Earlier today, the Department of Labor proposed new FMLA rules related to leave for military families and airline flight crews.

Here’s a handy summary from the DOL. Here are FAQs. Here and here are fact sheets.

Here’s what the DOL identified as the major provisions:

• extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current service members and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all service members;
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

The DOL says it will accept public comments on the proposed regs here (although the new rules aren’t loaded into that system quite yet).

The Department of Labor has published new FLSA and FMLA Fact Sheets, emphasizing that both laws prohibit retaliation against those who file complaints under either law.

Here’s the FLSA sheet and here’s the FMLA sheet.

Retaliation has now become the #1 most common discrimination complaint filed with the EEOC. Please please please never ever retaliate.

(Special thanks to Eric Meyer for bringing this to the Blawg’s attention.)

During my last webinar, I addressed the following question:

Intermittent leave is my #1 nightmare. Let’s say an employee requests leave for migraines. The doctor certifies that the condition will cause “periodic” flare-ups but neglects to state the frequency or duration. Should I approve FMLA leave?

As I mentioned, this is a tricky and technical area. I gave you the basics but promised to give you more details here on the Blawg. True to my word, here you go.

First, here’s a handy graphic overviewing the process:

So, what’s the answer to the question? Maybe, but not without first obtaining additional information regarding the condition.

While chronic migraines can be debilitating, they are also near the top of the list of conditions that lead to FMLA intermittent leave abuse. The key to preventing abuse is to carefully manage the certification process.

Step 1: Incomplete Certification

It is the company – not the employee’s physician – who approves or denies FMLA leave. The first step to preventing FMLA abuse is to make sure the employee’s physician completely fills out the FMLA certification form. A complete form should provide details on the severity and duration of the illness, the effects on the employee’s job and when intermittent leave will be needed.

If you believe the form is incomplete, you must notify the employee. The notice must state what additional information is needed. Generally, the employer must give the employee 7 calendar days to cure the deficiencies unless it’s truly not reasonable under the circumstances. If the deficiencies are not cured within that time period, the employer may deny the FMLA request.

Step 2: Contact the Provider

If after Step 1 you still have questions regarding the form, you may contact the employee’s health care provider to clarify the certification. This should be done by HR — never the employee’s supervisor — and all HIPAA rules should be carefully followed.

Step 3: Recertification

If you have good reason to suspect FMLA abuse (e.g., a pattern of Friday/Monday absences, coming in late the same day every week), you may ask the employee to recertify his/her condition. Generally, an employer may ask an employee for recertification if more than 30 days have passed, with some limited exceptions. Note, though, that if an employer requests recertification, it can’t require a second or third opinion.

Alternatively, the employer may require the employee to obtain a second opinion at the employer’s expense. If a second opinion is requested, the employee is provisionally entitled to FMLA leave during the time required to get the second opinion.  If the second opinion doesn’t establish the need for FMLA leave, the leave shouldn’t be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s other policies.

Step 4: Third Opinion

If the second and first opinions conflict, the employer may require the employee to obtain certification from a third health care provider, at the employer’s expense. The third opinion is final and binding.

The Bottom Line

I hope this helps dispel some of the confusion out there. Again, this is a tricky area and I highly recommend that you discuss the above steps (especially exceptions to the 30-day recertification rule noted above) with your favorite employment lawyer before taking action.

If you have other FMLA questions, here’s our handy FMLA Cheat Sheet and here’s our Library with lots of posts on FMLA and other hot topics.

As shown by the votes thus far in our latest poll, medical leave issues continue to confound HR professionals and business owners.

One item rather frequently requested by our visitors is a handy guide to the interplay among the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA) and workers’ compensation (WC).

Ask and you shall receive …

Click here for our brand-new ADA vs. FMLA vs. WC Cheat Sheet. Thanks to the fine folks at McGuire Woods LLP for their assistance in putting this together!

In our most recent Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue in the world right now.

To help lower your temperature, we’ll be answering your medical questions for the next several days.

Today’s Topic: More FMLA

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Q: I get different answers about FMLA military caregiver leave. At one seminar, I was told that if employees take 26 weeks for military caregiver leave but then need another 12 weeks for family/medical leave, they’re out of luck. At another seminar, I was told that employes in that situation are entitled to 38 weeks within a 12-month period. Which is correct?

A: Employees are entitled to 26 weeks of military caregiver leave during a single 12-month period. That period begins on the “first day the eligible employee takes FMLA leave to care for a covered servicemember and ends 12 months after that date, regardless of the method used by the employer to determine the employee’s 12 workweeks for leave entitlement for other FMLA-qualifying reasons.”

Here are some examples:

• Military caregiver leave begins April 1, 2010
• Limited to 26 weeks of leave beginning that day through March 31, 2011
• If uses up all 26 weeks for caregiver leave, he/she can’t take any other FMLA leave during that 12-month period
• He/she could use up to 12 weeks of the 26 for other FMLA leave and the remaining time for caregiver leave
• If, on the other hand, the employee took 12 weeks of regular family/medical leave beginning January 1, 2010, he/she could still take all 26 weeks of caregiver leave that year because the FMLA clock automatically restarts for caregiver leave
• Thus, an employee could conceivably take up to 38 weeks of FMLA leave in a 12-month period (in this example, from January 1, 2010 through December 31, 2010) but…
• The employee is limited to 26 weeks of leave for the 12-month caregiver period beginning on the first day the caregiver leave starts (in this example, April 1, 2010 to March 31, 2011)

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Q: Under the FMLA, a “key employee” need not be reinstated if it would cause substantial economic injury. Our state FMLA has no similar provision. Which wins?

A: If an employee is eligible for both FMLA and state leave, the employer is required to provide the more generous leave. Thus, you shouldn’t rely on FMLA “key employee” provision if state doesn’t include it as well.

In our most recent Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue in the world right now.

To help lower your temperature, we’ll be answering your medical questions for the next several days.

Today’s Topic: FMLA

Q: Is it possible to terminate an employee on FMLA? If an employee has exhausted FMLA, does ADA automatically kick in or does the employee have to initiate it?

A: Generally, an employer may legally terminate employees for any legitimate non-discriminatory reason. However, recognize that employees who are terminated while on leave are likely to find the timing suspect and may file suit.  Also, an FMLA “serious health condition” does not automatically qualify as an ADA ” disability.” If the employee is unable to work or perform other major life activities, the condition may be an ADA-qualified disability. If so, it’s wise to engage in the ADA-mandated “interactive process” to determine what, if any, reasonable accommodation may be needed.

Click here for our handy ADA vs. FMLA Cheat Sheet.

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Q: We have an employee out on FMLA. Is it OK to use company email to communicate with him during that time? Is it OK if he is a salesperson and he makes some phone calls to customers during the leave?

A: From a technical standpoint, employees should not perform work while on leave and should not be instructed to do so. Employers should not contact employees on leave except to obtain information related to the reasons for the leave. If an employee is required to work while on FMLA, such time is compensable and can’t be counted toward FMLA leave.

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Q: Many times, I find out that one of our employees was or is in the hospital. How do you go about designating FMLA leave under those circumstances? I’ve heard about “provisional” FMLA — how do you designate that?

A: FMLA doesn’t specifically provide for the designation of “provisional” leave. However, an employer may designate leave as FMLA at any point within 5 days of “acquiring sufficient knowledge to believe” that an absence could qualify. If you don’t have the necessary information, you are permitted to seek it from the absent employee.

In our most recent Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, over the next several days we’ll be answering your medical-related questions.

Today’s topic: Drugs in the Workplace

Last week here on the Blawg, we provided answers to your questions about medical marijuana in the workplace. Here are some additional drug-related questions received from Blawg visitors.

Q: I swear that half our employees are zombies on drugs. We have no drug-testing program, so what’s required to prove that an employee is “under the influence?” Is changed behavior, slurred speech, staggering around, etc. enough?

A: Here are the keys to dealing with drug use in the workplace:

1. As with most employment law issues, rely on concrete, objective facts rather than subjective perceptions or jumping to conclusions.
2. If you don’t already have a drug-testing policy in place, adopt a reasonable one that has been vetted by an employment lawyer familiar with the laws in your state.
3. If you have a policy in place, you may want to update it and have it reviewed by an employment lawyer to ensure that it’s still valid under the law.
4. Consistently enforce the policy.
5. Test on “reasonable suspicion” or after a workplace accident.

Q: If a recovering alcoholic is using legal drugs (e.g., cough syrup) to get high in the workplace, how can an employer legally address that?

A: The ADA doesn’t protect current users of illegal drugs. Recovering addicts may be covered, but they don’t get a free pass to violate policies. Legal and prescribed drug use may be covered under the ADA unless it poses a clear “direct threat” to others’ safety. Your policy should prohibit employees from being under the influence of any substance (including over-the-counter medication) other than medicine legally prescribed by a licensed health care provider.

Tune in tomorrow for more answers to your medical questions. As always, please keep our official disclaimer in mind.

In last week’s Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, over the next several days we’ll be answering your medical-related questions.

Today’s topic: FMLA leave.

Here are two more questions we received (and our answers). As always, please keep our official disclaimer in mind and check with your favorite employment law attorney before taking any action.

Q: I find intermittent leave and the whole “rolling calendar” under FMLA confusing. If someone exhausts intermittent FMLA leave, how on earth do I know when they’re eligible again?

A: 1250 “hours worked” in the past 12 months doesn’t include paid vacation, sick time, holiday pay, paid FMLA and other pay for hours not actually worked. Click here for our handy FMLA Cheat Sheet for more.

Q: Can we require an hourly employee to use a minimum of 15-minute increments for intermittent leave?

A: You may limit increments to the shortest period of time the employer’s payroll system uses to account for other forms of leave (but no greater than one hour).

More Coming Next Week

We got such a positive response to this week’s Q&A series that we decided to do an encore next week. Stay tuned.

In last week’s Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue.

To help lower your temperature, over the next several days we’ll be answering your medical-related questions.

Today’s topic: FMLA leave.

Here are two questions we received (and our answers). As always, please keep our official disclaimer in mind and check with your favorite employment law attorney before taking any action.

Q: An employee exhausted her FMLA leave. She has another illness and is requesting FMLA again. We’re OK denying leave because she already used up her time within the “rolling calendar” year, right?

A: Maybe (would you expect any other answer from a lawyer?). While the employee may have exhausted her FMLA leave, don’t forget the ADA. Click here for our ADA vs. FMLA Cheat Sheet depicting the interplay between these two oft-misunderstood laws.

Q: Employees who have worked for periods of 4-11 months are requesting FMLA emergency medical leave. How much leave do we have to give them?

A: Zero. Employees must work for at least 12 months and 1250 hours during the previous 12-month period to qualify for FMLA leave. Click here for our handy FMLA Cheat Sheet. But, again, beware the ADA.

Tune in tomorrow for more answers to your questions.

In last week’s Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue in the world right now.

To help lower your temperature, all week long we’ll be answering your medical-related questions. Here’s today’s selection . . .

Q: Leave law leaves me confused. Could you please publish something simple that shows how the ADA and FMLA relate?

A: Ask and you will receive. Click here for our handy ADA vs. FMLA Cheat Sheet.

Tune in tomorrow for more answers to your medical-related questions.