New FMLA Retaliation Fact Sheet
The DOL’s Wage and Hour Division has posted a new fact sheet relating to the federal Family and Medical Leave Act (FMLA), specifically addressing the retaliation issue.
As background, the FMLA requires employers employing 50 or more employees to permit up to 12 weeks of unpaid leave of absence to their eligible employees upon the occurrence of certain life events, such as birth or adoption of a child, or to care for a family member’s or the employee’s own serious health condition.
It is a violation of the FMLA for an employer to refuse to provide to an employee, the benefits provided by the FMLA. It is also unlawful to interfere with, or to discriminate in any way, against an employee for exercising his/her rights to the benefits of the law. The DOL has just issued a new fact sheet, Fact Sheet #77B: Protection for Individuals under the FMLA, that addresses the protections afforded to individuals against employer retaliation. This is not new law, but certainly provides an indication of how the DOL views the issue. Examples of prohibited employer conduct include:
- Refusing to authorize FMLA leave or discouraging employees from using FMLA leave;
- Manipulating an employee’s work hours to avoid responsibilities under the FMLA,
- Considering use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,
- Counting FMLA leave under “no fault” attendance policies.
Expiration of Model FMLA Forms
Following issuance of final FMLA regulations in 2009, the DOL released several model forms that could be used by employers subject to the FMLA law. These model forms, listed below, contain an expiration date of December 31, 2011:
In order to have the FMLA forms approved for use beyond that date, the DOL is required to submit them to the Office of Management and Budget (OPM) for approval. This step has been accomplished; however the OPM has not released approved forms yet. In the interim, the current model FMLA forms with the 12/31/11 expiration may continue to be used.
As always, employers should review their FMLA documents carefully, and if appropriate, modify them to suit the employer’s particular need or situation. Employers may want to consider adding language to their FMLA medical certification form, or other forms that request medical information, or at minimum, included in the cover letter to the provider relating to the Genetic Information Nondiscrimination Act (GINA). GINA restricts employers from accessing genetic information. For this reason, employers may want to direct health care providers to make certain that their responses do not include genetic information. For GINA purposes, genetic information means:
- The genetic tests of an individual or his/her family member;
- The manifestation of a disease or disorder of the individual’s family member; or
- Any genetic services relating to participation in clinical research by the individual or his/her family member.
Genetic information includes data relating to pregnancy and assisted reproductive technology. The term genetic information does not include information about the sex or age of any individual.
A genetic service refers to a genetic test, genetic counseling or genetic education.
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