DOL Issues Final FMLA Regulations
On November 17, 2008 the U.S. Department of Labor (DOL) issued long awaited revisions to its 1995 regulations interpreting the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. There are significant changes to the regulations which, among other things, address FMLA waivers, Servicemember FMLA leave, employer and employee notice requirements, and medical certification requirements. The DOL has also revised many of the forms employers should use in implementing the FMLA in their workplaces. Employers should become familiar with these new forms and their different purposes.
Generally speaking, the changes to the regulations make things easier for employers to work with the FMLA. Some employee advocates and labor unions have expressed dismay at the changes. It is possible that the Obama administration may decide to take a second look at the regulations after the inauguration on January 20, 2009.
The regulations take effect on January 16, 2009. There are some of the highlights of the new regulations:
Ragsdale gets noticed (§ 825.700(a)): nearly seven years after the decision, the Regulations now incorporate the holding of Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), where the Supreme Court invalidated the part of 29 C.F. R. § 825.700(a) that stated if an employee took paid or unpaid leave but the employee failed to designate the leave as "FMLA leave," the leave did not count as FMLA leave. The Court found this penalty to be inconsistent with the statutory limit guaranteeing twelve (12) weeks of FMLA leave, and as contrary to the requirement that an employee demonstrate individual harm. This penalty now has been removed.
Serious health conditions (§ 825.115): The final regulations clarify that if an employee takes leave for a serious health condition involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, those two visits to the healthcare provider must occur within the 30 days of the period of incapacity. "Periodic visits" to a health care provider for chronic serious health conditions are now defined as at least two visits to a health care provider per year.
Employer notice obligations (§ 825.300): All notice obligations are now consolidated in one section. Employers must post notices of FMLA rights even if there are no eligible employees at the worksite. Employers must make sure all employees are provided the company's FMLA policy at the time of hire. Notices and policies may be provided to employees electronically. When an deficiency requests leave, the employer is required to tell the employee whether or not the employee is qualified for FMLA protected leave within five days. An employer's failure to follow the notice requirements will be interpreted as "interference" with the employee's FMLA rights.
Employee notice requirements (§ 825.301): Under the new regulations employees must follow the employer's normal call in procedure, unless there are unusual circumstances. An employee will not be deemed to have provided sufficient notice of the need for leave by calling in "sick." Where there is a dispute over employee eligibility the employer is required to discuss and document those concerns. The regulations provide that an employer may retroactively designate leave as FMLA related so long as there is no harm to the employee. This requirement may result in increased litigation, because retroactive designation will most always result in a reduction of available leave time.
Intermittent Leave (§ 825.203): Employees must make "reasonable efforts" in the taking of intermittent leave so as not to disrupt an employer's operation. Anticipate some litigation here as courts try to determine what a efforts are "reasonable."
Medical Certification (§ 825.305 and .307): If a medical certification is not complete, the employer must tell the employee in writing as to the deficiencies and give the employee the opportunity to correct the form. The new rule provides that an employer's representatives may contact a healthcare provider for clarification or authentication of a medical certification. The employee's supervisor MAY NEVER contact a healthcare provider, but the healthcare provider may be contacted by a human resources representative, an employer's healthcare provider; or the employer's leave administrator.
Light Duty (§ 825.220): Some courts had held that an employee who worked light duty also used up FMLA leave. The new rules state that light duty does not count against an employee's FMLA leave time.
Waivers (§ 825.220): Resolving a split in the federal appellate courts, the regulations now provide that employees may voluntarily settle FMLA claims but that prospective waivers of FMLA rights are prohibited. Employers should be sure to specifically identify the waiver of FMLA rights in their severance and settlement agreements.
Servicemember Leave : Congress created active duty and caregiver leave in amendments to the FMLA in January 2008. The final regulations now put some meat on the bones of the new legal requirements. And, because DOL provided no opportunity for comment on proposed servicemember leave regulations, this is the area where litigation is most likely. The regulations make clear that the 26 weeks of caregiver leave is per servicemember and per injury. So, an employee who is unfortunate enough to have more than one family member injured in the line of duty, or have the same family member injured twice, will have the opportunity to take the 26 weeks of leave more than once.
The regulations define "exigent circumstances" for purposes of active duty leave and "next of kin" for caregiver leave. An exigent circumstance (§ 825.126) is defined as: short notice deployment; military events and related activities; childcare and school activities; financial and life arrangements; counseling; rest and recuperation; post-deployment activities; and other activities agreed to by the employer and employee. For caregiver leave, "next of kin" (§ 825.122) – in addition to family members specifically identified in the law (spouse, parent, son, daughter) – is defined first as a blood relative who has been granted legal custody of the servicemember, then brothers and sisters, grandparents, aunts and uncles, and first cousins. In the event that a servicemember has not designated in writing who the servicemember desires as next of kin, then any one at that level that has been specifically designated by the servicemember, then all individuals at the same level may avail themselves to caregiver leave.
Employers will have their hands full in the coming months, not only in dealing with the changes to the FMLA, but also the ADA Amendments Act, which takes effect on January 1, 2009.
ADA Amendments Become Law
Like his father before him, it is possible that President George W. Bush may be remembered, in part, for his decision to protect individuals from disability discrimination. On September 25 the President signed the ADA Amendments Act of 2008 (P.L. 110-325) into law. The legislation overturns Supreme Court decisions that had restricted the availability of the ADA. It is prospective only, and takes effect on January 1, 2009. The bill (S. 3406) that became Public Law 110-325 found wide spread bipartisan support in Congress, as well as support from both employers and disability advocates. The Act overturns Sutton v. United Air Lines Inc., 527 U.S. 471 (1999)(and two companion cases), and Toyota Motor Mfg. Ky. Inc. v. Williams, 534 U.S. 184 (2002). Sutton held that courts must consider "mitigating measures" used to overcome or manage impairments in deciding whether an individual has an ADA-covered disability. Williams made it more difficult for ADA plaintiffs to prove they are "substantially limited" in a "major life activity."
As a result of Sutton and Williams, many individuals with impairments were not considered "disabled" under the ADA. For example, someone whose cancer was in remission, or whose epilepsy was under control, was excluded from ADA coverage. The language of the Act provides that courts are to read the ADA's definition of disability "in favor of broad coverage under the Act, to the maximum extent permitted by the Act." Now, an impairment that is "episodic or in remission" is a disability "if it would substantially limit a major life activity when active."
What does "substantially limits" mean now? The Act provides that in determining whether an impairment substantially limits a major life activity, courts should not consider "the ameliorative effects of mitigating measures," including medication, prostheses, use of assistive technology, reasonable accommodations or auxiliary aids or services, or "learned behavior or adaptive neurological modifications." But, in recognition of the millions of Americans who wear glasses or contact lenses, the law states that courts shall consider the effects of "ordinary eyeglasses or contact lenses" in deciding whether someone with vision issues is disabled.
The EEOC will have some work to do as a result of the new law, as the Act states the Commission’s ADA regulations "inconsistent with congressional intent, by expressing too high a standard." The law specifically states that Congress expects the EEOC to revise the regulations to make it easier for individuals with impairments to show they are "substantially limited" in one or more major life activities.
What are "major life activities" now? The Act provides that "major life activities" now include, but are not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Major life activities also include the "operation of a major bodily function," such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."
What about "regarded as" disabled claims? Courts have held that, to pursue a "regarded as" claim, plaintiffs must show an employer incorrectly perceived them as "substantially limited" in a major life activity. The Act now provides that a person can prove he or she is regarded as disabled "if the individual establishes that he or she has been subjected to an action prohibited by this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." But, the regarded as prong does not cover people with "impairments that are transitory and minor." A "transitory" impairment is one with an "actual or expected duration of 6 months or less."
Employers will need to review their policies and procedures regarding handling disability issues, and prepare for a resurgence of ADA claims in the coming months and years. An integral part of this review will be the need to provide training to supervisors and managers. K&S attorneys can help your business in prepare for these changes.
New Maryland Privacy Law Takes Effect January 1, 2008
There’s a new law in town: Maryland’s Personal Information Protection Act (PIPA) takes effect on January 1, 2008. This new law requires businesses to take steps to protect personal information of employee and customers and imposes significant obligations on any business that has personal information of persons living in Maryland. The biggest problem facing companies under the new law is that there is not entirely clear guidance on compliance. For example, while "Personal Information" is defined, along with requirements for access, destruction and the transfer of information to third parties (think your payroll management company), the notification requirements in case of a breach are both cumbersome and expensive. Yet, violation of the law is an unfair or deceptive trade practice, subject to enforcement and penalty provisions, including civil and criminal actions. And, by the way, waivers of the PIPA are not valid. Many companies already have protections in place. Does yours?
A Private Cause of Action for Discrimination in Maryland.
By Eric Paltell
On October 1, 2007, there will be a dramatic change in the way workplace discrimination claims are resolved in Maryland. After more than 40 years of being required to pursue these claims in federal courts, employees alleging employment discrimination will be able to bring a lawsuit in state courts -- a right they previously did not have unless they worked in Prince George’s, Howard, or Montgomery Counties.
The amendments to Article 49B, which were signed into law by Governor O’Malley last Spring and take effect October 1st,, also give Maryland employees the right to sue for alleged acts of discrimination that were previously not actionable. In addition to claims available under Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Americans With Disabilities Act (“ADA”), Maryland law allows employees to sue for discrimination and harassment based on family status, marital status, and sexual orientation – categories not protected by federal law.
For Maryland employers, this change in the law requires that companies reassess the risks associated with an employment discrimination lawsuit. Unlike federal judges, most state court judges do not regularly hear discrimination cases. As a result, we should expect that, at least initially, state court judges may be less inclined to dismiss a case on summary judgment than their federal counterparts would be. This means employers face a greater likelihood that the case will go to trial, with the added investment of time and expense that goes with litigating in front of a jury.
We should also expect that, over time, Maryland will begin to develop a body of discrimination law that differs in some respects from federal law, just as has happened in New Jersey, Michigan, California, and other states that permit employees to sue for employment discrimination in state court. For example, in California, unlike under federal law, a disability need not “substantially” limit a major life activity to be protected – it is enough that it imposes some limitation on the employee. We should not be surprised if Maryland’s appellate courts eventually establish definitions of terms such as “hostile work environment” and “reasonable accommodation” that deviate from those established by the federal district and appellate courts.
One of the most immediate concerns about the new law is the absence of any statute of limitations on the filing of a discrimination suit. As presently drafted, the statute provides that an employee may file suit for discrimination so long as they have filed a charge of discrimination with some agency (federal, state, or local) and waited at least 180 days since the date they filed the charge. There is no requirement that the charge of discrimination be timely filed (in other words, it could be filed years after the alleged discrimination), and there is no deadline within which the employee must file suit. This means that employers could be faced with lawsuits challenging personnel decisions that occurred years earlier. However, the Maryland Chamber of Commerce (with the assistance of the author) is working with the statute’s drafters to introduce amendments in the next General Assembly session to address these issues. Our hope is that in 2008, the law will be amended to provide for a time frame within which a lawsuit must be filed, as well as a requirement that any charge of discrimination be timely filed as a prerequisite to filing suit under Article 49B.
So what should a Maryland employer do to prepare for the changes being wrought by the new private right of action under Article 49B? The following steps could go a long way towards minimizing an employer’s risk:
- Make sure your managers are trained (and retrained) in how to properly administer discipline and document performance issues;
- Review and revise your employee handbook to make sure that employees are put on notice of the company’s rules and expectations;
- Review and revise supervisory manuals which set forth the guidelines for disciplining employees, conducting evaluations, and administering company policies;
- Make sure that your company conducts periodic workplace harassment training. The training should be done at two levels -- one for managers, and a separate training program for staff. Keep records to show that employees have been trained;
- Make sure that any complaints of discrimination and harassment are promptly investigated. Where evidence of discrimination or harassment is found, take prompt and effective steps to correct the action; and
- Review and revise your document retention policies. This applies to both electronically stored information and hard copies. Although Maryland state courts have not yet adopted the federal standards regarding the preservation of electronically stored information, Maryland employers would still be wise to follow the federal standards to prepare for state court litigation.
The change in Maryland law does not mean that “the sky is falling” for employers. It does mean, as Bob Dylan would say, that “the times they are a changin’.” The sooner employers in Maryland take steps to prepare for and adapt to the new law, the better position they will be in to minimize their risk.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
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