maryland_flag1.jpgThat pesky State of Maryland! (Not that I hold grudges all these years after your Maryland Terapins beat my Indiana Hoosiers for the 2002 NCAA basketball championship!) 

With a little assistance from the U.S. Supreme Court, the State of Maryland avoided potential FMLA liability yesterday in Coleman v. State of Maryland Court of Appeals when the Supremes held that the Family and Medical Leave Act does not allow lawsuits against states by their employees when the suit deals with the “self-care” provisions of the FMLA.  Consequently, Maryland’s victory is a win for all states and their subdivisions. 

The Facts

Plaintiff Daniel Coleman worked for the Maryland Court of Appeals.  A good employee by all accounts, Coleman requested FMLA leave as a result of his own alleged serious health condition.   Instead of providing leave, however, the Court of Appeals fired him.  Not surprisingly, Coleman sued his employer.

Maryland asked the trial court to dismiss Coleman’s lawsuit because it was barred by Maryland’s sovereign immunity.  What is sovereign immunity?  It is a legal privilege under which federal, state and local governments cannot be sued unless they agree to be sued.  (Wouldn’t that be a neat trick for the rest of us private citizens to invoke, too?)  In order to work around the privilege of sovereign immunity and allow private lawsuits against state entities, Congress has to show that the self-care provision of the FMLA remedies a pattern of gender-based discrimination (or some other form of legally cognizable discrimination) in states’ sick leave policies.  Here, Maryland argued that the self-care provision of the FMLA was passed pursuant to the Commerce Clause of the U.S. Constitution, which cannot be used to bypass the states’ sovereign immunity. 

The trial court and appellate court agreed.  And so did the Supreme Court.  For several of the conservative justices, the decision was an easy one, since there arguably is little evidence that Congress passed the self-care provisions of the FMLA to right the wrongs of gender discrimination.  However, in an interesting exchange during oral argument before the high court, Justice Samuel Alito seemed concerned by the apparent unfairness of the result here — that state employees would have no legal recourse in the event they were denied FMLA leave for self-care or terminated because of the need for leave.  Ultimately, Justice Alito suggested that an employee still could seek an injunction to stop the employer from violating the FMLA, even though the employee could recover no monetary damages. 

Insights for Employers

Keep in mind that this decision only affects employees of the states and their subdivisions.  Therefore, public employers cannot to be sued under the “self-care” provision of the FMLA (so long as they have not voluntarily ceded their sovereign immunity with respect to the FMLA).  Other forms of FMLA leave (e.g., caring for a family member), however, still remain protected. 

Interestingly, the Supreme Court has not ruled on whether states can be sued under the FMLA for “bonding” leave and similar forms of FMLA leave.  Thus, public employers should be cautious when seeking to deny FMLA leave for reasons other than self-care.  

Similarly, it is vital for employers — public and private alike — to enforce sick leave and FMLA policies consistently to avoid claims of discrimination.  Failing to do so could subject you to liability under other federal, state or local employment laws.

Illinois currently has no equivalent of the federal Family and Medical Leave Act.  Soon, it may.  And unlike the FMLA, the proposed Illinois leave law would allow civil union partners the same leave entitlements currently enjoyed by married couples.  Notably, because of the conflicting parameters of state and federal law, the proposed Illinois Family and Medical Leave Act, which recently hit the floor of Illinois House of Representatives, actually would afford civil union partners greater leave benefit rights than married couples.

Let me explain.

The Illinois Religious Freedom Protection and Civil Union Act, which became law on June 1, 2011, provides that partners in a civil union are entitled to the same rights, benefits and privileges as those in traditional marriages.  Under this Act, wherever the term “spouse” appears within any Illinois statute, it must be read to include “partners in a civil union.”

Like its federal counterpart, the Illinois FMLA would extend leave benefits to “spouses.”  Because “civil union partners” are now the equivalent of “spouses” in Illinois under the Civil Union Act, civil union partners would be able to take leave to care for their civil union partner under the Illinois FMLA.

This leaves employers with operations in Illinois in a bit of an inadvertent quandary.  Currently, civil union partners cannot utilize leave rights under the federal FMLA because it is governed by the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  So, if an employee in a civil union takes leave to care for his/her partner under the proposed Illinois FMLA, it would count against the leave entitlement under Illinois law, but not under the FMLA.

To illustrate, let’s pretend I am your employee and a partner to a civil union.  I also am otherwise eligible for leave under the FMLA and the proposed Illinois FMLA (meaning, I have worked for you for 12 months and have worked 1,250 hours in the past 12 months).  If I take a two-week leave of absence to care for my partner with a serious health condition, I will have exhausted two weeks of Illinois leave, but I have not exhausted any portion of my 12 weeks of FMLA leave (because FMLA, of course, does not recognize my civil union).  In theory, I could take up to 24 weeks of leave in a 12-month period — 12 weeks under the Illinois FMLA to care for my civil union partner, and 12 weeks for any eligible reason under the FMLA.

Insights for Employers

If the Illinois FMLA becomes law, we will advise employers further.  In the meantime, let me address a more immediate issue.  Over the past several years, I have counseled employers who voluntarily have chosen to provide federal FMLA leave to domestic and civil union partners.  Clearly, this is a growing phemonenon among Fortune 500 companies and leading business.

Keep in mind as you develop these FMLA leave policies: if your policy provides employees leave to care for a domestic or civil union partner, employers cannot count this leave under the employee’s 12-week FMLA allotment, since (as noted above) the FMLA does not recognize these relationships.  To ensure that you are not unintentionally setting yourself up for an FMLA interference claim when providing leave to domestic or civil union partners, we recommend that employers contact their employment counsel for guidance as to best practices in this area.

Q:  An employee who recently returned from FMLA leave claims that a portion of his leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out.  Can we still count this time as FMLA leave?

A:  I have fielded this question from several employers lately, so I figured I would tackle it head on.  In this situation, what an employer is worried about is FMLA “interference” — the idea that the employer is denying the employee FMLA benefits to which he otherwise was entitled.

In a nutshell, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a “professional courtesy” that does not interfere with FMLA leave.  Therefore, a few  work-related communications likely will not constitute interference with an employee’s FMLA rights.  As one federal court in New York put it, when an employee is passing on “institutional knowledge” or providing closure on open assignments, employers do not violate the FMLA.

What about the employee who is answering e-mails and calls without the boss’ knowledge?  Generally good news for employers here, too.  Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so.  Soehner v. Time Warner Cable, Inc.

Insights for Employers

There are no hard and fast rules about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions (where they can find the company business plans, for example) or to wrap up a job the absent employee was working on.  Also, as evidenced in the Soehner case above, it is unlikely to be an FMLA violation where the employee is working behind the boss’s back.

Tread carefully here, though.  If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work.

linkedin-facebook-twitter.jpgWith the growth of blogs and other social networking like Linkedin and Twitter, news comes at us fast and furious these days.  In a recent blog post, LexBlog CEO and legal marketing guru Kevin O’Keefe cited a recent survey finding that 55 percent of people hear about breaking news on Facebook and 20 percent on Twitter.

Clearly, sites like Twitter and Linkedin are revolutionizing the manner in which we find our news and cultivate relationships with prospective clients and influencers.  Over the past couple of months, however, I have found something fascinating: I can tune into these various media to find out what’s most important to the leaders of both the EEOC and Department of Labor.

Stick with me here.  If you took a look at the EEOC’s web site lately, you’ll find press release after press release trumpeting the agency’s latest settlements and/or victories over employers.  In fact, there are so many PRs your eyes glaze over reading through them.

Enter EEOC Commissioner Chai Feldblum, one of the top five officials of an agency that rigorously enforces our federal employment laws.  On any given day, by following Cmmr. Feldblum on Twitter, you can find out in 140 characters or less what her and the EEOC’s priorities are.  This information is precious for at least two reasons: 1) it keeps us up to date on what the EEOC cares about; and 2) it helps employers (and attorneys who help employers) proactively engage our managers on ways they can and should follow the law.  I am sure you can think of more.

Consider for a second Commission Feldblum’s “tweets” over the past few months:

  • Employee with post-partum depression needed time off as a reasonable accommodation. http://dld.bz/a9fm4
  • Nice settlement with American Apparel on an ADA leave case.  http://dld.bz/a84Vf  Looking forward to having comprehensive guidance soon.
  • Spread the word! Do individualized assessment of accommodation when employee returns from short-term disability. http://1.usa.gov/uNBcna

What does Commissioner Feldblum care about?  Leaves of absence as a reasonable accommodation.  What can we then assume what really is on the EEOC’s mind these days?  You guessed it: Leaves of absence as a reasonable accommodation.

Call me weird, obsessed or something worse, but I usually check in with Commissioner Feldblum daily on Twitter to see what’s on her mind.  Why?  More often than not, I find a helpful nugget to share with one of my employer clients, to use in my employment law training sessions or to simply file away for future use.  Fyi: I have not (yet) been accused by anyone on the management side of being a traitor because I follow Cmmr. Feldblum, so no worries — you’re not selling out!  To the contrary, you’ll have a leg up in serving your employer or employer clients even better.  So, take the leap and follow her on Twitter here.

Insights for Employers

If you’re still scared of Twitter and have no desire to venture into a world that will change your life (unreservedly for the better), here are just a few good reminders that I have gleaned from Commissioner Feldblum’s tweets, all of which are instructive to employers:

  1. Utilize “Automatic termination” provisions at your own risk.  As another recent EEOC settlement instructs us, policies that call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.) will doom employers every time.  These kinds of policies do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process and to determine whether a reasonable accommodation is necessary.  At a minimum, ADA and attendance policies must incorporate a case-by-case assessment of the individual employee’s situation and an employer’s duty as to reasonable accommodation.  EEOC Regional attorney John Hendrickson and I covered this topic in detail in an August 2011 Webinar, which (I hope!) helped employers better understand the EEOC’s position on this topic.
  2. When you fire an employee while he or she is on a leave of absence due to a disability, you better have your ducks in a row!  As a recent EEOC settlement makes clear, employers must be able to articulate a very sound, legitimate, nondiscriminatory reason for terminating an employee on a leave of absence.
  3. Be particularly careful with medical conditions such as depression, anxiety and other impairments that are not as visible as ones we can readily see (e.g., an employee in a wheelchair).  The ADA requires an employer to provide a reasonable accommodation of an employee’s disability, unless the employer would suffer an undue hardship, so it’s critical that employers individually assess an employee’s need for leave.

Happy tweeting!

aba_logo_01.jpgEach year, 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.  2011 proved to be an active year for cases involving the Family and Medical leave Act, and this year’s report captures nearly all of them.  It is a great reference for me throughout the year, and I highly recommend it to HR professionals and employment attorneys.

The report can be accessed here (pdf).  Although my FR colleagues and I contributed to the publication, Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee, are the main editors.  Enjoy!

According to Forbes and other news sources, Stephen Colbert has taken a leave of absence from his late-night comedy show, “The Colbert Report,” to attend to his ailing 91 year-old mother.

Only a true FMLA nerd would use this as an opportunity to explain a little-used, often forgotten rule under the Family and Medical Leave Act — the “key employee” provision — that actually could deny Colbert’s reinstatement to his wildly popular comedy show. The FMLA allows employers to utilize this “key employee” provision to deny reinstatement to an employee who is among the highest paid in the workplace and whose reinstatement after FMLA leave creates a significant financial hardship on the employer.

Before I explain further, to all those who inadvertently stumbled upon this blog article while searching google for “Stephen Colbert,” I assure you — the man running for President of the United States of America of South Carolina most assuredly will be welcomed back to The Colbert Report once his FMLA leave ends.

But, let’s suppose for an instant that we lived in the bizarro world, and Comedy Central wanted to get rid of Colbert as quickly as NBC chucked Conan O’Brien from the Tonight Show.  Could it do so under the FMLA? Under the FMLA’s “key employee” exception, Comedy Central could terminate Colbert’s employment so long as it could show that:

1. Colbert is among the highest paid 10 percent of all the employees working for Comedy Central.  Keep in mind two points: a) Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses; however, earnings do not include incentives whose value is determined at some future date, (e.g., stock options, future benefits or even incentives for Colbert because he reportedly is surging ahead of Buddy Roemer in the presidential polls in the upcoming Louisiana primary); and b) the determination of whether Colbert is among the highest paid 10 percent is made at the time he gives notice of the need for FMLA leave.

2. Having to reinstate Colbert would cause substantial and grievous economic injury to Comedy Central’s operations.  This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA.  In short, the only real guidance the regulations give employers is not much in the way of guidance at all:

A precise test cannot be set for the level of hardship or injury to the employer which must be sustained.  If the reinstatement of a “key employee” threatens the economic viability of the firm, that would constitute “substantial and grievous economic injury.”  A lesser injury which causes substantial, long-term economic injury would also be sufficient.  Minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute “substantial and grievous economic injury.”  29 C.F.R. 825.218(c)

In other words, an employer has to show it would be in a world of hurt because of a key employee’s reinstatement after FMLA leave.

Notice to “Key Employee” is Critical

Even if the employer can satisfy the above factors, the employer still must provide the employee written notice at the start of FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits.  If the employer fails to do so, it cannot deny reinstatement.  Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the employer must provide notice to the employee, including the determination that the employee’s reinstatement will cause such injury, and the basis for the determination.  If the employee already has begun FMLA leave, the employer still must provide FMLA leave but allow the employee a reasonable period to return to work in lieu of additional FMLA leave.

If the employee does not return after receiving this notice, he or she still is entitled to take FMLA leave.  Upon the employee’s return from FMLA, the employer must again assess whether substantial and grievous economic injury will occur to its operations if the employee is reinstated. If the employer finds that this injury still will occur, the employer must deny reinstatement in writing and, like before, provide the basis for the determination.  Keep in mind: the “key employee” provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.

Of course, as to Colbert himself, this is simply a hypothetical from the bizarro world.  We look forward to Stephen Colbert’s return to his rightful place at The Colbert Report — and making us laugh on the presidential campaign trail.

Late last month, I reported that the Department of Labor had announced proposed changes to the Family and Medical Leave Act regulations with respect to Military Family Leave, Flight Crew FMLA Eligibility and the manner in which employers calculate increments of FMLA leave.

This morning, these proposed regulatory changes were published in the Federal Register (pdf), which means that the public has 60 days, or until April 16, 2012, to comment on them.

We strongly encourage you to make your voice heard about these proposed regulations.  On behalf of our employer clients, I intend to submit comments to the DOL.  If you would like your thoughts, concerns and suggestions to be included in our comments, please let me know.  Please email your comments to me by April 1, 2012 to ensure that we can incorporate them into our submission.

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

So, what changes did the DOL make to its model FMLA forms?  [Insert background music from Groundhog Day.]  Ahem, there are no changes to the forms.  That’s right!  Zero. Zip. Nada.

Call me naive, wet behind the ears, clueless about federal government [not apologizing for that one], but it’s a bit odd that DOL made absolutely no changes to its model FMLA forms.  Sure, the OMB process can be maddening, at best, but all we anticipated a few tweaks, right?

At a minimum, I would have expected the following changes to the DOL’s FMLA forms:

  1. Incorporating the 2010 amendments for military family leave.  The forms do not account for the changes to exigency leave, which now is possible as a result of a family member’s call to duty in a foreign country (as opposed to the confusing “contingency operation” language originally used).  Indeed, the “contingency operation” language remains.  They also do not contain any reference to a servicemember’s past service, since caregiver leave now can be taken up to five years after the servicemember leaves the military.
  2. Reference to use of genetic information under the Genetic Information Nondiscrimination Act.  Last month, I provided language that we recommend inserting into FMLA medical certification to avoid any issues with disclosure of genetic information.  Employer also should use this disclaimer when seeking medical information from a health care provider (e.g., to support a request for an ADA reasonable accommodation after FMLA leave has expired).

Will the model FMLA forms change any time soon?  We presume that the DOL will update its FMLA forms when the new regulations take effect.  See my prior post outlining those recently proposed changes.  Given that we are squarely in the middle of an election year, however, I would not expect any final regulatory changes or even tweaks to the forms until 2013.

Now that the DOL’s model FMLA forms are in effect for the foreseeable future, 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.  If you haven’t done so already, you also should update your FMLA policy regarding the changes to military family leave, since those changes took effect when the military amendments were passed in late 2009.

Hat tip: Anne St. Martin

Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere.  Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI.  For these employers, however, many of their employees won’t be at work Monday morning.  The reason?  In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late.  Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million. 

“There will be lots of workers partying all night,” John Challenger told Bloomberg BNA (subscription required), “either celebrating the team’s win or crying in their beer—not ready for work on Monday morning.”

Employers in and out of New York and New England will have to be prepared for the apparent onslaught of call offs the day after the Super Bowl.  Many of these employees certainly will use the FMLA as an excuse to recover from the night before.  So, what can an employer do to obtain more information from the employee in these situations to avoid FMLA abuse?  I remind employers of the same suggestions I offered in this post one year ago:

1.  Determine first whether the employee is seeking leave that might be covered by the FMLA. Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary.

Unfortunately, it’s not always that easy. Employees typically are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

2.  Prepare a list of probative questions you ask of all employees when they call in to report an absence. The employer has the right to know why the employee cannot report to work. During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:

  • The specific reason for the absence
  • What duties of the job they cannot perform
  • Whether they will see a doctor for the injury/illness
  • Whether they have suffered from this condition before and previously taken leave for it. If so, when?
  • When they first learned they would need to be absent
  • The expected return date (or time, if less than a day)

3.  If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form?  Has medical certification expired?  If your answer is “yes” to any of these questions, seek recertification immediately.  Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

For more thoughts on combating suspected FMLA abuse, click here.

For the rest of us (who are Chicago Bear fans, of course), better luck (and a lot of it!) next year. 

On January 30, 2012, the U.S. Department of Labor announced proposed changes to Family and Medical Leave Act regulations (pdf) in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.  Rules for the first two have been expected for some time, but the proposed rule on calculating increments of FMLA leave is a bit unexpected and essentially seeks to revert back to pre-2009 regulations on this issue.

The proposed regulations also comment on the DOL’s model FMLA forms as well as an employer’s obligations under the Genetic Information Non-Discrimination Act (GINA).  So, read on…

Military Family Leave

Caregiver Leave

Under the National Defense Authorization Act of 2010, eligible employees can take up to 26 weeks of FMLA leave (“caregiver leave”) in a single 12-month period to care for a covered service member or veteran with a serious injury or illness.  Under the NDAA and the proposed regulations, caregiver leave now can be taken up to five years after the service member leaves the military and for an injury or illness that results from a condition that predates the individual’s active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Interestingly, the DOL is proposing that caregiver medical certification also may be completed by health care providers who are not affiliated with the military or Veterans Administration.  The same would apply to second and third opinions, so long as the initial certification was conducted by a HCP not affiliated with the military or Vets Administrations.  Under the current regulations, second and third opinions are not allowed for caregiver leave.  The DOL has specifically sought feedback on this issue, suggesting that it is open to even further changes to the proposed rule.

Exigency Leave

The NDAA and the proposed regulations also allow employees to take up to 12 weeks of FMLA leave for a “qualifying exigency” due to a family member’s call to active duty in a foreign country.  Qualifying exigencies naturally encompass a wide range of activities associated with a service member’s deployment, such as attending to legal, financial, family, child care, school and other matters.

Prior to the NDAA’s enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  The latter group specifically was excluded in the original statute.  At that time, the DOL rationalized that the lives of regular service members were not disrupted in the same manner as Reserve and National Guard members; hence, no exigency leave for “regular” freedom fighters.  However, the NDAA and proposed regulations reverse that position and now make clear: FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members.

Finally, the proposed regulations seek to expand from five to 15 days the amount of FMLA leave an employee can take to be reunited with a service member during “rest and recuperation” periods.

Airline Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA) ensures that more employees are eligible for FMLA leave.  Enacted in 2009, AFCTCA closed a loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave.  Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek.

AFCTCA applies the same concept to airline flight crews.  In short, the Act provides that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the proposed regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months.  This calculation would not include personal commute time, or time spent on vacation, medical or sick leave.

The rules proposed by the DOL provide specific instruction on how to implement this technical correction and apply the standards for flight crew benefits.

Calculation of Increments of FMLA Leave

Smallest Increments of Leave

In an interesting add on, the DOL also proposes to change the manner in which employers calculate increments of leave.  Before the regulations were changed in January 2009, employers were required to track intermittent or reduced schedule FMLA leave in the smallest increments used by their payroll systems to account for such leave, so long as it was one hour or less.  Thus, if an employer tracked employee time worked in 6-minute increments, the FMLA regulations required employers to also track FMLA leave in the same manner.

In a move that was heralded at the time by the employer community, the DOL amended the regulations in 2009 to allow employers to track FMLA leave time in the same manner they track other forms of leave.  For instance, if the employer required employees to exhaust sick or vacation leave in one-hour increments, they also could require employees to exhaust FMLA leave in one-hour increments so long as the employee wished to use paid leave for the absence.

In short, the DOL proposes that we revert back to the pre-2009 regulations, reasoning that “an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.”  Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.

Physical Impossibility Provisions

Finally, the proposed regulations also seek to roll back a 2009 regulatory change that allowed employers to delay reinstatement where it is physically impossible for the employee to return to his or her job in the middle of their shift.  For example, if a flight attendant required two hours of intermittent leave because of a migraine headache, but also missed his scheduled flight as a result, the airline could delay returning him to work on that day because it was physically impossible for him to join his flight (since it already took off!).  As a result, the employer could designate a larger block of time as FMLA leave in that instance.

Not any more.  According to the DOL’s FAQs on the proposed rules, the DOL “is concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstances where it is merely inconvenient to reinstate the employee mid-shift.”  Therefore, the proposed rule would apply the physical impossibility provision “only the most limited circumstances and only where it is, in fact, physically impossible to allow the employee to leave his or her shift early or to restore the employee to his or her same position or to an equivalent position at the time the employee no longer needs FMLA leave.”

An Employer’s GINA Obligations

The DOL also proposes adding a standard record keeping provision that would confirm employers’ obligations to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).  The DOL reminds employers that, “to the extent that records and documents created for FMLA purposes contain ‘family medical history’ or ‘genetic information’ as defined in GINA, employers must maintain such records in accordance with [GINA’s] confidentiality requirements.”

Oddly, the DOL does not propose an obligation on employers to include any language on GINA protections within the medical certification form.  For a quick review of best practices in doing so, see our post from earlier this month on the issue.

The DOL’s FMLA Forms are gone too? 

Sniff, sniff.  The DOL also intends to whack from the Appendices all of the required FMLA model forms and notices.  Why?  We haven’t a clue, since we know the federal government’s fondness for paper.  If the rule is approved, these forms and notices would only be available on the DOL’s wage and hour website.

Insights for Employers

  1. First, take a deep breath and digest.  Nothing is final just yet!  We now have 60 days (from the time these proposed rules are published in the Federal Register, which is any moment now) to comment on the proposed regulations.  When the proposed rules are officially published, we will be able to submit comments here.
  2. In addition to the newly proposed regulations (see link above), take a minute to review the DOL’s FAQs and Fact Sheet #1 and Fact Sheet #2 on the proposed regulations.
  3. After a deep breath (see No. 1 above), bombard your employment attorney with all kinds  of exceedingly appropriate questions: Will we need to change our FMLA policy and forms? (Yes!)  Will we need to train our managers on these changes? (Yes!) Will the FMLA continue to be an administrative nightmare? (Yes!)  But will we still live to see tomorrow?  (An unreserved Yes!)

More Insights for Employers to follow soon…after a short nap.