Employment Law Updates

COURT REMINDS EMPLOYERS TO BE CAUTIOUS

Recently, the U.S. District Court of Oregon ruled that an employee who suffered from narcolepsy could have a trial over whether she was substantially limited in the major life activity of sleeping and whether her termination for excessive absences was mere pretext.   Waters v. Fred Meyer Stores Inc., No. CV 08-322-HU.  In this case, Waters had been diagnosed with narcolepsy in 2004.  She was allowed intermittent leave in 2005 but Fred Meyer asked that she renew her FMLA/OFLA documentation in 2006.  The medical certification she initially submitted was determined by Fred Meyer to be inadequate and she was required to submit a new certification.  Prior to Waters resubmitting the form, she missed work and Fred Meyer considered the absences to be unexcused.  Waters later submitted the revised medical certification and her application for leave was accepted as of the date the revised form was submitted.  Waters missed work for unrelated reasons later in the year; those absences together with the absences that occurred while Waters was obtaining the revised medical certification exceeded the Company’s acceptable absences and Waters was terminated for excessive absenteeism.  Waters sued Fred Meyer for, among other things, violation of FMLA/OFLA and the Americans with Disabilities Act (ADA).  Because Waters was able to offer a detailed description of how her narcolepsy interfered with the major life activity of sleeping, and because she argued that her absences and her failure to provide a requested medical certification were related to her disability, the court found that Waters had sufficient evidence to allow her to go to a trial.

 

Not only does this case highlight the challenge all employers face in trying to accommodate employees with chronic disabilities, but it serves as a stark reminder that employers are prohibited from taking adverse employment action against an employee for conduct that could be caused by a disability.  Accordingly, employers should always consult with an attorney knowledgeable about employment law before taking any adverse action against an employee who suffers from a condition that may qualify as a disability under the ADA.

RECENT MODIFICATIONS TO FMLA

The Family Medical Leave Act (“FMLA”) was modified on October 28, 2009, as part of the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).  Specifically, this bill expanded the group of people who are eligible to use FMLA for “qualifying exigency” leave.  Under the prior law, only those whose family members were in the National Guard and the Reserves were eligible for “qualifying exigency” leave.  Under the new law, this is expanded to include family members who are active duty service members.  In addition, under the prior law, the “military caregiver” leave allowed under FMLA was only for those injured in the line of duty while on active duty.  This has been expanded to also include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five-year period immediately preceding the date of treatment.  Because these changes were effective October 28, 2009, employers should update their policies and procedures immediately to ensure that all eligible employees are notified of their FMLA rights. 

OREGON ADOPTS A MILITARY LEAVE LAW – MORE ALPHABET SOUP

The Oregon legislature recently passed the Oregon Military Family Leave Act (“OMFLA”).  This law allows the spouse of a member of the Armed Forces, National Guard, or military reserves to take up to 14 days of protected unpaid time away from work for each military deployment for reasons related to the deployment.  This leave is very similar to the recent addition to the federal Family Medical Leave Act (“FMLA”), which allows certain family members to take protected leave to address a qualifying exigency.

 

In many ways, the OMFLA is similar to the Oregon Family Leave Act (“OFLA”).  For example, only employers with at least 25 employees are subject to the OMFLA.  Further, employees taking leave under the OMFLA are entitled to be restored to their original position.  And, any leave used under the OMFLA will count against the employee’s allotted leave allowance under OFLA.

 

Employers who have employees asking for time away from work need to be mindful of the various state and federal leave laws that provide such leave and protect employees who have exercised their leave rights.  Denying a request for protected leave or disciplining the employee for missing work due to a protected reason is considered interference with an employee’s leave rights.  When in doubt, be sure to check with your employment attorney regarding a request for leave from work.

FMLA WORKSHOP

The Department of Labor’s final regulations under the Family and Medical Leave Act (FMLA) will take effect on January 16, 2009.  The new rules clarify the rights and responsibilities of employees and employers, and implement new military family leave entitlements.  On January 16, 2009 Andrew Lewis and Amanda Walkup from Hershner Hunter, LLP are conducting a no-cost workshop for human resource professionals explaining the new regulations.  For more information, contact Laurie Parrish at (541) 686-8511 or lparrish@hershnerhunter.com.

 

 

BEREAVEMENT OR OFLA/FMLA LEAVE?

Most employers offer some type of bereavement leave for their employees.  However, when an employee reports the death of someone close and asks for time away from work, keep in mind that an extended absence may exceed the bereavement leave policy but could qualify for OFLA/FMLA leave.  Although neither OFLA nor FMLA provide protected absences from work following the death of a family member, if the employee or his/her family member is suffering from a serious illness because of the loss of a loved one – such as depression – the employer should evaluate those absences under its FMLA and OFLA policies. 

 

Employers should think twice before jumping to the conclusion that the employee is only requesting bereavement leave outside the bereavement policy and therefore the absences are unexcused.  Employers are well advised to make additional inquiries to determine whether absences that started as bereavement now qualifies as OFLA or FMLA leave.  

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.  However, a health care provider representing the employer may contact the employee's health care provider IF the employee consents and the purpose is to clarify or authenticate the medical certification.  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.

LEGISLATURE BROADENS SICK LEAVE RIGHTS

Beginning January 1, 2008, there will be a change in the law regarding employees’ ability to use accrued sick leave while on family leave.  As you probably know, the general rule is that time spent on leave protected by OFLA and/or FMLA is unpaid.  Historically, however, if the employer offers sick leave, vacation, or other paid leave time as a benefit for employees, then under FMLA or OFLA, the employer must allow the employee the option of using the paid time so long as that is consistent with the employer’s policy.  As of January 1, 2008, if the employee is taking OFLA leave, then the employer must allow the employee to use any type of accrued paid leave time, regardless of whether such use is consistent with the employer’s policy. 

Example:  Employer’s policy provides for employees to accrue sick leave and, under the policy, the accrued sick leave can be used when the employee or the employee’s spouse or children are sick.  The policy clearly prohibits an employee from using his sick leave to care for the employee’s parent.  Under FMLA, if the employee is taking FMLA leave to care for a critically-ill parent, the employer is not required to allow the employee to tap into his accrued sick leave because doing so would be inconsistent with the employer’s policy.  However, under the new OFLA law, the employer must allow the employee to utilize the employee’s sick leave bank regardless of the policy’s restrictions.

Also, keep in mind that employers can require employees to use accrued time off while the employee is using OFLA and/or FMLA time, but only if the time on leave would otherwise be unpaid.  If the employee is receiving payments from some other source during the OFLA/FMLA leave (e.g. short-term disability or time loss), then the employee cannot require the employee to draw from his or her accrued leave bank.

OREGON FAMILY LEAVE LAW EXPANDED

The Oregon Legislature recently made two major changes to the Oregon Family Leave Act (OFLA), both of which take effect on January 1, 2008. 

First, the definition of “family member” has been expanded.  Traditionally OFLA required employers to give an employee up to 12 weeks of unpaid leave to care for a family member with a serious health condition, and defined “family member” as the employee’s spouse, parent, child, parent-in-law, same-sex domestic partner and the domestic partner’s parent or child.  With the new law, an employee will also be able to take family leave to care for grandparents or grandchildren who have a serious health condition.

The second significant change to OFLA affects leave arising out of a workers’ compensation injury.  As of January 1, 2008, an employer may not reduce an employee’s OFLA leave bank for absences resulting from a worker’s compensation injury.  Previously, an employee with a disabling compensable injury could be required to use OFLA and FMLA time while he or she was on leave for the disabling injury.  Under the new law, an employee’s leave due to an on-the-job disabling injury will not reduce the amount of OFLA time the employee may take in the year, but will still reduce the employee’s FMLA leave bank.  In addition, if the disabled employee refuses a genuine offer for light duty or modified work but is eligible to take OFLA time, family leave for that employee automatically begins upon refusal.  The employee does not need to notify the employer that the OFLA leave has begun.  This means that an employee’s refusal to take light duty no longer automatically terminates the employee’s right to reinstatement or reemployment – if the employee has OFLA time available, the employee must be reinstated or reemployed at the end of the OFLA leave period.