FMLA

Important Return-to-Work Guidance Under the Families First Coronavirus Response Act: What Employees and Employers Need to Know

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Last week, we reported on the U.S. Department of Labor’s (DOL) changes to streamline optional-use forms for workers to use when requesting FMLA leave. Most recently, on July 20th of this week, the DOL has published additional guidance for workers and employers regarding the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) and their affect in the workplace during the coronavirus.

The Wage and Hour Division (WHD) published updated guidance and materials for both employees and employers as well as answers to commonly asked questions about paid sick and expanded family and medical leave under the FFCRA. The FCRA provides emergency paid sick leave, and paid family leave under the FMLA for certain workers affected by COVID-19. Employers of fewer than 500 employees are required to grant up to 80 hours of paid six leave to workers exposed to COVID-19, required to quarantine, or unable to work or telework because of the closure of their child’s school or place of care.

The recently issued guidance states that if an employee was eligible for extended FMLA leave, and used four weeks of leave before being furloughed, they are still entitled upon their return to work to the remaining eight weeks of leave. That means that the period of time the employee was on furlough does not count against their FFCRA/FMLA leave entitlement.

The guidance provides that while employees returning to work after paid FFCRA leave are entitled to be restored to their same or equivalent position, an employer can bring the employee back to work in a position requiring less interaction with co-workers, or require them to telework.

Another highlight from the updated guidance is the fact that employers shall not discriminate or retaliate against employees for their use of FFCRA leave. Employers may not use the anticipated need for FFCRA leave upon reopening as a negative factor in an employment decision.

You can access the following materials using the links below:

As more employees are returning to the workforce, it is critical that both workers and employers understand common issues they will be faced with when responding to COVID-19, its effects on wages and hours worked under the FLSA, as well as job-protected leave under the FMLA.

With more guidance on the way, it is important for employers to seek counsel given the complexity of these federal regulations and their impact on state and local laws. Please call Vandenack Weaver to speak with an attorney at 402-504-1300 or info@vwattys.com for guidance.

VW Contributor: Skylar Young
© 2020 Vandenack Weaver LLC
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U.S. DEPARTMENT OF LABOR ANNOUNCES ENHANCEMENTS TO ASSIST EMPLOYEES, EMPLOYERS AND OTHER STAKEHOLDERS IN USE OF FAMILY AND MEDICAL LEAVE

Vandenack Weaver LLC Employment Law , , , , ,

Today the U.S. Department of Labor’s Wage and Hour Division (WHD) announced significant steps to streamline optional-use forms that workers can use to request, and employers can use to coordinate leave under the Family Medical Leave Act (FMLA). Cheryl Stanton, the WHD administrator, stated that “The improvements we announced today reflect the ongoing commitment of the U.S. Department of Labor’s Wage and Hour Division to support workers’ families and those who employ them at a time when they need it most.”

The WHD’s new forms include more questions that users can answer by checking a response box and now feature an electronic signature to reduce physical contact and help mitigate the risk of COVID-19 transmission. These revisions were influenced by substantial public input and will hopefully reduce the time users spend providing information, as well as improve communications between leave applicants and administrators.

In general, the FMLA entitles eligible employees of covered employers to take up to a total of 12 workweeks of job-protected, unpaid leave, or to substitute accrued paid leave, during a 12-month period for the following reasons:

  • The birth of the employee’s child;
  • The placement of a child with the employee for adoption or foster care;
  • To care for the newborn or newly-placed child;
  • To care for the employee’s spouse, parent, son, or daughter with a serious health condition;
  • When the employee is unable to work due to the employee’s own serious health condition; or
  • For any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered activity duty.

The new Families Care First Coronavirus Response Act (FFCRA), which ensures that workers are not forced to choose between their paychecks and taking appropriate precautions by way of health and safety measures, includes temporary amendments to the FMLA. This expanded family and medical leave entitlement became effective April 1, 2020 and will expire on December 31, 2020.

The Department of Labor (DOL) is also seeking information from the public regarding the regulations implementing the FMLA. This Request for Information (RFI) will enable the DOL to gather information concerning the effectiveness of the current regulations. The current RFI does not include comment on the FMLA protections under the FCRA. Current information about the FCRA can be accessed here. If interested, you can submit comments on the Federal eRulemaking Portal. All comment submissions must include the agency name and Regulatory Information Number (RIN 1235-AA30) for this RFI.

VW Contributor: Skylar Young
© 2020 Vandenack Weaver LLC
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DOL Revises The Family and Medical Leave Act (FMLA) Poster

Vandenack Weaver LLC Employment Law, Employment Policies , , , ,

by Joshua A. Diveley

The Department of Labor (DOL) revised The Family and Medical Leave Act (FMLA) poster which certain employers must display at employment locations. The revisions were released in late April, 2016. The poster was revised to clarify language and include additional information not contained in the prior February 2013 version of the poster.

All covered employers, generally those with at least 50 employees, are required to display the poster and keep it displayed. The poster summarizes the major provisions of FMLA and informs employees how to file a complaint for non-compliance by an employer. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.

A copy of the revised poster is available at: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

The February 2013 version of the FMLA poster is still permitted and can be used to fulfill the posting requirement. Although displaying the revised poster is not mandatory, it is still a good idea for an employer to display the most recent version of the poster. Use of the most current poster shows a good faith effort to make employees aware of the latest information relating to employment laws.

An employer who willfully violates the posting requirement may be assessed a civil fine of $110 for each separate offense.

© 2016 Vandenack Williams LLC
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Update to FMLA Definition of “Spouse”

Dean Health and Welfare Benefits ,

The Department of Labor (“DOL”) has updated selected regulations to the Family and Medical Leave Act (“FMLA”). The updates change the definition of spouse to mean: “husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into . . . .”

Essentially, the change now requires employers to recognize FMLA leave for same sex individuals if the marriage is recognized and valid in the state where they were married. This change departs from the previous rule that requires recognition of the marriage by the state where the employee resides. This update will impact several parts of FMLA regulations, including leave for pregnancy, adoption, next of kin, and the care of a parent.

Although this new rule brings FMLA closer to the definition of spouse in other federal regulations and Supreme Court precedent, it does not include domestic partners. It must be a legally recognized marriage, including common law marriage, but it does not include a domestic partnership.

For employers, this may mean updating employee manuals and handbooks, as well as being aware of the laws of the various states when an individual applies for FMLA leave. The DOL does not expect compliance with the new regulations to add substantial cost.

The update to the federal regulations can be found at the following link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-03569.pdf

© 2015 Houghton Vandenack Williams
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Are All Employers Required to Give FMLA Leave?

Dean Benefits, Health and Welfare Benefits

An Employee Benefits FAQ with M. Thomas Langan II.

The Family and Medical Leave Act, or FMLA, requires certain employers to provide for job protection or unpaid leave for employees facing certain medical- or military-related events. FMLA does not apply to all employers, but rather two groups.

First, it applies to all public agencies regardless of size. This includes federal, state and local public employers, including schools.

Second, it applies to private employers who employ 50 or more employees throughout most of the year. For purposes of counting employees, the definition of “employee” is defined broadly so employers should error on the side of inclusion.

Overall, FMLA does not apply to all businesses and most private small businesses are exempt.

© 2014 Parsonage Vandenack Williams LLC

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If I Start a Business, What Employment Laws Should I Be Aware Of?

Dean Benefits, Business Management, Employment Law, Health and Welfare Benefits, Starting a New Business , , ,

A Video FAQ with M. Thomas Langan II.

If you start a business and hire employees, there can be several employment laws that you should be aware of. Generally speaking, employment laws are on a sliding scale approach. If you only have 1 or 2 employees, your company will generally be exempt from many employment laws; however, as  your company continues to grow and expand, it will start to become subject to more and more of these employment laws.

  • Employee Retirement Income Security Act. If your company offers employment benefit plans or health plans you could be subject to ERISA. ERISA governs these plans and makes sure that they are offered and implemented in a fair and financially sound manner.
  • Occupational Safety and Health Administration. OSHA governs workplace safety and applies to most businesses.
  • Americans with Disabilities Act. The ADA generally prohibits employers from discriminating against qualified employees or applicants with disabilities.
  • Family and Medical Leave Act.  FMLA  requires certain employers to provide for job protection or unpaid leave for employees facing certain medical- or military-related events.

There are many employment laws that could apply to your business, but knowing which ones your company is subject to is very important.

© 2014 Parsonage Vandenack Williams LLC

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New Required FMLA Poster

Dean Employment Law ,

Certain employers need to immediately replace their Family and Medical Leave Act poster with a recently released revised new one.  The FMLA poster is generally required to be posted by employers with 50 or more employees and should be displayed in a conspicuous place where employees and applicants can see it. The revised poster implements changes made by recently released FMLA regulations.

The new poster may be found here: FMLA Poster

© 2013 Parsonage Vandenack Williams LLC

For more information, contact info@pvwlaw.com

Common FMLA Violations Highlighted in Recent Survey

Dean Employment Law, Health and Welfare Benefits , ,

As part of the Family and Medical Leave Act’s 20th anniversary, the U.S. Department of Labor recently released the results of a survey on its use and impact.  The results show the generally positive impact the FMLA has had on workers. The survey also highlights several aspects where the FMLA is being misapplied by employers.  Among them include:

  • No Fault Attendance Policies.  Many employers reported still using no-fault attendance policies – policies that treat all employee absences the same regardless of the reason – without providing exceptions for FMLA leave.  FMLA-related absences should be excused and may not be used against employees in performance evaluations.
  •  Asking Employees on Leave to Perform Work. The survey revealed that when an employee is on leave, the most common method for covering the work is to assign it to other employees.  However, while employees are on longer leaves, 70.5% of employees were asked to perform some work while on leave.  This practice is likely in violation of FMLA’s prohibition from interfering with employees while on leave.
  •  Pressuring Employees to Return.  Under the FMLA, employers are not allowed to pressure employees to return to work.  However, the survey shows that 12.4% of eligible employees reported such pressure as a reason why they returned.

The full report may be viewed at Family and Medical Leave in 2012.

© 2013 Parsonage Vandenack Williams LLC

For more information, contact info@pvwlaw.com

Availability of FMLA Leave Broadens to Include Care for Adult Disabled Children

Dean Benefits, Employment Law , ,

Employees are now eligible to take FMLA-protected leave to care for adult children with disabilities regardless of when the child’s disability began.  FMLA generally entitles an employee to take up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a child with a disability who is in need of assistance but is incapable of caring for him or herself.  The clarification was included in an Administrator’s Interpretation released by the Department of Labor’s Wage and Hour Division.  Prior to the AI, it was unclear whether FMLA-protected leave was available if the child became disabled after reaching the age of 18.

The entire Administrator’s Interpretation may be found here: Administrator’s Interpretation No. 2013-1 .

© 2013 Parsonage Vandenack Williams LLC

For more information, contact info@pvwlaw.com