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.
As most HR professionals are aware, the Fair Labor Standards Act (FLSA) requires that non-exempt employee be paid for rest breaks of up to 20 minutes. Contrary to the common misperception that the Act requires employers to allow two paid breaks per shift, in most industries, it actually does not mandate any certain minimum or maximum number of paid breaks per shift.
Conversely, the Family and Medical Leave Act (FMLA) require employers to allow employees short breaks when certified as necessary by a health care provider. Unless the employer specifies otherwise, FMLA breaks are usually unpaid.
You see the inherent conflict set up between the FLSA (you must pay for short breaks) and the FMLA (FMLA leave is generally not compensable working time). For example, if an employer allows its employees to take three paid, fifteen minute beaks per day, can it not pay an employee for taking one, fifteen minute FMLA-qualified break per day without violating the FMLA or FLSA? Will this constitute retaliation or interference under the FMLA?
Continue reading “The Perfect Storm: A Convergence of Unpaid Rest Breaks, the FLSA and the FMLA”
Those of you who have been losing sleep because the previously issued US Department of Labor FMLA forms had expired can rest easy. (You did know that they had expired, right?) The DOL has finally issued shiny new FMLA forms.
The new forms (WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385 and WH385V) can be located and downloaded from the DOL’s website here. For those of you who geek out on this kind of stuff, you should note May 31, 2018 on your calendars. That is the expiration date of the new forms. By then our federal government will have probably amended the FMLA again to further protect employee’s rights or intrusively over-burden employers, depending upon your point of view. Continue reading “US Department of Labor Releases New FMLA Forms”
In response to the U.S. Supreme Court’s holding in United States v. Windsor that section 3 of the Defense of Marriage Act is unconstitutional, the DOL has issued a NPRM to revise the definition of “spouse” under the FMLA. Continue reading “Department of Labor Issues a Notice of Proposed Rulemaking to Revise Definition of Spouse Under the FMLA”
The Department of Labor published a final rule amending Family Medical Leave Act regulations military leave last month. The new rule contains some noteworthy changes.
The new rule generally:
- Adds a new category of exigency leave for parental care (i.e., care for a military member’s parent when the parent is incapable of self-care);
- Expands from five to fifteen days the amount of R&R FMLA leave an eligible employee would be able to take to spend with a covered service person; and
- Clarifies rules for calculating intermittent and/or reduced schedule leave.
Continue reading “Department of Labor Issues New Regulations Regarding FMLA Military Leave”