The Federal Sector FMLA Blog

DOL Issues Guidance on FMLA and Pandemic Flu

On November 9, 2009 the DOL Wage and Hour Division issued guidance on the availability of FMLA leave where the employee or covered family member is ill with pandemic flu.  In relevant part, the DOL notes that FMLA leave is NOT available to avoid exposure to the flu.  The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza. 

Similarly, the DOL notes that the FMLA does not cover an employee's absence to care for healthy children who have been dismissed from school or child care to prevent the spread of the influenza.  Eligible employee's may take FMLA leave to care for a child who is sick with pandemic flu, but only if the illness rises to the level of a serious health condition as defined by the FMLA. 

The DOL notes that employers may have a plan or policy that allows the employer to send employees home if they show symptoms of pandemic influenza, provided the plan and the employer's decisions comply with all applicable laws, including federal anti-discrimination laws.  

Consistent with the FMLA and ADA, the DOL advises that employers may require an employee who is out sick with pandemic influenza to provide a doctors's note, submit to a medical exam, or remain symptom-free for a specified period of time before returning to work.  Under the FMLA, to do so the employer must have a uniformly-applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work, and the employee must have been notified of the requirement in advance.  The terms of a collective bargaining agreement may also impact an employee's right to return from FMLA leave.

Finally, the DOL cautioned employers that laying off employees who are unable to come to work because they are taking care of sick family members must not discriminate against employee's for exercising FMLA rights.  The DOL suggests that, in lieu of laying off employees, employers consider other options such as telecommuting.  The DOL also suggests that employers prepare a plan of action.

The DOL Q & A is available by clicking on the attached link.   http://www.dol.gov/whd/healthcare/flu_FMLA.pdf

OPM has also offered general guidance on planning for pandemic flu.  http://www.opm.gov/pandemic/OPM-Pandemic_AllIssuances.pdf

HAPPY THANKSGIVING

Consensus Suggests that New Military Family Leave Regulations Effective Now

As reported in an earlier post, on October 27, 2009, President Obama signed the 2010 National Defense Authorization Act (2010 NDAA) into law. The 2010 NDAA modified the military family leave provisions of Titles I and II of the FMLA.  As far as I can tell, to date, neither the DOL or OPM have taken an official position regarding the effective date of the amendments.  Based on my review, the consensus of major labor and employment law firms and interested associations is that, absent an indication otherwise, the legislation went into effect immediately when President Obama signed it (i.e., October 27, 2009). 

Recall, however, that, at least as far as the DOL was concerned, the 2009 NDAA amendment of the FMLA did not all go into effective immediately.  The DOL took the position that the military caregiver provisions went into effect immediately, but the qualifying exigency leave provisions did not because the statute directed DOL to determine what qualifying exigencies were covered.   

Unless and until the DOL or OPM issue an official statement otherwise, employers would be well-advised to immediately apply the new military family leave provisions.  Until regulations are issued, employers need to do the best they can to comply with the statutory language. 

For federal agency employers covered by Title II, the 2010 NDAA FMLA amendments allow employees to take qualifying exigency leave.  Until OPM issues regulations implementing this right, federal employers should strongly consider applying the Title I regulations on this issue.  The central part of those regulations are codified at 29 CFR 825.112(a)(5), 825.126, and 825.309. 

I offer three thoughts in support of my suggestion.  First, 5 USC 6387 directs the OPM to issue FMLA regulations that are consistent, to the extent appropriate, to the DOL FMLA regulations.  Second, the OPM's recently proposed military family leave regulations are nearly identical to the DOL comparable regulations.  Third, the guidance provided by the DOL regulations is a whole lot better than simply guessing at what might be a qualifying exigency under Title II.

What really needs to happen is that the DOL and OPM need to announce whether the 2010 NDAA FMLA amendments are effective and, if not, when they will be effective (i.e., when regulations are issued).   

Fifth Circuit Affirms that Employee's Termination for Failure to Return to Work after Doctor's Release Did Not Violate the FMLA

The Fifth Circuit in Hart v. Comcast of Houston, LLC, No. 09-20238, 2009 U.S. App. LEXIS 22720 (5th Cir. Oct. 15, 2009) recently found that an employee who fails to return to work from FMLA as requested by his employer subsequent to being released by his physician to return to work fails to state an FMLA retaliation claim.  The post-release failure to return to work as requested by the employer, the court found, was a legitimate, non-discriminatory reason justifying the employee's removal independent of the taking of FMLA leave.   

Comment:  The FMLA does not grant employee's the absolute right to return to work from FMLA leave.  Rather, the right to return to work may be superceded where, as in Hart, the employee engages in unrelated conduct that is grounds for termination.  Employees who fail to return to work after their doctor has released them no longer have the FMLA right to return to work.  As such, they may be disciplined or terminated for failing to return to work as requested by the employer, subject, of course, to the anti-discrimination/retaliation protections of the FMLA.  An employee will not be able to demonstrate discriminatory animus where, as in Hart, the employer has a legitimate reason for terminating the employee.  

FMLA To Be Modified Today!

The FMLA will be modified today.  President Obama is set to sign the National Defense Authorization Act of 2010 at 2:30 p.m. EST today. Section 565 of that legislation modifies theFMLA in several important ways:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  Currently,DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.  Only where the serious injury or illness rises to the level of a subsequent injury or illness will an employee be entitled to take military caregiver leave for the same coveredservicemember.
• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.
• The legislation extend qualifying exigency leave to federal employees covered by Title II of the FMLA.  Currently, federal employees covered by Title II do not have the right to take qualifying exigency leave.

The legislation directs the U.S. Department of Labor and Office of Personnel Management to work with the Secretary's of Defense and the Veterans Administration in formulating regulations to carry out the amendments.  It is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.  Consultation on this issue with DOL or OPM is highly recommended.

Comment: The legislation effectively implements bills introduced by Senator Dodd (D-CT) and Congressman Woolsey (D-CA)(H.R. 3403, S. 1543).  The amendments should greatly expand the availability and use of military family leave. 

Employers should review and adjust their FMLA leave policies accordingly to reflect the military family leave amendments.  I expect additional expansions of the FMLA in order for President Obama to fulfill his campaign promises to extend FMLA coverage to more employers, and to cover more family members and for more activities (e.g., school functions).  

Last Call for Federal Sector FMLA Training in DC

Carl Bosland and the Federal Employment Law Training Group will present a day-long federal sector FMLA workshop on October 23, 2009, at the L'Enfant Plaza Hotel, Washington, DC. 

This comprehensive yet practical workshop will provide participants with up-to-date information regarding federal sector FMLA law and practice, including the new OPM proposed military family leave regulations.  You will learn to identify which federal sector FMLA variant (there are 4) applies to your agency (and which employees in your agency).  You will learn about the latest FMLA legislative, case law, and regulatory developments/proposals, best practices, and pitfalls to avoid. The workshop will be interactive, with plenty of time to address your questions.  This is your best opportunity to get all of your FMLA questions answered!   

The workshop is designed for those who approve leave requests, those who approve attendance-based discipline, and those involved in the defense, advocacy, adjudication, advice, and enforcement of FMLA rights, including federal attorneys, labor relations, labor unions, employee relations, human resources, administrative judges, arbitrators, mediators, and FMLA policymakers.   

For additional information and registration, attached is a link to the Federal Employment Law Training Group website.  http://www.feltg.com/2008%20Fall%20Specialty%20Practices.htm

I hope to see you October 23!  

Carl Bosland and the Federal Employment Law Training Group will present a day-long federal sector FMLA workshop on October 23, 2009, at the L'Enfant Plaza Hotel, Washington, DC. 

This comprehensive yet practical workshop will provide participants with up-to-date information regarding federal sector FMLA law and practice, including the new OPM proposed military family leave regulations.  You will learn to identify which federal sector FMLA variant (there are 4) applies to your agency (and which employees in your agency).  You will learn about the latest FMLA legislative, case law, and regulatory developments/proposals, best practices, and pitfalls to avoid. The workshop will be interactive, with plenty of time to address your questions.  This is your best opportunity to get all of your FMLA questions answered!   

The workshop is designed for those who approve leave requests, those who approve attendance-based discipline, and those involved in the defense, advocacy, adjudication, advice, and enforcement of FMLA rights, including federal attorneys, labor relations, labor unions, employee relations, human resources, administrative judges, arbitrators, mediators, and FMLA policymakers.   

For additional information and registration, attached is a link to the Federal Employment Law Training Group website.  http://www.feltg.com/2008%20Fall%20Specialty%20Practices.htm

I hope to see you October 23!  

Return to Work from FMLA Leave for 3 Minutes Before Termination Violated FMLA

Returning an employee from FMLA leave to a position only long enough to be fired does not amount to a meaningful reinstatement under the FMLA.  In Burke v. Laboratory Corp. of America, No. 8:08-cv-2072-T-24-TGW, 2009 U.S. Dist. LEXIS 92891 (M.D. Fla. Oct. 6, 2009), Burke was fired three minutes after returning from FMLA leave.  She sued alleging violation of the FMLA.  The Court opined:

While the FMLA does not require an employer to keep an employee indefinitely after she returns from medical leave, the law's protections extend beyond reinstating a person to a job for three minutes.

Lab Corp. argued that it terminated Burke as part of a legitimate downsizing.  Burke contended that she was terminated due to age discrimination. The court denied the employer and employee's motion for summary judgment on theFMLA claims.

Comment: The court's observation that the right to reinstatement from FMLA leave prohibits an employer from allowing an employee to return to work only long enough to be fired, appears, at least to me, to overstate the FMLA reinstatement right. 

As observed by the court, the FMLA does not require an employer to reinstate an employee in every circumstance. If the employer would have terminated the employee for legitimate, non-FMLA reasons the employer may do so even if the employee is on FMLA leave.  It makes little sense (to me anyway) that an employer may terminate an employee for non-FMLA reasons prior to the employee returning to work, but somehow loses that right, at least for some unspecified period, simply because the employee is allowed to return to work in order to be terminated. 

The employer may have legitimate reasons to allow the employee to return to work before terminating the employee.  First, the employer may believe thatterminations should be conducted in person rather than over the telephone or by mail.  Second, the employer may prefer the individual be on the clock and allowed on the premises when they are terminated to allow them to collect their things and saytheir goodbyes before leaving.  For liability purposes, the employer may not want an ex-employee on the premises to collect their things or talking to current employees.  It just strikes me as one of those no-win situations.  If the employer does not fire the employee in person, they are cold and impersonal.  If they fire the employee in person shortly after returning from leave, that is cruel as well.  I am not sure how it helps the employee for the employer to wait hours, days, or a week or two before executing a termination decision that has already been made.  One could argue that is just as cruel to the unsuspecting employee.  While it may put some coin in the employee's pocket, something not explicitly required by theFMLA, it also delays the employee's ability to get on with his or her life.        

The statute nor the DOL regulations provide for any minimum period of time that an employee must be allowed to work on return from FMLA leave before a decision to terminate may be put into effect.  Had Congress or the DOL wanted to impose a minimum temporal period before an employer may terminate an employee for non-FMLA leave reasons they could have easily done so.  They did not. 

It would have been better had the court simply denied summary judgment because of the existence of material facts in dispute.  Specifically, whether the termination was the result of legitimate downsizing, as claimed by the employer, or the product of age discrimination, as claimed by Burke.  

Still A Few Seats Left for the October 23, 2009 Federal Sector FMLA Training in DC

Carl Bosland and the Federal Employment Law Training Group will present a day-long federal sector FMLA workshop on October 23, 2009, at the L'Enfant Plaza Hotel, Washington, DC. 

This comprehensive yet practical workshop will provide participants with up-to-date information regarding federal sector FMLA law and practice.  You will learn to identify which federal sector FMLA variant (there are 4) applies to your agency (and which employees in your agency).  You will learn about the latest FMLA legislative, case law, and regulatory developments/proposals, best practices, and pitfalls to avoid. The workshop will be interactive, with plenty of time to address your questions.  This is your best opportunity to get all of your FMLA questions answered!   

The workshop is designed for those who approve leave requests, those who approve attendance-based discipline, and those involved in the defense, advocacy, adjudication, advice, and enforcement of FMLA rights, including federal attorneys, labor relations, labor unions, employee relations, human resources, administrative judges, arbitrators, mediators, and FMLA policymakers.   

For additional information and registration, attached is a link to the Federal Employment Law Training Group website.  http://www.feltg.com/2008%20Fall%20Specialty%20Practices.htm

I hope to see you October 23!  

Carl Bosland and the Federal Employment Law Training Group will present a day-long federal sector FMLA workshop on October 23, 2009, at the L'Enfant Plaza Hotel, Washington, DC. 

This comprehensive yet practical workshop will provide participants with up-to-date information regarding federal sector FMLA law and practice.  You will learn to identify which federal sector FMLA variant (there are 4) applies to your agency (and which employees in your agency).  You will learn about the latest FMLA legislative, case law, and regulatory developments/proposals, best practices, and pitfalls to avoid. The workshop will be interactive, with plenty of time to address your questions.  This is your best opportunity to get all of your FMLA questions answered!   

The workshop is designed for those who approve leave requests, those who approve attendance-based discipline, and those involved in the defense, advocacy, adjudication, advice, and enforcement of FMLA rights, including federal attorneys, labor relations, labor unions, employee relations, human resources, administrative judges, arbitrators, mediators, and FMLA policymakers.   

For additional information and registration, attached is a link to the Federal Employment Law Training Group website.  http://www.feltg.com/2008%20Fall%20Specialty%20Practices.htm

I hope to see you October 23!  

OPM Solicits Comments Whether Civil Service Employees Should Have Qualifying Exigency Leave

The NDAA amendments to Titles I and II of the FMLA expanded the FMLA rights of most federal workers, but did so unevenly.  Military caregiver leave was extended to federal employees covered by both Titles I and II.  Qualifying exigency leave (QE leave), on the other hand, was only extended to Title I employees. QE leave give allows eligible employees to use up to 12 workweeks of leave/leave year due to a qualifying exigency related to the deployment of a covered military family member.  DOL This is not a new 12 weeks of leave. Rather, think of it as a new covered condition, like birth, adoption, foster care placement, and serious health conditions, allowing an employee to draw on the same 12 weeks of FMLA leave.  DOL has identified eight broad categories of qualifying exigencies.

In addition to stakeholder comments regarding the proposed military caregiver leave regulations, OPM also solicited comments on whether OPM should "pursue legislation to obtain this benefit for the Federal workforce."  74 FR 43064, 43072 (Aug. 26, 2009).

If you want qualifying exigency leave available to Title II federal employees be sure to say so in your comments regarding the proposed military caregiver leave regulations.  Those comments are due October 26, 2009.

Comment: In its solicitation, OPM misstates the law.  OPM observes that "The NDAA amendments do not provide this benefit [qualifying exigency leave] to Federal employees..."  On the contrary, qualifying exigency leave is available to federal employees covered by Title I of the FMLA.  Section 825.108, 29 CFR 825.108, defines a covered employer as a "public agency."  Public agency is defined, by cross reference to the 29 USC 203(x), as the government of the United States.  29 CFR 825.108(a).  Section 825.109, 29 CFR 825.109, is entitled "Federal agency coverage."  That regulation, the substance of which has not changed since 1993, lists the federal employees covered by Title I of the FMLA including, for example, all Postal employees.  29 CFR 825.109(b)(1).  Title I covers employees of all federal executive agencies not covered by Title II.  29 CFR 825.109(c).  OPM's own regulations recognize that Title II does not apply to all federal employees.  Section 630.1201(b)(2)(iv), 5 CFR 630.1201(b)(2)(iv), excludes from Title II any employee covered by Title I.  5 CFR 620.1201(b)(2)(iv).  Since OPM's jurisdiction is limited to the federal workforce, it follows that there are federal employees covered by Title I that are excluded from Title II coverage.  If there were not you would not need the regulation.

There is enough confusion regarding federal sector FMLA rights.  OPM should take care to avoid sweeping generalizations suggesting that the FMLA rights of all federal employees are covered by Title II when that is simply not the case.

Final word: If you are a Title II stakeholder and you want or don't want OPM to pursue legislation to secure qualifying exigency leave make your position known to the OPM by October 26, 2009 at http://www.regulations.gov and follow the prompts.

OPM Clarifies Expectations Re: Comments to Proposed Military Caregiver Regulations and Other Changes

OPM recently clarified that it is specifically soliciting detailed comments regarding the proposed military caregiver leave regulations published in the August 26, 2009 Federal Register.  The comment period closes on October 26, 2009.  A link to the new regulations follows: http://frwebgate1.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=684026377723+0+1+0&WAISaction=retrieve 

Along with the publication of the proposed military caregiver leave regulations, OPM also announced that it was considering whether a comprehensive review of all OPM FMLA regulations is needed to identify any problems or concerns that stakeholders have experienced in administering the FMLA.  In response to a query by yours truely, OPM explained that it was not asking for a comprehensive review of all OPM FMLA regulations by October 26, 2009. Rather, OPM is instead trying to determine whether a comprehensive regulatory review is necessary.  To do that, OPM is looking for more broad-brush stakeholder (agencies, employee organizations, labor unions, etc) recommendations and comments whether the current FMLA regulations are working for them, or whether changes are needed and, if so, in what areas and why.  OPM advised that, for example, if stakeholders are consistently struggling with FMLA administration in a particular area or with a particular regulation they should be able to identify the area and the problem "without undo reflection."  As examples, OPM offered that it expected comments such as:

• Employees constantly misunderstand what is meant by xyz, which results in the following difficulties. 
• Xyz needs to be clarified. 
• Headings are too general and make it difficult to find appropriate information.
• 5 CFR 630.XXXX as currently written is difficult to administer because of xyz.

The point being that, at this juncture, OPM does not expect stakeholders to offer a painstakingly detailed, section-by-section dissection of the non-military caregiver leave FMLA regulations by October 26, 2009. Rather, what they are looking for are reasonably specific comments regarding obvious administrative challenges or satisfaction with the current OPM FMLA regulatory regime.  From those comments OPM will decide whether to conduct a more thorough regulatory review, including the solicitation of detailed stakeholder comments. 

Comment:  Provide OPM with detailed comments regarding the proposed military caregiver leave regulations by October 26, 2009.  Basically, those regulations mirror the DOL regulations.  Additionally, by the same date, provide OPM with any comments or suggests for improvement or problems you are having administering the existing or "basic" FMLA regulations.  If you don't speak up now don't complain later. 

My thanks to OPM for promptly clarifying the issue.   

       

October 23 Federal Sector FMLA Training in DC

Carl Bosland and the Federal Employment Law Training Group will be conducting a one-day federal sector FMLA workshop on Friday, October 23, 2009, at the L'Enfant Plaza Hotel, Washington DC.  This would be an excellent opportunity to get the latest information on federal sector FMLA developments, including:

• The just-released OPM military family leave and paid sick leave revisions;
• The DOL military family leave and wholesale revisions to the Title I FMLA regulations and its impact on federal employment; and
• Case law, regulatory, and legislative developments.

The recent expansion of, and major revisions to, the existing federal sector FMLA regulations make this a MUST ATTEND WORKSHOP.   To remain in compliance and avoid unnecessary and costly litigation, you need the latest FMLA information. 

For information and to sign up for federal sector FMLA workshop (limited seating still available) please go to the Federal Employment Law Training Group website: http://www.feltg.com/ 

Carl Bosland and the Federal Employment Law Training Group will be conducting a one-day federal sector FMLA workshop on Friday, October 23, 2009, at the L'Enfant Plaza Hotel, Washington DC.  This would be an excellent opportunity to get the latest information on federal sector FMLA developments, including:

• The just-released OPM military family leave and paid sick leave revisions;
• The DOL military family leave and wholesale revisions to the Title I FMLA regulations and its impact on federal employment; and
• Case law, regulatory, and legislative developments.

The recent expansion of, and major revisions to, the existing federal sector FMLA regulations make this a MUST ATTEND WORKSHOP.   To remain in compliance and avoid unnecessary and costly litigation, you need the latest FMLA information. 

For information and to sign up for federal sector FMLA workshop (limited seating still available) please go to the Federal Employment Law Training Group website: http://www.feltg.com/