A bill was introduced last week to amend the FMLA. The proposed changes focus on expanding the family relationships covered under the law. The bill expands coverage to allow leave to care for adult children, siblings, grandchildren, grandparents, parent-in-law, and same-sex spouses or domestic partners. Stay tuned as this proposal begins its journey through Congress.

In honor of the 20^th anniversary of the FMLA, the DOL issued final rules regarding the amendments to military family leave and airline flight crew FMLA eligibility. As part of the final rules, as of March 8, 2013, employers must use updated FMLA notice and certification forms. 

What day of the year is FMLA leave accessed the most? The day after the Super Bowl. Seriously. 

For a summary guide to the new regulations in Q & A format, click here. If you have a couple of hours to kill and are a glutton for punishment, you can link to the new rule itself here

The Department of Labor issued a new interpretation letter last week addressing the issue of adult children under the FMLA.

As most of you are aware, employees are not generally able to seek FMLA to care for a child over the age of 18. For an employee to be able to take leave to care for an adult child with a serious health condition, the adult child must be incapable of self-care because of a mental or physical disability. The hard part for employers is deciding whether the adult child actually clears that threshold. 

In its interpretation letter, the DOL notes that an employee is eligible for FMLA leave to care for an adult child if the adult child has a disability as defined by the ADA, is incapable of self-care due to the disability, has a serious health condition, AND is in need of care due to the serious health condition. The important point for employers to take away is the adult child needs to trigger all four of those elements. 

The interpretation letter contains a couple of examples to help employers understand how these adult-child rules will be applied. In one example, an adult child has an auto accident and is likely to clear the threshold and allow a parent to take FMLA leave. In another example, an adult child suffering from diabetes is determined not to clear the threshold for the parent to take FMLA leave.

The interpretation letter can be found here.  If you find yourself dealing with an adult child situation the letter is a good starting point.   

On a side note,      Continue Reading...

In honor of America's centennial, France gave us a gift: the Statue of Liberty. In recognition of its own centennial, the United States Department of Labor has given all of you a gift: a YouTube video chronicling its history. The six-minute-long video describes DOL's creation, introduces the labor secretaries, summarizes its legislative history, and promotes the things it does for workers. But be forewarned: the video is a slide slow, not a live-action film, and DOL tells the story to serve its own interests.  Watch the Video

The FMLA has been part of the workplace for nearly 20 years . . . and it hasn't gotten any easier for employers to administer.  For those looking to gain a deeper knowledge of the FMLA, Foulston Siefkin LLP lawyers will be presenting an FMLA Master Class on June 7 in Wichita.  This full-day event will address everything FMLA -- from basic to complex issues.  Sessions will include recent FMLA developments, what constitutes a serious health condition and how to collect appropriate medical information, military family leave, curbing FMLA abuse, and coordinating the FMLA with the ADA and Workers' Compensation laws.  For more information or to sign up, click here.  Be sure to enter the special "Friends of Foulston Siefkin" code to get a 20% discount on your registration (Offer Code: R500).

The Department of Labor (DOL) issued an unoffical set of proposed changes to the FMLA regulations earlier this week.  The proposed changes primarily focus on the military family leave provisions.  The proposed changes will eventually be published in the Federal Register and will seek comments from interested parties.  The DOL's stated goal is to add clarity for employers with respect to the military leave provisions of the FMLA.  The DOL describes the highlights of the proposal as follows:

• Extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty; 
• Creation of a flexible definition for the serious injury or illness of a veteran;
• Addition of a provision to cover serious injuries or illnesses that are an aggravation of a pre-existing condition if it occurs during military service;
• Inclusion of regular armed forces members under the military leave provisions (as compared to National Guard and Reserve);
• Creation of a foreign deployment requirement for qualifying exigency leave.

Stay tuned as the discussion of these proposed revisions to the regulation will gain steam in the coming months.  Once the DOL finalizes these proposed changes, employers will need to update their FMLA policies.  For access to the DOL page containing links to the information the DOL intends to publish in the federal register click here.

October is my favorite month of the year.  Warm, sunny days, followed by cool, crisp nights.  Colorful foliage.  Fall festivals.  College football.  Playoff baseball.  And, of course, the start of another U.S. Supreme Court session.

The Department of Labor is currently hiring.  While this is good news for recent college graduates looking for work, this may not be such good news for employers.  The DOL is continuing to focus its resources on enforcement of the Fair Labor Standards Act (FLSA).  This focus can mean only one thing for employers -- an increased likelihood of a wage and hour audit.  The local DOL office in Wichita, which covers most of Kansas, has added several new investigators in recent months and is currently hiring yet another.  These recent hires are just now starting to get out of their office and into employers' offices.  These additional investigators likely will result in increased enforcement activity going forward.  In the short-term, employers should consider self-auditing their pay practices, with the guidance of legal counsel under the attorney-client privilege, to ensure compliance with the FLSA prior to getting a visit from the DOL.

What does a crazy parent have to do with the FMLA?  Seems like a fair question to ask.  As a parent, most days I come away feeling a bit crazy. 

Instead of pondering the merits of crazy parents, or parents driven crazy, let's ponder the Department of Labor Wage and Hour Division's (DOL/WHD) recent Interpretation of the in loco parentis language contained within the FMLA regulations.  This recent pronouncement from the DOL/WHD appears to expand the group of employees who are able to claim parent status for purposes of taking FMLA to care for a child.  The regulations explain that individuals "who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child."  The new DOL/WHD interpretation softens this requirement by stating an employee qualifies as a parent by showing either day-to-day care or financial support so long as the employee intends to assume parental responsibility.  The practical implication of this interpretation is to further expand the group of individuals able to assert leave rights as the parent of a child.  Be mindful of this interpretative expansion as you receive FMLA requests related to the care of a child. 

You can find the text of the interpretation at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

• Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
• Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
• Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group should be intimately familiar with the response strategy and      Continue Reading...