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Possible Relief for FMLA Administration Pain Points

It’s no secret that employers have found administration of leave under the Family and Medical Leave Act (FMLA) to be a significant pain point. Relief, however, may be on the way.

In a spring regulatory agenda notice, the U.S. Department of Labor announced that it is considering making some changes to the FMLA. The Department has asked the public for feedback on how to:

“(a) better protect and suit the needs of workers; and (b) reduce the administrative and compliance burdens on employers.”

Although DOL has released no specifics, many believe that the White House’s labor policy adviser, James Sherk, will be the driving force behind any upcoming changes.  Sherk’s earlier outspokenness about the shortcomings of the FMLA leave provides good insight into his thoughts about what needs to change.

In his 2007 Heritage Foundation report, Sherk outlined his views on employee FMLA abuse. His report portends changes could be on the horizon that will:

  • narrow the definition of what constitutes “a serious health condition;”
  • provide more power to employers to investigate an employee’s condition;
  • allow employers to require workers to take leave in half-day, rather than smaller, increments; and
  • allow employers to count FMLA leave against attendance bonus policies.

What changes could mean for employers

If Sherk really is the man behind the plan, employers may get the relief they seek.

First, limiting the definition of “a serious health condition” should make it more difficult for employees to abuse the FMLA. In his report, Sherk highlighted several instances where “irresponsible” employees were taking advantage of the current vague definition by calling routine colds, stress, or even an injured toe a “serious health condition”—even when the condition has no impact on the employee’s ability to perform job duties. This would also help to lessen the burden on other employees who are required to pick up the slack when co-workers abuse FMLA leave.

Second, providing employers with more power to investigate employees’ conditions would resolve the communication barrier between employers, employees, and health care providers when issues surrounding the complex and lengthy paperwork arise—satisfying the goal of reducing administrative burdens.

Third, allowing employers to require workers to take leave in half-day increments would decrease the heavy administrative burden of tracking an employee’s leave in minute increments. Rather than tracking the 12-weeks of allowed FMLA leave a minute at a time, a more manageable tracking unit of half-day increments would make what once was a monumental task for employers more manageable.

Finally, allowing employers to count FMLA leave against attendance bonus policies would both help employees with favorable attendance not feel cheated when those with spotty attendance are nonetheless rewarded and incentivize employees not to abuse FMLA. The DOL has found that because an employer may not punish an employee for using FMLA, even workers who miss 50 days a year due to FMLA leave can still be eligible for a perfect attendance bonus, diluting the incentive these bonuses are intended to provide. Correcting this would allow employees with excellent attendance to reap due awards and hit FMLA abusers where it hurts—their bank account.

Conclusion

While employers will have to wait for definite answers as to what changes, if any, we will see, the good news is that it appears that employer concerns about FMLA abuse are not falling on deaf ears. In the meantime, employers should continue to monitor the situation and hope that relief is on the way.


Janet Hendrick Profile portrait

Janet A. Hendrick

By Janet A. Hendrick and Matt Andrus

If you have questions about this decision, contact Janet Hendrick, who represents and counsels employers on issues including proper classification, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Matt Andrus is a second-year law student at Oklahoma City University and works as a law clerk for Phillips Murrah during Summer 2019.

Oklahoma Department of Labor offers free, confidential safety consultations

Are you concerned about your company’s OSHA compliance? Do you have concerns for the safety of your employees?

Safety consultants can be expensive, and during a time of tight financial resources, safety can take a back seat to other company priorities. However, in Oklahoma we have a cost-free option – the ODOL Safety Consultation program offered by the Oklahoma Department of Labor.

The goal of these inspections is compliance, not to levy fines. The ODOL will assess safety, evaluate the work site, and assist with training and compliance with the OSHA. Most importantly, if a concern is identified by the ODOL safety inspector, he or she will provide your company with suggestions about how to how to improve safety and obtain compliance with OSHA.

The company must agree to correct all hazards identified as serious within the established time frame. The consultations are not reported to OSHA. However, if an OSHA inspection should occur, there are requirements about company reporting regarding certain types of testing performed by the ODOL safety inspector.

Every company that is concerned with employee safety should consider these free, confidential, safety inspections. Identifying and correcting a problem can prevent workplace injuries and accidents, and can save the company penalties and fines in the future.

Learn more about these safety consultations by viewing the Oklahoma Department of Labor’s informational video: Workplace Safety Pays in Oklahoma

Disclaimer: Consultations are not a replacement for legal advice. If you have questions or need legal assistance for safety issues, please contact the law firm of Phillips Murrah at (405) 235-4100.

 

The Supreme Court’s Decision on DOMA. An Uncertain Future for Oklahoma Employers.

Catherine L. Campbell is a director at Phillips Murrah and a member of the Firm’s Labor & Employment practice group. She represents corporations of all sizes in employment-related matters as well as law enforcement agencies in civil rights actions.


The United States Supreme Court’s recent ruling in United States v. Windsor declared the Defense of Marriage Act (“DOMA”) unconstitutional.  Windsor mandates federal recognition of same-sex marriages from the twelve states and the District of Columbia that sanction them.  While Windsor directly affects thousands of state-sanctioned same-sex spouses in other states, the ruling likely has little immediate impact in Oklahoma.  However, employers should be aware of Windsor’s future implications.

The Family Medical Leave Act (FMLA) allows an employee to take up to 12 weeks of leave to, among other things, care for a seriously ill spouse.  FMLA regulations state that “spouse” means “a husband or wife” as the state of residence defines it.  29 C.F.R. § 825.122(b).  However, the Department of Labor (DOL) has taken a more restrictive view interpreting the FMLA to include the DOMA definition of “spouse” (a person of the opposite sex).

Under the DOL view, even where same-sex marriage was valid, a same-sex spouse was not a spouse for FMLA purposes.  Windsor changes that.  Now an employer must look to the law of the state of residence to determine whether a particular person is a spouse.   But, because the definition of spouse depends on the state of residence at the time the determination is made, when a same-sex couple moves from a state that recognizes their marriage to one that does not, the couple loses the protections of the FMLA.

Undecided by Windsor is whether a state that has not legalized same-sex marriage must recognize a marriage from a state that has.  Oklahoma statutorily forbids recognition of same-sex marriages performed in other states.  Okla. Stat. tit. 43, § 3.1.  However, the Tenth Circuit Court of Appeals has held that an Oklahoma statute preventing recognition of valid adoptions by same-sex couples in other states is unconstitutional under the Full Faith and Credit Clause.  Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).  Applying this analysis, § 3.1 would likely prove unconstitutional.

If Oklahoma eventually must recognize the validity of same-sex marriages performed elsewhere, a same-sex couple would be entitled to the protections of various laws including the FMLA.