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.

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, 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.

spermIs that all it takes to get you to click on my blog entry — make a reference to “sperm” in the blog title and post a silly photo of this little guy?  That was like taking candy from a baby!

Now that we have that behind us, I was posed an interesting question a few weeks back: Can a woman take FMLA leave for in vitro fertilization treatments?

What Does the FMLA Say on the Issue?

Given that the FMLA regulations do not specifically address in vitro fertilization treatments and since the courts have not ruled definitively on the issue, it is an open question whether the FMLA covers absences for in vitro fertilization treatments.

The employee arguably can take leave in this instance if she has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a)(1)(D). So, does a woman who undergoes in vitro fertilization (IVF) treatments have a “serious health condition” protected by the FMLA?

According to the only court in the land that has addressed the issue in the context of the FMLA, the answer generally is, “No” — there is no FMLA protection. In 2009, a federal appellate court determined that an employee who took leave for IVF treatments was not protected by the FMLA because she was not required to take leave for more than three days at a time for the treatments (rendering her unable to show that she suffered from a serious health condition).  In this case, the court closely reviewed the employee’s FMLA medical certification, which stated that the employee would be required to take two separate three-day periods of intermittent leave (for a total of six days of leave) and work a reduced work schedule of two to three days per workweek during the leave periods.  Culpepper v. Blue Cross Blue Shield of Tennessee (pdf)  Using a rather straightforward analysis — that the employee had not required “continuing treatment” by a health care provider — the court determined that the employer was not required to provide FMLA leave in this instance.

As a related aside, I don’t see how the quality of dad’s sperm impacts this issue, as the female employee in question still would have to establish that she suffers from a serious health condition by way of the IVF treatments.  But I welcome your feedback if you think there is an angle here that would impact the FMLA question.

Not So Fast

The Culpepper case provides some authority as to the FMLA analysis of the issue.  But employers: let’s not be too quick to hit the FMLA denial button in these situations.  Why?  Keep reading…

Unless you’ve fit yourself securely under a rock lately, you know that the EEOC and United States Supreme Court recently have taken up the issue of pregnancy discrimination and accommodation. In short, given the authority below, employers run some level of risk in denying leave to an employee who seeks leave for IVF treatments.

Denial of Leave for Infertility Treatment May Lead to Gender/Pregnancy Discrimination Claims

In its July 2014 Enforcement Guidance on Pregnancy Discrimination, the EEOC told employers in no uncertain terms that failure to provide protected leave to an employee for IVF treatments will lead to an inference of gender discrimination:

Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.   (See example 5 in EEOC’s Guidance)

Notably, EEOC’s guidance cited to an unfavorable court case for employers: Hall v. Nalco. In this 2008 case, Cheryl Hall worked as a secretary at Nalco, and she requested leave to undergo IVF treatments, which was approved. When she was to begin a second leave of absence for IVF treatments, she was told that her office was merging with another office and that only the secretary from the other office would be retained. Unfortunately for the company, there was evidence that decisionmakers decided to RIF Cheryl because she had missed work due to her IVF, and her supervisor marked down her performance evaluation, citing “absenteeism—infertility treatments.”

Cheryl filed a pregnancy discrimination lawsuit, claiming that she was dismissed because she was a female with a pregnancy related condition — infertility.   Although a federal trial court dismissed Cheryl’s claims on the basis that infertile women were not a protected class under the Pregnancy Discrimination Act (PDA) because infertility is a gender-neutral condition, a federal appellate court disagreed and allowed Cheryl to proceed with her discrimination claim.  The Court noted the following:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure . . . Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Given the comments from supervisors and direct evidence of discrimination in comments made on her performance evaluation, the appellate court allowed her PDA claims to go to a jury.

Insights for Employers

Leave requested and taken for IVF treatments may very well not be protected by the FMLA unless the employee can establish an absence of more than three consecutive days plus continuing treatment. However, it’s likely a different story when the question is analyzed as one of pregnancy or disability discrimination.  And I have not even raised the issue of whether certain state laws would require leave or an accommodation in these situations. In fact, given the growing number of pregnancy accommodation laws at the state level, it is possible that IVF treatments may enjoy certain protection under various state laws.

So, don’t win the battle and lose the war: before you deny leave for IVF treatments, analyze your exposure to a gender or disability discrimination claim. As evidenced by the EEOC’s recent guidance and the Hall case, the EEOC and some courts suggest your exposure could be significant.

Hat tip: Thanks to my friends at UPMC WorkPartners for raising this issue with me. It’s a good one!

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 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.

pregnant-2568594_1280

All across America this morning, pregnant employees are screaming out in muted shouts of joy and giving each other belly bumps.

Last year, I reported on the EEOC’s recent pregnancy discrimination guidance, which interpreted the Pregnancy Discrimination Act as requiring workplace accommodations for pregnant employees even if impairments suffered during pregnancy do not rise to the level of a disability under the Americans with Disabilities Act.  In that post, I encouraged you to keep an eye on Young v. UPS, a case pending before the Supreme Court, which had the potential to turn this EEOC guidance on its head.

Yesterday, the Supreme Court issued a decision in the Young case, offering a mixed bag to employers and pregnant employees alike.  But in the end, the Court expanded the potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.

Oh yeah, the court also gave the EEOC a bit of a thumping, too.  I explain below.

The Facts

Peggy Young was unable to perform her job as a delivery driver for UPS during her pregnancy because her doctor imposed a lifting restriction. Young requested a temporary light duty assignment, but UPS denied her request. Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only for drivers who: 1) were injured on the job; 2) suffered from a disability as defined by the ADA; or 3) lost their Department of Transportation certifications. As a result, Young went on an extended, unpaid leave of absence.

At issue in the case was the interpretation of the language of the Pregnancy Discrimination Act, which provides that, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . . ” In this case, UPS treated Young like employees who suffered off-the-job injuries and were not entitled to accommodations.

Young argued that the statutory language should be interpreted literally — in other words, that an employer must provide the same accommodations to pregnant employees as it does to non-pregnant employees who are similar in their ability or inability to work.  On the other hand, UPS urged that as long as an employer provided accommodations to pregnant women in the same way it provided accommodations to others in a facially neutral category (e.g., no accommodations for off-the-job injuries), the employer could not be liable for pregnancy discrimination.

The Court rejected both interpretations. It found that Young’s views – supported by the Obama administration – granted pregnant workers a “most-favored-nation” status, under which an employer would have to provide similar accommodations to all pregnant workers, regardless of the nature of their jobs, the employer’s requirements, or any other criteria, anytime the employer made an accommodation for any employee. The Court didn’t care much for UPS’ argument either, which the Court feared would permit employers to treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work.

The Decision

In reaching its decision, the Court determined that the commonly used balancing test (known as the McDonnell Douglas burden shift) should be used to determine whether a pregnant employee has suffered employment discrimination as a result of her pregnancy.

First, she must clear an initial hurdle (known as a prima facie case) by showing that: 1) she belongs to the protected class (i.e., she is or was pregnant);  2) she sought an accommodation; 3) the employer did not accommodate her; and 4) the employer accommodated others similar in their ability or inability to work. If the employer justifies its refusal to accommodate by providing a legitimate, non-discriminatory reason for its refusal – which normally cannot simply be that it is more expensive or less convenient to add pregnant women to the category of employees whom the employer accommodates – then the plaintiff may proceed to trial only by demonstrating that the employer’s reason is a pretext for discrimination. She may do this by showing that an employer’s policies impose a significant burden on pregnant workers and that the justification for not accommodating pregnant employees is not sufficiently strong, giving rise to an inference of intentional discrimination.

The Court determined that Ms. Young created an issue of fact (and thus potentially requiring a trial on the merits of her case) as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished to hers.  However, it sent the case back to the federal appellate court (the 4th Circuit Court of Appeals) to determine whether UPS’ reasons for having treated Young less favorably than other non-pregnant employees were pretextual.  So, although Young’s case may very well be dismissed yet again, the Court gave Young — and other pregnant employees — a path to victory.

Finally, as my fellow blogger, Walt Olson, points out, we can’t help but be amused by the Court’s smackdown of the EEOC’s decision to issue its Pregnancy Discrimination guidance while the case was pending in front of the high court.  As Olson points out:

the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DOJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, [Supreme Court Justice] Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.

Ouch.  So, the score after 7 innings = Young: 1, UPS: 0, EEOC: 0.

Insights for Employers

The Court’s decision made clear that an accommodation policy that is technically “pregnancy blind” will generally not, in itself, be enough to protect an employer from a pregnancy-related sex discrimination claim. Additionally, as the Court noted, its holding may be of limited significance in light of the ADA Amendments Act of 2008, which were enacted after this case began and therefore did not govern the case. The EEOC has interpreted the expanded definition of disability under the ADAAA to require employers to accommodate employees whose temporary lifting restrictions originate off-the-job, and courts have applied this requirement to pregnant employees.

The decision unwittingly extends to pregnant employees a “most favored nation” status among employees who may have workplace restrictions (even though the Court specifically reasoned that the PDA rejected such a notion).  Therefore, to minimize liability for either a PDA or an ADAAA claim, employers should evaluate their accommodations and light duty policies and the effects of those policies on pregnant employees.  Employers also must take seriously and review thoughtfully all employee requests for pregnancy-related accommodations to minimize liability to pregnancy discrimination claims.

Hat tip: My heartfelt thanks to my colleague, Lindsey Marcus, who drafted much of this post (with the caveat that the crass “belly bump” opening comment is not hers!).

Want a glimpse into a world where an employer fails to maintain a legally compliant leave management process?  Let me warn you — what you are about to read is not pretty and not for the faint of heart.

The Facts

Rachna was a resident physician at St. Vincent Health Center.  She also had a chronic heart condition known as super ventricular tachycardia (SVT) which caused a rapid heartbeat, light-headedness and dizziness.  It also caused her to lose consciousness on several occasions.  Serious health condition?  Ummm, yes.

On June 1, Rachna requested a leave of absence to undergo surgery to address the SVT.  When Rachna met with HR to discuss her need for leave, the HR representative arbitrarily assigned her a return-to-work date of June 24.  When Rachna told her that she’d likely need a little more time to recover, the HR rep agreed to push the return back two days — to June 26.   The medical certification from Rachna’s physician did not contain an anticipated return to work date or an explanation of the duties Rachna could not perform.  However, HR did not follow up with Rachna to ensure she cured the certification, and it did not provide her an FMLA designation notice.

Rachna had surgery and, on June 27, she called HR (and later, her boss) to extend her medical leave. Again, her return date remained up in the air while she awaited clearance from her physician.  At that time, HR did not ask Rachna to provide recertification of her need for leave.  Instead, on July 11, a new HR representative overseeing Rachna’s leave of absence sent Rachna a letter asking her to provide a “receipt of an extension [of her leave of absence] from her physician” and to provide it by the end of that same week.  One week later, on July 18, when she did not hear from Rachna, the HR rep sent an email to Rachna asking her physician to “fax a statement extending your medical leave” through the end of July.

Beginning on July 18, Rachna left a series of voicemails for her physician seeking to obtain documentation supporting her extended leave.  According to Rachna, her physician would not speak with her and did not respond to her voicemails.  In late July, Rachna contacted her direct supervisor to report that she was having difficulty reaching her physician to obtain the appropriate medical documentation.

Just a few days later, on August 1, the Health Center terminated Rachna as a resident physician.

Insights for Employers

Where did the employer go wrong?  Let us count the ways, so said the court.  In a sobering court opinion, the trial court refused to dismiss Rachna’s FMLA interference and retaliation claims, sending them instead to a jury trial.  Patel v. St. Vincent Health Center (pdf)

Of course, these facts explain the employee/plaintiff’s side of the story, and the employer will have an opportunity to present evidence in support of its case at trial.  But let’s identify in the meantime where the Health Center apparently fell short on compliance:

1.  When Rachna sought a leave of absence, the HR rep assigned an arbitrary return to work date instead of obtaining the information directly from the certification.

2.  When Rachna’s physician did not provide a complete and adequate certification, the employer did not seek to cure the certification and obtain the information necessary to make a determination about whether the absence was covered by the FMLA.

3.  Instead, the employer compounded the problem by failing to issue a recertification request when the employee requested an extension of leave.  Who knew if Rachna even required any additional leave?  We’ll never know, since the employer issued a vague request seeking a note from the employee’s physician supporting an extension, and it gave her fewer than five days to provide it.  In these instances, the regulations are clear: when the employee seeks an extension of leave, the employer should issue a request for recertification and provide the consequences for failing to provide recertification.  It also must give the employee up to 15 days to return the certification (fewer than five days just won’t do).  When the employer fails to issue a recertification request in these instances, its leave management processes are not compliant, and they create liability for the employer.

4.  When the employer had enough information to determine whether FMLA applied, it was obligated to provide the employee a Designation Notice.  It didn’t do so here, which is yet another compliance error.

5.  Under the FMLA, the employee must provide recertification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  Here, the employee provided enough evidence that she was engaging in good faith efforts to communicate with her physician to obtain an updated recertification.  Yet, the employer declined to engage her further.  Recall a previous post here where I outlined what an employer can do to determine whether the employee has done all she can to provide certification.

In the end, there apparently were so many holes in the employer’s FMLA administration that the court refused to dismiss not only the employee’s FMLA interference claim, but the FMLA retaliation claim, since the employee could provide evidence that that the employer’s reason for termination was mere pretext for firing her.

Leave management compliance is essential.  Tough lesson for this employer.

aba_logo_01.jpgWant to read about nearly FMLA case that was either dismissed or allowed to advance toward trial?  Want a snapshot of what employers got right and what they got wrong in the land of FMLA?  Look no further:

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  This year’s report is another excellent summary of 2014 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA reference for HR professionals and employment attorneys. Kudos to attorneys Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee and led the drafting of this report.

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.

same sex marriage

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 details:

Where We Were

The FMLA regulations have guided us since their inception that the term “spouse” was to be defined according to the law of the state in which an employee resides, as opposed to the jurisdiction where the marriage was entered.  This distinction became particularly significant after the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Before Windsor, that section restricted the definition of marriage for purposes of federal law to opposite-sex marriages. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized gay marriage. Windsor effectively extended FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriages, even if they were legally married in another state.

After the Windsor decision, President Obama instructed federal agencies such as the DOL to review all relevant federal statutes to implement the decision and, as expected, the DOL took it as an opportunity to apply Windsor to the FMLA regulations. In June 2014, the DOL adopted a proposed “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. Thus, if two individuals of the same sex get married in a state that recognizes same-sex marriage, they are considered to be married for federal FMLA purposes even if the state in which they live and work does not currently recognize same-sex marriage. For example, if the employee was married in New York, but now resides with his same-sex spouse in Texas, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York, since they were married in New York and that state recognizes the right of same-sex couples to marry.

Where We Are Now

After issuing its proposed rule in 2014, the agency now has announced that, on February 25, 2015, it will issue a new final rule (to take effect March 27, 2015) providing that the definition of “spouse” indeed is determined by the state in which a marriage is entered (i.e., the “state of celebration”). As the DOL points out, a place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”  The DOL notes that, as of February 13, 2015, 32 states and the District of Columbia (as well as 18 countries) extend the right to marry to both same- and opposite-sex partners.

In the age of social media, the DOL secretary, Thomas Perez made the agency’s announcement through its own blog post.  That’s kinda neat, so says this FMLA nerd.

A copy of the DOL’s final rule and comments to the final rule can be accessed here (pdf).  A copy of the DOL’s fact sheet on the final rule can be accessed here.

What Does This Mean for Employers?

All well and good, Jeff.  Of course, I know all of this.  Tell me how this new rule impacts my life.  

Here’s what employers need to know and do:

1.  As an initial matter, determine whether the FMLA applies to you.  If so, you should:

  • Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.
  • Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.
  • Be mindful that this new regulation 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 rights than those provided for under the FMLA.

2.  Whether or not FMLA applies to you, you should determine whether any state leave law applies to you.  These laws 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.

3.  Keep in mind two particular FAQs on This New DOL Rule (which I have taken, in part, from of the DOL Final Rule FAQs):

Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?

A. The Final Rule makes no changes to the manner in which employers may require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy this requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. 29 C.F.R. § 825.122(k)

Here’s the catch, employers: It is the employee’s choice to provide a simple statement or another type of document. And DOL has us in a trick bag as to when we can and should ask for reasonable documentation.  On one hand, the agency tells us in the final rule, “Employers have the option to request documentation of a family relationship but are not required to do so in all instances.” (My emphasis) It also rejected calls for instituting a standard in which employers would be required to show that they requested this documentation in a consistent, non-discriminatory manner.  Yet, on the other hand, the DOL is quick to point out that employers “may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”

Thus, from a practical standpoint, shouldn’t employers institute a consistently-applied, non-discriminatory policy when asking for confirmation that a family relationship exists?  In a word, yes. Otherwise, employers risk a claim that they are treating certain employees in a discriminatory manner, thereby interfering with their FMLA rights. I leave that compliance piece carefully in your hands, but I encourage you to tread carefully.

One thing is clear:  If an employee has already submitted proof of marriage to the employer for another purpose, such as in electing health care benefits for the employee’s spouse, the DOL finds that “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”  So, employers, no second bites at the apple if you already have this information!

Q. Does the Final Rule Change the Manner in Which Employees Take FMLA leave to care for a child to whom they stand in loco parentis?

A.  No.  In June 2010, the DOL recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (You can find more on the in loco parentis rule in DOL Fact Sheet #28B.) In other words, this new rule has no impact on the standards for determining the existence of an in loco parentis relationship.