Here is an updated version of the FMLA employee handbook policy (Federal and California). Please amend your employee handbooks if you have 50 or more employees. You can get a copy of the updated FMLA poster by clicking here or order an updated all-in-one poster from American Labor Law Company. To read more about the new requirements, go to: http://www.dol.gov/whd/fmla/.

The Department of Fair Employment and Housing recently began enforcing newly revised regulations addressing discrimination based on disability. The final regulations, which took effect on December 30, 2012, primarily update the old regulations. Among other things, the new regulations:

• include several updates to the definition of “disability” to conform to the federal Americans with Disabilities Act Amendments Act of 2008 and the broad definition contained in Government Code section 12926.1;
• provide examples of disabilities including chronic and episodic conditions, and temporary disabilities. The new regulations note a few exclusions from the term “disability,” such as the common cold, mild cuts or abrasions, and the flu;
• clarify that the term “medical condition” may include a “genetic characteristic” (in order to conform to the federal Genetic Information Non-Discrimination Act);
• add guidance regarding the phrase “essential job functions,” and specify that the elements of a discrimination claim now require the employee to establish that he or she can perform the job’s essential functions, with or without accommodation;
• provide more detail regarding the “interactive process” obligations for both employers and employees. Notably, an employee’s exhaustion of California Family Rights Act or Family and Medical Leave Act leave is now considered notice to the employer that the employee may need an accommodation; and
• recognize medical leave as a form of accommodation, but expressly state that employers need not provide “indefinite” leave.

Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)

The U.S. Department of Labor issued a final rule implementing two important expansions of FMLA protections. The first expansion provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and it also enables more military families to take leave for activities that arise when a service member is deployed.  The second expansion modifies existing rules so that airline personnel and flight crews are better able to make use of the FMLA’s protections.

I recently answered a common question about FMLA and flex time. Here’s my response:

Q: I’ve run into more FMLA tracking problems in the last month than I ever thought that I would have. I’ve solved most of the problems so far, but they just keep popping up! My current question is this:

Our two-week pay period ends with a “flex” Friday. Supervisors determine whether employees are required to work or not based on the workload of the department or even the individual. If an employee is out on continual FMLA leave, do I count these flex Fridays as FMLA time?

A: The place to begin is with the CFRs. That’s where they get to the details. Here’s the link to that. The answer to your question is spelled out below:

825.205   Increments of FMLA leave for intermittent or reduced schedule leave (b) Calculation of leave.

(1) When an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s leave entitlement. The actual workweek is the basis of leave entitlement. Therefore, if an employee who would otherwise work 40 hours a week takes off 8 hours, the employee would use 1/5 of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work 8-hour days works 4-hour days under a reduced leave schedule, the employee would use 1/2 week of FMLA leave. Where an employee works a part-time schedule or variable hours, the amount of FMLA leave that an employee uses is determined on a pro rata or proportional basis. For example, if an employee who would otherwise work 30 hours per week, but works only 20 hours a week under a reduced leave schedule, the employee’s ten hours of leave would constitute one-third (1/3) of a week of FMLA leave for each week the employee works the reduced leave schedule. An employer may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s total normally scheduled hours.

(2) If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

(3) If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement.

In the case of Gates v. United States Postal Service, the U.S. Court of Appeals for the Sixth Circuit held that an employee’s FMLA interference claim failed where the evidence showed that he would have been terminated for his excessive absenteeism even if he had not taken FMLA leave.

For the facts of the case, the court’s ruling, and practical impact, click here.

In this short video, Don Phin goes over the The Bermuda Triangle of Employment for Human Resources Departments around the country.

Inc. Magazine did an excellent article on the history of the workplace you can read by clicking here.

http://www.ca9.uscourts.gov/datastore/memoranda/2011/07/06/10-35729.pdf

The point is this: Just because an injured employee may not be able to return to work due to their injuries…they may be able to return to work by granting them an accommodation. Because Wal-Mart may not have engaged in an interactive dialogue the court let the case move forward. Wal-Mart was also being sued for wrongful termination. As stated by the court:

“Here, considering the facts in the light most favorable to Cox, Wal-Mart terminated her between seven and ten months after she invoked her OWCL rights. Cox has offered evidence that during those intervening months, Wal-Mart disciplined her unjustifiably on three occasions, and refused to accommodate her, even though before Cox invoked her rights, Wal-Mart found her performance acceptable and gave her accommodations. A reasonable jury could infer from this evidence that Cox’s termination was causally linked to her invocation of her OWCL rights.”

From the DFEH FAIR TIMES: This release applies to all employers as an example of just how expensive employment practice claims can get. Remember, settlements by agencies like the DFEH, EEOC, etc. are usually lower than those in private litigation.

DFEH REACHES HISTORIC MULTI-MILLION DOLLAR CLASS SETTLEMENT WITH VERIZON – On November 23, 2010, Los Angeles Superior Court Judge Anthony J. Mohr preliminarily approved a $6,011,190 settlement in Dept. Fair Empl. & Hous. v. Verizon (Seales) (Super. Ct. L.A. County, 2010, No. BC444066) for more than 1,000 current and former California employees to settle a class action lawsuit the DFEH filed challenging the company’s family medical leave practices. The settlement covers Verizon’s voice, data and video operations in California, which employ more than 7,000 people. The class action lawsuit was precipitated by a more than two-year-long investigation into Verizon’s practices under the California Family Rights Act (CFRA), which was conducted by the Department of Fair Employment and Housing’s (DFEH) Special Investigations Unit (SIU). The lawsuit alleges that from 2007 to 2010, Verizon denied or failed to timely approve class members’ requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a new child. Settlement of the lawsuit—the largest in DFEH history—could result in payment to class members of over six million dollars, an amount equivalent to an entire year of DFEH Enforcement Division settlements. Verizon also agreed to review and revise its leave policies and procedures, continue an existing internal review process that employees can invoke to appeal denials, train all California officers, managers, supervisors and human resources personnel on the procedures and submit regular updates to the DFEH regarding the company’s compliance. In settling the matter, Verizon did not admit to liability. The settlement is subject to final court approval after class claims are filed. In addition to the CFRA class action, the Department also settled two companion group actions with Verizon: 1) a $444,960 Fair Employment and Housing Act (FEHA) pregnancy discrimination group settlement for 42 employees denied time off for pregnancy-related medical reasons; and 2) a $467,466 FEHA disability discrimination group settlement for eight employees denied reasonable accommodation. Together, the DFEH achieved a total of $6,923,616 plus affirmative relief in the three Verizon settlements. For further information, see the press release.

DFEH PREVAILS IN FEHC PRECEDENTIAL DECISIONS – In Dept. Fair Empl. & Hous. v. Avis Rent-a-Car (Reed) (Oct. 19, 2010) No. 10-05-P, FEHC Precedential Decs. 2010 [2010 WL 4901733 (Cal.F.E.H.C.)], the Fair Employment and Housing Commission (FEHC) ruled in favor of the Department, concluding that the employer had unlawfully denied a reasonable accommodation to its salesperson, made unlawful inquiries about her disability, and committed other violations under the FEHA. The decision ordered the employer to pay $89,863.70 ($14,863.70 in lost wages and $50,000 in emotional distress to the employee, and $25,000 in administrative fine to the State), train its management staff, and post notices of the ordered relief. See the decision.

NOTABLE DFEH SETTLEMENTS – The DFEH continues to settle cases both pre- and post-accusation. Below is a sample of this quarter’s settlements.

• Dept. Fair Empl. & Hous. v. Southgate Garden Homes Association, Inc. (Grey); DFEH Case No. H200708-W-0076; familial status discrimination in housing $115,000 plus affirmative relief.
• Dept. Fair Empl. & Hous. v. University of California, San Diego Medical Center (Sutton); DFEH Case No. E-200910-D-0094-00-pv; disability discrimination in employment; $40,000 plus affirmative relief.
• Dept. Fair Empl. & Hous. v. Urban Suburban Inc. et al. (Holdsworth); DFEH Case No. E200809-M-1316-00s/01s/02s; sexual harassment in employment; $22,500 plus affirmative relief.
• Felicia Checo/Northgate Gonzalez LLC, DFEH Case No. E-200910-S-0597-00fe; California Family Rights Act (CFRA) violation in employment; $40,000 plus affirmative relief.
• Ewing/Bay Area Legal Aid; DFEH Case No. E200910-M-0805-00-pev; disability discrimination and denial of accommodation in employment; $14,500 plus affirmative relief.

The EEOC has made it clear that automatic termination after FMLA leave is exhausted may run afoul of ADA accommodation requirements. As stated by the EEOC “The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over,” Hendrickson said. “Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law.”

To learn more go to http://www.eeoc.gov/eeoc/newsroom/release/9-29-09.cfm.