company’s work sites.

As reported by Thompson Information Services, who was covering our ABA conference session, and as I have reported in my previous blog posts, the DOL’s systemic investigations will generally take aim at three types of information:

  • statistical — leave trends, leave requests, leave approvals and responses to leave requests by supervisor, job group, type of request or any other grouping;
  • anecdotal — based on interviews with employees, supervisors, administrators and managers; and
  • documents — records of leave requests, notices provided, leave determinations, employer’s FMLA policy and handbook, and medical certifications and re-certifications.

Insights for Employers

This is yet another reminder that employers will continue to face scrutiny by the DOL on their FMLA procedures, and that they increasingly will become party to consent decrees where their FMLA practices do not adhere to the FMLA regulations.

I know I sound like a broken record, but as you prepare your HR and legal budgets for 2016, make an FMLA self-audit a priority for your workplace in the New Year.  As I have highlighted in a previous post, your self-audit should focus on the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.  As the DOL’s Appel made clear in our ABA presentation, the DOL will be making fairly broad information requests, so excellent recordkeeping is imperative.
  7. Train your employees! Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because these managers are creating a liability for you.  Indeed, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

work-life-balanceAmazon 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 lengthy exposé, the New York Times portrays an Amazon culture where employees are pushed to the limits of what is humanly acceptable, operating in a work environment where they are subjected to the ever-expanding ambitions of Amazon founder Jeff Bezos. According to several employees interviewed by the New York Times, employees are:

Encouraged to tear apart one another’s ideas in meetings, toil long and late (emails arrive past midnight, followed by text messages asking why they were not answered), and held to standards that the company boasts are “unreasonably high.” The internal phone directory instructs colleagues on how to send secret feedback to one another’s bosses. Employees say it is frequently used to sabotage others.

By any objective measure, it’s a scathing article, and it is particularly harsh on Mr. Bezos. Other (mostly) former employees have piled on, publicly calling out the company for its alleged mistreatment of employees, particularly those who take parental and other forms of leave.

In response to the New York Times article, Mr. Bezos immediately issued a memo to all Amazon employees rejecting any “shockingly callous management practices” described in the NYT article and urging any employees who knew of the alleged stories depicted in the article to contact him directly.

Insights for Employers

Knee-jerk reactions are aplenty when these kinds of news stories make the rounds. First, let’s take a deep breath. Now, let me share a few observations from my own soapbox:

1.  We Don’t Know What’s Happening at Amazon, so Let’s Not Jump to Conclusions. I have no idea whether any of these Amazon reports are true. I do not work at Amazon, nor do I serve as its counsel (though I have interacted with their leave of absence team and find them to be top-notch). So, I am throwing up the patented Walter Payton stiff-arm to any temptation to jump on the anti-Amazon bandwagon.

Let me say this — I admire a company that pushes its employees to be the very best and challenges them to contribute in the most innovative ways to grow the business. After all, “A” players want to play with other “A” players, and I fear that we often lose sight of this when openly criticizing companies like Amazon without experiencing the environment firsthand. I also respect a leader like Mr. Bezos when he candidly tells shareholders that it’s “not easy to work [at Amazon]” because the stakes are high. He calls it like it is, so employees and candidates alike are on notice of the demands of the job.

If you asked 100 people how they would define “hard work,” you’d get 100 different answers. Personally, I respect Virgin Group founder Richard Branson’s rallying call to “Work Hard, Play Hard” in reaching your best potential while achieving life balance. (Mr. Branson also is on the cutting edge of employee leave benefits.) Yet, in complimenting Branson/Virgin, I refuse to knock Mr. Bezos, who has been wildly successful in revolutionizing our marketplace through his company.

2.  Safeguarding Employee Leave Rights is One of the Key Ingredients to a Thriving Workplace. Being the “best,” however, rings hollow when an employer does not play its part in safeguarding its employees’ work and family-life balance.

I use my own experience as an example. Simply put, I have found that I am a far better advocate for and counselor to my employer clients because I am a father of four kids. I am more direct in negotiations, more confident and organized in my approach, and empathetic when it is appropriate. I also believe I am far more determined to succeed, in large part because I know I have a family to provide for.

I am fortunate enough to work for a law firm that celebrates the fact that I am a dad and have a family I need to provide and care for. Is this common in the legal arena? Not as common as it should be.

Don’t get me wrong — am I disappointed when I lose a colleague for a period of time because of parental leave or because they have to care for a severely ill parent? In a word, yes — just as much as I regret losing any colleague who leaves work for a period of time. But I also recognize their time away as priceless — whether it’s that precious time to bond with their new child, attend to their own illnes or walk together with their loved one at the end of life’s journey — I know they will be far healthier and stronger legal counselors as a result.

As employers, we surely have the right to demand the very best from our employees, as we have invested much in their and our success. But when we do so while also ensuring employees’ family life a priority, it’s a powerful thing. And workplaces thrive as a result.

Employment-Word-Cloud-300x152This 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 about the organization here.

What’s on DOL’s Mind in 2015 and 2016?

Helen Applewhaite, the DOL’s Branch Chief for FMLA, presented on DOL enforcement initiates in the FMLA arena, and I offered comments from the peanut gallery on the practical impact on employers in light of these initiatives.  Here are the takeaways:

1.  DOL’s Focus on Systemic Compliance Issues is Top Priority.  The DOL is focusing its attention on systemic FMLA problems.  What this means is that DOL is broadening its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.

EEOC has made a killing off investigating systemic issues, often leading to costly and burdensome investigations and litigation. For the foreseeable future, we can expect the same from DOL — broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions.  Why?  Because this is already happening.  Over the past couple of years, the DOL’s information requests have covered a several- year period, and the agency typically requests data on all leave requests, grants and denials over that period, among a host of other subject areas. In a previous post, I included samples of information requests my clients have received in the past, like this burdensome one from the DOL.  Yep, they’re ugly.

What’s an Employer to do?  Friends, we must conduct self-audits of our FMLA processes and recordkeeping.  Now.  This means we must ensure that our FMLA policies, forms and correspondence are up to snuff, and that our FMLA processes are compliant.  In a previous post, I included specific recommendations on what our self-audit should look like.  [Shameless plug alert: I offer these self-audits through our CALM service.]

2.  Avoid these Common Errors.  Applewhaite identified several compliance problems that pop up regularly during DOL investigations:

  • Employers’ inability to recognize the need for FMLA leave and then disciplining employees for an absence that should be covered by FMLA
  • Failing to meet notice deadlines established by the FMLA
  • Failing to properly administer medical certification, including requests for recertification more frequently than permitted

The first bullet point is particularly troublesome, as I find that many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request.  In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

As I’ve warned employers before, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

3.  New Same-Sex Spouse Rule: Yawn!  Applewhaite briefly discussed the DOL’s recent regulatory change which edited the definition of spouse to include same-sex marriage.  As I told my DMEC friends, this regulatory change should not create any administrative concerns for us.  Simply put, we administer leave for a same-sex spouse in the same manner we administer leave for a heterosexual spouse.  Case closed.

For more information on the DOL’s same-sex spouse regulation changes, see my post here.

And the EEOC…

Pierce Blue, Attorney and Special Assistant to EEOC Commissioner Chai Feldblum, and I spent some time analyzing the implications of the Young v. UPS case, which expanded the potential for pregnant employees to secure workplace accommodations.

The EEOC has modestly edited its pregnancy discrimination guidance in light of the Young decision, but there is otherwise not much new news to share on the pregnancy accommodation front, as the lower courts generally have not yet applied the Young balancing test to real life situations.

That said, an early read on courts which have followed the Young reasoning suggests that employees may be given some latitude in advancing their case when alleging that the employer did not provide a requested accommodation during their pregnancy.  In one such case, Bray v. Town of Wake Forest, an employee defeated an early motion to dismiss her sex discrimination claim after her employer refused to assign her light duty work during her pregnancy.  The plaintiff, Erin Bray, was a Wake Forest police officer, and she provided a doctor’s note during her pregnancy limiting her to light duty positions. Shortly thereafter, Erin was terminated because she could not perform the essential functions of her position as a police officer.

The court refused to dismiss Erin’s sex discrimination claim, finding that, on two occasions, male police officers were allowed to perform light duty, apparently because they were injured on the job. In finding two other accommodations sufficient to survive a motion to dismiss, the court took a rather liberal reading of the Young case, but in any event, it indicates that even the slightest difference in how accommodations are distributed may very well breathe life into a gender discrimination claim.  Remember the key question raised by the Young court: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?

Apparently, in Bray’s case, “so many” may simply equal two.  If so, employers better watch out.

gay marriageOn 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 Department of Labor issued a final rule allowing an otherwise eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognized their marital status.  Now that the Supreme Court has declared that same-sex marriage is a Constitutional right, states can no longer prohibit same-sex marriage.  Obergefell v. Hodges (pdf)

As a result of the Supreme Court’s decision, it appears any questions regarding the DOL’s Final Rule have been all but eliminated.  This means that employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons.

What About the Four States Covered by the Texas Court Decision Halting Issuance of the DOL’s Final Rule?

As  I reported in a previous post, four states (Texas, Arkansas, Louisiana and Nebraska) obtained an injunction stopping enforcement of the DOL’s final rule. Although we don’t know how these four states will proceed in light of the Supreme Court’s decision, the Court’s decision validates the DOL’s definition of “spouse.” The DOL has not yet issued any statement on enforcement in these four states, but employers in these states that elect not to provide FMLA leave to same-sex spouses are taking on significant risk.

What Do Employers Need to do Now?

In another of my previous posts, I gave employers extensive guidance on what they should do in light of the new DOL rule on same-sex spouses. Among other things, employers should:

1. Update FMLA policies and forms.

2. Train supervisors and administrators on the new rule.

3. Determine whether any state leave law applies, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

4. Be mindful that the DOL’s new rule covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater leave rights than those provided for under the FMLA.

wh380f.jpgThose sneaky little rascals! While the rest of us were enjoying our Memorial Day holiday, those crazy kids over at the Department of Labor were still working away. This time, they were busy posting the new model FMLA notices and medical certification forms. Expiration: May 31, 2018!

No more month-to-month extensions or lost sleep over when the long-awaited forms would be released. Now, we can rest easy through spring 2018. Relief.

That said, it couldn’t have taken DOL a whole lot of time to draft the updated forms.  After a relatively close review of the *new* forms, I can find only one (somewhat) notable change: a reference to the Genetic Information Nondiscrimination Act (GINA).  In the instructions to the health care provider on the certification for an employee’s serious health condition, the DOL has added the following simple instruction:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

DOL added similar language to the other medical certification forms as well.  This is nothing new.  For years, employers have included GINA disclaimers in their FMLA paperwork, and those disclaimers typically have been far more robust (and reader-friendly) than the cryptic one endorsed by DOL above. In fact, many employers have used a GINA disclaimer I recommended in a previous post a few years back, and I still advise you to use that disclaimer in your forms.

For easy reference, here are the links to the new FMLA forms:

The forms also can be accessed from this DOL web page.

Hat tip: Thanks to Holly Moyer for watching out like a hawk for these new forms and alerting me to them!

eeocLast 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 the employer perspective, there were several key takeaways from Commissioner Lipnic’s comments about the recent Young v. UPS pregnancy discrimination case and her opinion on whether an employers have an obligation to provide accommodations to pregnant employees:

1.  We can’t really figure out what the Supreme Court is telling us in Young v. UPS.  As you may recall, I gave feedback to employers on the Young case here.  In that case, the Supreme Court gave pregnant employees a path to argue that a workplace accommodation provided to other non-pregnant employees but denied to them is illegal under the Pregnancy Discrimination Act (PDA). However, the Court was hardly clear in explaining how a pregnant employee actually establishes her case.

2.  Given the lack of clear guidance from the Supreme Court, Commissioner Lipnic bluntly concluded, “Why wouldn’t employers accommodate pregnant employees as they do others?” Refusing to do so carries a whole lot of risk.  Keep in mind: if one of the Republican EEOC Commissioners is telling us we need to provide accommodations to pregnant employees (ahem, that’s Cmmr. Lipnic), then we can expect that the EEOC clearly will be taking a fairly liberal position when it comes to providing accommodations to pregnant employees in the workplace.  Just giving fair warning now.

3.  Commissioner Lipnic and I both encouraged employers to consider how they have treated comparable employees before refusing to provide an accommodation to a pregnant employee. Although the Supreme Court didn’t give employers a clear road map in the Young case, the Court took pause over the fact that UPS offered light duty to several groups of employees (e.g., those injured on the job, those with an ADA disability, and those who temporarily lost their DOT license) but did not offer the same to Young when she sought an accommodation after her pregnancy restricted the work she could perform.

The Young court opinion raised a key question that I believe other federal trial court judges likely will pose to employers: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?” It is critical that employers be prepared to address this question, so it should be central to our discussions now about how we implement the Young decision in our workplaces.

In short, before we deny accommodations to pregnant employees who are restricted in their work, employers must be prepared to distinguish accommodations provided to other employees. For instance, is there anything particularly unique about the accommodation provided to others but not to a pregnant employee? If only provided to one group of employees, what’s our rationale?

4.  Commissioner Lipnic confirmed that the EEOC already is revising its July 2014 pregnancy discrimination guidance in light of the Young decision, and the changes will focus largely on the evidence necessary to establish a pregnancy discrimination/accommodation claim under the “burden shift” analysis identified by the Supreme Court. Think the EEOC will allow employers to comment on any proposed changes?  Who wants to make a friendly wager with me?

Bloomberg BNA article above reproduced with permission from Daily Labor Report, 78 DLR A-7 (April 23, 2015). Copyright 2015 by The Bureau of National Affairs, Inc.

gavel - same sexLast 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, Arkansas, Louisiana and Nebraska. In a court filing, the DOL said in no uncertain terms:

[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .

In the same filing, however, the DOL confirmed it will enforce the rule as to employers located in the other 46 states. ¡Ay de mi! Best wishes to that poor employer with operations in multiple states, including some inside and outside those four states. Call your favorite employment counsel to assist with these land mines!

Today (April 10), the court heard the DOL’s motion to reconsider the court’s earlier ruling prohibiting enforcement, and it refused to overturn the ruling, according to a press release issued by the Texas Attorney General.

gay_cityhall_gavelA 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 allow those spouses to receive FMLA benefits even in states that do not recognize same-sex marriage. According to the court, the public has “an abiding interest” in protecting state laws from “federal encroachment.”

Earlier this month, Texas Attorney General Ken Paxton, along with the Attorneys General from the states of Arkansas, Louisiana and Nebraska, filed suit in federal court in Texas asking that the court strike down the DOL’s final rule. “The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Texas AG Paxton said in a statement Thursday.

In issuing its order, Judge Reed O’Connor barred the DOL from enforcing the rule pending a final ruling on the merits of the Texas AG’s claim.  The ruling raises doubts about whether the DOL will enforce the new rule in the other states not covered by the court’s injunction.  My fellow employment blogger, Jon Hyman, thinks the DOL will stand down until a definitive ruling is issued.  While I can’t disagree with him, I am not so sure what the DOL will do.  I have a call into the DOL now about how it will administer the new rule in light of this ruling and will update when/if I receive official word from the agency.

The DOL has asked the court to reconsider its decision, and the oral argument on this request has been set for April 13.

As another blogging friend, Robin Shea, points out, this entire issue might become moot once the Supreme Court renders a decision in the four same-sex marriage cases it has agreed to decide this term.

For more information on the DOL’s final rule, access my post here.

expiration dateOn February 28, 2015, the DOL’s recommended FMLA forms expired. And on March 1, the sun still rose in the east.  Life, as we know it, forged on.

It’s anyone’s guess as to when new FMLA forms will be issued, so in the meantime, I’ll hold off on belting out, in true Steve Martin fashion from the movie, “The Jerk“: “The New FMLA Forms Are Here! The New FMLA Forms Are Here!

Why Do the DOL’s FMLA forms expire anyway?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms every three years to the Office of Management and Budget (OMB) for approval, so that OMB can review the DOL’s information requests and the time employers spend responding to the requests.  OMB approved the DOL’s FMLA forms in early 2012 for the maximum period of three years.  Upon expiration of the forms (in this case, this past Saturday, February 28, 2015), the DOL may continue to use the forms while it seeks renewal of OMB’s approval.

Should Employers Continue to Use the Expired FMLA Forms?

Yes, for two reasons: 1) This past week, OMB extended the FMLA forms’ expiration date by 30 days to March 31, 2015 (so, I guess you could say that the forms are no longer expired, right?); and 2) in my discussions with the agency, the DOL has advised me that the best approach is for employers to continue to use the forms even after the expiration date and until further notice. Of course, this makes a whole lot of (common) sense.

The DOL’s forms–with the March 31, 2015 expiration date–can be accessed here:

Do We Have Any Say in What’s Included in the New FMLA Forms?

From now until March 27, 2015, the public is invited to submit comments about the FMLA forms, including any changes we’d like included in any new FMLA forms that eventually will be issued. Specifics on the comment period can be accessed here, but public comments can be directed to the DOL by U.S. mail or by email at OIRA_submission@omb.eop.gov.

Count the Equal Employment Opportunity Commission among the first to propose changes to the FMLA forms. A few months back, in November 2014, the EEOC sent a missive to the DOL asking that the DOL add: 1) a disclaimer in its model medical certification (for an employee’s serious health condition) instructing health care providers not to collect or provide any genetic information, as this information is prohibited under the Genetic Information Non-Discrimination Act (GINA); and 2) stronger language in WH-380-E (employee medical certification) and WH-380-F (family member medical certification) regarding the employer’s obligation to keep medical genetic information strictly confidential.

Employers should work with their employment counsel to review and amend their FMLA forms to include the suggestions above and to streamline forms to fit your operational needs.

As always, email me if you have questions about the expiration of current forms or are interested in submitting comments to the DOL on behalf of your company or industry: jsn@franczek.com.