Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

On October 29,2009, President Obama signed into law the  Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).  The new law includes an expansion of the recently enacted exigency and caregiver leave provisions for military families under the FMLA.  In January, 2008, Congress amended the FMLA to provide for Exigency Leave up to 12 weeks of leave for urgent needs related to a reservist family member's (spouse, son daughter or parent) call to active service.  H.R. 2647 expands the exigency leave benefits to include family members of active duty service members.  Under the current law, only family members of National Guard and Reservists were eligible for "exigency leave". 

The FMLA previously provided Caregiver Leave, up to 26 weeks of unpaid leave to an employee to care for a family member (spouse, son, daughter, parent or next of kin) who is injured while serving on active military duty.  H.R. 2647 expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment. 

Practice pointer.  HR must be aware of these changes and be prepared to deal with issues involving the expanded coverage of the FMLA as it applies to exigency leave and caregiver leave. 

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As I was watching the news this morning, there were numerous reports of H1N1 flu being reported at schools around the state.  Many experts expect that it will spread throughout the country, reaching pandemic proportions.  As the H1N1 flu continues to spread, it raises many issues for the workplace.  First, the question is how to prevent it's spread.  The CDC's website has a great deal of information addressing the prevention of the spread of the flu.  Wash your hands often, if you sneeze or cough, do it into a tissue and throw it away, sanitize surfaces (clorox wipes seem to work), and if you are sick, stay away from others for 24 hours after the fever breaks. 

Another issue is the impact of the ADA on the workforce in relation to the H1N1 flu.  At pandemicflu.gov, there is a FAQ section.  Questions can be asked of the workforce about the flu if done correctly.  The website sets forth the following:  "An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity)."  Before asking any of these questions, employers should review this website and/or consult with their attorney to ensure that the are in compliance with the ADA.

H1N1 flu may also have FMLA implications.   Assuming an employee qualifies for FMLA leave,  he/she may be entitled to FMLA leave if they are suffering from the flu.  The employee would need to be absent 3 or more days, and would have to be treated by a health care provider on at least 2 occasions or visit a health care provider 1 time, resulting in a regimen of continuing treatment under the supervision of the health care provider.

Practice Pointers  The experts are predicting that the Swine Flu will have a major impact across the country.  It is already being felt in Alabama in numerous schools and colleges, and is creeping into the workplace.  HR needs to prepare now, if it has not already done so, to cope with the problems that may be caused by the flu.  The problems may include extended absences, controlling the spread of the flu, and making sure that there is enough manpower to get the work done.  Don't be tempted to permit sick workers, or their children, to be at the workplace.  Finally, treat all employees the same.  If an employee does not have any leave time left, and does not qualify for FMLA leave, do you provide additional paid time off? Unpaid time off? Termination?  Whatever the decision is, it must be consistently applied to all of the workforce. 

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Beginning today, January 16, 2009, the Department of Labor's regulations concerning the FMLA are now in effect.  Based on my review of the final regulations, I believe that the following 3 components of the FMLA will have the most impact on employers.

1.  Military caregiver leave and qualifying exigency leave.  Eligible employees who are family members of covered servicemembers are now able to take up to 26 work weeks of leave in a single 12 month period to care for a covered servicemember with a serious illness or injury suffered in the line of duty while on actiive duty.  For a more detailed discussion of this change, please see my blog entry of December 4, 2008.

2.  Employer notice obligations and new forms.  Employers are now required to give employees general notice of the FMLA, through a poster and either an employee handbook or upon hire, an eligibility notice, notice of rights and responsibilities, and a designation notice.  There are new forms published by DOL  and available on the  DOL website.

3.  Adoption of the Ragsdale decision.  The United States Supreme Court decided the case of Ragsdale v. Wolverine World Wide Inc, which found that an employer does not need to provide additional FMLA leave as a penalty for failure to appropriately designate FMLA leave.  The final rule, although removing the prior categorical penalty provisions, does find that when an employee suffers individualized harm due to the failure to properly follow the notification rules, the employer may be liable.

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The Seattle Business Journal recently reported that in a survey of companies in the United States and Great Britain, corporate counsel expected the number of lawsuits filed against their companies  to increase in 2009.  Fulbright and Jaworski's 5th annual Litigation Trends Survey shows that 34% of companies are anticipating increased litigation in 2009, as opposed to 22% who predicted increased litigation for 2008.  The report goes on to state that in-house counsel reported increases in wage and hour litigation and privacy claims. 

As we rapidly approach 2009,  the Americans With Disabilities Amendment Act of 2008, with an effective date of January 1, 2009, and the new FMLA Regulations, with an effective date of January 16, 2009, will, in my judgment, lead to an increase in litigation in these areas.  Now is the time for employers to educate their HR professionals, managers and supervisory staff so they can effectively deal with these changes.

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The Department of Labor published its Final Rule to implement the FMLA amendments on November 17, 2008.  The effective date of the amendments is January 16, 2009.  Section 585(a) of the National Defense Authorization Act for Fiscal year 2008 provided two new leave entitlements for Military Family Leave:

1.  Military Caregiver Leave.  Family members who qualify for FMLA are entitled to take up to 26 weeks of leave in a single 12 month period to care for a covered service member who has a serious illness or injury that was incurred in the line of duty while on active duty.  The definition of "Family Member" for Military Caregiver Leave goes beyond the FMLA definition to include spouse, parent (including step-parent and foster parent, but not in-laws), son, daughter and next of kin (up to first cousins).

2.  Qualifying Exigency Leave.  This leave is applicable to families of National Guard and Reserve members to help manage their affairs while on active duty.  Family members, otherwise qualified for FMLA leave, are entitled to up to 12 weeks of FMLA job protected leave for any qualifying exigency, which includes:

     a.  Short term deployment (leave up to 7 days)

     b.  Military events and related activites

     c.  Child care and school activities

     d.  Financial and legal arrangements

     e.  Counseling

     f.  Rest and recuperation (leave up to 5 days)

     g.  Post-deployment activities

     h.  Addtional activities (agreed upon by the employer and employee as to nature and duration)

Practice Pointers 

1.  As our servicemembers continue to be deployed, their qualifying family members are entitled to new types of leave.  HR and supervisors should be made aware of these changes and how they may impact their employees.

2.  The new leave also applies to certain post-deployment activities.  Again, HR and supervisors need to be made aware of these changes so that they can addrss these issues as they arise.

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The Department of Labor recently issued extensive (over 750 pages) FMLA regulations, effective January 16, 2009. Among other things, these regulations address Military Family Leave, allowing up to 26 weeks of leave to care for a servicemember. These  regulations attempt to reconcile the differences between the 2008 FMLA amendments, existing military law, and USERRA.

I will continue to update you as to what I believe are the important issues created by the new regulations as we get closer to January 16, 2009.

Practice Pointers

1. Get ready to train your HR staff concerning the new FMLA regulations.

2. Train your front line supervisors concerning the FMLA process in light of the new FMLA regulations.

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