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.  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.   

OFLA-FMLA VIOLATIONS TRIGGER LIABILITY FOR INDIVIDUAL MANAGERS

Most human resource professionals know how complicated it can be to administer family and medical leave.  However, many managers are not aware that they can be held personally liable for violations of the family and medical leave laws.  Recent court decisions in Ohio and Tennessee have followed the majority of other courts in holding that if a manager violates the Federal family and Medical Leave Act, that manager can be sued as an individual.  It is likely that Oregon courts would follow suit if presented with the issue, because the Oregon statute is modeled on the Federal Act.  Accordingly, human resource professionals should take steps to ensure that OFLA-FMLA decisions are made properly, and that their companies are in full compliance with the law.  For additional information on individual liability for OFLA-FMLA violations and what human resource professionals can do to reduce their risks, please consult with an attorney knowledgeable in employment law.