Category: Employment Law

New FMLA Forms 2020

New FMLA Forms for 2020

On July 16, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) released revised Family and Medical Leave Act (FMLA) optional-use forms. Unlike the last revisions, there are tangible changes this time. Employers may begin using the new FMLA forms now.

Streamlined Forms

The DOL emphasized that the new forms are more streamlined and user-friendly:

“WHD’s new forms are simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use. Revised with substantial public input, the forms include more questions that users can answer by checking a response box and electronic signature features to reduce contact. WHD believes the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators and reduce the likelihood of violations.”

The following new FMLA forms are available through the DOL’s website:

  • WH-381: Eligibility Notice – This notice is used to inform an employee of their eligibility for FMLA leave or advise the employee of at least one reason why they are not eligible.
  • WH- 381: Notice of Eligibility & Rights and Responsibilities – This form advises an employee of their eligibility for FMLA leave or why they are not eligible. It also informs the employee of specific expectations and obligations associated with the leave request and the consequences of not meeting those obligations.
  • WH-382: Designation Notice – The form notifies the employee of the status of their FMLA leave request. It allows the employer to request additional information to process the application.
  • Certification of Healthcare Provider for a Serious Health Condition
    • WH-380-E: Healthcare Provider Certification for Employee’s serious health condition.
    • WH-380-F: Health Provider Certification for Employee’s Family member with a serious health condition.
  • Certification of Military Family Leave
    • WH-384: Qualifying Exigency – Use this form when a leave request is related to the deployment of the employee’s spouse, son, daughter, or parent.
    • WH-385: Military Caregiver Leave of a Current Servicemember – Use this form when an employee is requesting leave to care for a family member who is a current service member with a serious injury or illness.
    • WH-385-V: Military Caregiver Leave of a Veteran – Use this form when an employee is requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

Rationale Behind New FMLA Forms

The DOL provides these forms for optional use by employers. Though alternative forms may be used, employers must meet minimum legal notice requirements. The DOL forms are presumptively valid if employers use them properly.  The new electronically fillable PDF forms are designed to accomplish these objectives:

  • Further streamline the FMLA leave request, approval, and implementation process by making the forms more user-friendly.
  • Reduce the amount of time required to complete the forms.
  • Reduce the number of errors and violations associated with the request process.
  • Improve communications between the employee and employer.
  • Address some of the questions and concerns raised during the 60-day public comment period following the DOL’s release of draft forms in October 2019.

The DOL also added a Q&A section related to the new forms. Here, the DOL reiterates that employers are not required to use the new forms. But the documents they use must contain the same basic notification information and require the employee or healthcare provider to disclose only the information necessary to process the request. Thus, the DOL generally recommends that employers (and employees) use the new forms.

Look for More DOL Developments on FMLA

On July 17, 2020, the DOL published a Request for Information (RFI) seeking public comments on the effectiveness of the current FMLA regulations. This action indicates that the DOL is contemplating additional regulatory changes to the FMLA leave request process. The RFI includes examples of possible FMLA topics public comment. But it also permits comment on any other FMLA topic. Interested parties can submit comments by mail or electronically through September 15, 2020.

Employers should use this update as an impetus to review their current FMLA policies and procedures for compliance.

Cooperative Dialogue

Cooperative Dialogue for New York City Employee Accommodations

The New York City Human Rights Law (NYCHRL) now imposes a higher burden on employers regarding workplace accommodations. Whereas most discrimination/accommodation laws rely on an “interactive process,” the NYCHRL requires employers to engage in a “cooperative dialogue” and issue a written determination. Learn more about this increased burden on New York City employers.

Reasonable Accommodations Under the New York City Human Rights Law

The New York City Human Rights Law prohibits discrimination in employment, housing, and places of public accommodations based on numerous protected characteristics. A few of the legally protected categories also afford employees rights to reasonable accommodations:

  1. Disability
  2. Religious beliefs
  3. Pregnancy, childbirth, or a related medical condition
  4. Victims of domestic violence, sex offenses, or stalking

Disability Accommodations

The NYCHRL defines disability as “any physical, medical, mental, or psychological impairment, or a history or record of such impairment, and includes a full range of sensory, mental, physical, mobility, developmental, learning, and psychological disabilities whether they are visible and apparent or not.” Employers in New York City must make reasonable accommodations for individuals with disabilities if they know of or should have known of the disability. However, employers do not have to make an accommodation that would pose an “undue hardship”.

Similar standards apply to accommodations based on the other protected characteristics above.

Cooperative Dialogue

Most other laws requiring employees to make reasonable accommodations, such as the federal Americans with Disabilities Act, envision an “interactive process” between the employer and employee.

Since 2018, the NYCHRL has imposed a higher burden on employees, requiring them to engage in a “cooperative dialogue” with an employee requesting accommodations.

The requirements of cooperative dialogue for employers include:
1. Learning of the employee’s need for accommodation;
2. Initiating a cooperative dialogue;
3. Communicating in good faith with the employee; and
4. Notifying the employee, in writing, of the employer’s determination regarding the accommodation.

The exchange between the employer and employee should adress

  • the individual’s needs and considerations of potential accommodations,
  • alternatives to a requested accommodation, and
  • difficulties that the accommodation may pose to the employer.

Cooperative Dialogue Process

Under the NYCHRL, employers have an affirmative duty to engage in a cooperative dialogue even in some situations when the employee has not requested accommodation. For example, employers may have the responsibility to observe whether an employee’s performance at work has diminished because of a disability. If the employer reaches this belief, then management must initiate a cooperative dialogue with the employee.

The employer should not ask the employee whether they have a disability. Instead, management should ask whether anything is going on that the employer can help with and inform the employee of any available support, including reasonable accommodations. Once the employer engages in the dialogue process, the employee does not waive the opportunity to seek accommodation in the future if they choose not to reveal that they have a disability.

After the parties have engaged in the cooperative dialogue process, the employer must give the employee a final determination identifying any accommodation that was granted or denied.

Duration of Cooperative Dialogue

A cooperative dialogue is ongoing until one of the following occurs:

1. The employer grants a reasonable accommodation; or

2. The employer reasonably concludes that:

  • No accommodation exists that will allow the employee to perform the essential requisites of the job;
  • There is no accommodation available that will not cause it undue hardship; or
  • A reasonable accommodation was identified that meets the individual’s needs, but the individual did not accept it, and no reasonable alternative was identified during the cooperative dialogue.

Good Faith Cooperative Dialogue

When evaluating whether the employer engaged in the accommodation process in good faith, the New York City Commission on Human Rights will consider various factors, including whether the employer:

  • Has a policy informing employees how to request accommodations.
  • Responded to the request promptly in light of the urgency and reasonableness of the request.
  • Sought to obstruct or delay the cooperative dialogue or to intimidate or deter the employee from requesting the accommodation.

Employers violate the NYCHRL if they “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”

Written Determination

After engaging fully in a cooperative dialogue, the employer will decide whether to provide an accommodation. Management must then notify the employee in writing of the determination. After receiving the determination, the employee can continue to make new accommodation requests. In that case, the employer must re-engage in a cooperative dialogue.

What Should Employers Do?

Employers in New York City must comply with these cooperative dialogue requirements in any case where an employee may have a right to a workplace accommodation. Failure to do so is a standalone violation of the NYCHRL.

New York businesses should review the employee policies and procedures to ensure compliance with this relatively new and unusual obligation. Supervisors must understand these requirements and the appropriate way to engage in a cooperative dialogue. Or at least when to make a referral to someone who will handle this process (e.g., human resources).

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Gender Discrimination

U.S. Supreme Court Prohibits Sexual Orientation & Gender Discrimination Nationwide

On June 15, 2020, the U.S. Supreme Court issued a landmark decision extending employment discrimination protections to LGBTQ employees across the country. Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Unlike some state employment discrimination statutes, Title VII does not expressly address sexual orientation or gender discrimination. Before this ruling, federal courts had disagreed whether Title VII’s prohibition of discrimination based on “sex” extended into those areas. The Supreme Court’s decision conclusively answers that question in the affirmative.

Case Background

The Supreme Court’s opinion came out of three separate cases involving employers who fired their employees allegedly for identifying as gay or transgender. The employees sued their employers for sex discrimination under Title VII.

In Bostock v. Clayton County, the Supreme Court ruled that Title VII protects gay and transgender workers from workplace discrimination. Justice Neil Gorsuch wrote the 6-3 majority’s opinion holding: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex . . . [b]ecause discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. An employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII”. In other words, this decision generally prohibits employers from disciplining, firing, failing or refusing to hire, or otherwise discriminating against an employee (or a prospective employee) because of their sexual orientation or gender identity.

Majority Rationale

The Supreme Court focused on the meanings of the terms used in Title VII at the time of its enactment. The majority considered the ordinary public meaning of “sex,” finding that the term refers to the biological distinction between males and females. After establishing the applicable definition of “sex,” the Court applied the “but for” causation standard to establish if the defendant employers had violated Title VII. This standard asks whether a particular outcome would not have happened ‘but for’ the alleged discriminatory basis. In this case, the employers would not have fired the plaintiffs, “but for” the employees’ sexual orientation or transgender status. The Court held that as long as the plaintiff’s sex was the “but for” cause of the termination, it was enough to trigger Title VII liability.

Dissenting Views

The three dissenting justices relied on strict constructionist views of the definition of “sex”. Specifically, they focused on what they felt the average person would have viewed the term to mean when Congress enacted Title VII in 1964. According to Justice Alito, at that time, “[d]iscrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status.”

Justice Kavanaugh reasoned that the Court should rely on the “ordinary meaning” rather than the “literal meaning” of “sex”. He then concluded that “discrimination because of sex” does not encompass “gender identity” or “sexual orientation” discrimination.

New York Impact

The Supreme Court ruling will not have much practical impact on employees and employers in New York. In 2016, the New York State Division of Human Rights issued regulations interpreting the protected category “sex” to include discrimination on the basis of gender identity and the status of being transgender. The regulations defined “gender identity” as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth”. Then, in 2019 the New York Human Rights Law was amended to include “gender or identity or expression” among the statutory characteristics protected from employment discrimination.

The New York State Human Rights Law had already prohibited discrimination based on sexual orientation since 2003.

For more, read New York GENDA Amends Human Rights Law.

Religious Institutions

The Supreme Court discussed concerns about Title VII carveouts for religious institutions. The First Amendment bars applying employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers”. The Court decided not to decide this issue and left the question for future cases. The decision also does not specifically resolve issues like sex-segregated bathrooms and locker rooms.

Update Your Policies

Employers subject to Title VII (most with at least 15 employees) now clearly may not take adverse employment action against an employee or a prospective employee based on their homosexuality or transgender status. If an employer discriminates based on employee’s “sex” status, including sexual orientation or transgender status, they may be liable for monetary damages. This can include lost wages, compensatory damages, attorneys’ fees, and punitive damages. Especially if your business was not already subject to state laws prohibiting these forms of discrimination, you should promptly review and update policies and training materials.