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FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

May 8, 2017

Authored by: Christy Phanthavong

Bryan Cave has launched a new blog focusing on labor and employment issues called Bryan Cave At Work (www.bcatwork.com).  Since labor & employment is a “neighbor” discipline to benefits, we will post links to some of their content from time to time that we think is relevant.  As one example, we expect to share FMLA content since, prior to BC @ Work’s launch, FMLA issues were covered on this blog.  Below is a link to an article that recently appeared on the BC @ Work blog:

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers.  To

The DOL’s New FMLA Poster – Does It Impact Your FMLA Policy?

The DOL’s New FMLA Poster – Does It Impact Your FMLA Policy?

June 1, 2016

Authored by: Christy Phanthavong and Chris Rylands

By now, you’re likely aware (and if you’re not, you should be) that, in April, the U.S. Department of Labor (“DOL”)issued a new “Employee Rights Under The Family And Medical Leave Act” poster, to replace the prior poster on this subject.

The DOL has made clear that the old poster (revised Feb. 2013) is still sufficient – until further notice – to meet the posting requirement under the FMLA regulations. Thus, you’ve probably already given some thought as to whether and when to proceed with updating your posters.

As you consider this step, however, have you also considered whether the new poster impacts your policy?

The FMLA regulations provide that, if an FMLA-covered employer has any FMLA-eligible employees, and if the employer has a written policy on the subject of leave/benefits, then the employer must ensure that its policy contains the same information that is in

Managing FMLA Fraud: Avoid Negative Commentary

Managing FMLA Fraud: Avoid Negative Commentary

January 26, 2016

Authored by: Christy Phanthavong and Chris Rylands

ThinkstockPhotos-496854082This last post in our three-part series on managing FMLA fraud is about how negative commentary – including emails with smiley face emoticons – can subvert an effort to show that a termination decision was based on an honest belief that the employee was misusing FMLA leave. (The first two posts in our series are available here and here.)

The case of Apatoff v. Munich Re Am. Servs., No. 11-7570, 2014 U.S. Dist. LEXIS 106665 (D.N.J. Aug. 1, 2014), involved an employee who took extended FMLA leave for asthma. Over the holidays, video surveillance showed the employee shopping on more than one occasion and carrying boxes as she moved into a new home. Based on this evidence, she was

New DOL Guidance Regarding Joint Employment Under the FMLA

New DOL Guidance Regarding Joint Employment Under the FMLA

January 25, 2016

Authored by: Christy Phanthavong and Chris Rylands

On January 20, 2016, the federal Department of Labor (“DOL”) issued guidelines to employers on the subject of “joint employment.” Most of the buzz regarding the DOL’s publications centers around the new “Administrator’s Interpretation” of joint employment under the Fair Labor Standards Act (“FLSA”) and the resulting implications for joint liability under federal wage-and-hour laws.

However, the DOL didn’t stop with the FLSA. Instead, the DOL also issued a new “Fact Sheet”, Fact Sheet #28N, addressing joint employment principles under the Family and Medical Leave Act (“FMLA”).

Joint employment exists when an employee is employed by two or more employers, such that both employers have responsibilities under the FMLA. Fact Sheet #28N does not provide a detailed discussion of when joint employment will be found to exist for FMLA purposes, noting instead that the analysis is the same under the FMLA as under the

Managing FMLA Fraud: Investigate, Don’t Assume

Managing FMLA Fraud: Investigate, Don’t Assume

January 19, 2016

Authored by: Christy Phanthavong and Chris Rylands

ThinkstockPhotos-112707613Continuing our three-part series on managing FMLA fraud (see our initial post here), this post addresses the importance of conducting a reasonable investigation, prior to taking adverse action, to develop a supportable “honest belief” of FMLA fraud.

The case of Hosler v. Fulkroad, No. 13-cv-1153, 2015 U.S. Dist. LEXIS 80801 (M.D. Penn. June 23, 2015), provides an excellent example of this principle. The employee requested leave for surgery and recovery, and submitted a doctor’s note in support of the request. The employer purportedly doubted the need for leave and terminated the employee while she was out.

Not only did the jury find in favor of the employee on her FMLA interference claim, but the court awarded liquidated damages, finding no credible evidence that the employer had a reasonable, good faith basis

Managing FMLA Fraud: Using Your Policy To Your Advantage

Managing FMLA Fraud: Using Your Policy To Your Advantage

January 11, 2016

Authored by: Christy Phanthavong and Chris Rylands

ThinkstockPhotos-466150788This post is the first in a three-part series of posts on managing FMLA fraud with tips from recent cases. In Alexander v. Bd. of Educ. of City Sch. Dist., No. 14 Civ. 8553, 2015 WL 2330126 (S.D.N.Y. May 14, 2015), for example, the court provided guidance on how FMLA policies can help support a termination decision when an employee misuses FMLA leave.

The employee in Alexander told her employer she needed intermittent FMLA leave to take her child to physical therapy appointments. Her request was approved after a doctor’s note confirmed the need for leave. Subsequently, the child refused to attend the appointments. Rather than update her employer about the situation, however, the employee attended classes while on leave during the scheduled appointment times. Trouble arose for the employee when she submitted

FMLA Forms – Best Practices

FMLA Forms – Best Practices

May 8, 2015

Authored by: Christy Phanthavong and Chris Rylands

FormsIf you are responsible for administering your company’s Family and Medical Leave Act (“FMLA”) policy, you know that the associated FMLA forms can be both your best friend and your worst nightmare.

On the one hand, proper use of the forms – such as the various Certifications, the Rights & Responsibilities Notice, and the Designation Notice – can provide valuable information to help you evaluate and manage employees’ leave requests. On the other hand, attempting to comply requirements surrounding the forms, not to mention trying to understand the meaning of information received from medical providers – can be an exercise in frustration.

Below are some “best practices” relating to FMLA forms that may aid in the administration of your FMLA policy:

  • FMLA Employee Request Form: Although the Department of Labor (“DOL”) has

FMLA Final Rule Defining Spouse Will Not Be Enforced in Four States – For Now

On the eve of the March 27, 2015 effective date for the DOL’s final rule amending the definition of “spouse” under the federal Family and Medical Leave Act (“FMLA”), a Texas district court preliminarily enjoined the rule’s application to the states of Texas, Arkansas, Louisiana and Nebraska. The case is Texas v. U.S., No. 7:15-cv-0056 (N.D. Texas 2015) and the full opinion may be found here.

Under the final rule, employers must look to the state where the marriage was entered into (instead of the state in which the employee resides) to determine the employee’s spouse. The revised definition of spouse includes same-sex marriages, common law marriages, and same-sex marriages entered into abroad that could have been entered into legally in at least one state. The rule was enacted in response to the Supreme Court’s Windsor decision, which held that the definition of marriage

FMLA Rules for Couples: Can My Employee Take FMLA Leave Even Though She/He Has A Stay-At-Home Spouse?

BabyPreviously in this series of blog posts relating to the federal Family and Medical Leave Act (“FMLA”), we discussed which couples do not have FMLA rights under the definition of “spouse,” as well as the limitations that can be placed on couples’ leave rights when both spouses work for the same employer.

To wrap up this series, we ask a “couples” question that you may have been thinking but were afraid to ask: Do I have to let my employee take leave to care for a covered family member (such as a child or parent), when the employee has a stay-at-home spouse who may be available to provide the necessary care?

The bottom line: Yes.

The FMLA provides a right to eligible employees to take leave for qualifying reasons.

FMLA Rules for Couples: Leave Limitations when Spouses Work for the Same Employer

CoupleIn a prior post, we discussed which couples do not have federal FMLA rights under the new regulatory definition of “spouse.” Now that we know who can and can’t take FMLA leave as a husband or wife, the next question is: What limitations May an employer can put on FMLA leave when both spouses work for that employer?

  • Eligible spouses are entitled to a combined total of 12 weeks of leave (i.e., not 12 weeks each) during the applicable 12-month period for leave taken:
    • For the birth or placement of a child;
    • To care for the child after birth; and/or
    • To care for an employee’s parent with a serious health condition.

Note that this limitation applies only to the identified reasons for leave. This limitation does not apply, for example,

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