Summary of new FMLA Regulations: Military Family Leave

Yesterday, I examined 10 key changes in the new FMLA regulations to the legacy FMLA provisions. Today, I’ll break down the new regulations’ effect on Section 585(a) of the National Defense Authorization Act for FY 2008. That provision amended the FMLA to provide eligible employees working for covered employers two important new leave rights related to military service: military caregiver (or covered servicemember) leave and qualifying exigency leave.

Military Caregiver Leave (also known as Covered Servicemember Leave):

1. Eligible employees who are family members of covered servicemembers will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered servicemember with a serious illness or injury incurred in the line of duty on active duty.

2. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.

3. When leave is taken to care for a covered servicemember with a serious injury or illness, an employer may require an employee to support his or her request for leave with a sufficient certification, which includes certain necessary military and medical information support the request for leave.

Qualifying Exigency Leave:

1. This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation.

2. The Department’s final rule defines qualifying exigency as any of the following categories for which employees can use FMLA leave: i)Short-notice deployment; ii) Military events and related activities; iii)Childcare and school activities; iv) Financial and legal arrangements; v) Counseling; vi) Rest and recuperation; vii) Post-deployment activities; and viii) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

3. Employers will be able to require an employee to provide a copy of the covered military member’s active duty orders or other documentation issued by the military which indicates that the covered military member is on active duty (or has been notified of an impending call or order to active duty), and the dates of the covered military member’s active duty service.

4. Each time leave is first taken for a qualifying exigency, an employer may require an employee to provide a certification that sets forth information pertaining to the exigency.

Summary of new FMLA Regulations: 10 Key Changes

On Monday, November 17, 2008, the Department of Labor (DOL) published its final rule to implement the first-ever amendments to the Family and Medical Leave Act (FMLA). The new regulations update and clarify certain key issues under the FMLA, in addition to providing guidance on the law’s recent coverage changes for military family leave.

These changes become effective January 16, 2009. A full copy of the new regulations is available for download from the DOL.

Today begins a three-part series on these new regulations, beginning with the top 10 substantive changes to the old FMLA scheme. Tomorrow, I’ll take a look at the military leave regulations, and next Monday I’ll provide my thoughts on the pros and cons of the new regulations.

The regulations change the FMLA in the following key areas:

Serious Health Condition:

1. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider,” which now must take place within seven days of the first day of incapacity.

2. Another definition of serious health condition involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The new regulations clarify that the first visit to the health care provider must take place within seven days of the first day of incapacity.

3. The new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Light Duty: 

1. Time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement.

2. An employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year).

Substitution of Paid Leave: FMLA leave is and remains unpaid, although employer can require that employees use any and all paid time off (sick days, vacation, personal days, etc.) concurrently with FMLA leave. Under the new regulations, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted. An employee using paid leave concurrently with FMLA leave must follow the same rules of the employer’s policy that apply to other employees for the use of such leave.

Perfect Attendance Awards: Employers will now be allowed to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave, as long as it treats employees taking non-FMLA leave identically.

Employer Notice Obligations:

1. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook or otherwise upon hire); an eligibility notice and a rights and responsibilities notice (given when leave is requested); and a designation notice (given when leave is designated as FMLA-leave).

2. The new regulations extends the time for employers to provide these various FMLA notices from two business days to five business days.

All of these forms are available from the DOL in the new regulations.

Employee Notice: The new regulations provide that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances.

Medical Certification Process

1. During the medical certification process, the employer will be permitted to speak directly to the employee’s health care provider, so long as the employer’s contact person is a health care provider, human resource professional, a leave administrator, or a management official. It can never be the employee’s direct supervisor.

2. Employers may not ask health care providers for additional information beyond that required by the certification form.

3. The DOL will provide separate medical certification forms for the employee and covered family members. The forms will also allow, but not require, health care providers to provide a diagnosis of the patient’s health condition as part of the certification.

4. If an employer deems a medical certification to be incomplete or insufficient, the employer must specify, in writing, what information is lacking, and give the employee at least seven calendar days to cure the deficiency.

5. Employers may request a new medical certification each leave year for medical conditions that last longer than one year.

6. In all cases, employers are now permitted to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness-For-Duty Certifications:

1. An employer may require that the certification specifically address the employee’s ability to perform the essential functions of the job.

2. Where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work from intermittent leave.

The Ragsdale Decision/Penalties: Ragsdale v. Wolverine World Wide  ruled that an employer’s failure to properly designate leave as FMLA leave cannot result in the grant of additional leave to an employee without a specific showing of harm to the employee from the missed designation. The new regulations clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable for the additional FMLA time.

Waiver of Rights: Taylor v. Progress Energy held that no FMLA waiver, whether retrospective or prospective, can be valid unless first approved by a court or the DOL.The new regulations clarify that employees may voluntarily settle or release their FMLA claims based on past conduct without court or agency approval. Prospective waivers of FMLA rights continue to be prohibited absent prior approval.

Do you know? Compensation for travel time

Do you have employees that travel for work? Do you know that only certain travel time may be considered compensable and therefore paid for? As a general rule, time spent traveling from home to work and back again to home does not have to be compensated.

Like all rules, however, there are exceptions.

1. Time spent by an employee traveling as part of the principal work activity, such as travel from job site to job site during the workday, or travel between customers, is counted as hours worked and must be paid.
2. Travel that keeps an employee away from home overnight must also be compensated, but only when the travel time occurs during an employee’s normal workday. Thus, if an hourly employee's normal work day runs from 8 am to 5 pm, only out-of-town travel during those hours must be paid. This rule applies whether the travel occurs on a regular work day or a normal day off. So, if the same employee travels during regular work hours on a Sunday, but regularly has Sunday off, the time must still be paid.
3. Out-of-town travel that is completed all in one day receives different treatment. The employee is compensated for the travel from home to the out-of-town worksite, less the amount of time it would have taken the employee to drive to work during a regular workday. The rationale is that the employee should not have to be compensated for the time he or she would have spent traveling to and from work on a regular work day.

The swift hand of justice

Next time you consider whether you really want to litigate a case, consider the following case study.

On Friday, I reported about a case in which a jury vindicated a city administrator whose secretary accused him of sexual harassment for staring at her breasts. She filed her case in December 2002. In July 2006, the trial court dismissed the lawsuit on the employer’s motion for summary judgment. In February 2008, the court of appeals reversed that ruling. The trial was finally held on October 31, 2008, nearly six years after the case was originally brought. On Point reports this saga has cost the employer nearly $400,000 to defend. And, it’s not over yet. The plaintiff has filed a motion for new trial, and when that is denied, she’ll likely go back to the court of appeals. Everyone had their day in court, but at what cost?

ALERT: New FMLA regulations to be published Monday

The title says it all. Once I've had a chance to digest the new regs (they're over 700 pages) I'll have more to say.

WIRTW #56

The Employee Free Choice Act remains the hot labor and employment law topic. The stat of the week comes courtesy of the Delaware Employment Law Blog. During the first half of 2008, labor unions won an astounding 66.8% percent of secret ballot elections conducted by the National Labor Relations Board, as compared to 58.5% during the same period in 2007. At this clip, do unions really need help from the EFCA? It seems like they are doing just fine all on their own.

This rest of this week’s review touches on four themes important in today’s workplace – layoffs, bullying, technology, and discrimination:

1. Layoffs

Downsizing is a popular topic these days. The ABA Journal correctly points out that more layoffs equates to more employment lawsuits. Meanwhile, Bob Sutton plays some word games in trying to find the right nomenclature for a workforce reduction.

2. Bullying

The Laconic Law Blog discusses some possible common law remedies for employees who are bullied at work. George’s Employment Blawg asks if we really need anti-bullying laws at all. Case in Point talks about the workplace dangers of salty language. On Point reports on a real live case of bullying at work – a case in which a jury found that a manager’s staring at a subordinate’s breasts did not constitute sexual harassment. He claimed that he could not help himself because of an eye disorder.

3. Technology

The Connecticut Employment Law Blog opines on the use of social networking sites (such as Facebook) to uncover facts in discovery. If you need a good example of how this might play out, The HR Capitalist gives us an interesting case study on 13 flight attendants fired by Virgin Airways for inappropriate comments on their Facebook pages. Electronic Discovery Law reports on a case in which an employee was found to have no expectation of privacy on a workplace computer, even for personal information stored there.

4. Discrimination

World of Work brings us news of a settlement of case challenging an English-only workplace policy. Workplace Horizons talks about what “passive discrimination” means and why plaintiffs’ lawyers might target some of your workplace policies because of it. BLR’s HR Daily Advisor discusses rules for employee medical exams under the ADA.

8 common employee handbook mistakes, and how to avoid them

HR Legal News provides a list of its top common mistakes in employee handbooks. The following discusses some of the list, offers some tips on how to avoid common trouble spots, and adds a few more mistakes that should be avoided.

1. Illegal overtime policies: For example – “All overtime must be authorized by a manager or supervisor and the company will only pay authorized overtime.” Such is policy is illegal if it is applied as written. All overtime, whether its authorized or not, should be paid. A better rule to control unauthorized overtime is to prohibit unauthorized overtime and discipline those employees who violate the rule.

2. Vague FMLA language: The FMLA is rife with traps for employers who do not specify certain eligibility requirements. Otherwise, a company leaves itself open to be sued by otherwise ineligible employees. A handbook should also be clear on the interplay between FMLA leave and other paid leave policies, and to make sure that employees cannot double-dip by first exhausting paid leave before turning to unpaid FMLA leave.

3. Bans on salary discussions: The National Labor Relations Act makes it unlawful for any employer, whether union or non-union, to interfere with, restrain, or coerce employees exercising their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. One such protected activity is discussing terms and conditions of employment, such as wages. A policy that could be construed to prohibit discussions of wages or other terms and conditions of employment would violate the NLRA. A safer rule would limit confidentiality to information about corporate information and customers, and would not interfere with disclosure of information about employees’ terms and conditions of employment.

4. Unnecessary probationary periods: Probationary periods are typical in union contracts, but have no place in a non-union setting. Such a policy is counter-intuitive to the at-will nature of the employment, and could set an unreasonable expectation of continued employment after the 90 days expire. A better policy would simply re-affirm that employees are at-will and can be terminated at any time for any reason, and that all new employees’ performance will be evaluated after 90 days.

5. Too many details: A handbook should be a set of guidelines for the company to follow. It should not be intended to account for every situation that could arise, not should it be written in stone. Companies should write handbooks to leave enough flexibility to change policies when the situation dictates.

6. Missing no-solicitation policies: These policies are necessary to try to limit union solicitations in the workplace, but cannot be specifically directed at union activities. Instead, companies can draw any reasonable line, so long as the line drawn is not specifically tied to union solicitations. Moreover, the rule should include the use of bulletin boards and corporate computer systems (e-mail, intranets, etc.).

7. Lack of an at-will disclaimer and signed receipt: In litigation, a handbook is only as good as being able to prove that an employee received it on a certain date. The best proof is a signed, dated receipt in all employees’ personnel files, with enough information in the receipt itself to link it to the handbook (such as a date for the issuance of the handbook). Also, handbooks should clearly state that employees are at-will, that the handbook is not a contract, and that employees should not rely on any statements in the handbook. These simple measures will help protect against breach of contract and promissory estoppel claims.

8. Missing Harassment Policy: An anti-harassment policy is necessary to take advantage of the Faragher/Ellerth affirmative defense. It is one of the most important policies a handbook should contain, and no handbook is complete without having such a policy.

Handbooks are a necessary evil in today’s workplace, but present myriad dangers for employers if they are not carefully drafted with a keen eye to legal compliance.

“Laying the smackdown” is not an adverse employment action

An adverse employment action in a discrimination case is an action by an employer that effects a significant change in one’s employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

In Mathirampuzha v. Potter (2nd Cir. 11/3/08), the 2nd Circuit decided that an employee who had been physically assaulted by a supervisor had not suffered an adverse employment action. Ron Sacco, a supervisor but not Mathirampuzha’s direct supervisor, grabbed his arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Mathirampuzha’s direct supervisor immediately intervened to separate the parties. After a union official filed a complaint on Mathirampuzha’s behalf, the employer issued Sacco a formal written warning a transferred him to a different facility.

The court held that Sacco’s physical assault of Mathirampuzha did not rise to the level of an adverse employment action:

Only in limited circumstances does a single, acute incident of abuse qualify as an adverse employment action. In the context of hostile work environment claims, we have stated that a single event, if “extraordinarily severe,” could alter the conditions of a working environment…. A “single incident of rape,” for example, “sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of 29 Title VII liability for sex-based discrimination.

Sacco’s aggressive conduct toward the plaintiff … was not an adverse employment action. After the incident took place, the plaintiff continued to work at the Wallingford plant in the same position, at the same pay, and with the same responsibilities. Indeed, there is no evidence that the assault brought lasting harm to the plaintiff’s ability to do his job. The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions -- unlike, for example, a rape, … or an obscene and humiliating verbal tirade that undermines the victim’s authority in the workplace…. The Postal Service’s response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff’s working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year.

Nobody is a bigger proponent than me of not turning our anti-discrimination laws into a general workplace civility code. But, do we want to draw a bright line in the sand, with grabbing, punching, poking, and spitting on one side, and rape on the other? Do we want African-American employees who are targeted with violence to be scuttled out of court on a summary judgment motion? Do we want women browbeaten by their male co-workers to have to raped before they can file a claim? The line drawn by the court in this case simply seems unreasonable.

Do you know? Preservation of personnel files

Do you know? In Ohio, employers should preserve personnel files for six years after an employee leaves an organization. Under Ohio Revised Code section 4112.99, an employee has six years to file a discrimination lawsuit for all types of discrimination other than age (which, for some unknown anomalous reason is only 180 days). Because of this long statute of limitations, companies should not alter, destroy, dispose of any employee files or records until that time period expires. Moreover, all employees should be instructed pursuant to a written record retention policy of this requirement.

The potential penalties for the premature alteration, destruction, or disposal of any employee’s files or records are severe. For example, if an employee files a lawsuit related to his or her termination, and the employee’s personnel file cannot be located, a court may bar the employer from presenting evidence of the employee’s poor performance that led to the termination. A court might also create an inference, binding for the case, that the employee was, in fact, a good employee and that the performance problems did not exist. If a court believes that the disposal was done willfully to hide evidence, it may even go so far as to enter judgment in the employee’s favor. Courts take these obligations seriously, and so should you.

Risks abound for businesses considering unpaid time off to save costs

Workforce Management and SlashGear both report that Dell is encouraging its employees to take an unpaid week off as a means to cut costs and avoid layoffs. Dell is not the only company considering such measures. Companies are going to four-day work weeks, or weeks off, to save enough cash to avoid having to cut staff. Times are getting scary, and many businesses are considering these drastic measures to meet their bottom lines while keeping as many people employed as possible. They assume, probably correctly, that employees would rather work less and keep their jobs than face layoffs.

These measures, however, must be carefully considered and implemented to avoid any wage and hour complications. One of the cornerstones of the FLSA’s exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employees’ pay for hours or days missed from work. If an employer reduces an employee’s pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime.

Thus, paying an employee four-fifth’s of his or her salary for a four-day work week might jeopardize that employee’s exemption. The employee is no longer receiving a static amount for all work performed during the week. The Department of Labor would probably take the position that the employer is treating the employee as hourly by reducing the salary by the hours missed during the week.

If, however, an employee is taking an entire week off, the employer can withhold an employee’s salary for that entire week without putting an exemption at risk. In that case, the employee is still receiving the same static weekly amount for all weeks in which any work is performed.

The bottom line – if your organization is considering reducing work hours to cut costs, consider doing so on a weekly basis, and not on a smaller increment. Also, discuss these measures with counsel to ensure that all legal implications are covered.

WIRTW #55

It only seems fitting to begin this week with a small roundup of some of the blog posts I’ve tagged about the election:

• Pennsylvania Labor & Employment Blog
• Workplace Prof Blog
• Wall Street Journal Law Blog 
• The Word on Employment Law with John Phillips
• Delaware Employment Law Blog

The Connecticut Employment Law Blog also points out that President-elect Obama’s Change.gov has gone live, and highlights the labor and employment initiatives his new administration will put forward.

This week also brings some other notable posts about issues other than the election.

Rush on Business (courtesy of an article on IowaBiz) reminds companies of the importance of EPL (Employment Practices Liability) insurance.

HRWorld discusses ways to protect your business when firing an employee.

The Word on Employment Law with John Phillips talks about the wave of layoffs that is likely during this down economy.

Human Rights in the Workplace brings a story from north of the border about a 44-year-old exotic dancer who is claiming age discrimination.

The Non-Compete and Restrictive Covenants Blog discusses IBM’s efforts to halt employee migration to Apple via non-competition agreements.

Trading Secrets, meanwhile, discusses the general trends related to non-compete litigation in the financial services sector.

World of Work reports on the latest case-handling trends at the NLRB.

Finally, Overlawyered brings us the bizarre story of the week, about a sham arbitration agreed to as part of sexual harassment settlement. All hell is breaking lose now that the plaintiff and the arbitrator are refusing to participate.

Religious accommodation for prayer becomes hot issue

As I've written before, Title VII requires employers to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Recently, the issue of accommodating employee’s prayer at work has gotten a lot attention. Articles in both the USA Today and the Wall Street Journal recount stories of Muslim employees whose employers refused to permit time at work to accommodate daily prayer.

The following table, courtesy of the EEOC and the USA Today, illustrates the rise of religious discrimination claims brought by Muslims, in the last 10 years, and especially after Sept. 11:

Year	Muslim	Jewish	Catholic	Protestant
1998	285	276	118	159
1999	282	287	101	171
2000	284	282	134	178
2001	330	294	143	210
2002	720	317	118	204
2003	598	260	145	241
2004	504	275	135	228
2005	507	281	122	206
2006	594	282	118	233
2007	607	287	177	258

 

Two facts stick out from this table: religious bias claims are way up across the board, and claims brought by Muslim employees lead the pack by an eye-popping margin. Before you knee-jerk prohibit Muslim (or other) employees from praying at work, consider these numbers, what real effect five minutes of prayer will have on your organization, and whether you want to be defending the bona fides of that effect at the EEOC or in court.

President Obama

A lot of ink has been spilled already, with tons more to come, about just how truly historic last night was. Given our country’s history, one cannot overstate the importance of the first African-American President. When you drill down a little deeper, however, President Obama will serve as a symbol of something potentially deeper. Will President Obama mean the end of affirmative action? Consider what happened. An African-American man, raised by a single mother, succeeded to the most important position in the world. Is it still credible for minorities to say that historic racism and biases makes it impossible for them to compete for jobs, and that the playing field needs to be leveled by quotas and preferences? Last night may prove to be the final leveling of the playing field and the functional end of affirmative action.

Only time will tell if we truly find ourselves in a post-racial era. What we know as we wake up this morning and start to absorb what happened yesterday is that if have not reached that mark, we have taken a giant step in its direction.

Do you know? The Pregnancy Discrimination Act at 30

Do you know? The Pregnancy Discrimination Act turned 30 years old last week. The PDA outlawed employment discrimination on the basis of “pregnancy, childbirth, or related medical conditions” as unlawful sex discrimination. It does not require that employers give pregnant women preferential treatment (that, after all, would discriminate against men), but it does mandate that pregnant women be treated as would any employee with a similarly disabling temporary condition. Yet, despite being ingrained into our way of thinking that pregnancy discrimination is wrong, the number of claims filed with the EEOC continue to rise. In 2007, pregnancy discrimination filings with the EEOC hit an all-time high of 5,587 (source: Time Magazine).

According to a study published by the National Partnership for Women & Families, the number of claims might actually be higher, as women may under-report pregnancy discrimination out of fear of causing long-term career damage. Who knows if this conjecture is true. What is true, however, is that employees, regardless of gender, have the right to have a career and a family and not be punished for the choice. The sooner businesses recognize this undercurrent of potential bias the sooner they can put measures in place to prevent pregnancy discrimination from becoming a potential problem area.

Court sanctions employee for perjury

I can’t tell you how many times I’ve had a client ask me, “I thought perjury is illegal. How can she lie during her deposition like that?” Well, perjury is illegal, but unless your name is Barry Bonds, it’s a crime that is usually not worth the scarce governmental resources it takes to prosecute it. Negrete v. Nat’l Railroad Pass (7th Cir. 10/27/08), decided last week by the 7th Circuit, illustrates that dishonest conduct in litigation has real implications.

In Negrete, the 7th Circuit affirmed the trial court’s dismissal of an employee’s workplace injury claim because he had missed repeated discovery deadlines, hidden and tampered with evidence, and lied in his deposition. Negrete was a former track repair worker for Amtrak. After the hurt his back at work, he claimed that the injury had left him permanently disabled and unable to work. The two key issues in the case were how badly Negrete was injured, and whether he was still able to work.

Negrete’s missteps included:

• Producing only 12 pages out of a 236-page medical report, which omitted a key medical opinion that he was able to work.
• Turning over documents that appeared to have been tampered with.
• Lying about his current sources of income.
• Lying about the extent of physical labor he performed on owned rental property.

Based on this misconduct, the Court concluded as follows:

True, Negrete often produced documents directly contradicting his deposition testimony, but that does not prove, as his lawyer claims, that his false testimony was inadvertent; it shows only that Negrete is a poor liar. Given Negrete’s repeated misconduct, it would have been hard to reach any conclusion other than that he was acting in bad faith.

Negrete also argues that the sanction of dismissal was too harsh because he is uneducated and lied only about collateral issues. But Negrete’s misconduct related to the most important issues of the case—how badly he was injured and whether he was able to work. And although Negrete may not be well educated, it does not take a graduate degree to understand that it is unacceptable to hide evidence and lie in a deposition.

This case should serve as a warning to all litigants, plaintiffs and defendants, that judges’ tolerance for shenanigans and dishonesty in discovery is getting lower and lower. Hiding evidence and lying will never help a case. Credibility is everything with judges and juries. One of our jobs as lawyers is to spin bad facts in the best light for our clients. We cannot do that, however, unless all of the facts are out on the table.

WIRTW #54

As I celebrate the Phillies first World Series title in 28 years, and Philly’s first title in any of the major sports in 25 years (believe it or not, the Phillies, Eagles, 76ers, and Flyers played a combined 9,029 games without producing a championship until Wednesday), we move our attention to more mundane issues, like next week’s Presidential election. Given the lack of media coverage over the last few months, I’m sure November 4 has snuck up everyone. So, I’ll try to catch everyone up on the labor and employment implications of next week’s vote:

• The Word on Employment Law with John Phillips gives us one last look at where the candidates stand on various pieces of legislation that impact employers.

• The HR Capitalist focuses on one key issue likely to be taken up by Congress early in 2009, the Employee Free Choice Act, and gleans some lessons from converse legislation in England three decades ago.

• The Workplace Prof Blog gives its take on politicking by employers, captive audience meetings for employees warning about the dangers of an Obama administration and how it could cause more economic pain by making it easier for unions to organize.

BLR’s HR Daily Advisor reminds everyone that it is fairness, and not the technical ins and outs of the law, that matters most to employees and juries.

On an issue I’ve spent some time discussing this week already, Law.com clues everyone in that the time is nearing to re-learn the ADA.

Fair Labor Standards Act Law addresses a very interesting issue, whether time waiting for a computer to boot at the beginning of the work day in considered “hours worked” under the FMLA.

The Connecticut Employment Law Blog asks what happened to the flood of ERISA fiduciary litigation that was supposed to come in the wake of Larue v. Wolff.

The Labor & Employment Law Blog reports that the Department of Homeland Security has reissued its final rule on the No-Match Safe Harbor Regulations. Recall that it was first issued last summer, and enjoined by the 9th Circuit. The rules have been in limbo since, and the new rules aim to address the 9th Circuit’s concerns.

The Federal Civil Practice Bulletin examines a decision that denied a motion to dismiss in a Title VII racial harassment case.

Will end this week with a little humor – HR World presents the annual list of the best employee excuses for missing work. The best, in my humble opinion:

• Employee said he had a heart attack early that morning, but that he was “all better now.”
• Employee was kicked by a deer (better not to ask for details).
• Employee contracted mono after kissing a mailroom intern at the company holiday party and suggested the company post some sort of notice to warn others who may have kissed him.
• Employee’s wife burned all his clothes and he had nothing to wear to work.
• Employee was up all night because the police were investigating the death of someone discovered behind her house.
• Employee’s psychic told her to stay home.

More on smoking as a disability

In commenting on my post on workplace smoking bans from earlier this week, Michael Moore at the Pennsylvania Employment Law Blog suggests that that the recent ADA Amendment Act (ADAAA) could make nicotine addiction a protected disability.

The recent ADA amendments significantly change the statutory definition of “disability.” In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity must be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of “disability.” The ADAAA expressly reverses that ruling by requiring the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures. Thus, when the amendments go into effect on January 1, 2009, a diabetic will be “disabled” under the ADA whether or not insulin is used to control the diabetes.

Michael argues:

The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

I recognize that the ADAAA is going to expand the protections of the ADA beyond the scope of where courts have taken it in recent years. I do not believe, however, as some have argued, that it has been taken so far to encompass things such as nicotine addiction. We will have to take a wait-and-see approach on the post-amendment scope of ADA until courts start weighing in on exactly how broad the definition of “disability” has become. I stand by my earlier prediction, though, that smoking is not a protected disability under the ADA, a classification that should not change after January 1.

New FMLA regulations are on their way

On October 20, the Department of Labor forwarded its final draft of new Family and Medical Leave Act regulations to the Office of Management and Budget for its review. The OMB’s review process could take up to a month, and the OMB is expected to publish the new regulations some time in November.

In February 2008, the DOL proposed new FMLA regulations. It also asked for public comment. It is unknown what comments were received, and what changes, if any, were made to the proposed regulations as a result.

What we do know is that the proposed regulations suggested the following 12 key changes:

Changes to improve employers’ ability to plan and schedule around FMLA leaves:

1. An employee simply calling in sick does would no longer suffice as a request for FMLA leave. This change will greatly improve employers’ ability to plan and schedule around employees’ medical leaves.

2. Employers would be given greater latitude to deny a request for foreseeable leave if an employee do not provide sufficient notice.

3. An employee on intermittent leave for a chronic serious health condition would need to follow an employer’s standard call-in procedures for unscheduled absences. The employee would no longer be able to use intermittent leave and designate it as such after the fact.

Changes to the medical certification process:

4. The current process of employer conditionally designating FMLA leave as such pending the receipt of medical certification would be abolished. Instead, an employer would first advise an employee of his or her general eligibility for FMLA leave, and only approve the leave as FMLA-qualifying after the employee submits all of the required paperwork, including the medical certifications. This is one instance where bifurcating a process into two steps actually simplifies it.

5. Employers would be given more time to issue FMLA notices – five days instead of two – to employees requesting FMLA leave.

6. The DOL’s current medical certification forms would be revised.

7. Employers would be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of once.

8. Employers would be permitted to contact an employee’s healthcare provider directly to seek clarification or additional information about a medical certification, and would no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee’s doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.

9. Healthcare providers would be able to provide information on the diagnosis of the employee’s health condition on medical certification forms.

Changes to the meaning of “serious health condition”:

10. The meaning of “continuing treatment” under the definition of a serious health condition would be changed to specify that the two required visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity.

Other changes:

11. Employees would have a five-year cap on years of service for FMLA eligibility. This change would eliminate the problem of an employee working for a company for six months, leaving, returning 10 years later, and qualifying for FMLA leave after another six months of employment.

12. For employees that also qualify as disabled under the ADA, employers would be able to suggest reasonable accommodations that could preclude the need for FMLA leave without violating the FMLA.

I’ll have more on these new regulations, including which of the above changes made the final cut, when they are published in final form.

[Hat tip: BLR, c/o The FMLA Blog]

Do you know? Time off to vote on election day

Do you know? Ohio law requires that employers provide all employees a reasonable amount of time off to vote on election day. According to O.R.C. 3599.06:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

The time off does not have to be paid, but companies should be wary of docking salaried employees.

Next Tuesday is election day. Voter turnout is expected to reach an all-time high. Don’t make the mistake of disciplining employees if they arrive late, leave early, or take a long lunch because they are exercising their right to vote.

Are there legal risks with smoking bans?

I had the privilege of speaking last week at the COSE 2008 Small Business Conference. I received a question on the legality of workplace policies that prohibit employees from smoking at all – during the work day, off work, anywhere, any time. As The Cincinnati Enquirer reports, there is a definite trend of businesses refusing to employ smokers. Companies view these policies are part of wellness programs that are used to control health insurance costs. Often, the programs not only prohibit smoking, but offer programs to smokers to aid in their efforts to quit:

Taking the employee wellness program to another level, a local company is refusing to hire smokers unless they enter a program to help them quit.

USI, the insurance and financial services company located downtown, started the program this year. The program applies only to new employees, who are tested when they are hired.

"We decided not to hire smokers because they add additional expense to our health plan and our ongoing operation," said Dennis Curran, chief human resources officer for USI's Midwestern region….

Nationally, the Scotts Miracle-Gro lawn-care company and the Cleveland Clinic have started similar programs. Locally, the Hamilton County Public Health agency also doesn't hire smokers.

29 states and the District of Columbia have so-called “smoker protection” laws – laws that elevate smokers to a protected class, making it illegal to discriminate against an employee because he or she smokes. Ohio is not such a state. Thus, in Ohio, there is nothing per se illegal about making employment decisions based on one’s status as a smoker.

As far as I know, this type of smoking ban has never been tested in an Ohio court. I have three thoughts, though, of possible laws that could be implicated by a blanket smoking prohibition:

1. The ADA: The ADA and its Ohio counterpart protect “addiction” as a disability. For example, a company cannot terminate an employee because that employee has a record of drug or alcohol addiction, or is perceived as a drug addict. There is a potential claim out there that employees who are addicted to nicotine are protected by the ADA. However, to be legally disabled under the ADA, it is not enough to simply suffer from some affliction. That affliction must substantially limit a major life activity. While a smoker is often addicted to nicotine, I fail to see how that addiction could be a disability protected by the ADA.

2. ERISA: Section 510 of ERISA prohibits employment actions taken with the specific intent of interfering with an employee’s ERISA benefits. Section 510, however, generally does not apply when the loss of benefits is a consequence of, but not a motivating factor behind, a termination of employment. There are lots of reasons why an employer may not want smokers in the workplace – the odor and the frequent smoke breaks are two reasons in addition to the added health costs. Moreover, the employee is not being hired because of an intent to interfere with health benefits, but the loss of benefits is coincident to the loss of employment. In other words, I think this claim has some sex appeal to it, but ultimately will fail on its merits.

3. Privacy: Ohio has no law the specifically protects employees in their private, off-duty conduct. For the same reasons that drug testing is legal, smoking inquiries should also be legal. The remedy for an employee who does not want to answer questions about smoking habits, or have a smoking panel included in a workplace drug test, is to look for employment elsewhere.

I think there should be little risk in enacting a workplace smoke-out, but these legal theories are untested. For small and mid-sized businesses then, the question becomes if you want to be the business that get such a policy challenged. There is nothing wrong with taking aggressive HR positions and testing the bounds of permissible policies. Make no mistake, though, it is not a questions of if a terminated employee will challenge such a policy, but when, and you better be prepared to defend the policy in court. In other words, as a small or medium-sized employer, are you better off taking a risk and implementing even a relatively safe policy such as an employee smoking ban, or letting larger, richer businesses test the bounds of the law and follow their lead when a court upholds the policy as lawful?