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Posted by Martha Zackin on February 15, 2013

New FMLA Forms Now Available

By Martha J. Zackin

February 6, 2013 was the 20th anniversary of the signing of the Family and Medical Leave Act.  In celebration, the United States Department of Labor released the results of a survey on the law’s use and impact.  According to the DOL, the survey shows that the “FMLA continues to make a positive impact on the lives of workers without imposing an undue burden upon employers,” and that both employers and employees find it “relatively easy to comply with the law.” The survey also concludes that “misuse of the FMLA is rare.” 

In addition to publishing the survey, the DOL issued a final rule implementing the law's protections to families of veterans and airline flight crews and making other clarifying changes.  Finally, the DOL published new forms for employers to use when seeking certification of serious health conditions or when designating eligibility, among other things.  As before, use of the forms is optional.

Posted by Martha Zackin on May 15, 2012

Hidden Problems within Sabbaticals and Other Professional Leave Programs

My colleague, Tyrone P. Thomas, recently published an interesting article in a newsletter National Bar Association newsletter, the Labor and Employment Times.  As beneficial as these programs may be, both to the employee and the employer, a poorly designed and managed professional leave program can create preventable legal, tax, and financial issues.  Please click here to read more.

Posted by Martha Zackin on February 29, 2012

Leave of Absence as Reasonable Accommodation for Disability? It Depends.

We have written before about the EEOC’s position that inflexible leave of absence policies may violate the Americans with Disabilities Act.  For example, as discussed in a prior blog entry, in July 2011, the EEOC settled a lawsuit filed against Verizon and a number of its subsidiaries, which claimed that Verizon violated the ADA with its progressive discipline policy that imposed discipline for all absences, including those absences caused by an employee’s ADA-covered disability.  To resolve the lawsuit, Verizon agreed to pay $20MM and to revise its attendance and ADA policies by providing exceptions to the no-fault attendance policy as reasonable accommodation for covered disabilities.

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Posted by Martha Zackin on January 24, 2012

Reminder: Include GINA "Safe Harbor" Language in FMLA Forms

Employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors to covered employers, must comply with the Family and Medical Leave Act (“FMLA”).   The FMLA requires covered employers to comply with various notification requirements, and allows employers to obtain medical certifications from employees requesting leave.  The Department of Labor (“DOL”) has authored various form notices and certifications, which employers may choose to use.

The DOL-drafted forms expire on January 31, 2012.  New forms, which have been submitted to the United States Office of Management and Budget, are not likely to be approved before the old forms expire.  Nevertheless, under the law, expired forms may continue to be used while new forms are awaiting approval.

But – and this is important – the soon-to-expire forms do not include the “safe harbor” language under the Genetic Information Nondiscrimination Act, which tells employees and their medical providers that they should not provide “genetic information” when responding to a request for certification. 

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Posted by Martha Zackin on January 12, 2012

FMLA Protects Workers Even Before They Are Eligible for FMLA Leave

In a case of first impression, the United States Court of Appeals for the Eleventh Circuit recently held that the Family and Medical Leave Act (“FMLA” or the “Act”) protected a pregnant worker who was fired after she requested leave, despite the fact that she was not eligible for FMLA leave when she made the request, because she would have been eligible at the time the leave was to have been taken.  The case, Pereda v. Brookdale Senior Living Facilities, Inc., is an important case for employers to heed.

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Posted by Martha Zackin on October 18, 2011

Leaves of Absence as Religious Accommodation

We previously wrote about the EEOC’s increasingly aggressive position against inflexible leave of absence policies that provide for automatic termination of employment when an employee does not or cannot return to work at the end of a specified maximum leave period, such as when the employee has exhausted available FMLA leave.  We have also written about the public hearing held by the EEOC in June 2011, which discussed the use of extended leaves of absence as reasonable accommodation for a disability covered under the expansive Americans with Disabilities Act Amendments Act.  A new development suggests that employers may also need to consider the use of extended leaves of absence as accommodation for employees’ religious beliefs.

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Posted by Martha Zackin on October 04, 2011

USERRA Requires Employer to Provide Returning Employee Equivalent Amount of Pay Rather than Equivalent Rate of Pay

In a case of first impression, the United States District Court for the Second Circuit recently held that the law requires an employer to pay an employee returning from military service to a commission-based job the same total amount of pay he or she received prior to activation- the employer violates the law by returning the employee to the same commission pay plan if, by doing so, the employee receives less pay than before the call-up.

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Posted by Martha Zackin on September 01, 2011

Employers May Need to Provide Employees with Leave For Involvement With School-Related Activities

By Michael Arnold

Next week, millions of children around the country will return to school, which serves as a good time to remind employers that they may have to provide short-term unpaid job-protected leave to their employees seeking to participate in their children’s school-related activities.  Currently, at least twelve states (California, Colorado, Hawaii, Illinois, Massachusetts, Minnesota, Nevada, North Carolina, Rhode Island, Tennessee, Texas and Vermont) along with the District of Columbia provide this type of leave in some form.  Additionally, Arkansas, Louisiana, and Utah have laws that encourage, but do not require, employers to provide school-related leave, and more than a dozen other states, like New York, have introduced school-related leave bills in their legislatures. 

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