DOL

Recent Updates in FMLA Legislation

Michelle Kern — Fri, 10 Apr 2015 14:14:53 +0000

Recent Updates in FMLA Legislation

Fri, 04/10/2015 - 14:00

Michelle Kern Fri, 04/10/2015 - 09:14

*This week’s blog post is brought to you by Optis’ Business Development Analyst, [David Spring](https://www.linkedin.com/in/davidspringoptis).* ![DSpring.jpg](/sites/default/files/DSpring.jpg) If you manage FMLA leave, you’ve most likely heard the recent news that the Department of Labor's (DOL) Final Rule on the definition of spouse has been temporarily stayed in four states. The [final rule](http://www.dol.gov/whd/fmla/spouse/) was issued February 25, 2015 by the DOL and aimed to increase the consistency across the United States in how the FMLA is provided to same-sex spouses. So, if you’re legally married, based on the state of celebration, you’d be entitled to take FMLA protected time for your spouse. That means same-sex couples married in California would receive the same FMLA spousal benefits even if they move to Georgia, which has a ban on same-sex marriage. Why? Because the state of celebration is California. This final rule aimed to change the previous state of residence rule, which required employees live in a state recognizing same-sex marriage to receive the protected leave entitlement. Under that rule, a couple moving to Georgia would have “moved away” from the spousal FMLA benefits they were entitled to, having tied the knot in California. **But keep reading...** Back to our point earlier, as of April 8, 2015, the [DOL](http://www.dol.gov/whd/fmla/20150331RequestForHearing.pdf) will not be taking action to enforce the Final Rule in Texas, Arkansas, Louisiana and Nebraska. The DOL is recognizing a preliminary injunction issued by the United States Court for the Northern District of Texas, Wichita Falls Division. The injunction was issued on behalf of these states, which argue that enforcement of the Final rule would be contradictory with existing state laws defining marriage. A hearing is scheduled for Monday, April 13 in order to resolve, but until that time providing same-sex spousal FMLA leave to employees in those states is not protected or required. **Here’s what didn’t change -** Documentation requirements associated with confirming family relationships did not change with the final rule issued on February 25, 2015. Existing regulations associated with [Sec. 825.122 (k)](http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol3/pdf/CFR-2011-title29-vol3-sec825-122.pdf) will remain in effect. What this means is that the same regulations guiding employers to confirm any type of FMLA-related leave family relationship are the same. So, confirming a child is not different than confirming a same-sex marriage. These regulations allow employers to require employees to provide “reasonable documentation or a statement of family relationship.” So, whether an employee provides a birth certificate for a new child or a marriage certificate for a same-sex marriage, it is at the employee’s discretion; the employer must accept verbal confirmation as well as proof of the family relationship. If you need additional guidance on tracking absence, don’t miss the Optis-sponsored Blogging4Jobs [podcast](http://www.blogging4jobs.com/podcast/fmla-ada-workers-compensation/#xtIHzdDUgE0jHVWB.97) which answers a wide variety of commonly asked questions having to do with FMLA, workers’ comp and disability.

Employers Beware: Don’t Discourage FMLA Usage

Michelle Kern — Thu, 14 Aug 2014 20:54:59 +0000

Employers Beware: Don’t Discourage FMLA Usage

Sun, 01/10/2021 - 19:45

Michelle Kern Thu, 08/14/2014 - 15:54

It’s always good to be reminded about behaviors or policies that could lead to legal trouble. One such reminder comes from section 105 of the FMLA, which indicates that interfering, restraining or improperly denying the benefits of the FMLA also includes not discouraging in any way usage of the FMLA. If this message was clear and obvious to all employers, then it would seem violations of this nature wouldn’t still occur, but unfortunately, they do. Even reminders by the DOL, such as in [Fact Sheet WHD #77B](http://www.dol.gov/whd/regs/compliance/whdfs77b.htm), are necessary because of continued violations. Discouragement could happen in multiple ways, but the big three include: + Written communications + Written policies + Over-aggressive absence management practices Use of a certification form is not required by the DOL, but if it’s used, wording in the document should not be obtrusive. One such case, likely familiar to readers, involved written language, in bold at the top, indicating that certification forms would not be accepted prior to the anticipated absence. *“Medical certification forms will NOT be accepted prior to the first day of a reported absence.”* Imagine not having confirmation of your request prior to the time of actual absence; this type of environment would add additional discomfort to already difficult circumstances. Having this type of language on a certification form creates road blocks to employees utilizing the FMLA; the exact opposite of the spirit and intent of the law. So, take time to review your certification forms to be sure unnecessary and potentially illegal wording doesn't exist. In addition, threatening absence policies are likely also to be seen as a discouragement of the use of FMLA. For example, having universal language suggesting swift termination after three days of an unexcused absence is the type of blanket policy that will lead to legal trouble. Circumstances exist around each absence which most likely require unique evaluation. Considering each situation individually is more in line with the movement behind creation of the FMLA. Take time to review your attendance policies for these types of threatening blanket statements. These policies typically originate from a negative view of taking time off from the workplace. It’s not surprising that employers might become hardened by the FMLA because of time-off abusers, but those employees who take advantage of a well-intended program shouldn’t drive workplace policies. Finally, potential risk results from over-aggressive absence management practices if those practices in any way discourage or limit appropriate and necessary time off associated with the FMLA. Problems have resulted when employers or third party administrators acting on behalf of employers have put in place restrictive standards or guidelines. The positive of these types of guidelines is that they can provide a sense of how long an employee should be absent for various serious health conditions or health impairments. The negative of these types of guidelines is when they are used as strict, all-encompassing standards that are applied in restrictive manners. This happens when, for example, a guideline suggests a potential duration of leave of 25 days and the Absence Specialist managing the absence interprets the time strictly as only 25 days. Subsequent actions to prematurely return or terminate the employee, when not returning on the 26th day, spell doom. In these types of situations, if medical certification has been collected, then it should contain information that can be used in determining absence begin and end dates related to time off for the FMLA. Whatever the case, provide time off for eligible employees to which they are entitled and is available. Waiting until the legal pot boils is not the right approach. Now’s the time to proactively assess and review your certification forms, attendance policies and absence management efforts to identify potential wording or practices that could be interpreted as discouraging use of the FMLA.

Managing Employee Absence This Halloween? Prevent a Nightmare on DOL Street

Michelle Kern — Thu, 31 Oct 2013 14:38:40 +0000

Managing Employee Absence This Halloween? Prevent a Nightmare on DOL Street

Thu, 10/31/2013 - 14:30

Michelle Kern Thu, 10/31/2013 - 09:38

Intermittent FMLA leave tracking, eligibility requirements and varying leave policies by state is enough to haunt HR in their dreams. However, managing employee absence doesn’t have to be as scary as it sounds. Here are a few general tips to follow to keep you on track and help you sleep this Halloween - • An employer has the right to request a medical certification for an employee absence, but don’t ask for one more often than every 30 days (in most cases.) Give the employee space. Don’t wear that metaphorical bladed glove. • Determine the best “FMLA Year” and publicize it. The four ways to count an “FMLA Year” is using the calendar year, any fixed 12 month period, a 12 month period measured forward, or a rolling 12 month period. You could even have the 12 month period start on Halloween each year! (Technically speaking…) Whichever you choose, make sure the determined time period is applied consistently in every absence. • Notify an employee of their eligibility within five business days of the leave request. • Stay up to date on leave policies by state. Know the states that recognize same-sex marriages and same-sex marriages in other jurisdictions and make sure you’re using the term spouse appropriately. (Quick tip: Those states are California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, New Jersey, Vermont and Washington, plus the District of Columbia.) • Manage FMLA with the ADA in mind – always. Provide employees with reasonable accommodations when requested. Keep in mind that extra leave time can be a reasonable accommodation. Following these tips, along with others can help you avoid any DOL nightmares. Ready to track employee absence in the cloud? Give [LeaveXpert](www.leavexpert.com) a test drive (but not in a convertible) with our free 30 day trial. We’ll leave you with this little ditty – Happy Halloween! *One, Two*....DOLs Coming for You... *Three, Four*....Better Document More... *Five, Six*....Know the Leave’s Basics... *Seven, Eight*....Better Track the Dates... *Nine, Ten*.....Never use Spreadsheets Again!