(Answers below)

Answer True or False

1. Pregnant employees must begin taking FMLA leave not later than 30 days before their due date.

2. If you decide a pregnant employee cannot continue in her job because her condition presents a safety hazard to herself and others, you must have a doctor’s approval before you can prevent the employee from doing the job.

3. If you decide a pregnant employee is physically unable to perform the major tasks of a job (for instance, lifting or climbing), the law states you must provide that employee with another job that is less strenuous but carries the same pay and benefits.

Answers:

1. False. There is no set time period when a pregnant employee must begin taking FMLA leave. Generally, leave commences at a date of the employee’s choosing. The law does mention that, when able, employees should give their employer at least 30 days’ notice of the intent to take leave, but that time period is just a recommendation and doesn’t apply to all situations..

2. False. A supervisor or other member of management can make the call on whether a pregnant employee presents a safety hazard. A doctor’s agreement isn’t needed.

3. False. Under federal disability regs, you are only required to make a reasonable and practical effort to provide an alternative position, but not necessarily at the same pay. In some states, if the employee is unable to do the job, she’s eligible for short-term disability payments.

A new fact sheet from the Department of Labor (DOL) spells out some important guidelines:

1. Leave taken by an employee who wants to avoid exposure to the flu isn’t protected under the FMLA. Employers should encourage people who are ill with pandemic influenza or are exposed to ill family members to stay home, and should consider flexible leave policies for their employees in these circumstances.

2. When schools are closed because of pandemic influenza, parents who must stay home to care for their healthy children aren’t covered by FMLA. There’s no federal law covering employees who take off from work to care for healthy children. Employers aren’t required by federal law to provide leave to those caring for healthy dependents who’ve been dismissed from school or child care. That said, given the potential for significant illness, employers should review their leave policies to consider providing increased flexibility to their employees and their families. (Remember, though, federal law says flexible leave policies can’t discriminate because of race, color, sex, national origin, retaliation, age, disability or veteran status. Policies must be applied equally.)

3. If employees can’t come to work because they have to take care of sick family members, in limited instances employers may be able to lay them off. If a worker is covered and eligible under the FMLA and has to care for a family member with a serious health condition, then he or she is entitled to 12 weeks of job-protected, unpaid leave during any 12-month period. Some states have similar family leave laws. However, people can be laid off if they’re not covered and eligible for FMLA leave – but the DOL encourages employers to:

a. consider other options, such as telecommuting, and

b. prepare an action plan specific to that particular workplace.

4. If a company sets a policy requiring employees to go home sick when they show symptoms of pandemic influenza, that time off could qualify as FMLA-protected leave. It’s important to set an action plan specific to your workplace – including giving the firm permission to send employees home. (Just be sure the policies aren’t discriminatory). This required leave would be covered under the FMLA if employees work for a covered employer and they’ve:

a. worked for the company for at least 12 months

b. worked for at least 1,250 hours over the previous 12 months, and

c. work at a location where at least 50 employees are employed by the firm within 75 miles.

Question:
We recently were advised we’re allowed to deny leave under the Family and Medical Leave Act to the highest-paid workers in our company. Is that true? If so, under what authority?

Answer:
You’re probably thinking about the so-called key-employee exception to the FMLA, says litigation expert Denise Drake. But no, you’re not allowed to deny them FMLA leave.

The exception says that key employees who are in the top 10% of the company and who take FMLA leave do not have an automatic guarantee to job restoration. The reason? It’s harder for a company to lose top-level people, hold their jobs open and sustain business until they return.

If  any of your top-paid workers request FMLA leave, advise them they are key employees and that you may fill their position before they return. But you can’t deny them leave.

Here’s where good companies run into trouble. They –

• Work short-handed while employees are out sick

• Shut their doors because viruses like H1N1 prevent people coming to work, or

• Send everyone home to telework in an attempt to prevent illnesses from spreading.

Whatever plans your company makes to continue operations could inadvertently cause it to run afoul of the Fair Labor Standards Act. To ensure you remain in compliance, follow the U.S. Department of Labor guidelines:

1. Employers aren’t obligated to pay hourly workers who put in a partial week when the business is closed. The FLSA generally applies to hours actually worked – and it doesn’t require employers who are unable to provide work to nonexempt employees to pay them for hours people would’ve otherwise worked.

2. People can do work that’s outside their job descriptions. It’s OK to require those reporting for duty to pick up some of their ill colleagues’ responsibilities. The FLSA doesn’t limit the types of work employees age 18 and older may be required to perform. That’s true even if the work isn’t listed on the employee’s job description.

3. Companies may require employees to telework as an infection-control strategy when there are pandemic conditions. Telework may also be a reasonable accommodation. Just be careful HR doesn’t single out employees to either telework or continue reporting to the workplace for reasons prohibited by any of the EEOC rules. Remember, too, that workers must be paid their same hourly rate or salary if they work from home. Under the FLSA, employers generally have to pay people only for the hours they actually work, whether at home or at the worksite. However, the FLSA requires employers to pay nonexempt workers at least the minimum wage for all hours worked, and at least time and one-half the regular rate of pay for hours worked in excess of 40 in a workweek. Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to certain exceptions.

4. Employees who are required to work from home (because the workplace has shut down) but can’t, don’t have to be paid. The FLSA only requires employers to pay people for the hours they actually work, whether they’re at home or the worksite – that’s minimum wage (or more) for nonexempt employees. Salaried exempt employees must be paid their full salary in any week in which they perform any work, but for a few exceptions. Note: DOL encourages employers to consider additional options to promote “social distancing,” such as adding staggered work shifts.

5. Letting employees “volunteer” to help out during a personnel shortage could cause trouble. While that’s a nice gesture, the FLSA has stringent requirements on when you can and can’t allow people to volunteer time. Generally, covered, nonexempt employees working for private, for-profit employers have to be paid at least the minimum wage, and can’t volunteer their services. Check with the Department of Labor for the rules when volunteering in the public and private, nonprofit private sectors may be allowed.

Different approach from the government
New proposed legislation would allow the sick to stay home on the employer’s dime (which, admittedly, could also prevent the spread of illness). Here are specifics from two bills under consideration by Congress, each of which would add a layer of worker protection:

- HR 3991, Emergency Influenza Containment Act – Legislation introduced by Rep. George Miller (D-CA) would guarantee five paid sick days for anyone sent home or told to stay home by their employer because they have a contagious disease (e.g., H1N1 virus). It also protects those taking advantage of the sick time from being fired, disciplined or retaliated against for their decision. Anyone needing more than the five sick days could continue staying home under the Family and Medical Leave Act, if applicable. The legislation would apply to employers with 15 or more employees that currently don’t provide at least five days of sick leave.

- SB 1152, The Healthy Families Act – This bill would require employers with more than 15 employees to give anyone putting in more than 20 workweeks annually up to seven days of paid sick days each year. The time could be used for their own or a family member’s illness, or for preventative care such as a doctor’s office visit. Other versions of this bill, which was introduced earlier this year by Rep. Rosa DeLauro (D-CT) and Sen. Edward Kennedy (D-MA), made the rounds in 2005 and 2007.

FMLA regs require employees to provide 30 days’ notice for any leave that’s foreseeable (like childbirth). But when the need’s unforeseeable — like a sudden illness — the rules have been a little muddier.

That’s because a 1999 opinion letter stated that employees had two business days to let their employers know they’d be out on FMLA leave — and the employer couldn’t penalize workers who didn’t follow company notification procedures, if those procedures were stricter than the two-day requirement.

Early this year, FMLA rules were officially changed to allow employers to require that employees follow internal notification policies when asking for covered leave. The recent opinion letter reiterates the new FMLA rules and rescinds the 1999 letter.

Bottom line: You can ask employees to follow your normal notification procedures when asking for FMLA leave.

For a look at the recent letter (DOL Opinion Letter FMLA2009-1-A), go here.

Question
What happens when employees take FMLA leave for one serious medical condition, and then develop another illness while they’re out?

Answer
Their FMLA leave can simply be extended (with proper documentation, of course), says employment attorney Lawrence Peikes. The common situation comes up when an employee plans to be out for a few weeks for a surgical procedure and then needs another few weeks to recover from complications that develop; all count toward the 12-week allotment.

The key fact to explain to employees: They don’t get a new 12-week entitlement each time a new serious health condition pops up — whether the conditions are back-to-back or separate.

The U.S. Department of Labor, in a just-released opinion letter, essentially changed its stand on the issue of how much notice an employee is required to give when requesting leave under the Family and Medical Leave Act. That’s good news for employers.

Let’s start with DOL’s original ruling — in opinion letter FMLA-101 — back in 1999. It involves a ruling on what rules employers can enforce when an employee requests FMLA leave with less than 30 days’ notice because of circumstances beyond the employee’s control, such as sudden illness.

Specifically, the letter addresses the “two-day rule” stating that employees have up to two days after beginning leave to inform their employers that the absence is FMLA-qualified.

The 1999 letter set the standard for such situations when it noted that a company that tries to set up a more stringent policy is in violation of the law. In the 1999 case, an employer tried to institute a policy in which employees had to request FMLA leave within one hour after the beginning of the first shift they missed because of taking the leave, or else be penalized for an unauthorized absence.

In short, the DOL said, “No, you can’t force employees to report the leave less than two days after taking it.”

What’s changed
Jump ahead to this year — and a new opinion letter, FMLA2009-1-A — released in May. (The letter was dated Jan. ‘09, but not released then.)

It responds  to a complaint that “employers believe that opinion letter FMLA-101 prevents them from applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employees provide notice within two business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner.”

Translation: FMLA-101 in 1999 stated that employers couldn’t penalize employees who failed to follow usual company procedures for calling in an FMLA request if those usual procedures violated the two-day rule even though the employee knew about the the leave and was able to call it in prior to the two-day deadline.

DOL reexamined the ruling and reversed itself in this year’s opinion letter.

Here’s the example DOL used in explaining the change:

1. Company policy requires employees to call in one hour before the start of a missed shift to request that the missed time be considered FMLA leave. Failure to call in, unless the employee is unable to do so, results in denial of the request for FMLA leave.
2. Employee takes two consecutive days off without calling in.
3. Employee comes in on the third day and essentially says, “Those two days I missed are FMLA leave. By notifying you today, I’m covered by the two-day rule, even though I could have followed company policy and called in an hour before my first missed day.”
4. Employer denies FMLA request.

Under the new opinion letter, the employer is in the clear. The two-day rule doesn’t kick in because the employee reasonably could have followed the company’s stricter standard call-in procedure.

The new letter also notes that if you’re going to deny FMLA when employees don’t follow the tougher call-in policy:

• You’ll have to make sure the policy is applied across the board to all employees — no exceptions.
• It really has to be an established policy, meaning it must have been used and in force before the employee makes the request; in other words, you can’t create a policy for one employee or on the day the employee makes the request.

Note: Opinion letters do not carry the weight of law, but they do indicate how an agency might rule on similar cases.

The first proposal (H.R 2161) — introduced by Rep. Carol Shea-Porter (D-NH) — essentially seeks to reverse many of the changes passed in January, such as:

• Restore protections that prevent an employer from forcing an employee to use more incremental FMLA leave than is medically necessary
• Reverse limitations placed on the use of accrued paid leave while on FMLA
• Restore the prohibition on denying attendance bonuses as a consequence for taking FMLA leave
• Restore protections that prohibit the waiving of an employee’s FMLA rights without review and approval by the DOL or the courts
• Restore protections that prohibit an employer from approving or denying FMLA leave based on compliance or noncompliance with employer leave request policies
• Restore employee privacy by reversing regulations that would allow an employer to directly contact an employee’s medical provider
• Restore previous “fitness-for-duty” certification rules for employees who take intermittent leave
• Direct the Labor Department to (a) revise the so-called Bush regulations affecting recertification timelines and (b) revise the provided medical certification template to include the definition of a “serious health condition.”

The second proposal (H.R. 2132) came from Rep. Carolyn Maloney (D-NY).  This legislation, in summary, would amend the FMLA to permit leave to care for a domestic partner and other individuals in an employee’s extended family.

Specifically, Maloney’s bill calls for  permitting FMLA-eligible employees to take leave to care for:

• a domestic partner
• a child of a domestic partner
• a same-sex spouse
• a parent-in-law, adult child, sibling, or grandparent if that person has an FMLA-qualifying “serious health condition.”

We’ll keep you posted on the progress of both bills.

Last week, Rep. Pete Stark (D-CA) introduced a bill in the House of Representatives that would create a family leave insurance program giving eligible employees up to 12 weeks of paid family leave in a 12-month period.

The Family Leave Insurance Act of 2009 (H.R. 1723) piggybacks on the Family and Medical Leave Act (FMLA) and adopts many of the definitions of that law, with certain exceptions:

• Generally, paid leave would be available to any employee of a covered employer who has worked at least 625 hours in the six months prior to filing an application for leave benefits. The legislation defines a “covered employer” as one that has two or more employees for 20 or more weeks during the current or preceding calendar year.
• Generally, leave would be available for the same reasons as provided in the FMLA – for the employee’s own serious health condition; to care for a family member (which, unlike the FMLA, includes domestic partners, including same sex domestic partners, and the child of a domestic partner) with a serious health condition; for the birth or placement of a child for adoption or foster care; to care for a family member who is a wounded veteran or because of a qualifying exigency resulting from the call to active duty of a family member (including a domestic partner).
• The program would be funded by equal contributions from the employer and employee of 0.2% (two-tenths of a percent) of employees’ wages, and employers would match employee payments.
• Benefit amounts would be tiered progressively according to income level and indexed for inflation under the Social Security wage index. The bill would allow employers with an equivalent or better paid-leave plan to opt out of participating in the insurance fund.
• The legislation also prohibits employers from interference, discrimination, or retaliation concerning an employee’s exercise of rights under the act, and would give employees a corresponding private right of action. The Secretary of Labor would have investigative authority and would be authorized to bring an administrative or civil action. The bill also provides criminal penalties for knowingly submitting or helping another to submit a false certification in order to fraudulently collect benefits.

Stark introduced similar legislation last year — before the election of President Obama – but that legislation failed to make it out of committee.

1. Form WH-1420, the “general notice” poster, combines previous FMLA poster and policy requirements.  The regs say you must post the notice “conspicuously.”
2. The eligibility notice (Part A of Form WH-381) informs employees if they’re eligible for FMLA leave. Under most circumstances, you must provide the notice to an employee within five
   business days after the employee’s first request for leave during a given leave year. The form also provides a space for employers to advise ineligible employees on why they don’t qualify
   for FMLA leave.
3. If an employee is eligible to take FMLA leave, you must simultaneously provide
   the employee with a “rights and responsibilities notice” (Part B of Form WH-381). As its name suggests, this form provides an employee with additional information concerning obligations for leave to qualify under the FMLA. For example, the form indicates whether a certification is required, as well as whether there is any company policy requiring or permitting the use of paid time off while on FMLA leave.
4. You can use a “designation notice” (Form WH-382) to advise an employee as
   to whether his or her request for FMLA leave has been granted. Generally, you should provide such notice to an employee within five business days after the employer acquires sufficient information to determine whether the leave qualifies. At this stage, you must also notify the employee if a fitness-for-duty certification will be required prior to returning to work.
5. Form WH-380-E is used for an employee’s own serious health condition.
6. Form WH-380-F is used for the serious health condition of a qualifying family member.

The forms are undergoing modification, and not all of the latest versions are available. We’ll alert you to the new versions as soon as they’re posted.