Tag Archives: fmla

2018 DOL Opinion Letter Under the FMLA

I am pleased to share my latest post to The SHRM Blog.

Many employers have no-fault attendance control policies.  Stated generally:

  1. An employee’s employment terminates if he or she has a certain number of occurrences in a specified period of time.
  2. An occurrence “falls off,” and therefore is not considered, after a specified period of time, for example 12 months after the occurrence.

The law is clear that employers cannot consider time off under the FMLA as an occurrence under its no-fault attendance control policy.  But does the time that the employee is on FMLA leave count toward the period of time after which a point “falls off?”

The Department of Labor issued in August its first opinion letters under the FMLA in more than 9 years, and one (1) of the two (2) addresses this precise issue.  The opinion letter can be found at: https://www.dol.gov/whd/opinion/FMLA/2018/2018_08_28_1A_FMLA.pdf

The Department of Labor concluded that the period of time in which an employee is on FMLA does not need to be considered as part of the time necessary for an occurrence to fall off, provided that the employer applies this rule on a non-discriminatory policy basis.  For example, if the time an employee is on paid parental leave beyond the FMLA counts toward the period of time after which a point falls off, then not counting the time off covered by the FMLA would be discriminatory.

It is important that employers focus on this issue.  It is also important to note that a court might not agree with the DOL opinion letter.  As important, agencies or courts interpreting the ADA could come out with a different result under the ADA.

Further, the answer may be different with state and local leave laws.  We know that many state and local leave laws provide employees with greater protection than federal law.

So, while I am sure I am not alone in being grateful that the DOL has started to issue opinion letters again not only under the FLSA but also under the FMLA, employers need to be careful not to reach certain conclusions too quickly based on them.

This blog should not be construed as legal advice or as pertaining to specific factual situations.

Waiting for the DOL

With all due respect to the DOL:

  1. DOL forms to be used under FMLA would have expired at the end of last month, but they have been modified so they are now effective until March 31, 2015. Will new forms be published by March 31, 2015? If not, we recommend that you continue to use the current forms published by the DOL (which can be found on its website with the new expiration date). Best to use the most recent government document! Forms with March 31, 2015 expiration date: http://www.dol.gov/whd/forms/.
  2. The EEOC has asked the DOL to modify its forms, among other reasons, to comply with GINA. The DOL forms do not include the appropriate GINA disclaimer. http://www.eeoc.gov/eeoc/foia/letters/2014/gina_fmla_forms_11_10.html

Continue reading Waiting for the DOL