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Milwaukee Employment Law Blog

New poster with easier-to-understand FMLA regulations

The U.S. Department of Labor has produced a new poster on the Family and Medical Leave Act for covered employers in Wisconsin and around the country to post in the workplace. Those employers are not required to use the new poster if they have an older one containing the same information on display, but they might want to because the information is presented in a way that is easier to read and understand.

A FMLA poster must be hung at a FMLA-eligible workplace even if none of the employees themselves are eligible for FMLA. The poster must not only be visible to current employees but to job applicants as well. The poster must also be distributed to employees in some way. This might be in an employee handbook or provided with other new hire paperwork such as information on benefits. It can also be distributed electronically. If an employer's workforce is significantly made up of people who cannot read English, then the notice must be provided in a language they can read.

Confidentiality at issue in ADA case

A 2015 EEOC lawsuit may cause Wisconsin employers to take note of communications with employees in cases involving potential discrimination investigations. The case that brings this concern to light involves an electrician working for an engineering and construction company. The firm reportedly terminated the man because of his disability, failing to provide reasonable accommodations. He subsequently filed a complaint with the EEOC.

Reports indicate that the EEOC requested contact information of other electricians who had worked with the company in the same time frame as the party making the complaint. The company, however, notified nearly 150 employees through letters, which identified numerous personal details about the case. These included the nature of the discrimination charge and disclosure of the former employee's work restrictions.

Employers should train managers on FMLA rights

Many Wisconsin employees may be unaware of their rights under the Family and Medical Leave Act, and their supervisors at work may not be clear on what the policies do and do not permit. Staples, the office supply chain, was forced to pay one of its former employees $250,000 because instead of telling him he could take time off to take care of his wife, who was terminally ill, the company had him working from home. The man was fired, and he successfully sued Staples for interference.

Some employers do not train their supervisors on how to recognize a legitimate FMLA request because the regulations are so complex. However, this can result in supervisors who do not understand what is and is not a legitimate request, and as a result, supervisors may inadvertently penalize employees.

Cases show importance of training on ADA requirements

Some employers in Wisconsin and elsewhere seem to have a poor understanding of their responsibilities under the Americans with Disabilities Act as well as the rights of their employees under the law. When an employer violates the provisions of the ADA, resulting in harm to a disabled employee, the employee may file a complaint with the Equal Employment Opportunity Commission.

Three recent cases underscore that employers must make certain their human resources personnel and other employees are all thoroughly trained in the ADA and its requirements. In the first case, a man was terminated from his job while he was taking leave that had been authorized for heart bypass surgery. In the second case, a man was forced to stay on leave for months after he had a seizure at work but had clearance from his physician to return. Finally, in the third case, a deaf woman was not provided with a sign language interpreter and was instead forced to rely on notes.

Same-sex spouses of federal workers officially included in FMLA

On April 8, the Office of Personnel Management officially published the final rule that allows gay and lesbian federal workers in Wisconsin and around the country to take time off to care for spouses when they are ill. The rule changes the statutory language in the federal Family and Medical Leave Act.

According to the rule, the definition of "spouse" will officially be updated to include same-sex spouses on May 9. The new wording will bring the FMLA current with an October 2013 OPM-issued guidance to federal agencies allowing workers to take time off to care for same-sex spouses. The guidance was issued after the U.S. Supreme Court overturned Section 3 of the 1996 Defense of Marriage Act in June 2013. That statute classified marriage as between a man and a woman and barred gay and lesbian spouses of current and retired federal workers from getting the same benefits offered to opposite-sex spouses of federal employees.

Wisconsin court upholds employer wellness program

A noteworthy employment law challenge brought by the Equal Employment Opportunity Commission was struck down by the U.S. District Court for the Western District of Wisconsin in 2015. In April 2016, it was revealed that the EEOC had appealed the decision to the U.S. Court of Appeals for the 7th Circuit. The original decision concerned a Wisconsin manufacturer that forced its workers to undergo a wellness program before they could be covered under the company's health plan. The court ruled that this practice fell under the allowed exceptions of the Americans with Disabilities Act because it counted as risk underwriting.

The EEOC countered that the insurance safe harbor exception for risk underwriting only applied to insurers and similar organizations. Because the company mandated that its workers go through the health program, the appeal claimed it was in violation of the exemption for voluntary wellness programs.

The provisions of the Family and Medical Leave Act

Wisconsin residents may know that the Family and Medical Leave Act of 1993 entitles most employees working for companies with 50 or more workers to take job-protected time off work when they or a close family member becomes sick. However, the provisions of the FMLA do not cover all illnesses or injuries, and medical conditions must meet at least one of six conditions for the law to apply.

The FMLA covers any illness, injury or mental condition that necessitates inpatient care at medical facilities like hospitals and hospices. Conditions that do not involve an overnight hospital stay but last for three days or more would also be covered by the law provided that the individual concerned visited a doctor within a week of becoming sick and made two or more visits to a physician during the first 30 days of their illness, incapacity or injury.

Joint employment and FMLA in Wisconsin

If a worker is jointly employed by two or more companies, they may both be responsible for compliance with FMLA requirements. Joint employment occurs when employers benefit from the services of an individual and are related to each other. Typically, the employers will have an arrangement to share the services of a single worker and they will share common control of that worker.

An employee who works for two companies jointly must be counted by both employers for FMLA purposes. This is true even if that worker is only on one payroll. When determining an employee's work site, the primary employer's office or other location is considered the work site. However, if a worker works for a year or more at the secondary employer's workplace, this would be the worker's primary one.

Work with experienced employment law attorney in benefits denial cases

Employment benefits are an important consideration when seeking and accepting new employment, as well as remaining with an employer, and can be a significant source of support for employees both during their working years and after they retire. This is why it is so important to work with an experienced attorney when employment benefits are wrongly denied.

There are certain protections in place to ensure that employers and their insurers do right by employees when it comes to employment benefits. One important law is the Employee Retirement Income Security Act of 1974 (ERISA), a federal measure which sets minimum standards for private, voluntary pension and health plans managed by employers. One important goal of ERISA is to protect workers so that they are able to benefit in retirement from assets they put into employer-managed retirement plans. ERISA and the U.S. Department of Labor also establish requirements for processing claims for health and disability benefits, as well the rights of ERISA plan participants when claims are denied.

Denying FMLA leave could lead to personal liability

Wisconsin employees may be interested to learn that a federal appellate court has ruled that a human resources director could be considered an employer and thus held responsible for violating the Family and Medical Leave Act. A payroll administrator who had been at a company for five years submitted a FMLA request to care for her teenage son who had just been diagnosed with diabetes. She returned to work after 12 days and at the end of that same month, she submitted paperwork supporting her need for the FMLA leave.

However, the very same day that she submitted the paperwork, another one of her sons fractured his leg and had to undergo surgery. The woman asked for leave until July 9, about two weeks, and then when her supervisor followed up with her on that day, she said she could return on July 12 but needed to work part-time until August. The woman also asked if she needed to provide documentation. The supervisor turned the case over to the human resources director.

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