In preparation for today’s webinar, we created some new tools to help make your life easier:

• Confused about how the ADA and FMLA relate? Click here for a handy comparison of the two laws.
• Worried about the government’s crackdown on independent contractor misclassifications? Click here for our easy-to-use checklist.
• Social media freaking you out? Click here for a sample policy, courtesy of the fine folks at McGuireWoods LLP.

We’ll discuss all these tools plus a whole lot more in today’s webinar. See today’s earlier post to sign up.

In our most recent Question of the Week, we asked you to identify your #1 employment law headache. Your top answer? Medical leave.

To help ensure that you’re up-to-speed on all the latest medical leave developments, we thought we’d (1) post summaries of recent changes in the law and then (2) create new Cheat Sheets on each law that you can print out, frame and post in your office.

We’ll start with the FMLA. Here are the most recent changes:

Employer Notice: extended from 2 to 5 business days

Employee Notice: may be in line with attendance rules absent unusual circumstances

New Military Leave: Click here for a discussion of the new rules

Incomplete Medical Certification: written notice is required and then employees have 7 days to provide additional information

Recertification: allowed every 12 months for conditions lasting more than a year and every 6 months for ongoing conditions

Health Provider Contact: the new rules specify who may contact health providers — plan administrators and HR can but direct supervisors can’t

Fitness-for-duty Evaluations: are now allowed when an employee’s return from intermittent leave could pose safety concerns

Perfect Attendance Awards: FMLA leave may now disqualify employees from perfect attendance awards

Substitution: the old rule was that vacation and personal time were treated differently for FMLA purposes — now all leave is generally treated the same

Light-duty: doesn’t count toward FMLA leave

Job Reinstatement: rights continue during light duty or until the end of the 12-month period

Settlement: FMLA claims may now be settled without prior government/court approval

THE BOTTOM LINE: Make sure your handbook, policies, forms, posters and training are fully updated. Click here for handy tips in each of those areas.

COMING NEXT: The new Americans with Disabilities Amendments Act (ADAAA) and what it means for employers.

Employment laws can be exceedingly difficult to administer — especially when they change approximately every 3.8 seconds as they have so far this year.

To help us ensure that we’re giving you the information you need, we decided to ask you to identify the absolute #1 most difficult area of employment law.

We got a record number of votes. Leading the pack with 28% was medical issues (ADA, FMLA, etc.). Number two with 20% was litigation (claims, charges, depositions, lawsuits, etc.).

Here are the full results:

1. Medical issues (ADA, FMLA, etc.): 28%
2. Litigation (claims, charges, depositions, lawsuits, etc.): 20%
3. COBRA: 12%
4. Union relations: 10%
5. RIFs/terminations: 9%
6. Immigration (I-9s, visas, etc.): 7%
7. Wage and hour (FLSA, overtime, exemptions, etc.): 6%
8. Social networking (Facebook, Twitter, etc.): 5%
9. Non-compete/non-disclosure issues: 3%

This shows a dramatic shift from prior similar polls we’ve conducted. In the past, RIFs/terminations has always been the #1 response. Medical issues and litigation have typically been in the middle of the pack. It’s not surprising that those two have shot to the top, given (1) the sweeping changes made to the ADA and FMLA earlier this year and (2) the recent dramatic rise in litigation.

We’ll use these results to guide the content we create. As always, thanks for expressing yourselves!

The new FMLA regulations go into effect this Friday, January 16.  So, what does this mean for employers?  Here’s what all employers with 50 or more employees must do by that date.

Use the New Forms

The Department of Labor (DOL) has created new model notice, certification and designation forms.

• Notice.  Click here for the new notice form, which must be given to employees within 5 business days of the leave request.
• Certification.  If an employee will be required to certify leave, the certification form should be given to the employee (along with the notice form) within 5 business days of the leave request.  Click here for the form for an employee’s condition, here for the form for a family member’s condition, here for the military exigency form and here for the form for military service member conditions.
• Designation.  The DOL has created a new designation notice to indicate whether (1) leave is FMLA-qualifying, (2) paid leave substitution will be required and (3) a fitness-for-duty certification will be required to return from leave.  The form must be provided within 5 business days of the designation determination.

Post the New Poster

The DOL has created a new FMLA poster, available here.  Employers must post the notice either physically or electronically in a prominent place easily seen by applicants and employees.

Update Policies

Employers should revise their FMLA policies to include — at a minimum — all the information included in the new poster.

Communicate with Managers

Employers should ensure that managers are aware of the new forms, poster, policies and leave entitlements.

More Info

Click here for military leave FAQs and here for non-military leave FAQs.  Click here for our patented FMLA Cheat Sheet.

The Department of Labor today released new Family and Medical Leave Act (FMLA) regulations, the first major overhaul of the law in more than a decade.

The new regs go into effect January 16, 2009.  I’ll publish a more detailed review after scrutinizing all 700+ pages, but here are the highlights.

Among other things, the new regs:

• clarify the multiple definitions of “serious health condition”;
• provide guidance on the recent military leave additions to the FMLA, including how family members may take leave to care for wounded service members;
• extend (generally) the employer’s period to give notice of FMLA leave rights from two to five business days;
• require employees to give notice of the need for FMLA leave in accordance with the employer’s normal attendance rules, absent unusual circumstances (under the old rules, employees had up to two business days to give notice);
• specify that only health care providers, leave administrators, HR professionals and management officials (but never direct supervisors) may contact an employee’s health care provider regarding medical certification;
• require employers to provide written notice of any incomplete medical certification and to give employees seven calendar days to provide the additional information;
• allow recertification every 12 months for conditions lasting more than one year and every 6 months for ongoing conditions in conjunction with an absence;
• allow employers to require fitness-for-duty evaluations where an employee’s return from intermittent leave could pose safety concerns;
• allow employers to exclude employees who took FMLA leave from perfect attendance awards;
• treat all forms of paid leave the same in allowing employees to use accrued paid time off as a substitute for unpaid FMLA leave (the old rules treated vacation and personal time different from sick leave);
• clarify that light-duty assignments don’t count toward FMLA leave and that job reinstatement rights continue during such assignments or until the end of the twelve-month period;
• acknowledge that employees may settle FMLA claims without prior government or court approval but may not prospectively waive FMLA rights; and
• reject court cases invalidating certain penalty provisions and provide that employers may be liable if failure to provide notice does harm to an employee.

To download all 700+ pages of the new regs, here’s the official link:  http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf

Stay tuned for more.

Let’s say your company is not subject to the the Family and Medical Leave Act (FMLA) because you have fewer than 50 employees.  One of your employees tries to take FMLA leave anyway.  You deny the leave.  The employee sues.  You win, right?

Maybe not, if your employee handbook isn’t drafted carefully.  Earlier this week, a federal court refused to dismiss a case with facts similar to the above for one simple reason:  the company’s handbook stated that employees were eligible for FMLA leave.  (Peters v. Gilead Sciences Inc., No. 06-4290 (7th Cir. July 14, 2008)).

The Facts

Steven Peters was a sales rep for Gilead Sciences Inc. in Indianapolis, Indiana.  He injured his neck and shoulder and applied for FMLA leave.  The company approved his request even though the FMLA doesn’t apply because the company doesn’t have the requisite 50 employees within 75 miles of the worksite.

Unfortunately for the employer, its employee handbook quite plainly stated that employees were entitled to 12 weeks of family and medical leave if they worked at least 1,250 hours during the previous 12 months.  The company further compounded that error by sending Peters two letters approving his leave under the FMLA.

The company replaced Peters with another employee before his “leave” was over and then offered him another position.  When Peters declined, the company terminated him.

Peters sued.  The company sought to dismiss Peters’ claims because he wasn’t an “eligible employee” under the FMLA.

The Decision 

The court ruled that although Peters wasn’t eligible for FMLA leave, he could have a breach of contract or promissory estoppel claim based on the statements in the handbook and the letters.  The case was remanded back to the lower court to determine the validity of those claims.

The Lesson

Be very careful what you include in your employee handbook.  Courts are notoriously hard on companies that don’t comply with their own written policies (even if they were included by mistake).  Make sure to include language stating that nothing in the handbook creates an express or implied contract and that the company may change it from time to time at its sole discretion.

If you are unsure exactly which laws apply to your company, we hereby cordially invite you to our free July 30 webinar, entitled Every Employment Law in 60 Minutes or Less.  We’ll provide all attendees with handy summaries of every major employment law on the planet.  To register, just click on the button at the top left of the Blawg.

In last week’s edition of You Be the Judge, we described a real-life case out of Ohio for your consideration.  We gave you the following facts and asked you to decide who wins.  If you need a refresher, read through ‘em again.  If not, skip to the end where we’ll give you the results and tell you how the court actually ruled.

The Facts

James Weimer worked on the assembly line at Honda’s Marysville, Ohio plant.  On February 21, 2006, a co-worker slammed a trunk lid on Weimer’s head.  He was taken to the emergency room where he was diagnosed with a concussion and a strained muscle.

Weimer was then seen by doctors under contract to Honda.  They ordered him to remain off work through March 15.  Weimer requested FMLA leave and the company approved his request.

However, after receiving a tip that Weimer might not be as injured as he claimed, Honda obtained video of him doing house and yard work.  The video showed Weimer adding a front porch to his home and lugging heavy materials around his yard while on leave.

When Weimer returned to work on March 16, the company questioned him.  He admitted doing the house and yard during his leave.  Honda fired him for dishonesty and FMLA abuse.

The Lawsuit

Weimer filed a lawsuit, claiming that the company fired him in retaliation for taking FMLA leave.  Honda denied the claims.  The parties conducted discovery and then each filed a motion for summary judgment in its favor.

Honda argued that it fired Weimer for lying and for abusing his leave.  The centerpiece of its case was the video, which Honda said was proof that Weimer (1) failed to tell his doctors that he had recovered enough to return to work and (2) stayed on leave longer than he was eligible.

Weimer countered that he told the doctors that he didn’t feel injured enough to take the entire recommended leave.  He argued that he was capable of returning to work earlier but was unable to do so because of the recommendations of Honda’s own doctors.

The Results

73% of you said the employee should win.  27% said the company should win.

How Did the Court Actually Rule?

As you guessed, the court ruled in Weimer’s favor (at least so far).  It refused to grant summary judgment to Honda and ordered the case to trial to determine whether Weimer was (1) merely obeying doctor’s orders or (2) an “opportunistic schemer taking advantage of the system in order to have time to enhance the curb appeal of his home.”  One of the reasons it ruled against Honda was because it found a legitimate dispute as to whether Weimer’s injuries prevented him from performing his job duties even though they may not have kept him from performing the tasks depicted in the video.

The Lessons

First, know the ins and outs of the FMLA and train supervisors on how to handle leave requests and return to work properly.  We’ll be posting an FMLA Cheat Sheet in the next few days to help you in this endeavor.

Second, don’t jump to conclusions just because you believe you have “smoking gun” evidence of an employee’s guilt.  Follow our Investigation Tips to make sure you get all the facts, including giving the employee a chance to tell his or her side of the story.

Third, just because an employee is doing something other than sitting on the couch during leave doesn’t automatically mean that leave is being abused.  If an employee is spotted at the mall, doing aerobics or even building a porch, don’t assume it’s grounds for discipline unless the activity clearly violates the doctor’s restrictions.  Even then, make sure you have all the facts and that you’re doing the right thing before taking action.

The Department of Labor has published a poster insert addressing the new military service-related leave rights discussed previously here on the Blawg.

The poster describes the new rights as follows:

1. New Qualifying Reason for Leave.  Eligible employees are entitled to up to 12 weeks of leave because of “any qualifying exigency” arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.  By the terms of the statute, this provision requires the Secretary of Labor to issue regulations defining “any qualifying exigency.”  In the interim, employers are encouraged to provide this type of leave to qualifying employees.
2. New Leave Entitlement.  An eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty is entitled to up to 26 weeks of leave in a single 12-month period to care for the servicemenber.  This provision became effective immediately upon enactment.  This military caregiver leave is available during a “single 12-month period” during which an eligible employee is entitled to a combined total of 26 weeks of all types of FMLA leave.

Employers should post this notice immediately.  The DOL offers additional FMLA compliance info here.

President Bush signed the previously vetoed National Defense Authorization Act, which contains provisions expanding FMLA rights for military families.

There are two significant changes:

Leave to Care for a Wounded Service Member.  A “spouse, son, daughter, parent, or next of kin” is entitled to 26 weeks of leave to care for a recovering service member unable to perform his or her duties.  This change is effective immediately.

Leave for Call to Active Duty.  A “spouse, son, daughter, parent or next of kin” of a service member on active duty or notified of a call to duty is entitled to 12 weeks of unpaid leave for any “qualifying exigency.”  This change will not be fully effective until the Secretary of Labor issues regulations defining “qualifying exigency.”  However, in the meantime, the DOL encourages employees to exercise good faith by providing this type of leave to employees who might reasonably be covered.

The full text of the amended FMLA can be found here.

In a case that sheds some light on the notice required by an employee to trigger FMLA rights, a federal court ruled in favor of an employee who was fired shortly after he told his employer that he might need time off for heart surgery.

The employee, James Sarnowski, suffers from coronary artery disease.  In July 2001, he was hired by Air Brook, a New Jersey limousine company, as a service manager.  In June 2002, he received a positive performance evaluation and a raise.

In October 2002, Sarnowski underwent quintuple bypass surgery, which resulted in him missing six weeks of work.  Shortly after returning to work, he received a written warning stating that his performance had fallen to unacceptable levels.

In Spring 2003, Sarnowski experienced heart palpitations and was informed that he had four additional blocked arteries.  On April 7, he informed his supervisor that he needed to wear a heart monitor for 30 days and that he might need to miss more work time for a second bypass operation.

On April 15 — only eight days later – Air Brook fired Sarnowski for “performance problems.”  Sarnowski sued, claiming that his termination violated the FMLA.

The first court to hear the case rejected Sarnowski’s claim because he never made a formal leave request.  Sarnowski appealed.

The appeals court ruled in Sarnowski’s favor, finding that the FMLA does not require employees to make formal written requests for leave.  The court ruled that employees only need to give “sensible” notice, stating that “an employee must provide his employer with enough information to show that he [or she] may need FMLA leave. ”  

Applying that test, the court concluded that Sarnowski gave sufficient notice of his intent to take FMLA leave when he mentioned his need for monitoring and the possibility of a second operation.  As a result, he was eligible for the Act’s protections.

The lessons?  There are at least three . . .

1. Courts generally like to see employers acting “sensibly” and not requiring employees to adhere to hyper-technical legal requirements.
2. More specifically, if an employee gives you enough information to “sensibly” indicate that an FMLA leave might be imminent, the safest course is to consider yourself notified.
3. Think long, deep and hard before firing an employee who has just informed the company of a serious health condition.  Firing an employee who just notified you that he might need a second heart operation shortly after a quintuple bypass might not be a great idea.