Light Summer Reading from the Department of Labor

Posted on: July 21, 2016 0

By Marti Cardi, VP-Product Compliance
Back in April the U.S. Department of Labor unveiled its new Employer’s Guide to the Family and Medical Leave Act.  (Our report is here.) The Guide was released to coincide with the annual FMLA/ADA Employer Compliance Conference hosted by Disability Management Employer Coalition in Pittsburgh.  Helen Applewhaite, FMLA Branch Chief for the DOL, announced the Guide to attendees in opening remarks. Then Ms. Applewhaite and I co-presented on some tough FMLA issues (2nd/3rd opinions, anyone?), and presented parts of the Guide as a resource for employers.

Now the DOL has released a blog post, “What Employers Need to Know About the Family and Medical Leave Act,” more formally introducing the Employer’s Guide to the rest of the employer community.  The post has a short introductory video and a link to download or order copies of the Guide.  It also has links to the Matrix blog post and my friend Jeff Nowak’s blog announcing the introduction of the Employer’s Guide at the DMEC conference.  Thanks to the DOL for the nod!

If you haven’t yet reviewed the Employer’s Guide, you should.  It doesn’t answer all the difficult FMLA questions we encounter, but it does provide an easy-to-read, non-legal resource for employers.

While you’re at it, also take a look at the Family and Medical Leave Act Employee Guide.  This concise booklet can serve as a great training and reference tool for your employees.  What do I like about it?  The Employee Guide doesn’t just explain employee leave rights under the FMLA; it also advises employees of their obligations if they want to benefit from FMLA leave.  FMLA is a two-way street, with both parties – employer and employee – having rights and obligations.

Happy beach reading!

Matrix Can Help!  Even with the new Employer’s Guide, managing FMLA leave remains a tricky and complicated business.  Add various state leave laws, the Americans with Disabilities Act, worker’s compensation and company policies, and you have a perfect storm of challenging employee rights. At Matrix we are experts in these state and federal laws. We specialize in understanding how they work together and in monitoring developments so you don’t have to. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

An Excellent Week for FMLA/ADA Geeks

Posted on: May 2, 2016 1

By Gail Cohen, Director, Compliance & Employment Law

One of Matrix’s promises to our clients it to be on top of developments in the world of accommodations and leaves of absence.  One way we do this is to develop relationships with the head honchos at the agencies that administer key laws:  the U.S. Department of Labor for FMLA, and the U.S. Equal Employment Opportunity Commission for the ADA.  Last week two members of our compliance team had opportunities to further those relationships.  Gail Cohen attended a meeting in Washington DC with two EEOC Commissioners, and Marti Cardi presented together with the DOL’s FMLA Branch Chief at the Disability Management Employer Coalition (DMEC) national FMLA/ADA Compliance Conference.   Here are summaries of these key events.

DMEC presentation with FMLA Branch Chief  On Monday April 25, Helen Applewhaite (head of the DOL’s FMLA branch) and Marti Cardi (Matrix’s Vice President of Product Compliance) jointly presented a plenary session at the DMEC conference entitled, “The DOL Steps Up For Employers:  Hands-On FMLA Leave Management Guidance.” A copy of the full presentation is available below. The session had 3 main areas of focus.

First, Applewhaite addressed specific challenges the DOL still sees employers struggling with more than 23 years after enactment of the FMLA.  These included the many employer notice obligations required by the regulations, including posting, general policy, eligibility, rights and responsibilities, and designation notices.  These may seem to employers like simple requirements, but the DOL continues to see violations of these notice obligations, which can be the basis for an FMLA interference claim.  Cardi added a reminder of the employer’s obligation to notify an employee each time a certification form will be required for a leave, addressed in the recent case Graziadio v. Culinary Institute of America  (2nd Cir. 2016).  Conference attendees were reminded to ensure not only that they comply with these notice requirements, but also that the contents are up to date.  Anything prepared prior to 2013 (the last major revision to the FMLA regulations) needs a close review and update.

Second, Cardi addressed FMLA challenges she sees from the practitioner’s perspective – areas that are not well addressed in the FMLA regulations and other DOL materials.  One such area is the use of second and third opinions in the certification process.   An employer can require a second opinion when it has reason to doubt the validity of the original certification from the employee’s health care provider (HCP) – but the term “validity” is never defined in the regulations or other DOL resources.  Cardi presented examples of circumstances that might justify a second opinion:  the HCP’s area of practice does not relate to the serious health condition at issue; the HCP is a close relative of the employee; the same HCP has provided identical certification information for multiple employees; or frequency and duration that are extremely excessive for the condition.

Third, throughout the session, Applewhaite and Cardi referred attendees to resources available to employers on the DOL FMLA website (www.dol.gov/whd/fmla).  These include links to the FMLA regulations themselves plus important guidance like fact sheets, FAQs, forms, Administrator Interpretations, and more.  Applewhaite also introduced the extensive new Employer’s Guide to the Family and Medical Leave Act, available on the FMLA website.  See our prior blog post about the new Guide here.  Applewhaite and Cardi reminded attendees that using broad internet searches for answers to FMLA questions is risky.  Some sources are less than trustworthy, and even those that are dependable (such as this one!) may become out of date on a particular topic down the road.

Here’s a copy of the presentation.

Meeting with EEOC Commissioners Feldblum and Lipnic On Tuesday, April 26, 2016, Gail Cohen had the privilege of attending a small meeting with EEOC Commissioners Victoria Lipnic and Chai Feldblum at EEOC headquarters in Washington, D.C.  The meeting was sponsored by the Labor and Employment Section of the Association of Corporate Counsel.  During the meeting the Commissioners addressed certain important ADA-related topics.

ADA Leave as an Accommodation – Interaction with the FMLA According to Commissioner Feldblum, anytime an employee makes a request for FMLA leave for his or her own serious health condition, this is an opportunity for the employer to also consider its obligations to engage in the interactive process under the ADA.  Commissioner Feldblum further expressed the opinion that the requirement to initiate consideration of leave as an accommodation under the ADA arises even if the employee has not returned the required certification of health care provider to support his or her need for FMLA leave despite being afforded the opportunity to do so.  We at Matrix do not agree with the EEOC’s interpretation that an employer has to chase after an employee who has failed to support his or her request for FMLA leave.   However, it is wise to consider, prior to taking any adverse action against that employee for an absence not supported by FMLA paperwork, what other steps, if any, the employer  might want to take to ensure that a decision to take adverse action in close proximity to an FMLA request is appropriate and well-documented.

EEOC Priorities For ADA  Enforcement At the meeting, Cohen had the opportunity to ask Commissioners Lipnic and Feldblum about the EEOC’s priorities for ADA enforcement.  Those priorities are:

  • Leave as an accommodation under the ADA. Many employers have inflexible leave policies with automatic termination at a certain point, such as exhaustion of a certain number of weeks of leave, completion of the worker’s compensation process without being able to return to work full time/full duty, and exhaustion of disability benefits without being “100% healed.”   The Commission continues to stress the need for an individualized analysis of the employee’s specific situation to determine whether or not an extension of leave may be a reasonable accommodation that will enable the employee to return to work;
  • Employer job descriptions that identify as essential job functions items which are actually “qualification standards.” Commissioner Feldblum cautioned that the EEOC is scrutinizing employer job descriptions to ensure that they describe essential functions – which she defined as the tasks required to perform the job as opposed to a pre-existing qualification for the position. An example she gave is whether “the ability to work any shift” is truly an essential job function as opposed to something that is not truly a job requirement and therefore is fair game for employers to be flexible.
  • Commissioners take a sunny view of the hurdle of hardship. Both Commissioners expressed the opinion that showing a requested  accommodation is an undue hardship is not the insurmountable hurdle employers believe it to be.  If an accommodation is reasonable and effective, then the employer’s only reason not to provide the accommodation is that it poses an undue hardship.  Despite the Commissioners’ optimism, employers must closely analyze the hardship posed by a requested accommodation and be able to support a hardship determination with specific facts (financial, operational, or otherwise).
  • Reassignment as an ADA accommodation. Many employers don’t fully understand their obligation to provide reassignment to a vacant position as the accommodation of last resort. If an employee’s limitations prevent him or her from performing the essential functions of the job, the employer has the obligation to search for a vacant position for which the employee is qualified.  See our post on this topic here.

MATRIX CAN HELP! The Americans with Disabilities Act presents many challenges for employers.  Addressing accommodation requests doesn’t have to be one of them.  Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process and reduce the risk of being involved in a lawsuit for failure to accommodate.  We will initiate an ADA claim for your employee, conduct the medical intake if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

DOL Announces New FMLA Employer’s Guide

Posted on: April 25, 2016 1

spyglass into trumpet modTa da!   Today the U.S. Department of Labor unveiled its long-awaited, brand-spankin’-new Employer’s Guide to the Family and Medical Leave Act.  The DOL has been promising this Guide for close to two years.FMLA Employer Guide

FMLA Branch Chief Helen Applewhaite, speaking today in Pittsburgh at the annual FMLA/ADA Employer Compliance Conference hosted by Disability Management Employer Coalition, shared some features of the new employer resource.

The Guide closely follows the FMLA regulations but the information is presented in a much more user-friendly format.  Key topics covered include:

  • Covered employers
  • Employee eligibility
  • Employer notice obligations
  • Qualifying leave reasons (including specific sections on military exigencies and caring for a servicemember)
  • The certification process
  • Managing the FMLA leave (calculating usage, continued benefits, etc.)
  • Job restoration
  • Recordkeeping requirements
  • Interaction with other laws

In addition to using simpler language than one finds in the regulations (legalese, be gone!) the Guide uses several tools to make the material more understandable to employers.  These include, for example:

  • “Did You Know?” bullets that call out specific points the DOL wants to bring to employers’ attention
  • Citations to supporting regulations for those who want more information or the exact language
  • Story boards illustrating particular processes (no, they are not “comic strips”!). Here’s an example of how to handle an incomplete certification: DOL_graphic
  • Links to DOL forms and notices on the DOL website
  • Charts providing information in easily digested format, like this one addressing some of the information an employer can require for intermittent leave: DOL chart
  • Flowcharts demonstrating processes, like this one showing the steps in dealing with an employee’s certification:DOL_certification

The Employer’s Guide does not break any new ground or answer the tough questions not covered by the FMLA regulations (and there are many of those, right?).  That is not the DOL’s style.  New or detailed guidance on FMLA typically comes through new regulations or the too-rare Administrator Interpretations.So let’s all check out the new Guide, use it, and discover whether it is a helpful tool for you.  The DOL expects this to be a dynamic document and welcomes employer comments and suggestions for future enhancements.

Matrix Can Help!  Even with the new Employer’s Guide, managing FMLA leaves remains tricky and complicated business.  Add in various state leave laws, the Americans with Disabilities Act, worker’s compensation, and company policies and you have a perfect storm of challenging employee rights.   At Matrix we are experts in these state and federal laws.  We specialize in understanding how they work together and in keeping up to date so you don’t have to.  For leave management and accommodation assistance, call Matrix at 800-866-2301.

Caution, Joint Employers:  The DOL is Looking for YOU!

Posted on: January 27, 2016 2

By Marti Cardi, Matrix VP-Product Compliance

SignEmployers, it’s time to take a broad look at your relationships with your workers.  Joint employer compliance with the FMLA is on the DOL’s radar, and the agency is finding many businesses short on adherence to the applicable regulations.  The DOL asserts that today’s varied worker arrangements are causing a “fissured” workplace and promises to “continue to identify where joint employment applies and to hold all employers responsible.”

To this end, on January 20th, the U.S. Department of Labor (DOL) released a new Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers.  While the AI addresses the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act, the DOL concurrently issued a new Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.

What are “joint employers”?  The DOL’s helpful definition is that “joint employment exists when a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with the FMLA.”  In actuality, the existence of joint employment is a fact-specific determination.  Relevant considerations include whether the two (or more) employers have shared owners, management, administrative or operational functions, customers, and control of the employees.  Joint employment relationships may exist in a variety of contexts, including direct sharing of employees and using third-party management companies, staffing agencies, or labor providers.  The AI provides more detail and many examples of joint employer situations.

Primary and secondary employers.  In most joint employment situations, one employer will be the primary employer and the other(s) will be the secondary employer.  DOL’s FMLA Fact Sheet #28N instructs that the determination depends (again) on the particular facts, including:

  • who has authority to hire and fire, and to place or assign work to the employee;
  • who decides how, when, and the amount that the employee is paid; and
  • who provides the employee’s leave or other employment benefits.

Primary and secondary employers’ obligations under the FMLA. The primary and secondary joint employers have differing FMLA obligations.  The primary employer is responsible for FMLA compliance from soup to nuts: providing required notices to employees, providing FMLA leave, maintaining group health insurance benefits during leave, restoring the employee to the same or equivalent position following leave, and keeping the required FMLA records.

The secondary employer has more limited FMLA responsibilities.  In certain circumstances the secondary employer may be obligated to restore the employee to the same or equivalent job after FMLA leave, such as when it continues to use the services of a placement agency and the agency again places the employee with that client employer.  The secondary employer must keep basic payroll and identifying employee data with respect to any jointly-employed workers.  And of course, the secondary employer is also responsible for compliance with all the provisions of the FMLA for its regular, permanent workforce.

This handy table outlines the employers’ respective FMLA responsibilities, compliments of the DOL in Fact Sheet #28N.  (Note that the table assumes both employers are FMLA-covered and that the employee is eligible for FMLA leave.)

FMLA Responsibilities of Joint Employers Primary Employer Secondary Employer
Count jointly-employed employees for coverage and eligibility determinations (Fact Sheet #28) Yes. Yes.
For employee-eligibility determination, use its worksite for the eligibility test (50 employees within 75-miles of the worksite) (Fact Sheet #28) Yes, unless the employee has physically worked at the secondary employer’s facility for at least one year. No, unless the employee has physically worked at the secondary employer’s facility for at least one year.
Provide FMLA notices to the jointly-employed employee (Fact Sheet #28D) Yes. No; however the secondary employer must provide FMLA notices to its own employees.
Provide FMLA leave to the jointly-employed employee (Fact Sheet #28F) Yes. No; however the secondary employer must provide FMLA leave to its own eligible employees.
Maintain benefits for the jointly-employed employee (Fact Sheet #28A) Yes. No; however the secondary employer must maintain benefits for its own employees who take FMLA leave.
Restore the jointly-employed employee to work (Fact Sheet #28A) Yes. No, unless the secondary employer is continuing to use the placement agency and the agency places the employee with that secondary employer.
Not retaliate, discriminate or interfere (Fact Sheet #28A and Fact Sheet #77B) Yes. Yes.
Keep records Yes, the primary employer keeps all required records. Yes, the secondary employer keeps payroll data and identifying employee information.

PINGPings for employers.   With heightened scrutiny from the DOL and a promise to “hold all employers responsible” for employment law compliance, it behooves employers to look closely at their worker relationships.

If your company has any alternative or contingent work arrangements, shares employees with another company (e.g., an affiliate), or engages any workers through a temp, staffing, or labor agency, consider the following actions:

  • Conduct an analysis of any worker arrangements that are not straight-up employer-employee relationships. Use  Administrator’s Interpretation 2016-1 and DOL Fact Sheets #28N and #35 as guides.
  • Inquire about the FMLA practices of any staffing or labor agency you use to ensure it is fulfilling its FMLA obligations.
  • Coordinate FMLA compliance with any other employer with which you share workers.
  • Remember that the joint employer rules have implications far beyond FMLA obligations – most notably, the wage and hour rules established by the Fair Labor Standards Act.
  • Be prepared to make changes if necessary. It might be tough, but better to clean up your practices voluntarily than to have the DOL order you to do it – after an expensive, disruptive, and time-consuming DOL investigation that might result in fines and damage awards to employees.