We last checked in on FMLA in July – here’s a roundup of experts in employment law weighing in on key FMLA issues and case law, mostly from the second half of the year.

Workplace Prof Blog brings us the results of a recent study on employer compliance with the Family and Medical Leave Act (FMLA): “Using partial identification methods, we estimate that FMLA compliance among firms with 50 or more employees in the private sector is at least 54.3% and at most 76.8%. We also look at organizational characteristics that predict compliance, noncompliance, and nonresponse.”

FMLA Insights: Court Determines that Employer’s FMLA Notice Sent by Email is Not Reliable (Sending Employer World into Tizzy)

Earlier in the year, a court found that an FMLA notice sent to an employee by U.S. mail cannot be trusted because the employer cannot confirm whether the employee actually received it. More recently, a different federal court has determined that notice sent by email is not reliable either – Jeff Nowak discusses what employers should do now.

FMLA Insights: Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly
“To be covered by the FMLA, a private employer must employ at least 50 employees within a 75-mile area. If the employer doesn’t meet this threshold, it is not obligated to provide FMLA leave to its employees. However, an employee can enjoy the protections of the FMLA if he is jointly employed by multiple companies that together have 50 or more employees.”

The Emplawyerologist: FMLA Lessons From Wal-Mart: Just What the Doctor (and Court) Ordered
DOL: Notice of Proposed Rulemaking to Revise the Definition of “Spouse” Under the FMLA
“The Department of Labor has published a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the FMLA in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.”
FMLA Insights: Don’t Be Tripped Up by Light Duty Obligations under the FMLA and ADA: A Discussion of Employer Best Practices

The Employer Handbook: Here’s why you provide a list of essential job functions when approving FMLA
“Although, an employee may not be required to take more FMLA leave than necessary, when the employer informs the employee that she is eligible to take leave, the employer can insist that the employee certify, as a condition of returning to work, that the employee can perform all essential job functions. The way this is done is by providing the employee with a list of essential job functions.”

HR Daily Advisor: Can You Get Sued Over Improper Leave Administration?

Ohio Employer Law Blog: “Honest belief” isn’t a defense to an FMLA claim, says federal court
“The honest-belief rule is one of most effective shields available to employers in discrimination case … What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”

Ohio Employer Law Blog: Do not force employees to work during FMLA leave
“With technology making work-from-home more and more feasible, it is easier and easier for employees to work while “out” on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no.”

Reviewing FMLA Nuts & Bolts

When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.


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