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.