Posted on February 21, 2013 by Carla N. Dorsi

Amendments to FMLA Mean Changes to Military Leave Provisions, Forms and Postings

On February 6, 2013, the United States Department of Labor (DOL) published final regulations that amend the Family and Medical Leave Act’s (“FMLA”) military leave provisions and eligibility requirements for pilots and flight crews. Other changes impacting the minimum increments of time allowable for measuring FMLA leave and recordkeeping requirements are also part of the final regulations. The new regulations take effect on March 8, 2013, giving employers only a few weeks to ensure that their policies and forms are updated.

Key Changes

Among the critical changes found in the new FMLA regulations are:

Qualifying Exigency Leave

  • Extending qualifying exigency leave to eligible employees who are family members or next of kin to those serving in the Regular Armed Forces – not just the Reserves or National Guard – but, requiring foreign deployment of that military member.
  • Permitting an eligible employee to take leave to care for a covered military member’s parent who is incapable of self-care when that care is necessitated by the servicemember’s covered active duty.
  • Increasing, from five to fifteen days, the amount of time an eligible employee may take qualifying exigency leave related to a military member’s rest and recuperation.

Military Caregiver Leave

  • Expanding the definition of “covered servicemember” to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness.
  • Providing alternative definitions for “serious injury or illness” of a covered veteran, only one of which must be met.
  • Expanding the definition of “serious injury or illness” for a current servicemember to include preexisting conditions that are aggravated during active duty.
  • Permitting Military Caregiver Leave Certifications to be completed by any health care provider, as defined in §825.125 of the FMLA regulations, and authorizing employers to require a second or third opinion in these circumstances (which is not permitted when the certification is provided by the DOD, VA, or TRICARE networks).

Airline Flight Crews 

  • Establishing special rules for calculating the hours of service required for FMLA eligibility for airline flight crew employees.
  • Creating a special rule for calculating leave time for airline flight crew employees and requiring that intermittent and reduced schedule leave be accounted for in increments of no greater than one day.

The DOL has released a helpful side-by-side comparison of the pre-existing regulations and the amended regulations.

New Forms and Postings

In light of the amendments, the DOL has updated the required posting that employers must display in the workplace. In addition, several of the FMLA forms made available on the DOL’s website have been revised, including the Notice of Eligibility and Rights and Responsibilities (Form WH-381), the Certification of Qualifying Exigency for Military Family Leave (Form WH-384), the Certification of Serious Injury or Illness of a Current Servicemember - for Military Family Leave (Form WH-385) and Certification of Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385V). However, the revised forms published by the DOL still do not include the Genetic Information Nondiscrimination Act (GINA) safe harbor language. Employers are encouraged to include this language in those FMLA forms that solicit medical information.

Conclusion

Employers should update their workplace postings and forms in order to be in compliance on March 8, 2013. In addition, employers should review their handbooks and policies to ensure that their FMLA policies are updated to comply with the latest changes. For answers to questions regarding the new FMLA regulations or for assistance with compliance, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.


Carla N. Dorsi is a Director in the Gibbons Employment & Labor Law Department.
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Posted on November 7, 2012 by Carla N. Dorsi

How Employers Can Combat the Flu

Flu season is here. Even when pandemic levels of the influenza virus are not expected, the flu nevertheless impacts businesses whose employees become ill and/or need to take time off for flu-related reasons. With limited restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Among the actions employers are permitted to take are:

  • Offering and encouraging vaccines;
  • Requiring infection control practices, such as hand washing, hand sanitizing, and/or the use of protective equipment;
  • Posting and distributing guidelines and suggestions for infection control;
  • Sending sick employees home (employers should consider in advance whether employees will be forced to use accrued paid time off, to take the time unpaid, etc.);
  • Requiring sick employees or employees who were exposed to the influenza virus to stay home;
  • Asking employees if they are experiencing specific influenza symptoms (provided the questioning is limited and does not solicit other protected medical information, which may be a violation of the Americans with Disabilities Act (ADA) or state antidiscrimination laws);
  • Requiring a doctor’s note from sick employees returning from work after influenza; and
  • Inquiring why an employee is absent.

On the other hand, employers are not permitted to take any of the following actions, all of which could give rise to violations of the ADA or other antidiscrimination laws:

  • Requiring vaccines of all employees (which may implicate either religious or disability accommodation issues);
  • Asking employees about underlying medical conditions that may disclose disability or genetic information; and
  • Conducting medical examinations of employees.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information for both individuals and businesses regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.


Carla N. Dorsi is a Director in the Gibbons Employment & Labor Law Department.
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Posted on August 9, 2012 by Michael J. Riccobono

Third Circuit Rules That Employers Need Not Accommodate Work Restrictions at End of FMLA Leave

Are employers required to provide reasonable accommodations to an employee to facilitate his or her return to the same or equivalent position at the conclusion of an FMLA leave? According to a recent decision from the Third Circuit Court of Appeals, the answer is no, provided the employee is unable to perform the essential functions of his job position. The case, Macfarlan v. Ivy Hill, provides important guidance for employers who must make such determinations upon an employee's return from FMLA-protected leave.

Factual Background

Plaintiff Alan Macfarlan worked as a maintenance director at Defendant Ivy Hill Rehabilitation and Nursing Care. On January 24, 2008, Macfarlan had a stroke, and on January 29, began a 12-week leave under the FMLA, which was set to expire on April 22. Beginning in February 2008, and continuing until August 2008, Macfarlan received short-term disability benefits from his insurer, Unum. On April 16, Macfarlan’s treating physician cleared him to return to work starting on May 1, but with the conditions that he not work more than four hours per day and that he not lift or otherwise move loads in excess of twenty pounds. After being notified by Ivy Hill’s administrator that part-time work was not available, on April 17, Macfarlan’s doctor cleared him to work full-time, but did not change the lifting restriction. On or about April 20, Ivy Hill terminated Macfarlan’s employment and notified him that he would not be hired back with any lifting restrictions. Macfarlan thereafter initiated suit, alleging that Ivy Hill violated the FMLA by refusing to allow him to return to work on April 17, once his doctor cleared him to work full-time, albeit with restrictions.

Family Medical and Leave Act

The FMLA makes it unlawful for an employer, among other things, “to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under this [statute].” The FMLA further provides that any employee who takes FMLA leave “shall be entitled, on return from such leave . . . to be restored by the employer to the position of employment [previously] held by the employee . . . or . . . to an equivalent position.” Notably, however, the FMLA does not require “an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of his medical leave.”

District Court Decision

The District Court concluded that Macfarlan was precluded from arguing that, at the time he sought restoration, he was able “to perform the essential functions” of his job, as required by the FMLA, despite his physician’s restrictions. The District Court concluded as much based upon the doctrine of judicial estoppel, which prevents a litigant from asserting a position inconsistent with one that he has previously asserted in the same or in a previous proceeding. The inconsistent position referenced by the District Court pertained to Macfarlan’s representations to Unum in connection with his application for short-term disability benefits. There, Macfarlan submitted documentation from his physicians that stated “he was unable to perform the material duties of his regular occupation.” The issue on appeal was whether (a) Macfarlan in fact made inconsistent representations, and (b) if he did so, whether he could nonetheless provide an adequate explanation for the inconsistency.

Third Circuit Decision

The Third Circuit determined based on the documentation Macfarlan submitted to Unum and Unum policy that disability benefits are provided “while you are unable to perform the material duties of your regular occupation” that there was no question that Macfarlan did in fact take the position vis-à-vis his insurer that he was medically unable to perform his occupation’s material duties. The Appellate Panel quickly dismissed Macfarlan’s attempts to explain this inconsistency, stating that his two claims “crash face first against one another, and the first estops the second.” As a result, the Court affirmed the District Court’s denial of Macfarlan’s FMLA claim.

Conclusion

Although largely fact-sensitive, the Macfarlan opinion is a noteworthy victory for employers as it reaffirms an employer’s right to refuse reinstatement under the FMLA to an employee who cannot otherwise perform the essential functions of the job. The Court’s decision reflects the fact that employers are not legally obligated by the FMLA to provide reasonable accommodations to employees to facilitate their return to work at the conclusion of their FMLA leave. It is also worth noting that Macfarlan apparently did not request an accommodation for his weight-lifting restriction. Employers remain obligated by the Americans with Disabilities Act and the laws of a number of states to assess whether requests for accommodation by disabled employees returning from leave are reasonable and should thus be granted.

In light of the Macfarlan case, employers should review their internal leave policies to ensure that they comply with the requirements of the FMLA and other applicable laws. Employers are also reminded to regularly update their job descriptions and requirements, so as to place themselves in the best possible position to withstand lawsuits such as the instant case. As always, before taking employment action against an employee on or returning from job-protected leave, employers should consult with legal counsel to ensure they have complied with legal obligations under the FMLA, ADA and other applicable laws. The attorneys in the Gibbons Employment & Labor Law Department regularly assist employers in these reviews and other employment and labor matters.


Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.
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Posted on February 9, 2012 by Mitchell Boyarsky

Supervisor Can Be Held Liable Individually Under FMLA, Third Circuit Holds

In a case of first impression, the Third Circuit Court of Appeals held that a supervisor may be individually liable for violating the Family and Medical Leave Act (“FMLA”). While noting that individual liability is not recognized in some Circuit Courts, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole reached a contrary conclusion.

Factual Background

The plaintiff in Haybarger had diabetes, heart disease and kidney problems requiring her to miss work frequently for medical attention. Her direct supervisor disciplined her concerning her attendance as well as her job performance and placed her on a 6-month probationary period. He also prepared an annual performance review which identified her attendance deficiencies. At the end of the probationary period, the supervisor recommended to his superior that the defendant County terminate the plaintiff’s employment. Although the supervisor did not have the authority to make the termination decision, it appears his recommendation to terminate was given significant weight, and he attended the termination meeting.

The plaintiff sued, asserting claims under the Americans with Disabilities Act, the Pennsylvania Human Relations Act (“PHRA”), the Rehabilitation Act and the FMLA. The defendant County moved to dismiss all of the claims, which the District Court granted except for the Rehabilitation Act claim against the County and the FMLA and PHRA claims against the individual supervisor. After discovery, the defendants moved for summary judgment. The District Court granted summary judgment to the individual supervisor, concluding that although the FMLA provides for individual liability, plaintiff did not present evidence of “sufficient control over the [employee’s] conditions and terms of employment” to impose such liability. On appeal, the Third Circuit reversed the decision of the District Court.

Court’s Rationale

In reaching its decision, the Third Circuit construed the definition of “employer” under various laws and interpretations including the FMLA and that of the Fair Labor Standards Act (“FLSA”) containing a similar definition, the Department of Labor’s implementing regulations, and the rationale of the Fifth and Eighth Circuits addressing individual liability claims. The Court held that “just as a real estate management company acting as an agent for building owners may be liable as an employer under the FLSA, an individual supervisor working for an employer may be liable as an employer under the FMLA.” Finally, the Court applied the “economic realities” test, which analyzes whether the purported supervisor exercised the control of an “employer” over the employee. Here, the Court found that sufficient evidence existed regarding the presence of control over the plaintiff to create an issue of fact to deny summary judgment to the individual defendant. Specifically, the Court found that even if the supervisor lacked the authority to terminate the plaintiff, he exercised substantial authority over her termination decision by preparing her termination letter and attending her termination meeting. In addition, the Court noted the individual supervisor’s control over the plaintiff’s employment conditions prior to her termination involved supervising her work, preparing her performance reviews and disciplining her, which further establishes control.

Implications for Employers

The concept of individual liability, especially for an employer which may defend the individual, is more of a tactic by a plaintiff to “personalize” the lawsuit rather than just involving a corporate defendant. Individual liability may exist even if the individual supervisor acted within the scope of his/her duties that involved discipline, termination or some other adverse consequence to the employee. It is not clear from Haybarger whether others involved in such decision-making, such as human resources and legal department personnel, could potentially be liable. However, Haybarger highlights the need for employers to follow a protocol when making decisions that adversely affect an employee’s terms and conditions of employment, to ensure that those participating in the decision-making are trained properly and that documentation concerning the decision-making process is prepared so that an individual supervisor is not left alone or unchecked to decide these matters.


Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.
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Posted on November 29, 2011 by Carla N. Dorsi

What Employers Can Do About the Flu

Flu season is here. While pandemic levels of the influenza virus are not predicted for the 2011-2012 flu season, the virus nevertheless impacts businesses whose employees become ill and/or need to take time off for flu-related reasons. With limited restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Among the actions employers are permitted to take are:

  • Offering and encouraging vaccines;
  • Requiring infection control practices, such as hand washing, hand sanitizing, and/or the use of protective equipment;
  • Posting and distributing guidelines and suggestions for infection control;
  • Sending sick employees home (employers should consider in advance whether employees will be forced to use accrued paid time off, to take the time unpaid, etc.);
  • Requiring sick employees or employees who were exposed to the influenza virus to stay home;
  • Asking employees if they are experiencing specific influenza symptoms (provided the questioning is limited and does not solicit other protected medical information, which may be a violation of the Americans with Disabilities Act (ADA) or state antidiscrimination laws);
  • Requiring a doctor’s note from sick employees returning from work after influenza; and
  • Inquiring why an employee is absent.

On the other hand, employers are not permitted to take any of the following actions, all of which could give rise to violations of the ADA or other antidiscrimination laws:

  • Requiring vaccines of all employees (which may implicate either religious or disability accommodation issues);
  • Asking employees about underlying medical conditions that may disclose disability information; and
  • Conducting medical examinations of employees.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information for both individuals and businesses regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.


 

Carla N. Dorsi is an Associate in the Gibbons Employment & Labor Law Department.
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Posted on January 11, 2011 by Gibbons P.C.

EBSA Provides Additional Guidance Regarding the Patient Protection and Affordable Care Act, the Mental Health Parity and Addiction Equity Act and the Health Insurance Portability and Accountability Act

The U.S. Department of Labor’s Employee Benefits Security Administration (“EBSA”) recently provided additional guidance on its website regarding implementation of provisions of the Patient Protection and Affordable Care Act (PPACA), implementation of the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This guidance, which is provided in the form of Frequently Asked Questions and responses, was prepared jointly by the Departments of Health and Human Services, Labor and the Treasury.

Some of the highlights from the guidance include the following:

  • For preventive services, group health plans can steer individuals towards a particular high-value setting such as ambulatory care so long as the plan provides for a waiver of the co-payment for those individuals for whom it would be medically inappropriate to go to an ambulatory setting.
  • Until regulations are issued by the Secretary of Labor, employers do not have to comply with the new automatic enrollment requirements in section 18A of the Fair Labor Standards Act. The Department of Labor intends to complete this rulemaking by 2014.
  • While the PPACA generally prohibits distinctions based upon age in dependent coverage of children, distinctions based upon age that apply to all coverage under the plan, including coverage for employees and spouses as well as dependent children, are not prohibited.
  • Under certain circumstances, issuers may screen applicants for eligibility for alternative coverage options before offering a child-only policy, provided this practice does not violate any state law.
  • Small employers continue to be exempt from the MHPAEA requirements.
  • Only employment-based wellness programs that are, or are part of, a group health plan are subject to the HIPAA nondiscrimination rules. Wellness programs that are not part of the group health plan may be covered by other federal or state nondiscrimination laws, but are not subject to the HIPAA nondiscrimination regulations.
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Posted on November 22, 2010 by Gibbons P.C.

EEOC Issues Final Rule for the Genetic Information Nondiscrimination Act (GINA)

The EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”) and provided background information regarding the new regulations, which shall take effect on January 10, 2011. GINA generally restricts employers and other covered entities from deliberate acquisition of genetic information, prohibits use of genetic information in employment decision-making, and strictly limits disclosure of genetic information.

Highlights from the EEOC regulations include:

  • “Genetic Information” is broadly defined and includes information about the genetic tests of an individual or his family members, as well as information regarding an individual’s family medical history. The regulations also provide examples of tests that qualify as “genetic tests” (e.g. a test to determine whether an individual has the genetic variants associated with a predisposition to breast cancer) and tests that do not qualify (e.g. cholesterol and HIV tests).
  • The EEOC urges employers to include specific language in medical exam/inquiry forms, such as those accompanying pre-offer and post-offer medical exams and fitness-for-duty exams to help protect against unlawful disclosures. By using this “safe harbor” language, employers can shield themselves from liability under GINA should they receive protected genetic information in response to these inquiries.
  • With limited exceptions, employers may not “request, require or purchase genetic information of an individual or family member of the individual.” A “request” includes: (1) internet searches that are likely to result in the employer obtaining genetic information; (2) making requests for information about an individual’s current health status in a manner that will likely result in the disclosure of genetic information; and (3) actively and intentionally listening to third party conversations or searching a person’s personal effects for the purpose of obtaining genetic information. Exceptions to this rule include:
    • the “water cooler” exception, whereby an employer has obtained genetic information inadvertently such as by overhearing a conversation involving genetic information “at the water cooler;”
    • receiving a response to an ordinary expression of concern about an employee’s health that includes genetic information; and
    • obtaining genetic information from health risk assessments that employees must complete in connection with voluntary employee wellness programs for which they receive a financial incentive, so long as the assessment specifically identifies which questions request genetic information and plainly states that responding to those questions is optional and that that the financial incentive will be provided regardless of whether employees answer those specific questions.
  • Employers are not required to remove genetic information from personnel files where such information was placed in the files before November 21, 2009. Employers may maintain genetic information about an employee in the same file in which it maintains confidential medical information that is subject to the Americans with Disabilities Act. This information should be maintained separately from employee personnel files and should be treated as confidential.

The same remedies available to employees under Title VII of the Civil Rights Act of 1964 are available for employer violations of Title II of GINA. Employers should also be aware that GINA does not preempt state or local laws that provide equal or greater protections than GINA from genetic discrimination or from improper access or disclosure of genetic information. Therefore, employers should also obtain legal advice regarding the relevant state law(s) to determine whether they are subject to stricter requirements.
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Posted on November 5, 2010 by Carla N. Dorsi

What Employers Can Do About the Flu

Flu season is here. While the Centers for Disease Control and Prevention (CDC) currently is not reporting high levels of influenza outbreak or predicting pandemic levels of the virus this year, the flu will nevertheless impact businesses whose employees become ill and/or need to take time off for flu-related reasons. With a handful of restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.

Among the actions employers are permitted to take are:

  • Offering and encouraging vaccines;
  • Requiring infection control practices, such as hand washing, hand sanitizing, and/or the use of protective equipment;
  • Posting and distributing guidelines and suggestions for infection control;
  • Sending sick employees home (employers should consider in advance whether employees will be forced to use accrued paid time off, to take the time unpaid, etc.);
  • Requiring sick employees or employees who were exposed to the influenza virus to stay home;
  • Asking employees if they are experiencing specific influenza symptoms (provided the questioning is limited and does not solicit other protected medical information, which may be a violation of the Americans with Disabilities Act (ADA) or state antidiscrimination laws);
  • Requiring a doctor’s note from sick employees returning from work after influenza; and
  • Inquiring why an employee is absent.

On the other hand, employers are not permitted to take any of the following actions, all of which could give rise to violations of the ADA or other antidiscrimination laws:

  • Requiring vaccines of all employees (which may implicate either religious or disability accommodation issues);
  • Asking employees about underlying medical conditions that may disclose disability information; and
  • Conducting medical examinations of employees.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.


Carla N. Dorsi is an Associate in the Gibbons Employment Law Department.
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