What’s New With the FMLA?

1. What’s New With the FMLA? BSHRM Legal Update 2013 David T. Wiley

2. Amended FMLA Regulations • Amended Regulations became effective March 8, 2013 • Amended Regulations implement: • Changes to military family leave provisions enacted as part of the 2010 National Defense Authorization Act (NDAA) • Changes to FMLA leave rules for airline flight crews enacted as part of the Airline Flight Crew Technical Corrections Act • Clarifications to a few other provisions

3. Amended FMLA Regulations • Expands qualifying exigency leave: • Leave is available to family of members of the Regular Armed Forces • Provides that leave only available when service member is deployed to a foreign country • Increases the amount of time an employee may take for Rest and Recuperation (R&R) leave from 5 to 15 days • Creates an additional qualifying exigency leave category to provide care to military member’s parent

4. Amended FMLA Regulations • Incorporates NDAA amendments to military caregiver leave by permitting employees to take military caregiver leave to care for veterans • Must have been discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins • Provides that, for a veteran, an injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty may constitute a “serious injury or illness” in certain situations. • Similar expansion of the definition of a “serious injury or illness” for current servicemembers to include aggravation, but without the limitations applicable to veterans. • Revises medical certification rules for military caregiver leave

5. Amended FMLA Regulations • Clarifies calculation of eligibility length and hours of service in relation to USERRA-covered military service • Clarifies regulations regarding minimum increments of leave • May not require employee to take more time than necessary • Employer must track FMLA leave using the smallest increment of time used for other forms of leave, subject to one hour maximum. • Provides that physical impossibility rule is to be construed extremely narrowly • Updates recordkeeping requirements to specify employer’s obligations to comply with confidentiality requirements of GINA

6. Other Recent DOL Activity • February 2013 -- New FMLA poster and forms released • Poster reflects the amended FMLA regulations • Forms amended re: February 28, 2015 expiration dates, but no substantive revisions • January 2013 - Administrator Interpretation providing guidance on the definition of “son or daughter” as it applies to an individual 18 years of age or older and incapable of self-care because of a disability

7. What Must You Do? • Post new FMLA poster • Review and revise FMLA policies to incorporate new regulatory provisions and to reflect Administrator Interpretations of son and daughter • Use revised DOL prototype forms, or update Company forms

8. Emerging Case Law • Rodriguez v. University of Miami Hospital, 2012 U.S. App. Lexis 24774 (11th Cir. Dec. 3, 2012) • Court reversed and remanded FMLA interference claim where issue existed as to whether employee had conceded that she no longer wanted to work with supervisor, and retaliatory discharge claim where evidence suggested “pre-existing” performance problems were never mentioned until employee returned from FMLA leave • Morgan v. Orange County, Florida,477 Fed. Appx. 625 (11th Cir. May 23, 2012) • Affirmed summary judgment to county where employee failed to follow call-in policy during FMLA absence and where county had good faith belief that employee fraudulently took pleasure cruise rather than legitimate leave

9. Emerging Case Law • Burch v. P.J. Cheese, Inc., 2013 U.S. Dist. Lexis 43282 (N.D. Ala. Mar. 27, 2013) • Court denied summary judgment motion where Papa John’s employee’s single visit to physician, combined with prescription for Xanax (regardless of whether taken), constituted “continuing treatment by health care provider” and where evidence suggested supervisor refused to acknowledge employee’s FMLA request, fired and/or demoted him and tried to set him up for discharge • Rhodes v. Arc of Madison County, Inc., 2013 U.S. Dist. Lexis 10032 (N.D. Ala. Feb. 27, 2013) • Court denied employer’s summary judgment motion, holding that “direct evidence” of retaliation existed where manager stated to plaintiff and her supervisor that “too many people [were] trying to take FMLA [leave],” that plaintiff had “already taken FMLA [leave] twice and [she] was taking it again” and the manager “was tired of folks asking for FMLA [leave]”

10. Emerging Case Law • Tippins v. Honda Mfg. of Ala., LLC, 2013 U.S. Dist. Lexis 2239 (N.D. Ala. Jan. 7, 2013) • Court granted summary judgment to employer where plaintiff was not incapacitated for three consecutive calendar days (i.e. at least 72 consecutive hours) following outpatient treatment. Plaintiff cannot combine prior periods of treatment or incapacity to meet 3-consecutive-day requirement • Franks v. Indian Rivers Mental Health Ctr., 2012 U.S. Dist. Lexis 142083 (N.D. Ala. Sep. 30, 2012) • An “on call” bonus is analogous to a production bonus and therefore an employer may deny it without violating the FMLA • An employer may violate the FMLA if it requires the employee to perform work while on FMLA leave

11. Emerging Case Law • Availability of Emotional Distress Damages Under FLSA • Bogacki v. Buccaneers Ltd. P'ship, 370 F. Supp. 2d 1201 (M.D. Fla. 2005) • notes that although 11th Circuit has not ruled on issue, nevertheless concludes that compensatory damages for emotional distress can be awarded in FLSA cases • accordVaccaro v. Custom Sounds, Inc., 2010 U.S. Dist. LEXIS 28188 (M.D. Fla. Mar. 4, 2010); Randolph v. ADT Security Servs., Inc., 2012 U.S. Dist. LEXIS 82386 (D. Md. June 14, 2012) • Several other courts of appeal (6th, 7th, 8th, 9th) have explicitly or implicitly approved of emotional distress damages in FLSA cases • But seeDouglas v. Mission Chevrolet, 757 F. Supp. 2d 637, 640 (W.D. Tex. 2010) (holding that 5th Circuit would conclude that emotional distress damages are not available under the FLSA)

12. Join us at our upcoming Breakfast Seminar! April 24, 2013 Registration 8:00 a.m. Seminar 8:30 – 10:30 a.m. Cahaba Grand Conference Center Health Care Reform: “Shared Responsibility Penalty” and Other Key Provisions Affecting Employers

13. QUESTIONS? David T. Wiley First Commercial Bank Building 800 Shades Creek Parkway, Ste. 870 Birmingham, Alabama 35209 (205) 332-3104 wileyd@jacksonlewis.com