Tag: Family Medical Leave Act

Taking Vacation While on Medical Leave: Massachusetts Court Rules on Liquidated Damages Under the FMLA

On June 5, 2019, the Massachusetts Supreme Judicial Court (SJC) issued a decision emphasizing that an employer’s well-designed and thorough internal investigations made prior to a termination decision can provide a strong defense to claims, but less carefully conducted investigations do not.

In DaPrato v. Massachusetts Water Resources Authority, the Massachusetts Water Resources Authority (MWRA) terminated DaPrato’s employment because of its “honest belief” that his family vacation to Mexico during the last two weeks of his Family and Medical Leave Act (FMLA) leave for recovery from foot surgery was an improper use of the leave and warranted termination. The court rejected that position, and clarified the employer’s burden to avoid the award of liquidated damages (i.e., double damages) in claims brought pursuant to the FMLA.

The FMLA states that a judge “shall” award liquidated damages in accordance with statutory provisions if an employer is found liable for violating the FMLA. However, when an employer demonstrates that its conduct was “in good faith and that the employer had reasonable grounds for believing that [its action] was not a violation [of the FMLA]” liquidated damages are in the discretion of the judge and are not mandatory. The MWRA argued such discretionary authority should be available due to a “belief that the employee had misused FMLA leave, even if that belief is mistaken.”

The SJC emphasized that the statute requires employers to act both “in good faith” and on “reasonable grounds.” Applying this standard, the court found that, even though the defendant honestly believed it was complying with the FMLA, it lacked objectively reasonable grounds for such belief. Notably, the SJC found the MWRA’s investigation ignored the employee’s FMLA application and medical records and instead was grounded in “shock, outrage and offense” at the possibility of further FMLA leave for a scheduled knee surgery.

The MWRA’s policy that considered impermissible all vacation taken while on FMLA leave fell short the requirement that it be in good faith and reasonable. The SJC explicitly noted that an employer may not treat the mere fact that an employee went on vacation during FMLA leave, on its own, as impermissible. Instead, a vacation can be permissible or impermissible in terms of consistency with medical leave depending on whether the employee’s conduct while on vacation is consistent with his or her claimed reasons for medical leave. Only when an employer is privy to such information regarding the employer’s conduct may it consider inconsistencies between the conduct and the claimed reasons for leave when evaluating whether leave has been properly or improperly used. Here, a blanket assumption that the employee’s vacation represented an improper use of leave time and the failure to properly investigate left the MWRA unable to obtain a lesser liquidated damages amount.

Key Takeaways

While the decision focused on the narrow “honest belief” exception to liquidated damages in the FMLA, it should remind employers of the importance of objectivity in their investigations. In the context of an FMLA investigation, DaPrato reminds employers to ensure that they avoid decisions that are “honest but unconsciously biased” where, as here, the employer mistakenly believed an employee on FMLA leave could not legitimately take a vacation. Only by satisfying both the good faith and reasonableness requirements—which in this case mandated knowledge of the law surrounding employee use of vacations while on FMLA leaves—could this employer have avoided liquidated damages. Thus, DaPrato should prompt employers to be even more cautious when discharging employees for perceived misconduct and ensure their internal investigations are thorough, fair, and objective.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more on FMLA policies see the National Law Review page on Labor & Employment.

Chicago Joins Growing Trend in Requiring Paid Sick Leave

paid sick leaveThe City of Chicago joined an emerging national trend when it unanimously passed an ordinance that requires employers to provide workers with paid sick days.

The change will go into effect on July 1, 2017, and expands benefits already provided under the Family Medical Leave Act (FMLA). The FMLA grants covered employees up to 12 weeks of unpaid time off to attend to the serious health condition of the employee or a covered family member. In contrast, the Chicago ordinance requires businesses to provide eligible employees one hour of paid sick leave for every 40 hours worked, up to 40 hours of total paid sick leave in each 12-month period.

The ordinance, which is technically an amendment to Chicago’s minimum wage law, covers all employees who perform at least two hours of work within the City in any two-week period and who work at least 80 hours during any 120-day period. The ordinance applies to all employers, regardless of the number of employees, that maintain a business facility within the geographic boundaries of the City or who are subject to one of the City’s licensing requirements. The law permits employees to carry up to 2.5 paid sick days over to the following year, but does not require employers to pay employees for unused sick days.

New employees will be eligible to use paid sick days after an initial six-month probationary period. Employers who already offer paid time off that satisfies the requirements of
the ordinance will not be required to provide additional benefits.

Under the ordinance, employees will be able to use paid sick leave for their own illnesses, injuries, medical care or preventative care, or for the illnesses, injuries, medical care or preventative care of covered family members. Pursuant to the law, “family members” is construed broadly to include a child, legal guardian, spouse, domestic partner, parent, the parent of a spouse or domestic partner, sibling, grandparent, grandchild or any other individual related by blood whose close association with the employee is the equivalent of a family relationship. Employees also can use paid sick leave if they or their family members are victims of domestic violence or if their place of business or child care facility has been closed due to a public health emergency.

In passing the amendment, Chicago has added another potential landmine in the already tough- to-navigate employer/employee relationship. The ordinance allows employers to require that employees who use paid sick leave for more than three consecutive days provide certification that the leave was for a qualifying purpose. However, the ordinance prohibits employers from inquiring as to the specific nature of the medical issue. As such, employers should tread carefully when addressing employees’ health issues and corresponding requests for time off.

Currently, four states have laws requiring employers to issue paid sick leave benefits. Connecticut passed the first such law in 2011, followed by Massachusetts and California in 2014 and Oregon in 2015. Likewise, roughly 20 cities across the country have enacted similar regulations, including San Francisco, Washington D.C., Seattle and Philadelphia.

ARTICLE BY David M. Holmes, Alexander L. Reich & Angela M. Sekerka of Wilson Elser Moskowitz Edelman & Dicker LLP
© 2016 Wilson Elser

DOL Issues Final Rule Amending FMLA Definition of “Spouse” to Include Same-Sex Marriages

The U.S. Department of Labor has issued a final rule amending the regulatory definition of “spouse” under the Family and Medical Leave Act (“FMLA”).  We earlier reported on the DOL’s proposed rule to this effect, which is now final and will become effective on March 27, 2015.

The amendment changes the definition of “spouse” to include individuals in same-sex marriages if the marriage was valid in the place it was entered into regardless of where they live.  Before the new rule was issued, the FMLA and its accompanying regulations defined “spouse” as a husband or wife as recognized under the laws of the state in which the employee resides.  The new definition of spouse instead looks to the law of the jurisdiction in which the marriage was entered into and expressly encompasses same-sex married couples.  The final rule thus adopts a “place of celebration” rule rather than a “state of residence” rule for the definition of “spouse” under the FMLA.

According to the DOL, the amended regulatory definition of spouse permits “eligible employees in legal same-sex marriages [to] be able to take FMLA leave to care for their spouse or family member, regardless of where they live.”  The DOL has also suggested that the new rule will reduce the administrative burden on multi-state employers, who no longer have to consider an employee’s state of residence and the laws of that state in determining the employee’s eligibility for FMLA leave.

The new rule was prompted by the United States Supreme Court decision in United States v. Windsor, which found unconstitutional those provisions of the Defense of Marriage Act that prohibited federal recognition of same-sex marriages.

Some of the other features of the new rule include:

  • The new rule encompasses an employee in a same-sex marriage entered into abroad as long as the marriage is valid in the place it was entered into and could have been entered into in at least one state in the United States.

  • The new rule encompasses employees in a common law marriage as long as the common law marriage became valid in a state that recognizes such common law marriage.

  • An employee in a legal same-sex marriage can now take FMLA leave to care for his or her stepchild whereas before, an employee in a legal same-sex marriage could only take FMLA leave to care for his or her stepchild for whom the employee stood in loco parentis.

  • Similarly, an employee can now take FMLA to care for his stepparent who is the employee’s parent’s same-sex spouse, even if the stepparent never stood in loco parentisto the employee.

ARTICLE BY

Shira Forman
Sheppard, Mullin, Richter & Hampton LLP

Paid Sick Leave: Coming Soon to a City Near You?

Barnes & Thornburg LLP Law Firm

President Obama reincarnated paid sick leave as a possible federal law right in his recent State of the Union address. “Send me a bill that gives every worker in America the opportunity to earn seven days of paid sick leave,” Obama said. “It’s the right thing to do.” Under the Family and Medical Leave Act, employees of covered employers currently have rights to as much as twelve weeks of unpaid medical leave per year. In addition, thousands of employers of every size voluntarily provide some form of paid sick leave in their employee benefits, such as a limited number of sick days or personal days. Three states (California, Connecticut and Massachusetts) presently mandate some form of paid sick leave for employees of private companies.

Although the President’s prospects for achieving a federal form of paid sick leave seem dim in the current Republican majority Congress, paid sick leave benefits are steadily rolling out at the municipal level.

The growing roster of cities with paid sick leave ordinances now includes: New York City; San Francisco; Seattle and Tacoma, Washington; Portland and Eugene, Oregon; and eight municipalities in New Jersey. This is a recent trend. In 2014, two states (Massachusetts and California) and five cities adopted paid sick leave laws for the first time. While more state-level paid sick leave laws do not appear to be on the near horizon, the steady growth of municipal-level paid sick leave requirements for private employers may indicate an important trend.

Local paid sick leave ordinances create serious complications for employers with widespread operations, resulting in a patchwork of employee benefits and medical leave issues on top of current FMLA compliance headaches.

ARTICLE BY

Peter R. Spanos
OF
Barnes & Thornburg LLP

Can You Prove the Mail Was Delivered? If You Are Sending An FMLA Notice, the Answer Must Be Yes

Poyner Spruill Law firm

A recent case emphasizes the importance of implementing procedures that establish strict compliance with the employer notice obligations under the FMLA. In Lupyan v. Corinthian Colleges, Inc., the Third Circuit held that Corinthian Colleges, Inc. (the College) could not avoid a jury trial because it did not send the mandatory individual FMLA notice to the plaintiff via a mailing that produced proof of receipt. Ms. Lupyan applied for leave due to depression in December 2007. Her physician completed a  Certification of Health Care Provider form, stating that she needed leave through April 1, 2008. The College verbally advised Lupyan that her leave was being designated as Family Medical Leave and allegedly mailed her a letter explaining her rights and responsibilities under the FMLA, including the fact that her FMLA leave ran out at the end of March. Lupyan did not return to work by the end of March, and the College terminated her employment. She sued, claiming that she never received the letter, and that if she had known that her leave was limited to 12 weeks, she would have returned to work and avoided termination. The lower court granted summary judgment to the College based on its affidavits stating that a letter satisfying the notice requirements of 29 CFR § 825.208 was mailed through regular snail mail to Lupyan. The Third Circuit reversed, holding that the presumption of receipt usually given to the U.S Postal Service mail was insufficient in light of Lupyan’s denial that she ever got the letter. Because the FMLA regulations are silent on the type of mail required for delivery of mandatory FMLA notice, many employers may use regular mail. Best practice in light of the Lupyan decision is to use certified or overnight mail so that proof of delivery exists when sending the Notice of Rights and Responsibilities and the Notice of Eligibility required under the FMLA and to obtain a personal email address from employees as part of the leave application and approval process. An email, with a receipt that shows it was opened, would also likely suffice for proof of delivery.

ARTICLE BY

Susanna Knutson Gibbons
OF
Poyner Spruill LLP

Keeping Current – Recent Changes in Employment Laws

vonBriesen

Is your FMLA policy up to date?

The federal Family Medical Leave Act regulations were revised in 2013, primarily to expand the circumstances under which employees can take military leaves. For example, leave is now available to care for covered veterans and for service members or veterans who aggravated an existing illness or injury while on active duty (as opposed to suffering a new injury while on duty). Qualifying exigency leave is now also available to care for a covered service member’s parent.

The Department of Labor is increasing the number of complaint-driven on-site audits it conducts under the FMLA. Auditors will come in with a checklist of updates they expect to see in an employer’s FMLA policy to comply with the 2008 and 2013 regulatory changes, as well as the DOL’s informal guidance. Having updated policies will show an auditor or investigator that you are up to speed on the latest changes in the law and may lend credibility to your FMLA practices.

If you are a federal contractor, are you preparing to comply with the new OFCCP regulations regarding veterans and individuals with disabilities?

The Office of Federal Contract Compliance (“OFCCP”) issued regulations in 2013 substantially increasing the obligations of federal contractors relating to veterans and individuals with disabilities. Many of these new requirements, including language to be included in all job postings and subcontracts, go into effect March 24, 2014. Additional requirements go into effect at the start of an employer’s next plan year after March 24, 2014, but may require substantial planning in advance. For example, federal contractors will now be required to conduct statistical analysis of the number of veterans and disabled individuals in their workforce, much like what was already required for race and gender. This requires inviting individuals to self-identify as a veteran or disabled. The regulations require this invitation be made to all applicants and again to those offered jobs. It also requires that an employer’s existing work force be invited to self-identify as disabled every five years. Tracking this information can be complicated, as it must be kept separate from general personnel files and treated as confidential. This is not only required by the regulations but is also essential to avoid increased risk of discrimination claims on the basis of disability.

Companies that provide products or services under contracts with the federal government should review their obligations to ensure they are complying with these new OFCCP regulations.

Was your employee terminated for misconduct or “substantial fault” on the job?

Wisconsin’s 2013 Budget Bill made changes to the statutes governing unemployment insurance, which took effect January 5, 2014. Even before these changes, employees would be ineligible for unemployment insurance benefits if they were terminated for misconduct. The definition of misconduct previously came from case law. The new statute defines misconduct and includes examples, which include:

  • Two or more absences (without notice or without valid reason) in 120 days, unless employer policy is more generous
  • Falsifying business records

The statute also adds a second basis under which employees may be disqualified for benefits, if they are terminated for “substantial fault” in their performance. This still does not disqualify an employee from unemployment benefits for minor infractions or inadvertent errors, but on its face it would disqualify an employee who was terminated for major failures. This basis is largely undefined and untested, so we will have to monitor the decisions of administrative law judges and the courts to determine how it will be defined in practice. The updated statutes also narrow the circumstances in which an employee can quit his/her job and still qualify for unemployment benefits.

These changes may mean that employers are more likely to prevail if they challenge a former employee’s unemployment compensation claims. This may be of particular benefit to non-profit employers who participate in the unemployment insurance system as reimbursing employers, and therefore pay dollar-for-dollar on each unemployment claim.

Article by:

Sarah J. Platt

Of:

von Briesen & Roper, S.C.

Family and Medical Leave Act (FMLA) Protected Leave Now Available To Same-Sex Spouses

DrinkerBiddle

United States Secretary of Labor, Thomas Perez, recently issued an internal memorandum to department staff outlining the Department of Labor’s plan to issue guidance documents which will, among other things,  make protected leave available to same-sex couples under Family and Medical Leave Act (“FMLA”).  This action comes as the Department prepares to implement the Supreme Court’s recent decision in U.S. v. Windsor, which struck down the provisions of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex spouses.  Calling it a “historic step toward equality for all American families,” Secretary Perez noted that the Department of Labor will coordinate with other federal agencies to make these changes “as swiftly and smoothly as possible.”

Secretary Perez stated that guidance documents would be updated to remove references to DOMA and to “affirm the availability of spousal leave based on same-sex marriages under the FMLA.  This change is of great consequence to same-sex spouses who previously were unable to access the job-protected leave provided under the FMLA.  Now, eligible same-sex spouses will be able to take FMLA leave for certain specified family and medical reasons, including caring for a spouse with a serious health condition, and generally will be returned to their original position or another position with equivalent pay, benefits and status.  The new interpretation reflected in the Department’s updated guidance documents will be effective immediately.

In the Department’s official blog, Modern Families and Worker Protections, Laura Fortman, the principal deputy administrator of the Wage and Hour Division, announced on August 13, 2013 that revisions had already been made to various FMLA guidance documents to reflect the changes necessitated by U.S. v. Windsor.  Fortman clarified that the “changes are not regulatory, and they do not fundamentally change the FMLA.”  They merely expand the universe of employees who are eligible for FMLA benefits by including legally married same- sex couples.  The updated documents can be viewed at these links:

Although Secretary Perez did not specifically address the question, the updated guidance documents indicate that the Department only intends to expand FMLA benefits to same-sex spouses in the 13 states and the District of Columbia that have recognized same-sex marriage.  As an example, Fact Sheet#28F,Qualifying Reasons for Leave Under the Family and Medical Leave Act, defines “spouse” for purposes of FMLA leave as  “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.”   In contrast, the Office of Personnel Management announced on its website that benefits will be extended to Federal employees and annuitants who have “legally married a spouse of the same sex, regardless of the employee’s or annuitant’s state of residency.”

As initial steps to implementing these changes, employers should inform or train human resources personnel regarding the availability of FMLA leave to eligible employees under the specified definition of spouse; review internal procedures and leave documentation to ensure compliance, and finally, review employee handbooks and policies to include provisions for same-sex couples where appropriate.

2013 Family and Medical Leave Act (FMLA) Amendments: Have you Complied?

Odin-Feldman-Pittleman-logo

In February 2013, the U.S. DOL published the Final Rule implementing statutory changes to the Family and Medical Leave Act of 1993 (FMLA).  The final rule expanded the military family leave provisions, among other changes.  The following chart was adapted from the DOL’s Wage and Hour Division website and shows a side-by-side comparison of the salient provisions of the current regulations:

Qualifying Exigency Leave (§ 825.126)
2008 Regulations 2013 Regulations
An eligible employee may take FMLA leave for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter or parent (the covered military member) is on active duty or has been notified of an impending call or order to   active duty in support of a contingency operation.

Eligible employees may take qualifying exigency leave for any of the
following reasons:

(1) short notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities.

Employees who request qualifying exigency leave to spend time with a military member on Rest and Recuperation leave may take up to five days of leave.

 “Covered military   member” is now “military member” and includes both members of the National Guard and Reserves and the Regular Armed Forces.

“Active duty” is now “covered active duty” and requires deployment to a foreign country.

A new qualifying exigency leave category for parental care leave is added.  Eligible employees may take leave to care for a military member’s parent who   is incapable of self-care when the care is necessitated by the member’s covered active duty. Such care may include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.

The amount of time an eligible employee may take for Rest and Recuperation qualifying exigency leave is expanded to a maximum of 15 calendar days.
 

Military Caregiver Leave (§ 825.127)
2008 Regulations 2013 Regulations
An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember (a current servicemember) of the Armed Forces, including National Guard and Reserve members, with a serious injury or illness incurred in the line of duty on active duty for which the servicemember is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient   status, or is otherwise on the temporary disability retired list, may take up to 26 work weeks of FMLA leave to care for the servicemember in a single 12-month period. The definition of covered servicemember is expanded to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.

A covered veteran is an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

The period between enactment of the FY 2010 NDAA on October 28, 2009 and the effective date of the 2013 Final Rule is excluded in the determination of the five-year period for covered veteran status.
 

Serious Injury or Illness for a Current Servicemember (§ 825.127)
2008 Regulations 2013 Regulations
A serious injury or illness means an injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating. The definition of a serious injury or illness for a current servicemember is expanded to included injuries or illnesses that existed before the beginning of the member’s active duty and were aggravated by service in the line of duty on active duty in the Armed Forces.
 

Serious Injury or Illness for a Covered Veteran (§ 825.127)
2008 Regulations 2013 Regulations
Not applicable. A serious injury or illness for a covered veteran means an injury or illness that was incurred or aggravated by the member in the line of duty on active duty in the Armed   Forces and manifested itself before or after the member became a veteran, and is:

(1) A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the   servicemember’s office, grade, rank, or rating; OR

(2) A physical or mental condition for which the covered veteran has received a VA Service Related Disability Rating (VASRD) of 50 percent or greater and such VASRD rating is based, in whole or in part, on the condition precipitating the need for caregiver leave; OR

(3) A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially painful occupation by reason of a disability or disabilities related to military service or would do so absent treatment; OR

(4) An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
 

Appendices
2008 Regulations 2013 Regulations
The FMLA optional-use forms and Notice to Employees of Rights Under the FMLA (poster) are provided in the appendices to the regulations. The FMLA optional-use forms and poster are removed from the regulations and no longer available in the appendices. They are now available on the Wage and Hour Division website, www.dol.gov/whd, as well as at local Wage and Hour district offices.

 

If you are a covered employer under FMLA, have you done the following?

Displayed the new DOL FMLA Notice Poster, electronically or in hard copy?

  • Updated your FMLA policy, which must be in your
    employee handbook or distributed to each employee?
  • Started using the new FMLA forms, such as the
    Notice of Eligibility, Designation Notice, and various Certification forms?
Article By:
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Department of Labor “DOL” Publishes New Family and Medical Leave Act “FMLA” Regulations – Analysis and Implications

The National Law Review recently featured an article by Rene M. Johnson, Michelle Seldin Silverman, Silvia A. LeBlanc, and Sarah Andrews with Morgan, Lewis & Bockius LLP regarding Family Medical Leave Act Regulations:

Morgan Lewis logo

Final rule takes effect on March 8 and makes changes to model certification forms, intermittent leave, exigency and military caregiver leave, and flight crew rules.

On February 6, the U.S. Department of Labor (DOL) published a final rule[1] (Final Rule) that (1) amends the Family and Medical Leave Act (FMLA) regulations addressing the coverage of military caregiver and exigency leaves and (2) revamps eligibility requirements for certain airline industry employees. While the Final Rule will require some changes to most employers’ written FMLA policies and forms, it should not bring about substantial changes to the way most employers administer military caregiver and exigency leaves.

Summary of the Final Rule

This LawFlash provides a detailed analysis of the changes included in the Final Rule. Most importantly, employers should note that the Final Rule does the following:

  • Adds a new category of exigency leave for parental care
  • Increases the maximum number of days from five to 15 calendar days for exigency leave to bond with a military member on rest and recuperation leave
  • Makes effective amendments that extend military caregiver leave to family members of certain veterans with qualifying serious injuries or illnesses
  • Clarifies the scope of exigency leave to family members of those in the regular armed forces
  • Retains the physical impossibility rule, which provides that, where it is physically impossible for an employee to commence or end work midway through a shift, the entire period that the employee is forced to be absent is counted against the employee’s FMLA leave entitlement
  • Retains, but clarifies, the existing regulation regarding the appropriate increments to calculate intermittent and reduced-schedule leave

Employers should also be aware that the DOL has developed several new FMLA forms[2] and has released new guidance regarding the existing definition of “son or daughter.”

Background on FMLA Amendments

As most employers are now well aware, the FMLA was amended in January 2008 to provide the following two types of military family leave for FMLA-eligible employees:

  • Exigency leave: a 12-week entitlement for eligible family members to deal with exigencies related to a call to active duty of service members of the National Guard and reserves
  • Military caregiver leave: a 26-week entitlement for eligible family members to care for seriously ill or injured service members of the regular armed forces, National Guard, and reserves

Less than a year later, Congress again amended the FMLA through the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA), P.L. No. 111-84. In this act, Congress expanded both types of military family leave by doing the following:

  • Expanded military caregiver leave to include the family members of certain veterans with serious injuries or illnesses who are receiving medical treatment, recuperation, or therapy if the veteran was a member of the armed forces at any time during the five years preceding the date of the medical treatment, recuperation, or therapy
  • Expanded exigency leave to include the family members of those in the regular armed forces but added the requirement that service members be deployed to a foreign country
  • Extended military caregiver leave to the family members of current service members with a preexisting condition aggravated by military service in the line of duty on active duty

The FY 2010 NDAA did not include an effective date, so these changes were presumed effective on October 28, 2009.[3] Later in 2009, Congress also passed the Airline Flight Crew Technical Corrections Act (AFCTCA), P.L. 111-119, to provide an alternative eligibility requirement for airline flight crew employees.

Final Rule Relating to Qualifying Exigency Leave

The Final Rule includes a number of changes relating to qualifying exigency leave. It is important to note that, in response to concerns raised in the comment period, the DOL reaffirmed that, where a qualifying exigency involves a third party, employers may contact that third party to verify the meeting and the purpose of the meeting.

Definition of “Active Duty” — § 825.126(a), Now § 825.126(a)(1) and (a)(2)

The Final Rule replaces the existing definition of “active duty” with two new definitions: (1) “covered active duty,” as it applies to members of the regular armed forces, and (2) “covered active duty or call to covered active duty,” as it applies to members of the reserves.

The new definition of “covered active duty,” as it relates to the regular armed forces, requires that the service member be deployed with the armed forces in a foreign country.[4]

The new definition of “covered active duty or call to covered active duty,” as it relates to reserves members, requires that the service member be under a call or order to active duty during the deployment of the member to a foreign country under a federal call or order to active duty in support of a contingency operation. While the FY 2010 NDAA struck the term “contingency operations” from the FMLA, the DOL has taken the position that members of the reserves must be called to duty in support of a contingency operation in order for their family members to be entitled to qualifying exigency.

Exigency Leave for Child Care and School Activities — § 825.126(a)(3), Now § 825.126(b)(3)

The Final Rule places limits on exigency leave to arrange for child care or attend certain school activities for a military member’s son or daughter. Specifically, the Final Rule states that the military member must be the spouse, son, daughter, or parent of the employee requesting leave in order to qualify for the leave. The child in question could be “the military member’s biological, adopted, or foster child, stepchild, legal ward, or child for whom the military member stands in loco parentis, who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.” The child for whom child care leave is sought need not be the child of the employee requesting leave.

The DOL specifically declined to extend qualifying exigency leave to employees who stand in loco parentis to a child of a military member when that employee does not have the statutorily required relationship with the military member for that leave. For example, while the mother of a military member may take leave to care for the military member’s child, the military member’s mother-in-law is not qualified for such leave, regardless of her relationship with the child, because the military member is not the spouse/son/daughter/parent of the employee requesting leave.

The DOL also declined to provide a specific category of exigency leave to address educational and related services for disabled children, noting that the current regulations are sufficient to cover meetings about eligibility, placement, and services and meetings related to a child’s individualized education plan. The DOL comments make clear that child care and school activity exigency leave does not cover routine academic concerns.

Exigency Leave for Rest and Recuperation — § 825.126(a)(6), Now § 825.126(b)(7)

The Final Rule increases the maximum number of days from five to 15 calendar days for exigency leave to bond with a military member on rest and recuperation leave, beginning on the date the military member begins his or her rest and recuperation leave.

The actual amount of leave provided to the employee should be consistent with the leave provided by the military to the member on covered duty. For example, if the military allows a member 10 days of rest and recuperation leave, the employee is entitled to 10 days. The leave may be taken intermittently, or in a single block, as long as the leave is taken during the period of time indicated on the military member’s rest and recuperation orders.

New Exigency Leave for Parental Care — Now § 825.126(b)(8)

The Final Rule adds parental care as a qualifying exigency for which leave may be taken. This allowance tracks the child care exigency provision and allows parental care exigency leave for the spouse, parent, son, or daughter of a military member in order to do the following:

  • Arrange for alternative care for a parent of the military member when the parent is incapable of self-care and the covered active duty or call to covered active duty status of the military member necessitates a change in existing care arrangements
  • Provide care for a parent of the military member on an urgent, immediate-need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need to provide such care arises from the covered active duty or call to covered active duty status of the military member
  • Admit or transfer a parent of the military member to a care facility when the admittance or transfer is necessitated by the covered active duty or call to covered active duty status of the military member
  • Attend meetings with staff at a care facility for a parent of the military member (e.g., meetings with hospice or social service providers) when such meetings are necessitated by the covered active duty or call to covered active duty status of the military member

The military member’s parent must be incapable of self-care, which is defined as requiring active assistance or supervision to provide daily self-care in three or more “activities of daily living” (e.g., grooming, dressing, and eating) or “instrumental activities of daily living” (e.g., cooking, cleaning, and paying bills).

Final Rules Relating to Military Caregiver Leave

Certification Provisions for Caregiver Leave — § 825.310

The existing regulations limited the type of healthcare providers authorized to certify a serious injury or illness for military caregiver leave to providers affiliated with the U.S. Department of the Defense (DOD) (e.g., a Veterans Affairs facility (VA) or DOD-TRICARE provider). The Final Rule eliminates this distinction and allows any healthcare provider authorized under section 825.125 to certify injury or illness under the military caregiver provisions. In doing so, the DOL recognized that private healthcare providers might be unable to make certain military-related determinations to certify that the serious injury or illness is related to military service. Therefore, the Final Rule will allow providers to rely on determinations from an authorized DOD or VA representative on these issues.

Because of this change, the Final Rule will allow for second and third opinions on certifications of military caregiver leaves for non-DOD/VA providers. The Final Rule does not alter the prohibition on second and third opinions when the certification has been completed by a DOD/VA authorized provider.

The DOL has developed new Forms WH-385 and WH-385-v to help employers meet the FMLA’s certification requirements. While the use of the forms is optional, employers may not require any information beyond what is authorized by regulation.

Leave to Care for a Covered Service Member with a Serious Injury or Illness — § 825.127

As employers will recall, military caregiver leave provides a 26-week leave entitlement for eligible family members to care for seriously ill or injured military members. The existing regulations specifically excluded former members of the regular armed forces, former members of the National Guard and reserves, and members on the permanent disability list from the definition of a “covered service member.” The Final Rule will remove this exclusion so that military caregiver leave now applies to former members of the military.

Definition of “Covered Veteran” for Caregiver Leave — § 825.127

The existing regulations did not define “covered service member” with regard to veterans. The Final Rule will remedy this gap and include veterans in the applicable definition. Specifically, covered service members include (i) a covered veteran (ii) who is undergoing medical treatment, recuperation, or therapy (iii) for a serious injury or illness.

A “covered veteran” is defined as a member of the armed forces, National Guard, or reserves who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

Employers need to be aware that the Final Rule excludes the period between October 28, 2009, and March 8, 2013 (the effective date of the Final Rule) from the five-year “look back” for covered veteran status. This grace period attempts to address complexities stemming from the DOL’s position that military caregiver leave did not become effective for veterans until its proposed rules became final.

Furthermore, the Final Rule reiterates the DOL’s position that leave provided to veterans under this provision before March 8, 2013, cannot be counted against an employee’s leave entitlement because companies provided it voluntarily before the effective date of the Final Rule. It is unclear if the courts will agree with this interpretation, and employers should proceed with caution.

Definition of “Serious Injury or Illness” — § 825.127

The Final Rule clarifies that a serious injury or illness can include a preexisting condition aggravated by military service in the line of duty on active duty. The Final Rule explains that a preexisting injury or illness generally will be considered to have been aggravated in the line of duty where there is an increase in the severity of such injury or illness during service, unless there is a specific finding that the increase in severity is due to the natural progression of the injury or illness.

Under the Final Rule, a current member of the armed forces must have a serious injury or illness that renders the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.

The Final Rule also defines “serious injury or illness” of a covered veteran. Like the definition of “serious injury or illness” for military service, the serious injury or illness of a covered veteran must be incurred in, or preexisting but aggravated by, the line of duty on active duty. The serious injury or illness of a covered veteran also must be one of the following:

  • A continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the armed forces and that rendered the service member unable to perform the duties of the service member’s office, grade, rank, or rating
  • A physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater, with such VASRD rating being based, in whole or in part, on the condition precipitating the need for military caregiver leave
  • A physical or mental condition that substantially impairs, or would do so absent treatment, the covered veteran’s ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service
  • An injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers

The DOL noted that, while the definition of a covered veteran’s “serious injury or illness” includes conditions that impair the ability of a veteran to work, covered veterans may be employed. The DOL offers the example of a veteran with post-traumatic stress disorder who is able to work because of medical treatment but who may still need care from a family member for other reasons (e.g., to drive the veteran to medical appointments or to assist the veteran with basic medical needs).

The commentary in the Final Rule also makes it clear that, although a military member’s Social Security Disability Insurance determination is not dispositive of having a qualifying serious injury or illness, a private healthcare provider might consider the determination in his or her assessment.

Special Rules for Airline Flight Crews

The AFCTCA, which took effect on December 21, 2009, provides that an airline flight crew employee will meet the hours-of-service eligibility requirement if he or she has worked or been paid for not less than 60% of the applicable total monthly guarantee (or its equivalent) and has worked or been paid for not less than 504 hours (not including personal commute time or time spent on vacation, medical, or sick leave) during the previous 12 months. Airline flight crew employees continue to be subject to the FMLA’s other eligibility requirements.

The Final Rule includes provisions to align the existing regulations with the passage of the AFCTCA. Employers should note that the regulations applicable to airline flight crews in the Final Rule are wholly contained in a separate, newly titled subpart, “Subpart H – Special Rules Applicable to Airline Flight Crew Employees,” and are not integrated into the existing regulations by topic.

Hours-of-Service Requirement — § 825.801

Because the AFCTCA established a special hours-of-service requirement for airline flight crew employees, the DOL has adopted new section 825.801, which largely tracks the DOL’s 2012 proposal. Airline flight crew employees may become eligible under the FMLA (as amended by the AFCTCA) if they have either the required number of “hours worked” or “hours paid” during the previous 12-month period.

The Final Rule provides that an airline flight crew employee can meet the hours-of-service requirement under the FMLA if he or she (1) meets the standard eligibility threshold contained in section 825.110 (1,250 hours/12 months) or (2) has worked or been paid for not less than 60% of his or her applicable monthly guarantee and has worked or been paid for not less than 504 hours.

For airline employees who are on reserve status, the “applicable monthly guarantee” is defined in new section 825.801(b)(1) as the number of hours for which an employer has agreed to pay the employee for any given month. For airline employees who are not on reserve, the applicable monthly guarantee is the minimum number of hours for which an employer has agreed to schedule such employee for any given month.

The Final Rule clarifies that employers have the burden of proof in showing that an airline flight crew employee is not eligible for leave.

Calculation of Leave — § 825.802

The Final Rule allows airline flight crews up to 72 days of leave during any 12-month period to use for one or more of the following reasons: as an employee’s basic leave entitlement for the employee’s own illness; to care for an ill spouse, child, or parent; for the birth or adoption of a child or placement of a child in the employee’s home for foster care; or for exigent circumstances associated with the employee’s spouse, son, daughter, or parent on covered active duty. This entitlement is based on a uniform six-day workweek for all airline flight crews, regardless of time actually worked or paid, multiplied by the statutory 12-workweek entitlement. Airline flight crews are entitled to up to 156 days of military caregiver leave.

When a flight crew employee takes intermittent or reduced-schedule leave, the Final Rule requires employers to account for the leave using an increment no greater than one day.

Recordkeeping Requirements — § 825.802

In addition to the recordkeeping requirement applicable to all employers under the FMLA, the Final Rule requires airline employers to maintain any records or documents that specify the applicable monthly guarantee for each type of employee to whom the guarantee applies, including any relevant collective bargaining agreements or employer policy documents that establish the applicable monthly guarantee, as well as records of hours worked.

Other Changes Universal to the FMLA

Increments of Intermittent FMLA Leave — § 825.205

The existing version of section 825.205(a) defined the minimum increment of FMLA leave to be used when taken intermittently or on a reduced schedule as an increment no greater than the shortest period of time that the employer uses to account for other forms of leave, provided that it is not greater than one hour. According to the comments of the Final Rule, the DOL intended to emphasize that an employee’s entitlement should not be reduced beyond the actual leave taken and therefore added language to paragraph (a)(1), stating 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. This change does not necessitate action for any employer already complying with the shortest increment rule.

The DOL further clarified that the additions to section 825.205(a) underscore the rule that if an employer chooses to waive its increment-of-leave policy in order to return an employee to work at the beginning of a shift, the employer is likewise choosing to waive further deductions from the FMLA entitlement period. In other words, if the employee is working, the time cannot count against FMLA time, no matter what the smallest increment of leave may be.

The DOL had proposed to remove the language in section 825.205(a) that allowed for varying increments at different times of the day or shift in favor of the more general principle of using the employer’s shortest increment of any type of leave at any time. However, the Final Rules does not incorporate this change. Employers who account for use of leave in varying increments at different times of the day or shift may also do so for FMLA leave, provided that the increment used for FMLA leave is no greater than the smallest increment used for any other type of leave. An employer can account for FMLA leave in smaller increments at its discretion.

The existing version of section 825.205(a)(2) included a provision on physical impossibility, which provided that, where it is physically impossible for an employee to commence or end work midway through a shift, the entire period that the employee is forced to be absent is counted against the employee’s FMLA leave entitlement. The DOL had proposed to either (1) delete this provision or (2) add language emphasizing that it is an employer’s responsibility to restore an employee to his or her same or equivalent position at the end of any FMLA leave as soon as possible.

The Final Rule retains the physical impossibility provision with clarifying language that the period of physical impossibility is limited to the period during which the employer is unable to permit the employee to work prior to or after the FMLA period.

The Final Rule also clarifies that the rule stated in section 825.205(c), which addresses when overtime hours that are not worked may be counted as FMLA leave, applies to all FMLA qualifying reasons and not just serious health conditions.

The DOL had proposed to add section 825.205(d), which would have provided a methodology for calculating leave for airline flight crew employees, but noted in the comments to the Final Rule that this language will now appear in section 825.802.

Recordkeeping Requirements — § 825.500

The Final Rule adds a sentence to section 825.500, reminding employers of their obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). 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 the confidentiality requirements of title II of that act. The DOL noted that GINA permits genetic information obtained by the employer, including family medical history, in FMLA records and documents to be disclosed consistent with the requirements of the FMLA.

Eligible Employees — § 825.110

The Final Rule makes clarifications to note that the protections afforded by the Uniformed Services Employment and Reemployment Rights Act (USERRA) extend to all military members, both active duty and reserve, returning from USERRA-qualifying military service. The DOL noted in the comments to the Final Rule that the previous regulation may have been unclear in that USERRA rights apply to employees returning from service in the regular armed forces.

Forms

The regulations will no longer include model forms as a part of the appendices. These forms will remain available on the DOL’s website. The practical implication of this change is that the DOL will be able to make changes to the forms without going through the formal rulemaking process. The DOL has made small modifications to the model forms. For example, Form WH-384 was modified to refer to a military member, use the term “covered active duty,” and contain the requirement that the member be deployed to a foreign country. The Final Rules has also created new forms for the certification of a serious injury or illness of a covered veteran—Forms WH-385 and WH-385-v.

New Administration Interpretation

In addition to the Final Rule, the DOL has recently published Administrator’s Interpretation No. 2013-1 (Administrator Interpretation), which provides clarifications to the existing definition of “son or daughter,” as it applies to an individual who is 18 years of age or older and incapable of self-care because of a mental or physical disability.[5]Employers should note the following important provisions set forth in the Administrator Interpretation:

  • The FMLA regulations adopt the Americans with Disabilities Act’s (ADA’s) definition of “disability” as a physical or mental impairment that substantially limits a major life activity.[6]
  • The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living.'”[7] Determinations with respect to the disability of the son or daughter should be made in accordance with the ADA.
  • The age of onset of the disability is irrelevant to this analysis. The adult son or daughter must also have a qualifying serious health condition, and the parent must be “needed to care” for the son or daughter, which is defined as including physical care, transportation for healthcare, and psychological comfort and reassurance for a son or daughter whose serious health conditions require inpatient or home care.
  • The definition of a “son or daughter” under the covered military leave entitlement is distinct from the definition for basic coverage. However, the same son or daughter could qualify a parent for both types of leave. For example, if an employee exhausts 26 weeks of military caregiver leave in one FMLA year, this same employee can take FMLA leave to care for that same son or daughter in subsequent years due to the adult child’s serious health condition, as long as all other FMLA requirements, such as the 1,250 hours-of-service rule, are met.

Implications

Employers should review their FMLA policy, internal processes, and any associated forms to ensure that they comply with the Final Rule and new Administrator Interpretation. Employers who have offered leave pursuant to the veteran’s provisions prior to March 8, 2013, should contact counsel when counting that leave against an employee’s entitlement.

[1]. View the Final Rule here.

[2]. View the new forms here.

[3]. Notably, the DOL has taken the position that the 2009 statutory amendments relating to leave to care for a veteran will not actually go into effect until March 8, 2013-the date when the Final Rule becomes effective. Because caregiver leave for veterans is limited to those needing treatment within five years of discharge from the military, the DOL has provided a special formula for calculating caregiver leave for family members of veterans discharged between 2009 and 2013. We recommend consulting with counsel with respect to this formula.

[4]. The Final Rule clarifies that active duty orders will generally specify whether a member’s deployment is to a foreign country. To further the point, the Final Rule defines “deployment” with the armed forces to a foreign country as deployment to areas outside of the United States, the District of Columbia, or any territory or possession of the United States, including deployment in international waters.

[5]. View the Administrator Interpretation here.

[6]. 29 C.F.R. § 825.122(c)(2).

[7]. 29 C.F.R. § 825.122(c).

Copyright © 2013 by Morgan, Lewis & Bockius LLP

 

DOL Publishes New Employees’ Guide to the FMLA

The National Law Review recently published an article by Joel M. Nolan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., regarding FMLA:

Recently, the U.S. Department of Labor released a user-friendly Employees’ Guide to the Family and Medical Leave Act.  The guide is targeted at employees, but may also serve as a helpful tool for employers looking for an efficient summary of the law.

The guide does not provide new information or legal interpretations of the law; rather, it provides a plain-language overview of the FMLA’s major provisions and contours, such as FMLA eligibility, FMLA rights and protections, the process for requesting leave (and associated notice provisions), FMLA certifications, and job reinstatement.  In addition, the guide highlights certain unique circumstances and incorporates some of the DOL’s  interpretive guidance on particular issues.  For example, the guide discusses eligibility guidelines for airline flight attendants and flight crew employees, describes when employees may be eligible to take FMLA leave to care for certain children with whom the employee has no legal relationship (or to care for another as such a child), and emphasizes the importance of employer FMLA policies.  Further, the guide provides clear flowcharts regarding FMLA eligibility and certification and the process for taking FMLA leave, as well as information for employees on filing an FMLA complaint with the DOL’s wage-and-hour division.

The DOL has also archived a webinar about the guide, which is available here:  http://www.dol.gov/whd/fmla/employeeguide-webinar.htm

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.