DOL Publishes its Proposed Rules on Military Family Leave and Flight Crews; FMLA Forms No Longer "Expired"

Posted on February 16, 2012 by Leigh Anne Benedic

Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members of Reservists and members of the National Guard.

Highlights of the Proposed Regulations:

Qualifying Exigency Leave

  • Expanded to allow qualifying exigency leave for qualifying family members of individuals who serve in the regular armed services
  • Addition of a foreign deployment requirement associated with the active duty for which exigency leave is requested
  • Expanded leave available (from 5 to 15 days) for qualifying family members of servicemembers on rest and recuperation leave

Military Caregiver Leave

  • Expanded to allow military caregiver leave for qualifying family members of individuals who serve in the regular armed services and to recent veterans
  • Definition of "serious injury or illness"
    • Expanded to include conditions that existed before the servicemember joined the military or served active duty but were aggravated in the line of duty
    • For veterans, defined to include any of the following: (1) conditions that occurred while the veteran served and continued after the veteran's discharge; (2) physical or mental conditions for which the veteran has received a VA Service Related Disability Rating of 50% or higher; or (3) any injury or illness of similar severity as (1) or (2) that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment.

Flight Crew Employees

  • Hours of service eligibility criteria: Flight crew employees must meet at least 60% of the applicable monthly guarantee and must have worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation, sick leave or medical leave)
  • Calculation of leave taken: Includes specific calculations for leave usage with different methods for "line holders" and flight crew members on reserve status.
  • "Physical impossibility": The proposed rules clarify that the physical impossibility provision is to be used only in limited circumstances where, as applied to flight crew members, there are truly no flights available to restore the employee returning from FMLA leave. In such cases, the employer may count the delay to return the employee to work due to physical impossibility against the flight crew member's FMLA entitlement. However, the DOL is considering removing the "physical impossibility" requirement from the regulations altogether if it finds that employers have applying the provision more broadly than intended.

Note that these are proposed regulations not requiring employer compliance at this time—the DOL will collect comments from the public for the next 60 days, and after those comments are collected, the DOL will issue final rules that employers will be required to follow.

FMLA Model Forms and Notices:

As we reported previously, the optional FMLA forms supplied by the DOL expired on December 31, 2011. On Monday of this week, they reissued the identical forms as published before (available here) under a new expiration date of February 28, 2015. These forms still do not include the GINA safe harbor language we recommended in our previous post, nor do they account for the 2010 changes for military exigency leave. So they remain less than ideal, but at least are no longer past their expiration date.

At the same time, in the proposed rules published yesterday, the DOL stated that it intends to remove its current model forms and notices from the regulations' Appendices entirely, and to issue a revised FMLA poster and model forms and notices to reflect the final changes to the regulations that result from their latest proposal.
 

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Supreme Court Upholds "Cat's Paw" Liability

Posted on March 9, 2011 by Brian Hall

In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up on Mr. Staub’s concern with his supervisors, Ms. Buck simply conferred with another human resources staff member and adhered to her termination decision. Mr. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Ms. Buck had any such hostility but that his supervisors did, and that their actions influenced Ms. Buck’s ultimate employment decision. (This type of case has been referred to as a "Cat's Paw" case, based on an Aesop's fable involving a cat, a monkey, chestnuts and fire. Justice Scalia provides more information at footnote 1 of his majority opinion.)

A jury found that Mr. Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” and awarded $57,640 in damages. The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because Ms. Buck had relied on more than just the supervisors' advice in making her termination decision.

The Supreme Court reversed the Seventh Circuit's decision, holding that an employer will be liable under USERRA when a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and that act is a proximate cause of the ultimate employment action. In other words, an employer cannot "launder" an adverse employment decision based on information supplied by a supervisor with discriminatory motivation by submitting the supervisor's input to an unbiased decision-maker. The Supreme Court held that the hospital was not entitled to judgment as a matter of law because there was evidence that Mr. Staub's supervisors, motivated by their hostility towards Mr. Staub's military obligations, intended to and in fact were successful in convincing Ms. Buck that Mr. Staub had violated the terms of a prior disciplinary warning. As a result, the biased supervisors' actions were causal factors in the termination decision. The Supreme Court noted that the employer could not insulate itself from liability by relying on Ms. Buck's independent investigation because she ultimately relied on the discriminatory input from the supervisors in arriving at her termination decision. According to the Court, "The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision."

Although the Staub case arose under USERRA, employers can anticipate courts applying this analysis in cases arising under Title VII, the ADA and other federal employment laws that have similar standards of liability as the "motivating factor" standard under USERRA. Although employers cannot eliminate the risk of liability by having decisionmakers conduct independent investigations, such investigations by a disinterested decisionmaker can reduce the potential for liability whenever there is a suggestion that discriminatory motives may be playing a role in the effort to discipline or terminate an employee.
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Ohio's New Military Family Leave Law Takes Effect

Posted on July 13, 2010 by Michael A. Jackson

Employers should take notice of Ohio Revised Code Chapter 5906, which became effective on July 2, 2010. This law requires employers with 50 or more employees to provide up to two weeks of unpaid leave to an employee who is the spouse, parent, or a person with legal custody of a uniformed service member called into active duty or injured while on active duty. Under the new Ohio law, employers must allow employees to take leave up to 10 days or 80 hours, whichever is less, once per calendar year. During this time, employers must continue to provide benefits other than salary and wages to employees and, upon their return, restore these employees to the positions they held prior to taking leave with equivalent benefits, pay, and other terms and conditions of employment. 

However, employees must first satisfy several conditions and obligations to be eligible for leave. First, employees must have been employed for at least 12 consecutive months and for at least 1,250 hours in the 12 months preceding the commencement of leave. Second, these employees must not have any other leave available to use except sick leave or disability leave, and the dates on which they take leave must not occur more than two weeks prior to, or one week after, the deployment date of the service member spouse or child. Employees must also provide their employer with at least 14 days notice of their intent to take leave because of a call to active duty and at least two days notice prior to leave taken because of an injury, wound, or hospitalization (but no notice is required if the injury is critical or life-threatening). Finally, employees must supply certification from appropriate military personnel if employers seek to verify their fitness for leave.

Once employees satisfy these conditions, they are entitled to leave under the new law. To ensure that employees are not wrongfully denied leave, the new law places several restraints upon employers. Specifically, employers are prohibited from interfering with, restraining, or denying the exercise or attempted exercise of leave. Employers cannot discharge, fine, suspend, expel, discipline, or discriminate against employees regarding terms and conditions of employment simply because these employees seek to exercise leave rights. Lastly, employers cannot ask employees to waive leave rights or enter into a collective bargaining agreement or employee benefit plan that limits or requires an employee to waive leave rights. Any employer who violates these prohibitions is subject to civil liability for injunctive relief or any other relief that a court finds necessary to secure leave rights.

Because the Ohio law does not contain any geographic restrictions regarding coverage (as the federal law—which requires employees to be within a 75-mile radius—does), Ohio employers should be aware that this law will apply to more employees than similar federal FMLA provisions and, in some instances, may result in employees being entitled to leave under state law even though they have exhausted federal leave entitlement. To ensure proper compliance, employers should familiarize themselves with this law and federal FMLA provisions concerning military family leave. Finally, employers should consult with counsel as compliance concerns arise.
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Expansion of FMLA Entitlement for Military Families

Posted on November 5, 2009 by Marc Fleischauer

The Family and Medical Leave Act has undergone yet another expansion. On October 27, 2009, President Obama signed H.R. 2647, known as the "Fiscal Year 2010 National Defense Authorization Act.” This new law comes on the heels of new FMLA rights that were just drafted at the end of 2008 for employees with family members serving in the military. 

As we described at the time in 2008 Final Regulations for the FMLA:  A Summary, the FMLA military leave provision effective at the beginning of 2009 originally extended the following protections:

 

(a) up to 12 weeks of leave for families of National Guard and Reserve personnel on active duty in order to manage activities associated with such service, known as “qualifying exigencies,” and 

 

(b) up to 26 weeks of leave for employees needed to care for family members in the military with a “serious injury or illness” that was incurred in the line of duty.

 

The new law expands both of these protections: 

 

(a) The 12-week “qualifying exigency” leave now applies to employees whose spouses, children or parents are on “regular” active military duty (i.e., not just National Guard and Reserve personnel) and are deployed to a foreign country. The prior language of the statute was ambiguous as to protection for families of regular military personnel.

 

(b)  Likewise, the 26-week “caregiver” leave now expressly extends to employees whose family members or next of kin have been discharged from the military (i.e., veterans) within five years before the need for treatment of a serious injury or illness. “Serious injury and illness” is now defined by the statute to include instances where a preexisting impairment merely has been aggravated by military service. 

 

These expansions of the FMLA went into effect upon signing. It seems likely that the U.S. Department of Labor will promulgate yet another set of recommended forms to cover these new circumstances in the near future. We will continue to monitor the issue and keep readers informed.

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FMLA Update - Are You Posted?

Posted on April 21, 2008 by Franck Wobst

Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

The military family leave amendment took effect immediately, but left some key issues arising from the new leave categories unresolved. For example, rather than defining what constitutes a “qualifying exigency,” the Congress directed the Department of Labor to define the term in regulations. The DOL is also expected to develop new forms that employees, employers and medical providers can use in reference to the new leave categories. As of today, the DOL has not yet issued even proposed regulations for the military family leave amendment, and the final regulations and military leave forms may still be months away. At the same time, employers also are waiting to see what the DOL will do with respect to the proposed changes to the original FMLA regulations that were released for public comment in February of this year.

Many employers may be waiting for the DOL to issue the new FMLA regulations before revising their policies to include the new military family leave categories. This seems reasonable, but has not been expressly endorsed by the DOL as an acceptable approach. Thus, employers may be acting at their own peril if they wait too long to amend their FMLA policies to incorporate the new leave categories and to address additional issues related to the FMLA amendment. One thing that all employers covered by the FMLA should do immediately if they have not already done so is to post the Notice that the DOL did issue that advises employees of their new rights to military family leave. A copy of that posting is attached hereto, and the Notice can be obtained directly from the DOL's website. Posting of the DOL’s Military Family Leave Notice on employee bulletin boards where other employment law notices are posted is required by the FMLA. Moreover, by complying with this posting requirement, employers can say that they have informed employees of their new rights, albeit not as comprehensively as they will when they revise their employee handbook policies.
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