On November 30, the Wage and Hour Division of the U.S. Department of Labor issued two new Opinion Letters dealing with two rather uncommon Fair Labor Standard Act situations.
FLSA2020-17: Calculation of piece-rate regular rate of pay. Addresses the proper method to be used to calculate the regular rate of pay of an employee paid on a piece-rate basis in the absence of a specific agreement with the employee to use such method. (As an aside, always commit the use of this method to writing.)
FLSA2020-18: Does insect farming equal agriculture. Addresses whether insect farming qualifies as “agriculture” under the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements under Section 13(b)(12).
You can read the full Opinion Letters here https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_30_17_FLSA.pdf and here https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_30_18_FLSA.pdf if either situation applies to you.
Those of you who are keeping up with the pronouncements of our federal government regarding an employer’s obligations under the Families First Coronavirus Response Act are aware that there are still some questions outstanding. Yesterday the DOL answered three of those questions when it issued Q&A’s 98, 99 and 100. (You can find the Q&A’s here https://protect-us.mimecast.com/s/_ACiCERPgZCW49OkTNCJIo?domain=dol.gov).
Specifically, the DOL indicated that:
98. If a child’s school requires the child to alternate between in-person and remote-learning on a day-to-day basis, the parent is entitled to take FFCRA leave on the days that the child is required to remote-learn, assuming that other requirements of the Act are met.
99. If a school gives parents a choice between remote or in-person learning, the parent may not take FFCRA leave if they choose to have their child remote-learn, even if the parent did so out of fear that the child would contract COVID-19.
100. A parent may take FFCRA leave even if a school is utilizing remote-learning on a temporary basis and intends to open to in-person schooling in the near future.
None of these Answers prohibit an employer from allowing an employee to take leave when it is not required by the FFCRA. However, if an employer does so, it should not deduct that leave from the employee’s FFCRA leave “bank” or utilize the tax deduction allowed by the FFCRA for that additional leave.
In July, the DOL issued a couple of new Questions and Answers regarding the FMLA. One of them addresses the issue of whether a remote or telemedicine visit with a health care provider can qualify as an “in-patient” visit. As a rule, in order for a condition that does not require in-patient care to qualify as a serious health condition one must receive in-person treatment by a health care provider.
29 CFR Section 825.115(a)(3) provides:
(3) The requirement in paragraphs (a)(1) and (2) of this section (which require ‘treatment by a health care provider’) for treatment by a health care provider means an in-person visit to a health care provider.
Since the regulations clearly require an in-person visit, my initial thought was that the answer to this question would be “No.” Well, I was wrong. Q & A number 12 states:
12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.
So, until at least December 31, 2020, remote or telemedicine visits that meet the requirements above will qualify as in-person visits under the FMLA. All HR professionals who manage the application of their company’s FMLA program (and lawyers who think they know a thing or two about the FMLA), should make note of this change since it is going to expand the number of situations in which an employee will be eligible for FMLA leave.
Last week the DOL announced that it was issuing new optional FMLA forms. You can find the announcement, and the forms, here. https://www.dol.gov/agencies/whd/fmla/forms
The new forms contain some subtle differences and, as I said, they are optional.
As always, keep in mind that you cannot require an employee who has already provided you with certification documentation to fill out the new forms nor can you even require an employee to use any certain forms. Per the DOL: “An employer must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying.”
Yesterday, the DOL issued an opinion letter indicating that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.
The child in question received “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.” Periodically, the parents, school administrators and the child’s speech pathologist, school psychologist, and therapists had IEP meetings to “review the child’s educational and medical needs, well-being, and progress.”
The DOL determined that the employee’s attendance at the IEP meetings constituted “care for a family member … with a serious health condition.” Care for a family member includes both physical and psychological care. As noted above, “to care for” a family member with a serious health condition includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b)
- This is not a radical expansion of the FMLA and in fact, follows a sparse but consistent line of cases and prior opinion letters protecting leave for meetings with caregivers.
- Employers must train their supervisors to spot this type of FMLA leave request. It would be easy for a supervisor to reject this request out of hand.
- Employers should require proper FMLA certification so that they can confirm that the leave is protected.
On April 25, 2019, a U.S. District Court for the District of Columbia ruled that employers who are required to file EEO-1 reports must submit Component 2 pay data for calendar years 2017 and 2018 by September 30, 2019. (This generally applies to EEO-1 filers with 100 or more employees; both in the private industry and federal contractors and subcontractors.) You may recall that the OMB initially approved pay data collection, and then stayed its permission, in 2017. Advocacy groups filed suit in the D.C. Circuit court to vacate the OMB’s self-imposed stay, which the Court granted in April. Continue reading “Employers Should Prepare to Submit Their Component 2 Pay Data By September 30, 2019”
The Louisiana Association of Business and Industry has officially requested that the U.S. Department of Labor delay implementation of the new rule that would increase the minimum salary required for a worker to be exempt from overtime. The new rule is currently set to go into effect December 1, 2016. Continue reading “LABI Asks Department of Labor to Delay Implementation of Overtime Rules”
If you are a federal contractor, it looks like your life is going to get a bit more complicated and expensive. On the 24th February, the DOL issued a proposed rule that will require federal contractors to provide employees at least seven (7) paid sick days per year. The sick days may be used to care for a family member as well as for the employee’s own illness. Federal contractors should begin to analyze the impact of the proposed rule on their budgets as well as their paid leave policies.
You can review the proposed rule and much more information on the DOL website: http://www.dol.gov/whd/flsa/eo13706/nprm.htm
I – The EEOC says that it will issue its final “wellness” rules by February, 2016
The Equal Employment Opportunity Commission (EEOC) indicated in its November regulatory agenda that it plans to finalize two rules governing employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016.
As you may recall, one of these proposed rules will amend the EEOC’s ADA regulations to address the interaction between Title I of the ADA and the financial inducements that are commonly contained in wellness programs offered through employer health plans. This will have the effect of limiting how much of a financial benefit employers can offer to their employees to join such wellness programs. Continue reading “The EEOC, DOL and OFCCP Announce Deadlines for Final Rules”
Everyone knows that the FLSA requires that employees be paid overtime when they work over 40 hours in a work week and that the Act provides for penalties and attorney’s fees when an employer fails to do so. However, many employers are not aware that they can also do jail time for violating the FLSA. Continue reading “FLSA Violations Can Land You in Jail”