The U.S. Department of Labor (DOL) has issued updated Family & Medical Leave Act (FMLA) forms. The Paperwork Reduction Act of 1995 requires DOL to review and resubmit its forms for approval by the Federal Office of Management and Budget (OMB) every three years. The expiration date on the last round of FMLA forms was due in May 2018, after several monthly extensions, the DOL has issued new forms. The only change or “update” on the new FMLA forms is the expiration date in the upper right hand corner is changed to 2021. The new forms can be obtained from the DOL website at https://www.dol.gov/whd/fmla/forms.htm, or by contacting our Employment Law attorneys.
This is a reminder for employers who have grown to double check whether they now have 50 or more employees, which is the threshold for FMLA coverage. The details are that the FMLA applies to an employer that has or had 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Part-time employees are counted. Also included are joint employees, which are workers on the payroll of another employer, such as a subcontractor (e.g., temporary services firm), but under sufficient control by the entity for whom they are doing work to be considered an employee of both entities. Persons listed as interns can also be considered as employees under certain circumstances (earlier this year the DOL abandoned its six-factor rule on when interns are considered employees to now follow the increasing trend of courts to analyze whether the interns’ activities are primarily for the benefit of the employer or the intern).
If you are covered by the FMLA, you are required to issue an FMLA policy and make elections on how you will count the 12 or 26 weeks leave time permitted—calendar year or a rolling forward or backwards 12 months. Covered employers are also required to give certain written notices within designated short time periods when someone does take covered leave. The DOL forms are strongly suggested for these purposes as they are deemed compliant. There are numerous other aspects to the FMLA, many of which are covered in prior articles on our firm website, which can be found here.
The DOL also recently issued an opinion letter under the FMLA approving an employer’s no-fault attendance policy that essentially froze an employee’s accumulated absence points during the FMLA leave. The general rule under the FMLA is that FMLA covered absences cannot be held against an employee or considered when issuing discipline or discharge. Freezing absenteeism points during an FMLA leave is acceptable as it puts employees in the same position at the end of the leave that they were at the start with regard to discipline. A catch to avoid is that if non-FMLA leave (e.g., personal leave) is counted towards a time period that results in removing absenteeism points (e.g., points are removed after 12 or 24 months) then so too must FMLA time be counted. So check your practices and policy if you have an absenteeism point system and are covered by the FMLA. As a side note, I do not typically recommend point systems as they remove employer discretion and judgment and provide a guide for employees who want to ride or abuse the system.
Finally, if you are covered by the FMLA, don’t forget that just because an employee has used up all of his or her FMLA leave time that doesn’t necessarily mean the employee no longer has any legal protection. For example, depending on the circumstances, disability accommodation requirements may require giving some additional leave time as a reasonable accommodation. Recent court decisions generally view short-term leave more favorably than indefinite or long-term continued leave.
If you have questions on the Family and Medical Leave Act or any other employment law matter, contact one of the following Employment Law attorneys: