The U.S. Department of Labor has issued new FMLA Notice and Certification forms for use by employers subject to federal FMLA requirements.  The DOL is required to update these forms every three years under the Paperwork Reduction Act of 1980. The previous forms expired on May 31, 2018, and had been extended monthly until the new forms were released effective September 1, 2018.  Employers should start using the new forms immediately.

Of note, “new” is a relative term here, as the updated FMLA forms are identical to the previous versions – with the exception of the expiration date of August 31, 2021. The new FMLA forms are available on the DOL website at https://www.dol.gov/whd/fmla/forms.htm

The importance of training supervisors on how to recognize and deal with employee leave issues cannot be overstated. And here’s a painful example of why…

Grace, an employee at a group home where she provided support to residents with mental impairments, was unexpectedly hospitalized due to a mental health condition. Grace had her son call her employer to tell them that she was in the hospital and could not report to work. Grace’s son called the employer at least four times over the next week to advise that his mother was still in the hospital. He spoke with Grace’s direct supervisor, as well as the program manager and the HR department. Such notifications should have sounded alarm bells that Grace might have a “serious health condition” and may be entitled to leave under the FMLA. Which it did – sort of; an HR department staff person prepared an FMLA packet acknowledging that the employer had been informed Grace was on a medical leave. However, when Grace’s son informed her supervisor that Grace was able to speak, the supervisor became angry and said it was inappropriate for him to be calling on his mother’s behalf and told him not to call again. The supervisor did not ask the son any questions regarding Grace’s condition or whether there was something preventing Grace from calling herself. Continue Reading FMLA: A Painful Reminder of the Importance of Supervisor Training

The Department of Labor recently proposed new regulations designed to implement and interpret the National Defense Authorization Act for Fiscal Year 2010, which amended and expanded the Family and Medical Leave Act (“FMLA”).  The amendments expand military caregiver leave and incorporate a special eligibility provision for airline flight crew members.

As set forth in the DOL’s informational notice, the major rule changes include:

  • Extension of entitlement to military caregiver leave to family members of veterans for up to 5 years after leaving the military.  Presently, the FMLA only covers family members of service members that are currently serving;
  • Expansion of qualifying exigency leave to employees whose family members serve in the regular armed forms, as opposed only to employees whose family members serve in the National Guard or reserves as provided by existing law;
  • A more flexible definition of “serious injury or illness” of a veteran; and
  • Several provisions specific to airline flight crew members aimed at increasing accessibility to FMLA benefits.

The regulations are not yet final and anyone that would like to submit comments on the proposed regulations may do so prior to April 16, 2012.  Following review of the comments, the DOL will release final regulations.

Employers subject to the FMLA should stay tuned as these regulations have the potential to significantly expand leave entitlement, most notably as it relates to military caregiver leave for veterans.

For more information, please visit our website.

Recent developments following the National Labor Relations Board (NLRB) election results indicate that the NLRB will affect sweeping changes in 2011 making union organizing easier and compliance more onerous and expensive for employers. Employers face greater enforcement mechanisms, modifications to agency policies and procedures, and additional regulatory requirements under certain initiatives implemented and under consideration.

For instance, the NLRB issued a Notice of Proposed Rulemaking which was published in the Federal Register on December 22, 2010. If adopted, the rule requires employers to post in the workplace notices describing employees’ rights under the National Labor Relations Act (NLRA), including, but not limited to, the right to organize a union, engage in collective bargaining, and conduct other forms of group-oriented activity (such as strikes and picketing). The stated purpose of the proposed rule is to inform employees of their rights to form, join, or assist labor organizations, to bargain collectively, and to act together to attempt to improve their working conditions, or to choose not to do any of these things, as well as to inform employees of where to seek help in understanding those rights.

Under this proposed rule, all employers covered by the NLRA would be required to physically post and maintain the notice in a conspicuous location, “including all places where notices to employees are customarily posted”. Employers that customarily communicate with their employees by electronic means are additionally required to disseminate the notice by email or by posting the notice on the company’s website. If a significant number of employees are not proficient in English, then the employer must provide the notice in the employees’ language.

Employers that fail to post the notice would be subject to the following sanctions:

(1) finding the failure to post the required notices to be an unfair labor practice (an NLRA violation);

(2) tolling the statute of limitations for filing unfair labor practice charges; and

(3) considering the failure to post the notices as evidence of unlawful motive in future unfair labor practice cases.

Although similar notices are required by other federal workplace laws (e.g., ADA, FLSA, ADEA and FMLA), the proposed NLRA notice is different in that the NLRA notice would contain not only a summary of the law, but actual examples of employer conduct that violates the NLRA. The sole dissenting Board member, Brian E. Hayes, questioned whether the NLRB has the authority to promulgate or enforce the notice posting rule.

This proposal is one of many NLRB initiatives that will substantially impact labor relations for employers in 2011 and beyond so check back as this is a hot topic and there will be more posts to come.”