*By Helena Oroz
On March 28, 2013, the United States Citizenship and Immigration Services (USCIS) released a revised Form I-9. This revised form includes clearer and more detailed instructions for completion, more space to fill in information, and new fields for an employee’s email address, telephone number, and foreign passport information (if applicable).
As of today, May 7, 2013, USCIS will no longer accept previous versions of Form I-9, and employers must use the revised Form I-9. The revision date of the new Form I-9 is printed in the lower left corner of the form. Employers should immediately verify that they are in fact using the correct Form I-9 with a revision date of March 28, 2013, for all new employees. Employers need not complete a new Form I-9 for existing employees if a properly-completed Form I-9 is already on file for them.
The revised forms are available online at www.uscis.gov/i-9. Employers should note that, while USCIS’s website contains forms in both English and Spanish, Spanish-speaking employers and employees may only use the Spanish version for reference. They will still need to complete and retain the English version of the form.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Wednesday, May 8, 2013
Tuesday, May 7, 2013
The NLRB Muddies the Waters of "Confidential" Employer Investigations
*By Patrick J. Hoban
All employers know that many employees who have claims of workplace harassment and/or discrimination want assurances that their complaints and the employer’s investigations will be kept confidential. In its ongoing war on longstanding employment practices and as a continuation of its radical re-interpretation of the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) has further muddied the waters for employers.
The NLRB General Counsel (“GC”) recently released an advice memorandum reiterating the NLRB’s position that an employer’s blanket rule enforcing the confidentiality of employee investigations violates the NLRA. The memorandum, issued in Verso Paper, NLRB Case No. 30-CA-089350, states that an employer may only lawfully discipline employees for divulging information related to a workplace investigation if the employer demonstrates “a legitimate and substantial business justification” for “interfering with” employees’ rights under Section 7 of the NLRA.
Verso Paper maintained a “Code of Conduct” which, among other things, prohibited employees from discussing ongoing investigations. The policy required employees to “maintain the investigation and [their] role in it in strict confidence.” The Policy further stated that employees who breached this prohibition “may be subject to disciplinary action up to and including termination.”
The GC concluded that this rule was overbroad and violated the NLRA. Because Section 7 grants employees the right to discuss discipline or disciplinary investigations involving their fellow employees, the GC reasoned that this prohibition infringed upon employee rights. As a result, employers may only lawfully restrict employee communications concerning workplace investigations if they demonstrate the need to maintain confidentiality on a case-by-case basis. The GC explained that an “[e]mployer may not avoid this burden by asserting its need to protect the integrity of every investigation, but rather must establish this need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.”
This advice memorandum is the NLRB’s clearest statement that employer policies which require employees to keep their knowledge of and participation in workplace investigations confidential under threat of discipline run afoul of the NLRA. Strangely, the NLRB’s policy is at odds with guidance from the Equal Employment Opportunity Commission (“EEOC”) requiring employers to take steps to assure employees who complain of workplace harassment and/or discrimination that their complaints will be handled confidentially.
In light of the NLRB’s position, and until a court rules on its legitimacy, employers should review blanket confidentiality policies and must prepare to justify enforcing confidentiality requirements concerning workplace investigations if challenged. At the same time, employers must also continue to ensure that employees who complain of workplace harassment and/or discrimination are assured that their confidential information will be protected.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
All employers know that many employees who have claims of workplace harassment and/or discrimination want assurances that their complaints and the employer’s investigations will be kept confidential. In its ongoing war on longstanding employment practices and as a continuation of its radical re-interpretation of the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) has further muddied the waters for employers.
The NLRB General Counsel (“GC”) recently released an advice memorandum reiterating the NLRB’s position that an employer’s blanket rule enforcing the confidentiality of employee investigations violates the NLRA. The memorandum, issued in Verso Paper, NLRB Case No. 30-CA-089350, states that an employer may only lawfully discipline employees for divulging information related to a workplace investigation if the employer demonstrates “a legitimate and substantial business justification” for “interfering with” employees’ rights under Section 7 of the NLRA.
Verso Paper maintained a “Code of Conduct” which, among other things, prohibited employees from discussing ongoing investigations. The policy required employees to “maintain the investigation and [their] role in it in strict confidence.” The Policy further stated that employees who breached this prohibition “may be subject to disciplinary action up to and including termination.”
The GC concluded that this rule was overbroad and violated the NLRA. Because Section 7 grants employees the right to discuss discipline or disciplinary investigations involving their fellow employees, the GC reasoned that this prohibition infringed upon employee rights. As a result, employers may only lawfully restrict employee communications concerning workplace investigations if they demonstrate the need to maintain confidentiality on a case-by-case basis. The GC explained that an “[e]mployer may not avoid this burden by asserting its need to protect the integrity of every investigation, but rather must establish this need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.”
This advice memorandum is the NLRB’s clearest statement that employer policies which require employees to keep their knowledge of and participation in workplace investigations confidential under threat of discipline run afoul of the NLRA. Strangely, the NLRB’s policy is at odds with guidance from the Equal Employment Opportunity Commission (“EEOC”) requiring employers to take steps to assure employees who complain of workplace harassment and/or discrimination that their complaints will be handled confidentially.
In light of the NLRB’s position, and until a court rules on its legitimacy, employers should review blanket confidentiality policies and must prepare to justify enforcing confidentiality requirements concerning workplace investigations if challenged. At the same time, employers must also continue to ensure that employees who complain of workplace harassment and/or discrimination are assured that their confidential information will be protected.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Monday, April 22, 2013
Better Late Than Never: The Department of Labor Joins the Ever-Expanding Obamacare Rulemaking Party
*By Patrick J. Hoban
While employers have been busy thinking about "affordability" and "standard measurement periods" to ensure that they comply with the Patient Protection and Affordable Care Act (PPACA), the Department of Labor (DOL) has opened a new front in the PPACA compliance battle. Specifically, the Occupational Safety and Health Administration (OSHA) issued interim final rules addressing employee whistleblower and retaliation claims under PPACA Section 1558 on February 27, 2013 (Interim Rules).
The Interim Rules, which took effect upon publication, prohibit an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through a health insurance exchange; reporting a potential violation of the law's consumer-protection provisions (such as the prohibition on denying health coverage to individuals with pre-existing conditions) and/or assisting or participating in a related government proceeding or investigation. Beginning January 1, 2014, the Interim Rules will apply to insurers whether or not they employ the complaining employee. Similar to other rights created by the Fair Labor Standards Act (and enforced by most courts), employees may not waive the rights created under PPACA Section 1558 (i.e., they cannot be released by agreement).
To initiate a claim under the Interim Rules, employees must file a complaint with OSHA within 180 days of an alleged violation and OSHA will investigate the complaint. If OSHA finds reasonable cause for a violation, it will issue an order, including required remedial action. An employer may appeal and request a hearing before an administrative law judge (ALJ) within 30 days and may appeal an ALJ's decision to a Department of Labor "Administrative Review Board." An employer may also appeal a final administrative decision to a federal court of appeals. If there is no final administrative decision within 210 days of the filing of an employee complaint, the employee may initiate an action in federal district court and obtain a jury trial.
A recently issued OSHA fact sheet concerning the Interim Rules lists potentially retaliatory employer actions as including: termination or layoff; "blacklisting;" demotion; denial of overtime or promotion; discipline; denial of benefits; failure to hire; intimidation; threats; and reduction of pay or hours. Claims made under these provisions will be analyzed under the familiar burden shifting standard applied to employment discrimination, and retaliation claims. The Interim Rules provide for remedies including back pay, front pay, compensatory damages, and reinstatement.
As PPACA's full-implementation date of January 1, 2014 draws closer, employers must ensure that they consider this new source for potential liability as they do existing employment laws prior to acting.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about PPACA or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
While employers have been busy thinking about "affordability" and "standard measurement periods" to ensure that they comply with the Patient Protection and Affordable Care Act (PPACA), the Department of Labor (DOL) has opened a new front in the PPACA compliance battle. Specifically, the Occupational Safety and Health Administration (OSHA) issued interim final rules addressing employee whistleblower and retaliation claims under PPACA Section 1558 on February 27, 2013 (Interim Rules).
The Interim Rules, which took effect upon publication, prohibit an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through a health insurance exchange; reporting a potential violation of the law's consumer-protection provisions (such as the prohibition on denying health coverage to individuals with pre-existing conditions) and/or assisting or participating in a related government proceeding or investigation. Beginning January 1, 2014, the Interim Rules will apply to insurers whether or not they employ the complaining employee. Similar to other rights created by the Fair Labor Standards Act (and enforced by most courts), employees may not waive the rights created under PPACA Section 1558 (i.e., they cannot be released by agreement).
To initiate a claim under the Interim Rules, employees must file a complaint with OSHA within 180 days of an alleged violation and OSHA will investigate the complaint. If OSHA finds reasonable cause for a violation, it will issue an order, including required remedial action. An employer may appeal and request a hearing before an administrative law judge (ALJ) within 30 days and may appeal an ALJ's decision to a Department of Labor "Administrative Review Board." An employer may also appeal a final administrative decision to a federal court of appeals. If there is no final administrative decision within 210 days of the filing of an employee complaint, the employee may initiate an action in federal district court and obtain a jury trial.
A recently issued OSHA fact sheet concerning the Interim Rules lists potentially retaliatory employer actions as including: termination or layoff; "blacklisting;" demotion; denial of overtime or promotion; discipline; denial of benefits; failure to hire; intimidation; threats; and reduction of pay or hours. Claims made under these provisions will be analyzed under the familiar burden shifting standard applied to employment discrimination, and retaliation claims. The Interim Rules provide for remedies including back pay, front pay, compensatory damages, and reinstatement.
As PPACA's full-implementation date of January 1, 2014 draws closer, employers must ensure that they consider this new source for potential liability as they do existing employment laws prior to acting.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about PPACA or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Tuesday, April 16, 2013
When Breaking the Rules Means Never Having to Say You're Sorry: Ohio Supreme Court reaffirms the rights of employees behaving badly to workers' comp benefits
*By Scott Coghlan
The Ohio Supreme Court recently confirmed that getting fired for violating a work rule that will, in fact, get you fired if you violate it, and does, in fact, get you fired, should not, however, keep you from getting compensated for your injury. Make sense?
We don’t think so either.
Let’s rewind. Temporary total disability, or “TTD,” is provided to compensate an injured worker who is totally disabled from work for lost wages on a temporary basis due to the work-related injury or occupational disease. To qualify for TTD, an injured worker must show that he is medically unable to return to work and that his injury is the reason for his loss of earnings. When an employee violates a work rule that he knows is a terminable offense, however, the employee is said to have “voluntarily abandoned” his employment and is precluded from receiving TTD benefits.
But in State ex rel. Haddox v. Industrial Commission of Ohio, the Ohio Supreme Court confirmed that an injured worker does not “voluntarily abandon” employment when the violation of a dischargeable offense occurs prior to or contemporaneous with the injury itself.
Forest City Technologies, Inc. employed Haddox as a truck driver. On December 20, 2005, Haddox was involved in his third motor vehicle accident within one year. As a result, Forest City’s liability insurance carrier would no longer cover Haddox, and Forest City terminated his employment.
Haddox filed for TTD benefits from the date of injury forward. Forest City opposed Haddox’s request for TTD, arguing that he voluntarily abandoned his employment by violating company policy that required termination for a third traffic violation. In essence, Forest City argued that Haddox would have sustained a loss of earnings regardless of his injury because he was uninsurable following his third motor vehicle accident.
The Ohio Supreme Court rejected Forest City’s argument, relying on its 2006 decision in State ex rel. Gross v. Industrial Commission, which made headline news at the time. In Gross, a Kentucky Fried Chicken employee burned himself and several co-workers when he placed water in a pressurized deep fryer, heated the fryer, and opened the lid. The company terminated his employment for violating a work safety rule and for defying multiple verbal warnings to avoid the very act that led to his injury. The Court rejected the voluntary abandonment argument and held that when an injured worker is injured by the same misconduct that led to his or her termination, he remains eligible for TTD benefits.
In its 4-3 decision on Tuesday, the Court reaffirmed Gross, holding that Haddox’s actions [the motor vehicle accidents] prior to and contemporaneous with his industrial injury cannot form a basis to conclude that he voluntarily abandoned his employment.
Justice O’Connor authored a strongly worded concurring opinion reminding all that she vehemently dissented from the majority decision in Gross. Justice O’Connor feistily concurred only “because I must” based on the Court’s prior decisions. She further noted that the Court appears to “have no will” to overrule Gross and that the remedy must therefore come from the legislative branch.
The refusal to apply the voluntary abandonment rule and bar TTD benefits in situations similar to Haddox continues to rile employers. This is particularly true when an injury occurs as a result of an employee working while under the influence of drugs or alcohol. According to Haddox, Gross and a litany of other Ohio Supreme Court decisions, an intoxicated injured employee can receive TTD benefits because the intoxication occurs before or contemporaneously with the injury. This is true even though the injured employee knows he will be terminated based on a positive drug test and his loss of earnings results from committing a terminable offense. Will a remedy to this incongruous result come from the legislative branch, as Justice O’Connor suggested? Only time will tell.
*Scott Coghlan, Chair of Z&R’s Workers’ Compensation Group, has extensive experience with all aspects of safety and health matters and workers’ compensation law. If you have any questions regarding the Haddox decision, how to lessen its impact, or other issues related to managing and defending your workers’ compensation claims, please contact Scott (sc@zrlaw.com) 216.696.4441.
The Ohio Supreme Court recently confirmed that getting fired for violating a work rule that will, in fact, get you fired if you violate it, and does, in fact, get you fired, should not, however, keep you from getting compensated for your injury. Make sense?
We don’t think so either.
Let’s rewind. Temporary total disability, or “TTD,” is provided to compensate an injured worker who is totally disabled from work for lost wages on a temporary basis due to the work-related injury or occupational disease. To qualify for TTD, an injured worker must show that he is medically unable to return to work and that his injury is the reason for his loss of earnings. When an employee violates a work rule that he knows is a terminable offense, however, the employee is said to have “voluntarily abandoned” his employment and is precluded from receiving TTD benefits.
But in State ex rel. Haddox v. Industrial Commission of Ohio, the Ohio Supreme Court confirmed that an injured worker does not “voluntarily abandon” employment when the violation of a dischargeable offense occurs prior to or contemporaneous with the injury itself.
Forest City Technologies, Inc. employed Haddox as a truck driver. On December 20, 2005, Haddox was involved in his third motor vehicle accident within one year. As a result, Forest City’s liability insurance carrier would no longer cover Haddox, and Forest City terminated his employment.
Haddox filed for TTD benefits from the date of injury forward. Forest City opposed Haddox’s request for TTD, arguing that he voluntarily abandoned his employment by violating company policy that required termination for a third traffic violation. In essence, Forest City argued that Haddox would have sustained a loss of earnings regardless of his injury because he was uninsurable following his third motor vehicle accident.
The Ohio Supreme Court rejected Forest City’s argument, relying on its 2006 decision in State ex rel. Gross v. Industrial Commission, which made headline news at the time. In Gross, a Kentucky Fried Chicken employee burned himself and several co-workers when he placed water in a pressurized deep fryer, heated the fryer, and opened the lid. The company terminated his employment for violating a work safety rule and for defying multiple verbal warnings to avoid the very act that led to his injury. The Court rejected the voluntary abandonment argument and held that when an injured worker is injured by the same misconduct that led to his or her termination, he remains eligible for TTD benefits.
In its 4-3 decision on Tuesday, the Court reaffirmed Gross, holding that Haddox’s actions [the motor vehicle accidents] prior to and contemporaneous with his industrial injury cannot form a basis to conclude that he voluntarily abandoned his employment.
Justice O’Connor authored a strongly worded concurring opinion reminding all that she vehemently dissented from the majority decision in Gross. Justice O’Connor feistily concurred only “because I must” based on the Court’s prior decisions. She further noted that the Court appears to “have no will” to overrule Gross and that the remedy must therefore come from the legislative branch.
The refusal to apply the voluntary abandonment rule and bar TTD benefits in situations similar to Haddox continues to rile employers. This is particularly true when an injury occurs as a result of an employee working while under the influence of drugs or alcohol. According to Haddox, Gross and a litany of other Ohio Supreme Court decisions, an intoxicated injured employee can receive TTD benefits because the intoxication occurs before or contemporaneously with the injury. This is true even though the injured employee knows he will be terminated based on a positive drug test and his loss of earnings results from committing a terminable offense. Will a remedy to this incongruous result come from the legislative branch, as Justice O’Connor suggested? Only time will tell.
*Scott Coghlan, Chair of Z&R’s Workers’ Compensation Group, has extensive experience with all aspects of safety and health matters and workers’ compensation law. If you have any questions regarding the Haddox decision, how to lessen its impact, or other issues related to managing and defending your workers’ compensation claims, please contact Scott (sc@zrlaw.com) 216.696.4441.
Monday, March 11, 2013
Springing Forward Without Breaking Law…
*By Michele L. Jakubs
Daylight savings time began yesterday, March 10th, with clocks “springing” forward an hour at 2:00 a.m. across the country (not including Arizona, Hawaii, and a few other places that do not observe the practice). This spring forward resulted in many third shift non-exempt hourly employees “losing” an hour of time if their shift occurred during this time. Employers need not pay employees for this phantom hour and need not consider it for purposes of overtime calculations under the Fair Labor Standards Act (“FLSA”).
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in wage and hour compliance and consulting. For more information concerning this time change and its impact on any state/federal wage and hour law, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Daylight savings time began yesterday, March 10th, with clocks “springing” forward an hour at 2:00 a.m. across the country (not including Arizona, Hawaii, and a few other places that do not observe the practice). This spring forward resulted in many third shift non-exempt hourly employees “losing” an hour of time if their shift occurred during this time. Employers need not pay employees for this phantom hour and need not consider it for purposes of overtime calculations under the Fair Labor Standards Act (“FLSA”).
*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in wage and hour compliance and consulting. For more information concerning this time change and its impact on any state/federal wage and hour law, please contact Michele at 216.696.4441 or mlj@zrlaw.com.
Form I-9 Gets Some Serious Work Done
*By Helena Oroz
Form I-9…even if you don’t know much about immigration law, you know that this one-page form is deceptively simple on the surface. Its purpose is relatively simple: it documents that you, as an employer, have verified each new employee’s identity and authorization to work in the United States. Unfortunately, complications often arise due to a variety of factors, among them a lack of understanding of the rules governing I-9 employer obligations and the variety of documents available to establish identify, employment authorization, or both.
The form itself never helped matters. Squished onto one page, a maze of lines and bold-faced smallish font with some boxes thrown in for variety, the old Forms I-9 (all of them), including their accompanying directions, could have used a serious makeover years ago.
Enter Form I-9 (03/08/13)N. Notably, the “Lists of Acceptable Documents” remain the same – only formatting changes were made to the actual text of the “Lists” page. So what’s new?
The U.S. Citizenship and Immigration Services’ “Handbook for Employers” has also been updated to include information about the revised Form I-9. Go to http://www.uscis.gov/I-9Central for more information and to download the revised Form I-9 and Employer Handbook.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Form I-9…even if you don’t know much about immigration law, you know that this one-page form is deceptively simple on the surface. Its purpose is relatively simple: it documents that you, as an employer, have verified each new employee’s identity and authorization to work in the United States. Unfortunately, complications often arise due to a variety of factors, among them a lack of understanding of the rules governing I-9 employer obligations and the variety of documents available to establish identify, employment authorization, or both.
The form itself never helped matters. Squished onto one page, a maze of lines and bold-faced smallish font with some boxes thrown in for variety, the old Forms I-9 (all of them), including their accompanying directions, could have used a serious makeover years ago.
Enter Form I-9 (03/08/13)N. Notably, the “Lists of Acceptable Documents” remain the same – only formatting changes were made to the actual text of the “Lists” page. So what’s new?
- Format
The form itself is now two pages instead of one, and includes clearer instructions on the form itself. Page one includes just Section 1 for the employee’s information and attestation of their work authorization (as well as the preparer’s or translator’s, if applicable). Page two is solely for the employer: Section 2 for review and verification of the employee’s documents, and Section 3 for reverification and rehires.
- Layout
Overall, the form looks cleaner: sections and fields are more readily distinguishable, more room is provided to fill in the information, and even the font got an update.
- Detailed Instructions
The old Form I-9 included just over two pages of introductory instructions, set up in columns. The new Form I-9 includes six pages of not just section-by-section, but detailed box-by-box instructions, without columns.
- New Fields
The new Form I-9 includes fields for an employee’s email address, telephone number, and foreign passport information (if applicable). Additionally, the previously designated “Maiden Name” box is now “Other Names Used.”
The U.S. Citizenship and Immigration Services’ “Handbook for Employers” has also been updated to include information about the revised Form I-9. Go to http://www.uscis.gov/I-9Central for more information and to download the revised Form I-9 and Employer Handbook.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Tuesday, February 26, 2013
The FMLA May Be Turning 20, But It’s Still Growing
*By Helena Oroz
Now that the FMLA has been around for two decades, one would think that, statutorily speaking, it’s all grown up. Apparently, the DOL thinks there is room for growth, and it has been busy.
As we previously reported in a Z&R Employment Law Alert (“When is a Child a Child? Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older,” January 25, 2013), the Department of Labor (“DOL”) issued an Administrator Interpretation Letter in January that addressed when parents may take leave under the Family and Medical Leave Act (“FMLA”) to care for their adult children with serious health conditions. The clarifying interpretation and examples seemed to indicate greatly expanded circumstances under which a parent could take protected leave to care for an adult child with a serious health condition.
This month, the DOL issued a Final Rule revising certain FMLA regulations to reflect statutory amendments related to military family leave and airline flight crew employees, as well as clarifying provisions related to calculating intermittent leave, minimum increments of leave, and compliance with USERRA (Uniformed Services Employment and Reemployment Rights Act) and GINA (Genetic Information Nondiscrimination Act of 2008). Some of the highlights include:
*Helena Oroz regularly counsels employers on leave of absence including FMLA issues. For more information about recent changes to the FMLA or other leave questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Now that the FMLA has been around for two decades, one would think that, statutorily speaking, it’s all grown up. Apparently, the DOL thinks there is room for growth, and it has been busy.
As we previously reported in a Z&R Employment Law Alert (“When is a Child a Child? Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older,” January 25, 2013), the Department of Labor (“DOL”) issued an Administrator Interpretation Letter in January that addressed when parents may take leave under the Family and Medical Leave Act (“FMLA”) to care for their adult children with serious health conditions. The clarifying interpretation and examples seemed to indicate greatly expanded circumstances under which a parent could take protected leave to care for an adult child with a serious health condition.
This month, the DOL issued a Final Rule revising certain FMLA regulations to reflect statutory amendments related to military family leave and airline flight crew employees, as well as clarifying provisions related to calculating intermittent leave, minimum increments of leave, and compliance with USERRA (Uniformed Services Employment and Reemployment Rights Act) and GINA (Genetic Information Nondiscrimination Act of 2008). Some of the highlights include:
- Qualifying exigency leave now includes leave for eligible employees with family members serving in both the National Guard and Reserves and Regular Armed Forces. Additionally, a new qualifying exigency leave category, parental care leave, provides for 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.
- Military Caregiver leave now includes leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness, in addition to current service members. The definition of “serious injury or illness” has also been expanded to include pre-existing injuries or illnesses of current service members that were aggravated in the line of duty.
- The effect of USERRA-covered service on FMLA eligibility has been clarified: Employers must count all periods of absence from work due to USERRA-covered service, for all military members (active duty and reserve), in determining an employee’s eligibility for FMLA leave.
- Calculation of Intermittent Leave/Increments of Leave: New language clarifies that an employer cannot require an employee to take more leave than necessary to address the circumstances that precipitated the need for leave; that FMLA leave may only be counted against an employee’s FMLA entitlement for leave taken and not for time that is worked for the employer; and that employers must track FMLA leave using the smallest increment of time used for other forms of leave, subject to a one hour maximum.
- post the updated FMLA poster, which is available here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf
- use the updated FMLA certification forms, including a new form for certification of a serious injury or illness for a veteran, available here: http://www.dol.gov/whd/fmla/2013rule/militaryForms.html
*Helena Oroz regularly counsels employers on leave of absence including FMLA issues. For more information about recent changes to the FMLA or other leave questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
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