Labor Employment Law Blog

In late October, President Obama signed into law a bill that increases protections for families of military personnel who wish to take leave from work under the Family and Medical Leave Act of 1993 ("FMLA"). The new amendments expand on changes implemented less than a year ago requiring that certain employers provide unpaid leave for qualifying family members of military personnel:

Flu season is upon us. With the recent outbreak of the H1N1 Virus ("Swine Flu") as well as the ever-present seasonal flu, employers must face increased absenteeism by their employees. Much like the regular flu, H1N1 causes fever, sore throat, nausea and fatigue. However, this particular strain of illness is predicted to be particularly dangerous not only for those with preexisting medical conditions such as asthma or diabetes, but also for those under the age of 25, as opposed to the elderly who are normally at highest risk of severe injury or death from the seasonal flu. This means that employers will likely see more of their younger employees affected by the H1N1 virus than from the regular flu.

On November 17, 2008, the United States Department of Labor issued revised regulations interpreting the federal Family Medical Leave Act (FMLA).  Because these regulations differ from comparable regulations that the California Fair Employment and Housing Commission (FEHC) has issued interpreting the California Family Rights Act (CFRA), the FEHC plans to revise its CFRA regulations.

The Department of Labor has released a new poster that reflects recent amendments to the Family and Medical Leave Act ("FMLA").  As part of the FMLA, employers are required to post in a conspicuous place a notice explaining the Act's provisions.  The new poster reflects changes that were made to the FMLA in the Department of Labor's recently published "Final Regulations," which take effect on January 16, 2009.  Among other changes, the new poster contains a description of the requirements for military family leave.  Previously, employers were required to post separate notices regarding military family leave and the FMLA.  The new poster is currently available on the Department of Labor's website.

Presented by Jennifer Redmond

This 1-hour seminar will cover what you need to know about the new FMLA regulations, including:

• New employer notice requirements
• New employee notice obligations
• Qualifying exigency leave defined
• Limited rights to contact the health care provider directly
• Recertification rights
• Conflicts with state law on the definition of serious health condition

We are offering the seminar in both San Francisco and Silicon Valley:

Wednesday, December 10, 2008
Sheppard, Mullin, Richter & Hampton LLP
990 Marsh Road
Menlo Park, CA 94025
Click here to register.

Thursday, December 11, 2008
Sheppard, Mullin, Richter & Hampton LLP
Four Embarcadero Center
Seventeenth Floor
San Francisco, CA 94111
Click here to register.

Registration & Breakfast 7:30 a.m. - 8:00 a.m.
Program 8:00 a.m. - 9:00 a.m.

This activity complies with standards for Minimum Continuing Legal Education prescribed by the California State Bar and is approved for 1.0 hours of MCLE credit. Sheppard, Mullin, Richter & Hampton LLP is a State Bar of California approved MCLE provider.

On January 28, 2008, President Bush signed an amendment to the Family and Medical Leave Act (FMLA) that extended greater protections to military families.  The amendment (H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L. 110-181) allows an employee to take up to 26 workweeks of leave to care for an injured or ill member of that employee's immediate family who is a “covered service member” in the military.  The NDAA also permits an employee to take 12 weeks of FMLA leave for "any qualifying exigency" arising out of the fact that an immediate family member in the military is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.

In Stevenson v. Hyre Electric Co., the United States Court of Appeals for the Seventh Circuit recently reversed an order granting summary judgment in favor of the employer on a claim that the employer violated the plaintiff's rights under the Family Medical Leave Act ("FMLA") by terminating the plaintiff's employment.  The court found that there was a triable issue of fact as to whether the employer was placed on notice of the plaintiff's need for FMLA leave based upon the plaintiff's bizarre behavior.

In Taylor v. Progress Energy, Inc., the Fourth Circuit considered the meaning of 29 C.F.R. § 825.220(d) which states that "employees cannot waive, nor may employers induce employees to waive, their rights under FMLA."  The Court concluded that, without prior Department of Labor ("DOL") or court approval, section 825.220(d) bars both prospective and retrospective waiver or release of all FMLA rights, including the right to bring an action or claim for a violation of the Act.