On Sept. 11, 2020, the U.S. Department of Labor issued revisions to its regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revised rule will take effect on Sept. 16, 2020, when it will be published in official form.

Revised Regulations Respond to Court Ruling

These revisions were made to clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions in light of a New York court’s order finding portions of the initial regulations invalid. Specifically, the court set aside four parts of the regulations: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee otherwise has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
In its revised regulations, DOL does the following:

• Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirms and provides additional explanation for the requirement that an employee must obtain employer approval to take FFCRA leave intermittently.
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On August 3, 2020, a federal judge in the U.S. District Court for the Southern District of New York invalidated several key portions of the U.S. Department of Labor’s (“DOL”) Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”).

The U.S. Department of Labor (“DOL”) recently published seven new Family and Medical Leave Act (“FMLA”) forms. These optional-use forms can be used by employers to provide required notices to employees, and by employees to provide appropriate certification of their need for leave. However, employers are still free to use their own forms, so long as they provide the same basic notice information and require only the same basic certification information.

The new forms are:

1. WH-380-E – Employee’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee.
2. WH-380-F – Family Member’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee’s family member.
3. WH-381 – Rights and Responsibilities Notice – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
4. WH-382 – Designation Notice – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement.
5. WH-384 – Qualifying Exigency – for use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
6. WH-385 – Military Caregiver Leave of a Current Servicemember – for use when requesting leave to care for      Continue Reading...

Today, the U.S. Department of Labor issued its regulations to implement the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both of which are part of the Families First Coronavirus Response Act (FFCRA or Act). The FFCRA, which became law on March 18, went into effect today, April 1.

This afternoon the United States Department of Labor (DOL) issued its model notice of employee rights regarding paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). The model notice describes information regarding the FFCRA’s paid leave entitlements, eligibility requirements, qualifying reasons for leave related to COVID-19, and the DOL’s enforcement authority. A copy of the notice is available here.

Employer-sponsored group health plans have drawn attention regarding coverage for certain coronavirus-related costs.

Under the FFCRA, all group health plans are now required to provide coverage for COVID-19 testing without imposing deductibles, copayments, or other cost sharing — and without requiring prior authorization or imposing other medical management standards. This coverage must include both the cost of the test and related services, such as charges for office, telehealth, urgent care, or ER visits and charges for the collection of testing samples. The testing mandate applies to all types of group health plans, including fully insured plans, self-insured plans, high deductible health plans (HDHPs), and plans that are otherwise “grandfathered” from certain ACA requirements. The mandate also applies to fully insured plans sold in the individual insurance market.

This mandate only applies to coverage of COVID-19 testing and related services. Coverage of treatment for COVID-19 remains subject to the terms of each plan, including applicable cost sharing requirements.

IRS Notice 2020-15 clarifies that an HDHP may provide benefits for COVID-19 testing or treatment prior to satisfaction of the minimum deductible without jeopardizing the plan’s status as an HDHP. Individuals covered under an HDHP may receive no-deductible or low-deductible coverage for these costs and remain eligible to contribute to a health savings account (HSA).

A new package of proposed federal legislation, currently called the CARES Act, would provide additional flexibility with respect to HDHPs and HSAs:

• An HDHP could provide for coverage of telemedicine visits even if the HDHP deductible has not been      Continue Reading...

The Families First Coronavirus Response Act (FFCRA), which was enacted on March 18, 2020, established two new categories of paid leave to assist workers needing time off for certain coronavirus-related purposes: (1) up to two weeks of paid sick leave, and (2) up to ten weeks of paid FMLA leave. These paid leave mandates apply to private sector employers with fewer than 500 employees and public sector employers of any size.

Although the FFCRA requires covered employers to provide these new types of paid leave to qualifying employees, it establishes a process for eligible employers to obtain reimbursement from the federal government for the cost of the paid leave through refundable credits against Social Security payroll taxes. The tax credit is available to all private sector employers that are subject to the FFCRA paid leave mandates, regardless of the type of entity (C corporation, S corporation, partnership, LLC, or sole proprietorship). Public sector employers are expressly excluded from eligibility for the tax credit, although they are subject to the paid leave mandates. Private sector employers with 500 or more employees also are not eligible for the credit, even if they voluntarily provide paid leave that mirrors the FFCRA requirements.

An eligible employer’s payroll tax credit for each calendar quarter is an amount equal to 100% of the qualified sick leave wages and 100% of the qualified family leave wages paid by such employer for the quarter. The credit is limited to the maximum amount of the paid leave required to be paid      Continue Reading...

Last week, the U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201), which, among many other things, provides paid leave for employees who must stay home to care for themselves or their families during the COVID-19 pandemic. Yesterday, the Senate passed the Act, and President Trump signed it into law. The Act makes sweeping changes to the Family and Medical Leave Act (FMLA) and has immediate consequences for employers.

According to the United States Department of Labor (DOL), nine out of 10 new fathers in the United States took some time off work for the birth or adoption of a child, but the amount of time that new dads take off work is generally very low. Seven out of 10 fathers took 10 days or less of parental leave. The DOL notes that fewer employers offer paid parental leave for men than for women, and fewer men report receiving paid parental leave than women. While 21% of women take parental leave, only 13% of men do the same.

Consider this fact pattern:  An employee has a back problem that stretches out over a long period of time.  At some point, the back problem becomes severe enough the employee goes out on FMLA leave.  During the twelve weeks of FMLA leave, the employee ends up scheduling a surgery.  The surgery takes place near the end of the twelve week FMLA period and the employee has a set of lifting restrictions that don't allow the employee to perform the essential functions of the position.  Under those facts, there is no way the employee can return to work at the conclusion of the FMLA leave.  Now what?

Employers face fact patterns like this one on a fairly regular basis.  A reasonable accommodation under the ADA might be to provide the employee with additional leave beyond the protected twelve-week FMLA absence.  These cases are usually fact-specific and can be tricky to resolve.  

A federal court in Wisconsin recently decided a case with this set of basic facts.  In the case, the employee requested another two to three months of additional leave to allow for recovery from the surgery.  The employer denied the request for the additional leave and ended the employment relationship.  As you might expect, the employee brought an ADA claim against the employer.  In what might be a surprise for employers, the court ruled in favor of the employer.  The court focused on the fact the employee had not been able to perform the job duties for the three months during the FMLA leave and that the anticipated two to three additional months was too long for the employee to be away from work.

Keep in      Continue Reading...

The DOL recently issued a final rule modifying the definition of spouse under the FMLA.  The change would recognize a same-sex spouse for purposes of the FMLA based on where the celebration of the marriage occurred as opposed to where the employee lives.  Shortly after the issuance of the rule, the states of Texas, Louisiana, Arkansas, and Nebraska filed for and obtained a temporary injunction blocking the rules application in those states.  The DOL presently intends to enforce the rule as written in the other 46 states not participating in the filing.  Stay tuned for further developments.

Spend a day with Foulston Siefkin employment lawyers taking a deep dive into FMLA issues such as curbing abuse and fraud, ensuring that  you are in compliance with tricky notice requirements, and how to issue discipline and terminate employees without running afoul of the FMLA.  This day-long course is offered on June 18, 2014, starting at 8:30 a.m., at the Commerce Bank Center, 1551 N. Waterfront Parkway, Wichita, Kansas.  This course has been approved for up to 6.25 hours of PHR/SPHR credit.  If you’d like to sign up, please visit www.HRHero.com/ks-fmla to register.  If you use the “Friends of Foulston” code S1491, you can receive a 20% discount on the registration fee.

A bill was introduced last week to amend the FMLA. The proposed changes focus on expanding the family relationships covered under the law. The bill expands coverage to allow leave to care for adult children, siblings, grandchildren, grandparents, parent-in-law, and same-sex spouses or domestic partners. Stay tuned as this proposal begins its journey through Congress.

In honor of the 20^th anniversary of the FMLA, the DOL issued final rules regarding the amendments to military family leave and airline flight crew FMLA eligibility. As part of the final rules, as of March 8, 2013, employers must use updated FMLA notice and certification forms. 

What day of the year is FMLA leave accessed the most? The day after the Super Bowl. Seriously. 

For a summary guide to the new regulations in Q & A format, click here. If you have a couple of hours to kill and are a glutton for punishment, you can link to the new rule itself here

The Department of Labor issued a new interpretation letter last week addressing the issue of adult children under the FMLA.

As most of you are aware, employees are not generally able to seek FMLA to care for a child over the age of 18. For an employee to be able to take leave to care for an adult child with a serious health condition, the adult child must be incapable of self-care because of a mental or physical disability. The hard part for employers is deciding whether the adult child actually clears that threshold. 

In its interpretation letter, the DOL notes that an employee is eligible for FMLA leave to care for an adult child if the adult child has a disability as defined by the ADA, is incapable of self-care due to the disability, has a serious health condition, AND is in need of care due to the serious health condition. The important point for employers to take away is the adult child needs to trigger all four of those elements. 

The interpretation letter contains a couple of examples to help employers understand how these adult-child rules will be applied. In one example, an adult child has an auto accident and is likely to clear the threshold and allow a parent to take FMLA leave. In another example, an adult child suffering from diabetes is determined not to clear the threshold for the parent to take FMLA leave.

The interpretation letter can be found here.  If you find yourself dealing with an adult child situation the letter is a good starting point.   

On a side note,      Continue Reading...

In honor of America's centennial, France gave us a gift: the Statue of Liberty. In recognition of its own centennial, the United States Department of Labor has given all of you a gift: a YouTube video chronicling its history. The six-minute-long video describes DOL's creation, introduces the labor secretaries, summarizes its legislative history, and promotes the things it does for workers. But be forewarned: the video is a slide slow, not a live-action film, and DOL tells the story to serve its own interests.  Watch the Video

The FMLA has been part of the workplace for nearly 20 years . . . and it hasn't gotten any easier for employers to administer.  For those looking to gain a deeper knowledge of the FMLA, Foulston Siefkin LLP lawyers will be presenting an FMLA Master Class on June 7 in Wichita.  This full-day event will address everything FMLA -- from basic to complex issues.  Sessions will include recent FMLA developments, what constitutes a serious health condition and how to collect appropriate medical information, military family leave, curbing FMLA abuse, and coordinating the FMLA with the ADA and Workers' Compensation laws.  For more information or to sign up, click here.  Be sure to enter the special "Friends of Foulston Siefkin" code to get a 20% discount on your registration (Offer Code: R500).

The Department of Labor (DOL) issued an unoffical set of proposed changes to the FMLA regulations earlier this week.  The proposed changes primarily focus on the military family leave provisions.  The proposed changes will eventually be published in the Federal Register and will seek comments from interested parties.  The DOL's stated goal is to add clarity for employers with respect to the military leave provisions of the FMLA.  The DOL describes the highlights of the proposal as follows:

• Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; 
• Creation of a flexible definition for the serious injury or illness of a veteran;
• Addition of a provision to cover serious injuries or illnesses that are an aggravation of a pre-existing condition if it occurs during military service;
• Inclusion of regular armed forces members under the military leave provisions (as compared to National Guard and Reserve);
• Creation of a foreign deployment requirement for qualifying exigency leave.

Stay tuned as the discussion of these proposed revisions to the regulation will gain steam in the coming months.  Once the DOL finalizes these proposed changes, employers will need to update their FMLA policies.  For access to the DOL page containing links to the information the DOL intends to publish in the federal register click here.

October is my favorite month of the year.  Warm, sunny days, followed by cool, crisp nights.  Colorful foliage.  Fall festivals.  College football.  Playoff baseball.  And, of course, the start of another U.S. Supreme Court session.

The Department of Labor is currently hiring.  While this is good news for recent college graduates looking for work, this may not be such good news for employers.  The DOL is continuing to focus its resources on enforcement of the Fair Labor Standards Act (FLSA).  This focus can mean only one thing for employers -- an increased likelihood of a wage and hour audit.  The local DOL office in Wichita, which covers most of Kansas, has added several new investigators in recent months and is currently hiring yet another.  These recent hires are just now starting to get out of their office and into employers' offices.  These additional investigators likely will result in increased enforcement activity going forward.  In the short-term, employers should consider self-auditing their pay practices, with the guidance of legal counsel under the attorney-client privilege, to ensure compliance with the FLSA prior to getting a visit from the DOL.

What does a crazy parent have to do with the FMLA?  Seems like a fair question to ask.  As a parent, most days I come away feeling a bit crazy. 

Instead of pondering the merits of crazy parents, or parents driven crazy, let's ponder the Department of Labor Wage and Hour Division's (DOL/WHD) recent Interpretation of the in loco parentis language contained within the FMLA regulations.  This recent pronouncement from the DOL/WHD appears to expand the group of employees who are able to claim parent status for purposes of taking FMLA to care for a child.  The regulations explain that individuals "who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child."  The new DOL/WHD interpretation softens this requirement by stating an employee qualifies as a parent by showing either day-to-day care or financial support so long as the employee intends to assume parental responsibility.  The practical implication of this interpretation is to further expand the group of individuals able to assert leave rights as the parent of a child.  Be mindful of this interpretative expansion as you receive FMLA requests related to the care of a child. 

You can find the text of the interpretation at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

• Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
• Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
• Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group      Continue Reading...