Family and Medical Leave Act
Subscribe to Family and Medical Leave Act's Posts

As Some Healthcare Employees Work While Sick, Could Other Industries Follow Suit?

Throughout the latest COVID-19 wave, some healthcare employers have relaxed safety measures to bring COVID-positive employees back to work. According to this Corporate Counsel article, these decisions may signal a new direction in how businesses deal with safety measures as they navigate a competitive labor market and demand. McDermott’s Abigail M. Kagan noted many healthcare facilities are doing their best to balance employee safety with workplace strain.

“If a patient hears that their nurse has tested positive that morning, the patient may be uncomfortable,” Kagan noted. “ … On the other hand, if it’s the difference between having no nurse, or having a nurse that medical authorities in the (United States) seem to believe is not going to be contagious anymore, that’s something that employers have to think about.”

Read more here.




read more

When Is COVID-19 a Disability? Courts Tackle Issue in Bias Cases

A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.

“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.

Access the article.




read more

Four Things To Know About COVID ‘Long-Haulers’ At Work

Research continues to shed light on COVID-19’s long-term health effects for some people, and these “post-COVID conditions” will create additional challenges for employers.

In this Law360 article, McDermott partner Carole A. Spink says employers should be aware that long-haul COVID symptoms mean additional accommodations for employees.

“As they have done throughout the pandemic, employers should have a plan for addressing potential long-term absences as a result of post-COVID effects. On the practical side, at some point employers may need to determine whether a particular situation has become such that providing a continuing reasonable accommodation would pose an undue burden,” Spink notes.

Access the article.




read more

DOL Extends FMLA Spousal Leave Rights to Same-Sex Spouses in All States

On February 23, 2015, the U.S. Department of Labor (DOL) Wage and Hour Division published its final rule regarding the definition of “spouse” under the Family and Medical Leave Act (FMLA).  Specifically, the rule recognizes all lawful same-sex spouses for purposes of FMLA leave, regardless of the couple’s state of residence.  This final rule takes effect on March 27, 2015.

The FMLA permits eligible employees to take unpaid leave to care for a spouse with a serious health condition.  Under the final rule, the DOL adopts the “state of celebration” rule in determining who is considered a spouse for these purposes.  Accordingly, an eligible employee who has married a same-sex spouse in any state is permitted to take advantage of spousal FMLA leave, regardless of whether the couple resides in a state where same-sex marriage is recognized.  The DOL previously adopted a “state of residence” rule for purposes of the FMLA, meaning an employee could take advantage of FMLA leave to care for a same-sex spouse only if the couple resided in a state where same-sex marriage is recognized.  The “state of celebration” rule is consistent with the approaches adopted by the DOL and the Internal Revenue Service for purposes of other laws governing employee benefits.

Employers must review and revise their FMLA leave policies in light of this new definition to ensure spousal FMLA leave is extended to same-sex couples residing in all states beginning March 27, 2015.




read more

New Guidance on Background Checks Issued by the FTC and EEOC

Last month, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) issued joint guidance addressing the use of background checks in employment decisions.  The guidance does not offer new requirements related to background checks, but rather serves as a reminder to employers of their obligations under federal law when they use background checks, and creates a user-friendly guide to applicants and employees regarding their rights with respect to background checks.

The guidance consists of two documents – one for employers, “Background Checks: What Employers Need to Know,” and one for applicants and employees, “Background Checks: What Job Applicants and Employees Should Know.”  The first document, “What Employers Need to Know,” offers guidance to employers on their existing legal obligations under the Fair Credit Reporting Act (FRCA), a federal law enforced by the FTC, and federal non-discrimination laws enforced by the EEOC.  The document reminds employers that under FCRA employers must obtain written permission from job applicants and employees before conducting a background check, and must notify applicants and employees that background reports may be used to make decisions about employment.  In addition, the agencies reaffirm that employers must not discriminate based on a person’s race, color, national origin, sex, religion, age (40 or older) or disability when requesting or using background information for employment.  Finally, the guidance discusses the requirements related to the retention, preservation and disposal of personnel or employment records.

The second document, “What Job Applicants and Employees Should Know,” describes applicants’ and employees’ rights under federal law when an employer conducts background checks. The agencies remind applicants and employees that it is lawful for potential employers to ask about applicants’ or employees’ backgrounds or require a background check, as long as the employer does not unlawfully discriminate.  The guidance also states that employers must not ask for medical information until they offer an applicant a job, and can only ask for genetic information under limited circumstances (for example, when an employer offers health or genetic services as part of a voluntary wellness program, or if the information is required to comply with the Family and Medical Leave Act).  Finally, the guidance explains that when applicants have been turned down for a job or denied a promotion based on information in their background reports, they have the right to review the report for accuracy.

This marks the first time the two agencies have jointly issued guidance, which seems to indicate that both agencies have a vested interest in enforcing the laws related to employer use of background checks, and perhaps serves as a signal to employers that both agencies consider this topic a priority.  Employers should consider reviewing the new guidance, and ensure that their policies and practices with respect to background checks comply with federal law, as well as applicable state and local law.




read more

Final Rule Implementing FMLA Amendments Expands Protections for Military Families and Airline Flight Crews

by Stephen D. Erf, Heather Egan Sussman and Sabrina E. Dunlap

The U.S. Department of Labor recently issued a final rule implementing new expanded rights for families of military members and veterans, and greater access to Family and Medical Leave Act (FMLA) leave for airline flight crews.  Companies should review and update their FMLA policies to account for this new rule.

To read the full article, click here.




read more

STAY CONNECTED

TOPICS

ARCHIVES

Top ranked chambers 2022
US leading firm 2022