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Are you using the correct FLMA Forms?

The US Department of Labor (DOL) recently posted updated versions of its model Family and Medical Leave Act (FMLA) notification and certification forms, effective through February 28, 2015. The forms do not contain any substantive changes, but the previous forms expired December 31, 2011; so, going forward, employers who use the DOL forms should begin utilizing the new ones. The updated model forms are as follows:

   WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)

       WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)

       WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

       WH-382 Designation Notice (PDF)

       WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

       WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave (PDF)

In the alternative, employers using their own forms may continue to do so, provided they do not ask for more information than required by the FMLA.

Notably, the new forms still do not include the “safe harbor” language recommended by the Equal Employment Opportunity Commission’s (EEOC) regulations, to prevent the disclosure of genetic information as prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Thus, regardless of whether employers use the DOL forms or their own forms, they should always add the following language in requests for employee health-related information to avoid liability under GINA for an inadvertent disclosure of genetic information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.  See 29 C.F.R. § 1635.8(b)(1)(B).

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NLRB Posting Rule Delayed Indefinitely

On April 17, 2012, the D.C. Circuit issued an injunction delaying the effective date of the NLRB’s Final Rule requiring most employers to post a notice of employee rights in their workplaces. The Final Rule, previously scheduled to take effect on April 30, 2012, has now been postponed indefinitely due to conflicting opinions issued by federal district courts. Judge Amy Berman Jackson of the United States District Court for the District of Columbia issued a ruling on March 2, 2012 that upheld the NLRB’s authority to enact the Final Rule but invalidated the primary enforcement mechanisms. On April 13, 2012, Judge David C. Norton of the U.S. District Court for the District of South Carolina struck down the Final Rule in its entirety in Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN. Judge Norton held that by enacting the Final Rule, the NLRB exceeded its statutory authority in violation of the Administrative Procedure Act. Judge Norton stated, “It can be said that the notice-posting rule ‘aids’ or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7, but defendants have not shown that the rule is ‘necessary’ to carry out any other provisions of the Act.” As a result of the conflicting opinions, the D.C. Circuit enjoined the enforcement of the Final Rule pending appeal. NLRB Chairman Mark Gaston Pearce expressed the Board’s opposition to the order but confirmed that all regional offices have been directed to comply with the injunction. The D.C. Circuit ordered an expedited briefing schedule and directed the court clerk to schedule oral argument in September.

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Clarifying How the ADA Impacts a High School Diploma Job Requirement

In response to the considerable discussion resulting from an EEOC informal discussion letter released at the end of last year, the federal agency has posted on its website a question-and-answer guidance document explaining the relationship between high school diploma job requirements and the Americans with Disabilities Act.

The guidance explains that the letter, dated November 17, 2011, does not make it illegal for a business to require that applicants have a high school diploma. However, an employer may be required to permit someone who says she has a disability that prevented her from getting a high school diploma show by other means that she is qualified for the job. For example, the employer may consider work experience in the same or similar jobs, or permit the applicant to demonstrate performance of the essential functions of the job. The employer can also require the applicant to demonstrate, perhaps through documentation, that she has a disability and that the disability actually prevents her from meeting the diploma requirement.

The Q&A also clarifies that “the ADA only protects someone whose disability makes it impossible for him or her to get a diploma.” The statute does not protect an individual who simply decided not to get a high school diploma.

Moreover, even if an applicant with a disability is able to demonstrate the ability to do the job through a means other than possession of a high school diploma, the employer is not prohibited from choosing the best qualified person for the job — the employer does not have to give preference to the person with a disability over an individual who can perform the job better.

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NLRB Issues Final Rule Requiring Employers to Post NLRA Rights Poster

Unionized and non-unionized employers subject to NLRB  jurisdiction must post an NLRA rights poster in their work places beginning  April 31, 2012. The new posting  requirement is the result of NLRB formal rulemaking finalized on August 30,  2011. The NLRB’s Final Rule can be  viewed here.

Summary of Final Rule
After receiving over 7,000 comments, the NLRB by a 3-1 vote (with Member Brian  Hayes dissenting) issued the Final Rule initially to go into effect on November  14, 2011. The NLRB later postponed the  effective date until January 31, 2012.
The poster provides a comprehensive list of employee rights under the Act,  including the right to act together to improve wages and working conditions; to  form, join and assist a union; to bargain collectively with their employer  through chosen representatives; and to refrain from engaging in any of these  activities. It also provides examples of  unlawful employer and union conduct and instructs employees how to contact the  NLRB with questions or complaints.
The notice must measure 11 x 17 inches and be posted in all locations where  employee notices typically are posted, including on a company’s intranet or  internet site if the company customarily posts personnel rules and policies on  its intranet or internet. Although the  rule has no record-keeping or reporting requirements, the NLRB may treat any  failure to post the notice as an independent unfair labor practice. Under certain circumstances, failure to post  may extend the six-month statute of limitations generally applicable to other  unfair labor practice charges.
Each NLRB regional office will provide a copy of the poster free of charge, or  employers may print it directly from http://www.nlrb.gov/poster. The NLRB will also make available foreign  language versions of the notice, which are required at workplaces where at  least 20% of employees are not English-proficient.
Federal contractors that already need to post the similar U.S. Department of  Labor notice pursuant to Executive Order 13496 will be deemed to be in  compliance with the NLRB’s Final Rule.

Union Perspective
The NLRB’s Final Rule requiring posting is a common sense approach to ensuring  that employees are aware of their rights under the NLRA, and is a reasonable  exercise of the Board’s express statutory authority to promulgate regulations  that carry out the Act. As is noted in the  Final Rule, multiple studies have concluded that employees are largely unaware  of the rights afforded to them by the NLRA. 76 FR 54006 (Aug. 30, 2011). Long ago, the DOL concluded that “the posting  of notices…in establishments where covered employees are employed is a  necessary adjunct to proper enforcement of the statutory provisions”  (referencing the FLSA posting requirements).  14 FR 7516 (Dec. 16, 1949).
Because the NLRA is enforceable only through charges filed  by individuals and organizations, the Board must rely on an informed workplace  to properly enforce protections provided by the Act. Further, the NLRB has no authority to monitor  a workplace to determine compliance, nor may it initiate enforcement of the Act  unless and until a charge is filed.  Simply put, if employees are unaware of their rights, the Act cannot be  enforced.
Finally, it should be noted that the Final Rule simply requires posting a piece  of paper on a wall. In their workplaces,  employers are presently required to post information pertaining to a host of  statutory employee rights: OSHA, FMLA,  EEOC, FLSA, etc. Compliance with the Final  Rule is hardly burdensome; it is unlikely to take more than two minutes to  print the notice from the NLRB’s website (for free) and tack it up next to  other employee notices.

Management Perspective
The NLRB’s Final Rule is improper and unnecessary. The arguments against it are well-articulated  in the lawsuits filed against the NLRB in September by the United States  Chamber of Commerce, National Association of Manufacturers, and National Right  to Work Legal Defense and Education Foundation.  See Chamber of Comm. of the U.S. of Am. v. NLRB, 2:11-cv-02516-DCN  (D.S.C.); National Ass’n of Mfgs. v. NLRB, 1:11-cv-01629-ABJ (D.D.C.); National  Right to Work Legal Defense and Education Fdn. v. NLRB, Case No.  1:11-cv-01683-ABJ (D.D.C.).

In sum, the Final Rule improperly:

  • exceeds the NLRB’s authority.  Nothing in the statutory text gives the NLRB the authority to require  employers to post a notice of NLRA rights.
  • violates the First Amendment. The poster constitutes compelled employer  speech, and the First Amendment protects a private employer’s right not to  speak. The rule is further contrary to  employer’s speech rights under Section 8(c) of the NLRA, 29 U.S.C. § 158(c).
  • may make an employer’s failure to post an unfair labor  practice charge and toll the statute of limitations.
  • Nothing in the statutory text gives the NLRB  the authority to create or to extend the statute of limitations period beyond  that stated in Section 10(b) of the NLRA, 29 U.S.C. § 160(b).
  • is arbitrary and capricious under the Administrative  Procedure Act. The NLRB failed to  consider contrary evidence or legal and economic policy considerations or to  articulate a rationale basis for not addressing that evidence or those  considerations. Among those  considerations the NLRB did not properly address are unionized employees’  rights in right-to-work states. The NLRB  further relied on insufficient empirical data, anecdotal, and outdated,  localized studies in adopting the rule.
  • fails to complete a full regulatory flexibility analysis. The NLRB’s analysis was incomplete and understated  economic impact on small entities.

Notably, the House Appropriations Committee has proposed a rider to the NLRB’s  2012 budget that, if passed, would prohibit the NLRB from allocating any  portion of its budget toward enforcement of the rule.

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The NLRB Carousel Keeps Turning

Democratic member Craig Becker’s recess appointment to the NLRB expired on Tuesday, January 3, 2012. With the expiration of that appointment, the NLRB dropped to two members–Chairman Mark Gaston Pearce and Member Brian E. Hayes. On January 4, 2012, President Obama announced his intent to recess appoint Sharon Block, Richard Griffin and Terence F. Flynn as Members of the National Labor Relations Board.

Sharon Block is the deputy secretary for congressional affairs at the U.S. Department of Labor. Block previously served as senior labor and employment counsel for the Senate Health, Education, Labor and Pensions Committee from 2006 to 2009. Prior to that experience, Bloch worked as a senior attorney to former NLRB Chairman Robert Battista and as an attorney in the NLRB’s appellate court branch.

Richard Griffin is the general counsel for the International Union of Operating Engineers and serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Griffin has held several positions with the IUOE, beginning in 1983 as assistant house counsel. From 1981 to 1983, Griffin served as counsel to NLRB board members.

Bloch and Griffin’s nominations join that of labor lawyer Terence Flynn, a Republican whom Obama nominated to the NLRB in January 2011 and whose appointment had not been acted on by the Senate.

Absent these recess appointments, the NLRB would have lost its three-member quorum and been unable to render any decisions or promulgate rules.

These appointments surely will antagonize Republicans and the business community, both of whom have recently battled the NLRB over a variety of issues.  Recess appointments are not subject to Senate review and they provide President Obama with an opportunity to pacify his labor constituency without the nasty political fight that certainly would have resulted during the confirmation process. Senate Republicans and the business community will undoubtedly seek to challenge the recess appointments.


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Requiring a High School Diploma Might Violate the ADA? It’s True.

Last month the Equal Employment Opportunity Commission (EEOC) posted an informal discussion letter on its website addressing the requirement of a high school diploma as it relates to jobs and job postings.  You might be wondering how requiring a high school diploma may violate a disability anti-discrimination statute such as the Americans with Disabilities Act (ADA).  A high school diploma requirement may run afoul to the scope and spirit of the ADA if the individual has a learning disability/impairment and is therefore restricted from a large pool of jobs that he or she could probably perform without a high school diploma.

From the informal discussion letter:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

However, there will obviously be a large pool of jobs that meet the “consistent with business necessity” requirement such as jobs as doctors, pharmacists, nurses, etc.

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Confusion Causes Delay for Requirement for NLRB Posting until January 31, 2012

The National Labor Relations Board (NLRB) has postponed the implementation date for its new rule requiring the posting of employees’ rights under the National Labor Relations Act by more than two months. The effective date of the posting rule is now January 31, 2012 — moved from November 14, 2011.

No other changes in the rule, or in the form or content of the notice, will be made, the NLRB stated.

According to the NLRB, the posting date was delayed in order to allow for enhanced education and outreach to employers, particularly those who operate small- and medium-sized businesses. The decision followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the NLRB’s jurisdiction.

Most private sector employers will be required to post the 11-by-17-inch notice of employee rights under the National Labor Relations Act (NLRA). The requirement applies to most private employers who are subject to the NLRA. Workplaces with or without union representation are included. There are some narrow exceptions, however, particularly for employers with small gross annual business volume.