DOL Releases Updated FMLA Forms

By Patrick Watts*

The U.S. Department of Labor (“DOL”) recently released revised model Family and Medical Leave Act (“FMLA”) forms to administer FMLA leave. Pursuant to the Paperwork Reduction Act (“PRA”), the Office of Management and Budget (“OMB”) reviews the FMLA forms every three years. The most-recent forms expired on February 28, 2015.

The new forms are effective until May 31, 2018, and may be accessed through the links below or the DOL Wage and Hour Division’s FMLA webpage:

• WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition
• WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition
• WH-381: Notice of Eligibility and Rights & Responsibilities
• WH-382: Designation Notice
• WH-384: Certification of Qualifying Exigency For Military Family Leave
• WH-385: Certification for Serious Injury or Illness of Covered Servicemember – for Military Family Leave
• WH-385-V: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Some forms contain minor revisions and others have remained the same. Among the revisions, the FMLA forms now include references to medical record confidentiality and disclosure requirements contained in the Genetic Information Nondiscrimination Act (“GINA”).

Employers covered by the FMLA are not required to use these forms for FMLA leave. However, all employers who choose to use their own forms should review the updated forms to ensure their forms are current and that such customized forms do not seek prohibited information or information that exceeds the information permitted by the FMLA. Employers should also remember that state law may provide greater family and medical leave entitlement than the FMLA and/or require that employers provide other forms or information.

*Patrick Watts practices in all areas of labor and employment law and advises employers on all aspects of the FMLA. For more information about the updated FMLA forms or the FMLA in general, please contact: Patrick Watts | pmw@zrlaw.com | 216.696.4441

Ohio Public Sector Update: Convicted Felons Will No Longer Have to Disclose Status on Employment Application

By Jonathan J. Downes*

Beginning on June 1, 2015, Ohio will no longer ask “Have you ever been convicted of a felony?” on civil service applications for any state government position. The Ohio Department of Administrative Services will voluntarily remove this question from the application for thousands of state government positions, including highway workers and prison guards. Instead, job applicants for Ohio civil service positions will not have to disclose past crimes until the interview stage.

In making this change, Ohio voluntarily joined the “Ban the Box” movement. Generally, the “Box” refers to a square that, when checked, indicates an individual has a criminal background. Proponents argue such inquiries often automatically disqualify applicants that check the box and increase chances of recidivism. For employers, “Ban the Box” laws pose an increased burden on the job application and screening process.

This is the first time that Ohio has adopted “Ban the Box” practices on a statewide level. However, the state was not the first Ohio public employer to implement “Ban the Box” practices nor may this change be the last. In February 2015, Ohio legislators introduced House Bill 56 which would prohibit any Ohio state agency or political subdivision of Ohio from inquiring into or considering criminal backgrounds until the employer has selected an applicant for the position. The proposed bill applies to counties, townships, and municipal corporations, but has not moved past the House Commerce and Labor Committee. Lucas and Stark Counties and Cleveland, Cincinnati, and Canton already have “Ban the Box” measures in place. These measures currently only apply to public sector employers. However, the Equal Employment Opportunity Commission recommended banning the box on job applications as a best practice in its 2012 enforcement guidance.

Employers need to understand what, if any, “Ban the Box” restrictions apply to them and should follow further “Ban the Box” developments.

*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience advising public entities and employers. If you have questions about state or local “Ban the Box” laws and regulations or other hiring concerns, please contact Jonathan Downes | jjd@zrlaw.com | 216.696.4441

OSHA Reveals a New Version of the “It’s the Law!” Workplace Poster

By Scott Coghlan*

The Occupational Safety & Health Administration (“OSHA”) recently released a new version of its “Job Safety and Health – It’s the Law!” poster, which informs employees of their rights and employers of their legal obligations concerning workplace safety. OSHA requires covered employers to display the poster in a conspicuous place where employees can see it. Covered employers include almost all private-sector employers.

The poster, which is available to download for free from OSHA’s website, informs employees of their rights and reminds employers of their obligations to provide a safe workplace. While employers are not required to replace an older version of the poster with the new version to meet their legal obligation to display a poster, OSHA made changes in the new version. The most important change is that employers are now required to report each work-related fatality, hospitalization, amputation, and loss of an eye to OSHA.

The poster informs employees of their rights regarding workplace safety and health. The poster also informs employers of their legal obligations concerning workplace safety and health. In particular, the poster has been updated to include employers’ notification obligations. The poster is also available in several other languages, including Chinese, Korean, and Spanish. While OSHA does not require employers to display the poster in any languages in addition to English, it does encourage them to put up a poster in Spanish. OSHA requires copies of the poster to be at least 8.5” by 14” and in size 10 type. To download a free copy of the poster and review OSHA’s requirements concerning display of the poster, employers should visit OSHA’s website at:

www.osha.gov/publications/poster.html.

*Scott Coghlan practices Workers’ Compensation Law. He has extensive experience counseling employers as to workplace safety and related issues. For more information about OSHA’s new poster or workers’ compensation law, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441

The EEOC Issues Proposed Changes to the ADA’s Regulations on Wellness Programs

By Patrick J. Hoban*

On April 20, 2015, the Equal Employment Opportunity Commission (“EEOC”) announced a Notice of Proposed Rulemaking (“NPRM”) concerning amendments to the EEOC’s regulations and guidance on the Americans with Disabilities Act (“ADA”). Most importantly, the NPRM clarifies the EEOC’s position on wellness programs with respect to the ADA by stating that incentives do not automatically render a program involuntary. Specifically, the proposed changes clarify the definition of “voluntary employee health program” under the ADA, limit the extent to which employers may incentivize participation in a wellness program, and add provisions relating to confidentiality.

Employers use wellness programs as a means of promoting healthy behavior among employees and keeping health care costs down. Wellness programs may include providing workout facilities and assistance with healthy eating or quitting smoking, as well as conducting health assessments and identifying risk factors. Wellness programs are often, though not always, offered through employer-provided group health plans. The ADA generally prohibits employers from getting medical information on employees, though it allows for medical examinations and health inquiries that are part of a voluntary employee health program. A wellness program qualifies as an “employee health program” when it meets the following criteria:

• The program is reasonably designed to promote health or prevent disease.
• The program has a reasonable chance of promoting health or preventing disease.
• The program is not overly burdensome, a subterfuge for violating the ADA, or highly suspect in the method chosen to promote health or prevent disease.
• The employer must provide notice to employees that is written and understandable, describes the medical information to be obtained and the specific purposes for which the information will be used, and provides information on disclosure of the information and on protections against improper disclosure.

The NPRM further clarifies what characteristics qualify a program as “voluntary”:

• An employer cannot require employees to participate in the program.
• An employer cannot deny access to health coverage or limit coverage for non-participation.
• An employer cannot take any other adverse action against employees for non-participation or failure to achieve certain health outcomes.

The NPRM also sets a limit on the amount that an employer may incentivize employee participation in a wellness program. The proposed rule would limit incentives – either as a reward for participation or penalty for non-participation – to 30% of the total cost of employee-only coverage. The total cost includes both the employer and employee’s combined cost of coverage. Presumably, the EEOC viewed incentives greater than 30% of the total cost of employee-only coverage as coercive and not voluntary.

Finally, the NPRM adds a subsection to the ADA’s existing confidentiality requirements. The new provisions state that an employer may only receive medical information collected through the wellness program if it is in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific individuals except as necessary to implement the plan or as otherwise permitted under the current regulations.

As of now, the EEOC is welcoming comments from the public on the proposed changes until June 19, 2015. After the close of the comment period, the EEOC may revise the proposed changes before submitting them to the Office of Management and Budget to be published in the Federal Register. Employers may want to review the NRPM as a preview of future formalized changes to the guidelines and regulations. Employers should also keep in mind that a number of other laws affect the implementation of wellness programs and that employers do not have carte blanche to establish incentives or penalties as part of existing wellness programs.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the legal implications of wellness programs or the EEOC’s proposed changes to the ADA’s regulations, please contact Patrick J. Hoban | pjh@zrlaw.com | 216.696.4441