Employment Law Updates

NEW SERVICEMEMBER FAMILY LEAVE REQUIRES UPDATED FMLA POSTERS

If your company is subject to FMLA, you should be aware that Congress recently expanded the leave allowed under the Act to include leave for members of the Armed Forces and their families.  Amended by the 2008 National Defense Authorization Act for FY 2008, the FMLA now permits certain persons to take up to 26 workweeks for Servicemember Family Leave and expands the entitlement for FMLA to include any qualifying exigency arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty or has been notified of any impending call to active duty.  Click here to link to a prior article that discussed these changes in more detail.

The FMLA requires covered employers to post certain details of the leave laws, which includes these new provisions.  The Wage and Hour Division of the Department of Labor has recently published a new update poster to cover the expanded FMLA coverage.  You can download this poster at http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.

WHEN CAN AN EMPLOYER CONTACT AN EMPLOYEE’S MEDICAL PROVIDER REGARDING OFLA/FMLA LEAVE?

Employers are sometimes confused whether they can contact an employee’s medical provider to confirm whether that employee’s absence is protected by the Oregon Family Leave Act (OFLA) or the Family and Medical Leave Act (FMLA).  This confusion is understandable, given that there are different rules for OFLA/FMLA, Workers’ Compensation and the Americans with Disabilities Act (ADA). 

Here are some guidelines regarding what information an employer can ask when an employee requests protected leave under OFLA/FMLA:

1.                  It is allowable to require a medical certification if the request for protected leave is for a  serious health condition of the employee or family member;

2.                  Medical verification cannot be requested for parental leave;

3.                  For sick child leave, medical verification can be required only after the third occurrence of sick child leave within the year; and

4.                  If the employer questions the adequacy of the medical certification provided by an employee, the employer cannot contact the employee’s health care provider directly, unless the purpose of the contact is solely for purposes of clarification and the employer has the employee’s consent to do so.  If the employer has reason to doubt the validity of the medical certification, a second opinion may be requested.

Because of the potential legal consequences for violating an employee’s rights under OFLA/FMLA, employers should always consult with an attorney knowledgeable about employment law when there are questions regarding this area of the law.

THE FAMILY AND MEDICAL LEAVE ACT NOW PROTECTS MEMBERS OF THE MILITARY AND THEIR FAMILIES

As you have probably heard, Congress recently passed a law expanding portions to the Family Medical Leave Act (FMLA) for the benefit of members of the military and their families.  There are actually two different parts to the amendments – the first impacts family members of soldiers injured in the line of duty, and the second affects families of soldiers who are on active duty (or have been ordered to active duty). 

Effective immediately, a spouse, son, daughter, parent or nearest blood relative of a service member is allowed up to 26 weeks of leave in a 12-month period to care for a service member who suffers an injury or illness while on active duty.  The injury or illness must be serious enough to render the service member medically unfit to perform the duties of the soldier’s office, grade, rank or rating.  The 26 weeks of leave under this section represents the total amount of leave available for an employee – it is not in addition to the standard 12 weeks of leave allowed for other serious health conditions under the FMLA. 

The second change to FMLA entitles an employee to family leave if a “qualifying exigency” arises out of the fact that the employee’s spouse, son, daughter or parent is on active duty or has been ordered to active duty.  The law does not define “qualifying exigency” and the Department of Labor has taken the position that this portion of the law will not go into effect until that term has been defined.  Since it is unclear whether the Department’s approach would be upheld by the courts, cautious employers should carefully consider leave requests that may fall into this category.  Employees who take FMLA for this purpose are subject to the same 12-week limit as with the other non-military purposes, so there is no additional leave time allowed for employees taking FMLA due to qualifying exigencies.

Because an incorrect refusal to grant leave to a qualified employee can result in liability, even if that denial is made in good faith, you should always consult with your employment attorney if you have any questions regarding this complicated area of the law.

DON’T FORGET TO UPDATE YOUR POSTERS

Because of recent changes to several different state laws, employers need to update certain required posters.  For example, the state minimum wage has increased to $7.95 per hour.  In addition, the Oregon Family Leave Act (OFLA) has been modified to include grandparents and grandchildren in the definition of “family member”, and also to mandate that employees be allowed to use accrued sick leave for family leave.  Finally, the required Oregon OSHA poster has been modified to provide that employees have 90 days to file a safety and health complaint with the Bureau of Labor and Industries (BOLI), and 30 days to file a complaint with Oregon OSHA.

To remain compliant, make sure your posters are current.  For more information about where to obtain the required posters, contact the Oregon Bureau of Labor and Industries, or click here to access the BOLI website: http://www.oregon.gov/BOLI/CRD/C_Postings.shtml

EMPLOYERS MUST USE NEW I-9 FORM

The federal government has released a new Employment Eligibility Verification Form (I-9), the mandatory form employers must complete for every new hire.  This form is used to verify an applicant’s identity and eligibility for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  For individuals hired after November 7, 2007, and for any re-verifications after that date, employers must use the new Form I-9. 

The new Form I-9 eliminates five of the ten “List A” documents that employers previously could rely on to establish both the applicant’s identity and his or her employment eligibility, but does not make any changes to the “List B” (identity) and “List C” (eligibility) documents.  The new form, which bears a revision date of June 5, 2007 (located in the lower right hand corner of the form) can be downloaded in English and in Spanish, and information on completing the form can be found on the U.S. Citizenship and Immigration Services website.

WHY SHOULD EVERY EMPLOYER HAVE AN ANTI-HARASSMENT POLICY?

Every football fan has heard it a thousand times: “The best defense is a good offense.”  But did you know the cliché applies equally well to the employment arena?  In 1998, the U.S. Supreme Court decided two landmark cases that provide an affirmative defense to employers for sexual harassment.  If the employer can show that it had an effective anti-harassment policy in place at the time of the alleged harassment, then the employer can take advantage of this defense so long as the reporting employee was not fired or subjected to an otherwise "tangible employment action."

Keep in mind that an anti-harassment policy should be in writing, and your employees must be aware of the policy and how complaints should be reported.  By being proactive and implementing an effective anti-harassment game plan, you will discourage inappropriate conduct and lessen your potential liability in an easy and cost-effective manner.