Category: Uncategorized

DOL’s NEW FMLA MEDICAL INFORMATION TEMPLATE

October 18, 2020

Understanding the New FMLA Medical Information Template

The U.S. Department of Labor recently released new forms for medical information required for leave under the Family Medical Leave Act. The updates apply specifically to forms WH-380-E and WH-380-F, Employee’s Serious Health Condition, and Family Member’s Serious Health Condition, respectively. Each form slightly differs, depending on whether the application is for the employee or a family member.

In addition to changes in the Designation Notice; Rights and Responsibilities; and, Notice of Eligibility, the Medical Certification required of an employee or their family member has also been updated. A big part of that update requires healthcare providers to offer more detailed insights, including:

●      A “best estimate” of the treatment process and the future of care

●      A description of an essential job function that cannot be performed

●      Duration of incapacity can be noted as “lifetime” to assist with evaluation purposes

This form update is helpful because it also now includes a section on “insufficient or incomplete” medical information or certification. This includes an entire area where employers can offer a detailed explanation of what information is missing and when it needs to be provided to continue processing the leave paperwork.

The Goal is Reduced Hassle and Abuse of Leave

By upgrading these forms and adding areas for more information, the DOL hopes to reduce the amount of misinformation, miscommunication, and other hassles surrounding the process of approving FMLA leave and ensuring that all parties are on the same page regarding the reason and expected duration.

The goal here is to provide a more detailed explanation that helps doctors and employers alike evaluate information and communicate about patient care under FMLA without needing to constantly follow up with each other.

Primarily, it is designed to assist employers and medical providers, but the forms benefit employees to a certain degree, as well, to have their leave requests processed properly and promptly.

Standardizing is a Must

As of the summer of 2020, these forms are still optional, and employers are allowed to create their own if they desire. Of course, many professionals rely on the DOL templates at least as a starting point. The old forms are still available for use.

The biggest issue surrounding FMLA forms is the fact that there are no requirements or guidelines in place for the day-to-day use of these forms. The DOL itself directly states that they “do not require the use of any specific form or format”. If the DOL really wanted to improve the process, it would help to create a set of forms which are mandated, to ensure everyone is using the same process for consistency.

To learn more about processing FMLA leave, available forms, and how to work with the DOL to get assistance, you can visit their website here  . You will find forms, updates, and information regarding FMLA leave in the workplace, along with a detailed FAQ section to answer any questions you may have.

You can also work with an employment law attorney that can help you get through the process, choose the right templates, and ensure that your FMLA compliance is where it should be.

DOL Revisions to FFCRA Regulations: What You Need to Know

September 25, 2020

The Families First Coronavirus Response Act (FFCRA) Regulations were promulgated by the US Department of Labor to implement the FFRCA. Our Employment Law Blawg summary of the FFCRA is here. In response to a ruling from the U.S. District Court in the Southern District of New York, the initial regulations effective on April 1, 2020 were replaced effective, September 16, 2020. Here’s what you need to know about the revisions.

Changes to the regs were deemed necessary to improve the process of taking and requesting paid leave, including the availability of leave and related terms. The DOL aimed to achieve consistency and clarity throughout the regs, and in that vein, the new revisions were outlined to provide the following:

  • Reaffirmation that employees can only take FFCRA leave if and when work is available to them. That is, if someone is on a work reduction layoff, they cannot claim FFCRA leave because there is no work available at the moment.

  • Reaffirmation that employer approval is required for all intermittent leave taken under FFCRA. Failure to seek employer approval will result in denial of FFCRA leave benefits.

  • Clarification that supporting documentation should be provided as soon as possible. Employees must do their due diligence to provide employers with paperwork substantiating their eligibility for leave as quickly as they can when requesting FFCRA leave.

  • Correction of inconsistencies on the circumstances in which employees are required to notify or request permission from employers for FFCRA leave, or any leave related to expanded family and medical needs.

  • Revision of the definition of the term “health care provider”to be defined as “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.”

In sum, the newly revised FFCRA regs now defines the parameters for which employees have to request leave, or whether they can take leave without substantiated requests. It also clarifies some of the definitions outlined in the previous publication and it corrects inconsistencies to provide clearer guidelines for employers to follow when handling employee leave related to the coronavirus pandemic.

As the world has begun to reopen and the economy to rebound, employment laws must keep pace. However, it is a constant battle of finding balance, so future updates are to be expected as things continue to evolve.

Currently, employers and employees alike need concise, clear policies manage the public health crisis’ impact on their day-to-day operations, including staffing. The new regs are a good place to start with developing those policies for your organization today.

Is Black Lives Matter a “Matter” of Concern for Federal Employers and Employees under the Hatch Act?

August 1, 2020

The Hatch Act, passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law ensures that federal programs are administered in a nonpartisan fashion. It intends to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation. Read more on the Hatch Act here.

Today, July 10, 2020, the U.S. Office of Special Counsel (OSC) issued guidance on two questions relevant to current events. In this post, we focus on the first—whether Black Lives Matter (BLM) is a partisan political organization for purposes of the Hatch Act, which prohibits federal employees from certain political activities.

The short answer is no. OSC determined that Black Lives Matter (BLM) is not a partisan political organization at this time. Thus, federal employees are free to express their support through personal expression. However, it is important to note that the phrase “at this time” potentially serves as an exception should components of the BLM Movement actively endorse or solicit support for political candidates in upcoming elections.

How does this impact federal employees who advocate for BLM?

Currently, employees are not prohibited by the Hatch Act from expressing support for, or opposition to, the BLM movement while on duty or in the workplace. However, employees should understand that this assessment is subject to a fact specific analysis where advocacy for specific political candidates may arise. For example, if on duty, an employee may not use his or her support for the BLM Movement to advocate for or against a particular candidate or political party.

How did OSC arrive at this conclusion? 

In determining whether an organization serves or acts in furtherance of a partisan political purpose, OSC considers: (1) Whether the organization is affiliated with a political party or candidate; (2) Whether the organization is organized for partisan political purpose, or; (3) Whether the organization engages in engage in partisan political activity. More specifically, the OSC asks does the organization identify itself as supporting or opposing a political party or candidate?  Do the contents of the organization’s charter, bylaws, mission statement, or amendments refer to a political party or candidate?

Provided there is no change in the current status of the BLM Movement or its chapters. Federal employees should not be subjected to scrutiny or disparate treatment as a result of their support or engagement in BLM activities provided they do not violate any laws or other terms of employment.

Georgia COVID-19 Pandemic Business Safety Act

July 24, 2020

Recently, the Georgia General Assembly approved the Georgia COVID-19 Pandemic Business Safety Act which provides protections for businesses from liability that may be linked to the transmission, exposure, or potential exposure to COVID-19, except in cases of gross negligence, wanton misconduct, reckless infliction of harm, or intentional infliction of harm. This law applies to all actions that occur prior to July 14, 2021.  The laws effective date is August 7, 2020.

What does this mean for employers?

The Act provides that businesses and healthcare facilities are not liable for the “transmission, infection, exposure, or potential exposure of COVID-19” unless such outcomes occur as a result of gross negligence, wanton misconduct, or reckless or intentional infliction of harm. The Act also includes a presumption of risk for potential claimants.  Put simply, this presumption means that a potential claimant assumes the risk of potential COVID-19 related outcomes and waives all rights to potential civil claims except in instances of gross negligence, wanton misconduct, or reckless and/or intentional infliction of harm.

A business that posts signage explaining its patrons’ assumption of risk under Georgia law establishes a rebuttable presumption against future claims related to COVID-19. This presumption also applies to healthcare facilities. The law enumerates specific requirements related to the signage.  Specifically, a sign must be at least 10-point Arial font and be visibly posted near at least one point entry for the establishment. A receipt or proof of purchase for entry or attendance issued to a claimant (including an electronic or paper ticket or wristband) may include a statement in at least ten-point Arial font warning those entering the premises that:

“Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.”

What does this mean for individuals?

In order for an individual to have a viable COVID-19 liability claim against a business, he or she must prove that the business did not exercise even the slightest diligence against the transmission of COVID-19.

Thus, in cases where a business displays appropriate signage at a point of entry explaining its lack of liability, claims regarding COVID-19 liability are more likely to be dismissed due to the claimant’s presumption of risk upon entry of the premises.  Therefore, unless a patron or employee is able to establish negligence, misconduct, or reckless or intentional infliction of harm, it is unlikely a claimant will prevail.

It should also be noted that the Act provides that failure to post warnings is not admissible evidence to prove a businesses liability in a COVID-19 liability claim.

What does this mean for employees?

Notwithstanding the enactment of this law, the GA Department of Public Health continues to recommend that employers and employees:

  • Use teleworking technologies to the greatest extent possible.

  • Stagger work schedules.

  • Consider canceling non-essential travel.

Additionally, businesses should also:

  • Hold larger meetings virtually, to the extent possible.

  • Arrange the workspace to optimize the distance between employees, ideally at least six feet apart.

  • Urge high-risk employees to stay home.

  • Urge employees to stay home when they are sick and maximize flexibility in sick leave benefits.

  • Follow CDC guidance for community events and groups.

Stay Safe Everyone; We Are In This Together.

All Things Being Equal, Does Race Make A Difference?: Racial Discrimination Under Section 1981

July 9, 2020

In Comcast Corp. v. National Association of African American-Owned Media, the United States Supreme Court settled the score on what standard of proof is required for racial discrimination cases in the centuries old catchall legal protection for freed slaves.

The Facts, Briefly.

Entertainment Studios Network (ESN), an African-American-owned television network operator, sought to have cable television conglomerate Comcast Corporation carry its channels. Comcast refused, citing lack of programming demand, bandwidth constraints, and a preference for programming not offered by ESN. ESN and the National Association of African American-Owned Media (collectively, ESN) sued, alleging that Comcast’s behavior violated 42 U. S. C. §1981.

Section 1981 prohibits intentional racial discrimination in the making and enforcement of private contracts, including employment contracts. It guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

The Decisions By Lower Courts

The District Court dismissed the complaint for failing plausibly to show that, but for racial animus, Comcast would have contracted with ESN. The Ninth Circuit, in which this decision originated, reversed, holding that ESN needed only to plead facts plausibly showing that race played “some role” or “any role” in the defendant’s decision making process and that, under this more forgiving causation standard, ESN had pleaded a viable claim.

Note that the Eleventh Circuit, in which Georgia is located, interpreted this section in the same manner by using the same requirements of proof, and presenting the same analytical framework, as Title VII.

All Wrong, Declares SCOTUS

SCOTUS ruled that a §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. First, the statute’s text requires this on plain reading of the language and in comparison with other similar text and SCOTUS precedent. Second, when the motivating factor test was added to Title VII, congress also amended §1981 without changing the standards of proof. Third, there is no authority to apply a lesser standard at the Motion to Dismiss stage than would be applied later in the litigation.

Harder for Employees; Easier For Employers

So what does this all mean in everyday human resource management speak? Given that persons alleging racial discrimination can elect to proceed under Title VII or §1981, pros and cons are to be weighed. Title VII has some downsides for the plaintiff including a strict 180 statute of limitations and an equally strict requirement to exhaust administrative remedies at the EEOC, which §1981 does not have. But, thanks to this ruling, §1981 has a downside of its own with the higher standard of proof. Thus, all in all, the plaintiff’s favorable options were further winnowed, giving a defendant employer, a slight edge.

Also, the Eleventh Circuit had held that a complete “mixed motive defense” and a “same decision defense” is available in actions brought pursuant to §1981 whereby a defendant may defeat a claim for damages and reinstatement but not liability by showing that it would have made the same decision even if it had not take the plaintiff’s race into account. Under the but for standard now applicable to §1981, liability would indeed be defeated; either the employer acted because of race or it did not. The defendant employer is two for two on its gains by this new ruling.

“Sex” Means “Sex”: SCOTUS Extends Anti-Discrimination To LGBTQ Employees

June 18, 2020

On June 15, 2020, the United States Supreme Court (SCOTUS), by a vote of 6-3, ruled that the ban on sex discrimination in Title VII protects gay, lesbian and transgender employees. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of sex”; however, members of the LGBTQ community have not enjoyed this protection through federal legislation because some courts, including the 11th Circuit in which Georgia courts sit, had interpreted “because of sex” to exclude sexual orientation and sexual identity.

The Bostock ruling is a landmark decision. LOSO, LLC, had appraised our readers about the Bostock case here. To summarize briefly, Mr. Bostock’s employment with Clayton County, Georgia was terminated when his employer discovered that he was a gay man. Both lower courts upheld the termination.

Upon appeal to SCOTUS, in the majority’s opinion, Justice Neil Gorsuch framed the question before the Court as a straightforward one:  “Today,” the Court stated, “we must decide whether an employer can fire someone simply for being homosexual or transgender.”  The Court found that the answer to that question “is clear.”  When an employer fires an employee “for being homosexual or transgender,” that employer “fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch explained that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law.  The Court noted that the word “sex” means either male or female. Thus, under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.”  All that matters, the Court emphasized, is whether “changing the employee’s sex would have yielded a different choice by the employer.”

As an example, the Court cited the case of an employer with two employees who are both attracted to men and are, for purposes of comparison, identical but one is male and one is female. If the employer fires the male employee only because he is attracted to men, while keeping the female employee who is also attracted to men, the employer has violated Title VII by treated the sexes differently.

The Court rejected the idea that because Congress did not address sexual orientation or transgender status specifically in Title VII, the law does not protect LGBTQ employees. Instead, the Court made clear that discrimination against LGBTQ employees, “necessarily entails discrimination based on sex”.  The decision noted that if Congress establishes a broad rule of “sex” in all its variations, without any exceptions, then “courts apply the broad rule.”

The Bostock decision may not have an earth shattering effect on employers who are located in jurisdictions where protection for LGBTQ employees have already recognized. But for all others, Bostock requires an immediate revision company policy and accompanying training for managers and supervisors. Contact us to see how we can help.

FAQ Series: Is Covid-19 A Disability?

May 11, 2020

As of May 11, 2020, the Equal Employment Opportunity Commission (EEOC) has not stated that covid-19 is a disability under the Americans with Disabilities Act (ADA).

Therefore, an employee who contracts covid-19 is not entitled to protections under the ADA including reasonable accommodations, freedom from discrimination, harassment and retaliation on that basis alone unless that employee also has a disability or is part of another protected class under other federal or state statutes.

Summary of the Families First Coronavirus Response Act (FFCRA) Paid Time Off

April 20, 2020

The federal Families First Coronavirus Response Act was signed into law on March 18, 2020 by President Donald J. Trump. It became effective on April 1, 2020 and is set to expire on December 31, 2020. The Act amends the federal Family Medical Leave Act to create two types of leave which did not exist previously. The law cannot be applied retroactively, thus it is applicable only to leave that was taken on or after its effective date.

The Act applies only to private businesses who employ less than 500 persons in the United States of America. While employers are to be granted tax credits which will provide reimbursement for wages paid and the cost of continuing health and medical benefits during the leave periods, employers of fewer than 50 persons can obtain an exemption if complying with the Act would jeopardize their continuation as a “going concern”.

Federal Paid Sick Leave Act (FPSLA)

First, the Act creates the Federal Paid Sick Leave Act (FPSLA). This FPSLA provides up to two (2) weeks paid sick leave for employees who have been employed for any duration of time and require leave for the qualifying covid-19 related reasons. Leave would be paid at full wages for one’s own mandatory quarantine, health care official recommended self-quarantine, and presence of covid-19 symptoms. Also, leave would be paid at partial wages for caring for a family member or roommate who is quarantined, undergoing a health care official recommended self-quarantine, caring for children under the age of 18 (or over the age of 18 but unable to care for self due to disability) whose caregiver or school is unavailable due to the pandemic, or similar condition.

Full pay is defined as the employee’s regular rate of pay up to $511 per day and $5,110 in the aggregate. And, partial pay is defined as two-thirds of the employee’s regular rate, up to $200 per day and $2,000 in the aggregate. Part time employees refer to employees who work anything less than forty (40) hours in a work week. For those who have variable schedules, an employer may use the daily average over the prior six (6) months to compute the average. 

Employers are prohibited from requiring an employee to use other forms of paid leave or from altering their existing paid leave, before granting an employee leave under the Act. EPSLA leave can be taken in addition to any paid leave program a covered employer may already have in place, as well as any paid sick leave benefits an employee may be entitled to under any other federal, state, or local law, or a collective bargaining agreement. Employers are also prohibited from requiring the employee to provide another employee to fulfil their job duties in their absence. Lastly, employers are also prohibited from all forms of retaliation or discrimination against an employee for having exercised their rights under the Act. Penalties for failure to provide this paid leave is viewed by the US DOL as a failure to pay minimum wages.

 Employers are required to post or email the notice of the rights poster under the Act. Employer are not required to pay out any unused leave upon separation. 

Emergency Family and Medical Leave Expansion Act (EFMLEA)

Secondly, the Act creates a new qualifying reason which is the Public Health Emergency Leave to situations where an employee is unable to work because the employee must care for his or her son or daughter (as defined under the FMLA) whose school is closed or whose childcare provider is unavailable due to a public health emergency; the Emergency Family and Medical Leave Expansion Act (EFMLEA). This law provides up to twelve (12) weeks of leave paid time off work. The first two (2) weeks of leave would be unpaid, then the following ten (10) weeks of leave would be paid at partial pay which is two-thirds the employee’s regular rate of pay based on hours regularly scheduled to work. EPSLA as described above may be used for first two otherwise unpaid weeks of leave. An employee may elect to use accrued leave for this two week period, but the employer cannot require its use.

EFMLEA is available for employees who have been on the employer’s payroll for 30 of the prior 60 days. However, this leave time may be denied to health care workers and emergency responders, regardless of their tenure. EFMLEA can be used on an intermittent basis.

Employers may require or elect that other types of leave run concurrently. For instance, EFMLEA leave time counts towards the old FMLA leave time. However, if concurrent with other types of leave, then the employer must pay the greater of the two rates of leave. Wages are capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA. 

Employees are entitled to job protection under the Act, meaning that employers are required to return employees to the same or similar position they occupied prior to taking leave. However, employers may qualify for an exemption from reinstatement if the employer has fewer than 25 employees. 

Similar with the EPLSA, employers are prohibited from interference with this right and prohibited from retaliation or discrimination against any employee for exercising these rights.

The Act does not provide an individual right of action to include civil damages in a lawsuit against employers with fewer than 50 employees in 75 mile radius.  

Employees are required to provide notice to the employer of the need for leave, as soon as is possible. However, they are not required to utilized DOL forms. For various reasons, including in order to obtain the promised tax credits, however, employers should retain some documentation to support the circumstances warranting leave and its granting of same.

In closing, two frequently asked questions are worthy of note:

  1. Telework is work – it is not leave. Thus, all accounted for teleworking hours must be compensated. 

  2. The FFCRA applies to circumstances which make the employee unable to work, whether or not there is work available. The determinative question is: would the employee would be able to work or telework “but for” being required to comply with a quarantine or isolation order for themselves, their child, etc. 

Read all the regulations, fact sheets and updates as they happen here.

 

« First‹ Previous23456Next ›Last »