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Issue 1 - 2013 Newsletter

    In This Issue:
  • Disability Accommodation Leaves of Absence
  • New FMLA Regulations and New Poster Requirement for 2013
  • Employers required to use the Newly-Revised Form I-9

Disability Accommodation Leaves of Absence

If an employer and employee are covered by the federal and state family medical leave acts (FML), the laws provide for leaves of absence (12 weeks for most leaves, but up to 26 weeks for certain military related leaves) for eligible employees.  Employers sometimes believe that if an employee has taken his/her full amount of FML and is not back at work (or tries to take additional leave) the employer may terminate the employee. Also, sometimes employers believe that if the employer or employee are not covered by the FML, the employee has no legal rights for time off.

As with most employment matters:  it is not so simple because other laws provide for “protected” leaves of absence that go beyond the leaves called for in the family medical leave laws.

A leave right that seems to particularly catch employers off guard is disability accommodation leave. Employees with covered “disabilities” (as defined in the Americans with Disabilities Act or the California Fair Employment & Housing Act) may be entitled to leaves of absence in addition to any FML rights if a  leave would be an appropriate “reasonable” accommodation.    An accommodation is reasonable if it is likely to permit an employee to be able to return to perform the essential functions of the job and is otherwise not an undue hardship on the employer.  Because a “reasonable” accommodation must be designed to enable the employee to do the job, an accommodation that does not help the employee actually return to work should be, by definition, not reasonable.  Thus, an indefinite leave of absence should generally not be reasonable because it does not help the employee do any work.  On the other hand, if a healthcare provider concludes that an employee requires a finite leave of absence – even if it goes beyond the employee’s 12-week FML – and the employee would then be likely to return to work (with or without any accommodations at work), an employer would need to consider the additional leave as an accommodation and engage in an interactive exchange with the employee to determine if the leave is a reasonable accommodation.

Other laws also can give employees leave rights beyond FML including pregnancy disability laws, organ donation laws and workers’ compensation laws.

Responding to leave of absence matters is one of the trickiest areas of human resources management.  Employers need to (a) be aware of the myriad leave laws; (b) evaluate an employee’s eligibility for each type of leave independently; and (c) determine whether or not the various leaves will be cumulative or run concurrently.


New FMLA Regulations and New Poster Requirement for 2013

On February 6, 2013, the Department of Labor (“DOL”) published additional regulations clarifying and expanding upon the Family and Medical Leave Act’s (“FMLA”) provisions relating to leave taken to care for injured military members and leave necessitated by a military member’s call to active duty status.  In addition, the DOL published new FMLA regulations that only apply to airline flight crew members.  These new regulations became effective March 8, 2013.

Under the updated FMLA regulations, employees may take “military caregiver leave” in order to care for veterans who were injured during active duty service or who had injuries or illnesses that were aggravated by active duty service in addition to taking leave to care for service members currently serving in the Regular Armed Forces, National Guard or Reserves.  To be eligible for the military caregiver leave under the FMLA, the veteran in need of care must have been discharged or released under conditions other than dishonorable at any time in the five-year period before the employee first needs to take leave to care for the veteran.  The new regulations also add another category of “qualifying exigency,” permitting employees to take leave to care for a military member’s parent who is incapable of caring for himself or herself when the leave is necessitated by the military member’s call to active duty status (e.g., an employee may need leave to arrange for alternative care for a military member’s parent when the military member has been called to active duty).

In addition, the new FMLA regulations require all employers covered by the FMLA to display a new poster that incorporates the recent changes to the FMLA as of March 8, 2013.  The updated poster is available on the DOL website at: http://www.dol.gov/whd/regs/compliance/posters/fmla.htm.  Employers covered by the FMLA also should ensure that their FMLA forms are up to date and include the recent changes to the FMLA.  For more information regarding these changes, please contact the shareholders at Simpson, Garrity, Innes & Jacuzzi, P.C. - Paul V. Simpson, Ronald F. Garrity, and Marc L. Jacuzzi.


Employers required to use the Newly-Revised Form I-9

The August 2009 edition of the Form I-9 Employment Eligibility Verification expired on August 31, 2012. Without a replacement form, employers were instructed to continue using the August 2009 edition beyond its expiration date until now.

On March 8, 2013, the U.S. Citizenship and Immigration Services (USCIS) published the long-awaited revised Form I-9, which can be accessed at http://www.uscis.gov/files/form/i-9.pdf

Issue 2 - 2013 Newsletter
Issue 3 - 2012 Newsletter

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South San Francisco, CA 94080
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Tel: 650-615-4860
Fax: 650-615-4861


2175 N. California Blvd, Suite 710
Walnut Creek, CA 94596
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Tel: 925-322-8889
Fax: 925-322-8890


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