FMLA employerguideThe Department of Labor has announced a new FMLA guide designed to help employers through the FMLA process.  “The Guide is organized to correspond to the order of events from an employee’s leave request, to restoration of the employee to the same or equivalent job at the end of the employee’s FMLA leave. It also includes a topical index for ease of use.”  The new employer guide comes almost four years after the DOL published an employee’s guide to the FMLA.

An FMLA covered employer is required to prominently post an FMLA poster, whether or not there are FMLA eligible employees at that location.  A free download of the required poster is available through the DOL.  The DOL is in the process of reworking the poster to make it more reader friendly.  According to the DOL website, the 2013 version of the poster is still acceptable and employers will not be required to use the new version of the poster.  The information has not changed, and the new poster reflects new formatting rather than any substantive changes.

The employer guide is long overdue, and hopefully will help employers as they implement FMLA in their workplaces.

A few years back my oldest son Zach became extremely sick. For weeks he was tired and could barely struggle through a full day of school. All he wanted to do was sleep. After several doctor visits, nothing was clear except we ruled out mono, strep, and the flu.

Then a strange cough developed and again we ran to the doctor. This time the doctor thought he might have whooping cough, and immediately began antibiotic treatment even before the diagnosis was confirmed. Two days later on a Friday evening, the doctor called and confirmed Zach tested positive for whooping cough, and advised me the whole family would have to be quarantined. I was in shock. How could he get whooping cough? He was up to date on all his immunizations and booster shots.

The doctor then asked me how Zach was doing and to be honest, I had let him go to a play with his friends because for the first time in weeks he was actually feeling pretty good. The doctor advised me I would have to go pick him up as his next phone call would be to the County Health Department to report a case of whooping cough, and put our family in quarantine. I had to make arrangements for prophylactic prescription antibiotics for each family member, and notify everyone Zach had been in contact with during the week that he had whooping cough. We all took our antibiotics, watched a lot of movies, and stayed at home for the prescribed period.

What in the world was NBC medical correspondent Dr. Nancy Snyderman thinking, when she recently broke quarantine imposed due to her exposure to ebola?  She had traveled to Liberia to cover the spread of ebola for the evening news.  I had watched her report and wondered whether it was a good idea to send a news crew to cover the story. Within a very short time, news coverage reported one of her camera crew had contracted Ebola and was being treated in Nebraska. Just yesterday, news coverage reported Dr. Snyderman had broken her 21 day quarantine when she went to get take-out food with her camera crew at a New Jersey restaurant.

Irresponsible is the first word that comes to my mind. NBC, as her employer, I hope you are paying attention. As an on-air medical professional, she exercised extremely poor judgment which goes to the very question of her credibility to continue to report medical news. She should have honored the quarantine, reported stories via Skype about being quarantined, and maybe even done a few historical pieces on past quarantines. She would have been entitled to exercise FMLA leave, and could have educated the public about the laws surrounding quarantine. Instead, I predict she may lose her job as a medical correspondent for NBC.

Wow, it is hard to believe it has been 20 years since President Bill Clinton signed into law the Family Medical Leave Act (FMLA). Despite the passing of two decades, many employers still have difficulty understanding and implementing the FMLA. The Department of Labor’s Wage and Hour Division enforces the FMLA, and has a good website with lots of helpful information, including Facts Sheets and e-tools which can assist employers in better understanding this important law.

Today, at 2:30 p.m. (EST) the Department of Labor is hosting an event with President Clinton to mark this anniversary. You can watch live via a webcast. In addition, the Wage and Hour Division will be publishing a final rule today which will implement amendments to the FMLA to expand the military family leave provisions, and a special eligibility provision for airline flight crew employees.

If you have employees who have family members in the military, be sure to review this Final Rule carefully, because it may affect how you currently handle these leaves under the FMLA.

Most private employers think if you don’t have 50 employees for each work day of 20 weeks in a calendar year, you are not a covered employer under the FMLA? Not so fast! That is not the end of the story. What about one employer who owns two companies, or one employee shared by two companies? The FMLA provides both an “integrated employer test” and a “joint employment test” for those situations.

Under these FMLA tests, whether an employer is a covered employer for purposes of the FMLA is not determined by the application of any single criteria, but rather the entire relationship is to be reviewed in its totality.

Where there are two separate companies, they will be deemed to be a single employer if they meet the “integrated employer test.” These factors include:

  • Whether there is common management of both entities?
  • What is the interrelationship between operations?
  • Is there centralized control of labor relations?
  • What is the degree of common ownership/financial control of the two entities?

Where one employee works for two separate entities, the “joint employment test“ factors will be considered. These include:

  • Whether there is an arrangement between employers to share an employee’s services or to interchange employees?
  • Whether one employer acts directly or indirectly in the interest of the other employer in relation to the employee? or
  • Whether the employers are in some way associated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly? Factors considered in determining which employer is the primary employer in a joint employment relationship include the authority or responsibility to: hire and fire; make payroll; and provide employment benefits.

Employers should analyze the facts of their circumstances and their business to accurately determine whether they are a covered employer under the FMLA. You can start with the brief on-line test offered by the United States Department of Labor.   

From 1:00 p.m. – 2:00 p.m. (CST) tomorrow, the U.S. Department of Labor (DOL) is putting on a free webinar to help workers and employers better understand the Family Medical Leave Act (FMLA). Viewers will be allowed to submit questions which will be answered by a FMLA expert. The DOL has also prepared a booklet explaining the FMLA.

Who isn’t interested in free training? If your business has more than 50 employees, it is to your benefit to view this webinar to make sure you understand and correctly apply the FMLA. You don’t want to inadvertently violate it and be penalized.

Click here to register for the webinar.

In a news release last week, the U.S. Department of Labor announced the Wage & Hour Division had issued an Administrator’s Interpretation (No. 2010-3) clarifying the definition of “son or daughter” as it applies to an employee standing “in loco parentis” to a child under Section 101(12) of the Family and Medical Leave Act (FMLA).

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter, . . .[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,. . . and to care for a son or daughter with a serious health condition.” See 29 U.S.C. § 2612(a)(1)(A) – (C). The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

“It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. . . . Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.”

If an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or a statement indicating the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations of in loco parentis where there is no legal or biological relationship.

Employers may have more “parents” working for them than they think. Not only biological mothers and fathers qualify for FMLA leave, but other adults may qualify in loco parentis as well. If you are an employer and you aren’t sure if an employee qualifies for FMLA leave, request documentation or a statement from the employee about the familial relationship.

Why is it important for a business to have an employee handbook or personnel policy manual? There are many reasons.

Handbooks or policy manuals can set the tone for a business. They put all the employees on the same page with respect to workplace rules. They outline benefits for uniform and consistent treatment of employees, and they set forth the legal obligations of the employer.

Having an employee handbook or policy manual can show a good faith effort by an employer to comply with applicable laws, like EEOC, FMLA, and FLSA.

Types of polices to consider including in handbooks or policy manuals are internet usage at work, personal cell phone usage at work, attendance/punctuality, confidentiality and use of social media. If a business has decided employees will serve “at-will,” they should not include policies outlining probationary, introductory or trial periods, grievance procedures, or a lock-step discipline process. These types of policies in Minnesota could be interpreted as a guarantee of work or a contract between the employer and the employee (pdf) effectively eliminating an employee’s at-will status.

Employee handbooks or policy manuals should be tailored for each specific business; one size does not fit all when it comes to these documents. Employee handbooks or policy manuals make for better workplaces, because employees know what to expect and what is expected of them.