Tag: USDOL

July 29, 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.

March 26, 2020

U.S. DOL Issues Preliminary COVID-19 Leave Guidance

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act into law. Among other provisions, the law mandated two new forms of leave for employees of private employers with less than 500 employees and all government entities. The U.S. Department of Labor has the authority to issue regulations interpreting these leave requirements. Before releasing formal rules, the DOL has posted initial COVID-19 leave guidance on its website.

Fact Sheets

The DOL has created “Fact Sheets” targeting both employees and employers. These documents are available in English and Spanish and are available through these links:

Employee Paid Leave Rights

Employer Paid Leave Requirements

The fact sheets primarily outline the parameters of the law. For our full summary of the legislation, click here.

Questions and Answers

The Wage and Hour Division of the DOL has also created a “Questions and Answers” page as part of its COVID-19 leave guidance.

For simplification, the DOL is referring to the two new forms of leave as “paid sick leave” and “expanded family and medical leave.”

“Paid sick leave” refers to paid leave under the Emergency Paid Sick Leave Act. Eligible employees can receive up to two weeks of paid leave for absences related to COVID-19 (the novel coronavirus).

“Expanded family and medical leave” refers to paid leave under the Emergency Family and Medical Leave Expansion Act. It is a new form of leave under the Family and Medical Leave Act (FMLA) that allows employees to take up to 12 weeks of leave to care for a child whose school has closed or whose childcare is unavailable due to COVID-19. The last 10 of these 12 weeks would be paid leave for eligible employees.

The DOL seems to be updating this Q&A page periodically. It has already grown from 14 questions at launch on March 24th, to 37 questions on March 26th, as of the writing of this article.

The first question addresses when the leaves become available. Although most observers initially read the law to take effect on April 2nd, the DOL states that these new leave requirements take effect on April 1, 2020. Unless extended, these leave provisions will expire as of December 31, 2020.

Click to read: DOL Families First Coronavirus Response Act Questions and Answers

Here are a few notable clarifications in the COVID-19 leave guidance Q&As:

What records do employers need to keep to document these leaves?

Because employers can receive tax credits to offset the wages they pay to employees during these leaves, they must be able to demonstrate that the employee qualified for the leave under the law.

For paid family leave, the DOL says “you must require your employee to provide you with appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.” Documentation of the reason for the leave will also be necessary.

For expanded family and medical leave, “you must require your employee to provide you with appropriate documentation in support of such leave, just as you would for conventional FMLA leave requests.”

The IRS’s initial statement regarding the tax credits accompanying these paid leaves is available here.

What documentation does the employee need to provide to take these leaves?

For paid sick leave, supporting documentation “may include a copy of the Federal, State or local quarantine or isolation order related to COVID-19 or written documentation by a health care provider advising you to self-quarantine due to concerns related to COVID-19.”

For expanded family and medical leave, an employee could provide “a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider.”

Can employees take intermittent leave?

Yes, if their employer allows it. The guidance says employees can take the leave in any time increment that the employer permits. But, then it limits that position.

Unless the employee is teleworking, paid sick leave is only available in full-day increments, except where the leave is to care for a child who is out of school/child care due to COVID-19.

Do employees have a right to these leaves if their worksite closed before April 1, 2020?

No, but they might be eligible for unemployment benefits.

What if the employer closes down while an employee is taking paid sick leave or expanded family and medical leave”?

The employer must pay for any leave before the closing. The employee is not eligible for paid leave after that, but they may become eligible for unemployment benefits.

Employee Rights Poster

By April 1, 2020, covered employers must post an employee rights notice regarding these new forms of leave in the workplace.

The DOL has prepared the poster, which is available here.

Future Developments & Compliance

The COVID-19 leave guidance now available on the DOL’s website references “forthcoming regulations.” These will likely go into even more detail on some aspects of the new laws. The regulations will also carry more legal authority than this preliminary website guidance. The DOL has suggested the regulations would come out sometime in April, despite the April 1st effective date.

Perhaps due to the need to issue the formal regulatory guidance, the DOL has indicated that it will not enforce these new leave requirements until April 18, 2020. However, employers who violate the law before then may still face some consequences. Employers who committed violations in early April despite “reasonable” actions “in good faith” will still have to repay employees who should have received paid leave as soon as practicable. The DOL may later seek additional penalties, however, for employers who willfully violated the leave requirements even before the DOL begins enforcement.

Consequently, employers who might be subject to these new requirements must get familiar with them and plan to comply as well as possible by April 1st.

Follow Horton Law on LinkedIn for our latest updates and analysis regarding coronavirus (COVID-19) issues affecting employers.

July 28, 2017

How Much Should Exempt Employees Get Paid?

One of 2016’s hot topics in employment law was how high the salary threshold for FLSA exemption would increase? In other words, how much would employer have to pay exempt employees to keep them exempt? It’s mid-2017, and the question hasn’t gone away!

The U.S. Department of Labor initially answered that question with a $913/week salary requirement. That threshold would then change every three years based on average salary levels.

However, a federal court in Texas stopped the new salary rule before it took effect. That case remains on appeal, but the Department of Labor–now under a Republican administration–has indicated it will not fight to uphold the $913/week standard. Instead, the DOL has announced that it will review the relevant rules and establish a new test.

On July 26, 2017, the DOL issued a Request for Information seeking information related to the FLSA exemption rules. In particular, the DOL refers to the executive, administrative, professional, outside sales, and computer employee exemptions.

What Tests for Exempt Employees?

Based on the Request for Information, it looks like the DOL is open to reviewing all aspects of the exemptions. This includes not only the salary level for exempt employees, but also the duties tests.

Here are some of the specific questions the DOL is asking:

Would updating the 2004 salary level ($455/week) for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used?
Should the regulations contain multiple standard salary levels? If so, how should these levels be set: by size of employer, census region, census division, state, metropolitan statistical area, or some other method?
Does the standard salary level set in the 2016 Final Rule ($913/week) work effectively with the standard duties test or, instead, does it in effect eclipse the role of the duties test in determining exemption status?
To what extent did employers, in anticipation of the 2016 Final Rule’s effective date on December 1, 2016, increase salaries of exempt employees in order to retain their exempt status, decrease newly non-exempt employees’ hours or change their implicit hourly rates so that the total amount paid would remain the same, convert worker pay from salaries to hourly wages, or make changes to workplace policies either to limit employee flexibility to work after normal work hours or track work performed during those times?
Did employers make any additional changes, such as reverting salaries of exempt employees to their prior (pre-rule) levels, after the preliminary injunction was issued?
Would a test for exemption that relies solely on the duties performed by the employee without regard to the amount of salary paid by the employer be preferable to the current standard test?
Does the salary level set in the 2016 Final Rule exclude from exemption particular occupations that have traditionally been covered by the exemption and, if so, what are those occupations?
Should there be multiple total annual compensation levels for the highly compensated employee exemption?
Should the standard salary level and the highly compensated employee total annual compensation level be automatically updated on a periodic basis to ensure that they remain effective, in combination with their respective duties tests, at identifying exempt employees?

Help the DOL Get it Right

The DOL will accept public comments on the Request for Information until September 25, 2017. Anyone can submit information related to these issues affecting exempt employees. You can expect prominent employee, labor, and business groups to do so.

I am currently considering submitting comments based on my experience representing employers in employee classification and overtime for more than a decade. If you have any information that you would like to share in connection with my preparation of those comments, please email me.

DISCLAIMER: No attorney-client relationship will be created by you emailing me information! If you need legal representation, whether in connection with employee exemption issues otherwise, please speak with me (or another attorney of your choice) before sending confidential information.