Alabama News & Analysis

  • What are employers to do? Judge tosses parts of DOL regs covering FFCRA leave

    On August 3, 2020, a New York district court judge struck down portions of the U.S. Department of Labor's (DOL) final rule implementing the Families First Coronavirus Response Act (FFCRA). The case was filed by the state of New York under the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations. Rejecting the DOL's bid to dismiss the claims, the district court vacated (or tossed out) four separate provisions of the final rule on the grounds they exceeded the agency's authority under the statute. How the decision will affect employers outside New York is uncertain. Let's take a closer look.

  • Hot off the presses: new FMLA notice, certification forms

    We’re in the midst of a global pandemic with many employers struggling to survive financially. Yet, surprisingly, the biggest recent announcement from the U.S. Department of Labor (DOL) wasn’t about new safety rules intended to protect employees from the novel coronavirus. Instead, the DOL just published revised forms to comply with the Family and Medical Leave Act (FMLA).

    Public comments taken into account

    In early August 2019, the DOL requested public comments on modifications to the FMLA forms. Based on the feedback, the agency has published the updated forms so you can provide employees with their legally required notice and they can certify their specific need for the leave.

    The revised forms are electronically fillable PDFs and can be saved in your system. They include:

    • Notice of Eligibility & Rights and Responsibilities, Form WH-381;
    • Designation Notice, Form WH-382;
    • Certification of Health Care Provider for Employee’s Serious Health Condition, Form WH-380-E;
    • Certification of Health Care Provider for Family Member’s Serious Health Condition, Form WH-380-F;
    • Certification for Military Family Leave for Qualifying Exigency, Form WH-384;
    • Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave, WH-385; and
    • Certification for Serious Injury or Illness of Veteran for Military Caregiver Leave, Form WH-385-V.

    The forms contain a new expiration date of June 20, 2023.

    Significant changes

    The new model notices and forms are more colorful and contain the employee’s name on the top of each page. In addition, you’ll see more response boxes and an electronic signature feature. Here are some other critical changes.

    Notice of eligibility. The new FMLA notice form more clearly outlines employees’ rights and responsibilities. It requires them to identify which family members they will be caring for. It also explains how their paid leave will run concurrently with the Act (and provides additional boxes for employers to check on the issue).

    Although the new notice form says employees have 15 days to return the certification (similar to the old form), that isn’t accurate. The DOL’s regulations state they must return the certification within 15 calendar days of receipt (unless you as the employer provide them with more time to return it). So the statement in the new notice is accurate only if you hand-deliver or e-mail it.

    Designation notice. The new form includes a statement in Section I specifying employers are responsible for designating leave as FMLA-qualifying (to avoid employees who want to “opt out” of it). The pronouncement is consistent with the DOL’s 2019 opinion letter, which stated:

    An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

    The DOL included separate boxes for an employer to check when an employee’s medical certification is “incomplete” or “insufficient.”

    Medical c ertification. The new form includes a box in which the healthcare provider can confirm there is no “serious health condition.” In contrast, the old form left the impression the provider was obligated to check one of the boxes confirming the employee or family member had a serious health condition, even if the medical facts didn’t support the determination.

    The form includes a new section requiring the healthcare provider to offer a “best estimate” of the employee’s or immediate family member’s future treatment. In addition, it states in the first paragraph of Section I that an employer “may not” request a certification for FMLA leave to bond with a healthy newborn baby or a child placed for adoption or foster care.

    Questions and answers about new forms

    Can my company still use the old DOL forms? Yes. The FMLA doesn’t require you to use any specific form or format.

    If we already provided an employee with the old certification form, can we require him to repeat the process using the new form? No. If the employee received the old form and came through with the requested information, you can’t require him to provide the same material using the new form.

    Can we make changes to the FMLA forms? You can use the DOL forms or create your own versions containing the same basic information. When you ask for a medical certification, however, you may request only information related to the serious health condition for which the current need for leave exists. No other information may be required beyond what is specified in the FMLA regulations.

    Do we have to accept a certification if the employee didn’t use our form? You must accept a complete and sufficient certification, regardless of the format. You may not reject a certification containing all the information needed to determine if the leave is FMLA-qualifying. You can’t refuse:

    • A fax or copy of the certification;
    • A certification that isn’t completed on your company’s standard form; or
    • Any other record of the medical documentation, such as a communication on the healthcare provider’s letterhead.

    Are the old DOL forms still effective, even though the expiration date has passed? Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date.

    Do the FMLA forms have any applicability to the Families First Coronavirus Response Act (FFCRA)? No. The FFCRA has different documentation requirements.

    Request for more comments

    Finally, the DOL also published a request for input from the public about potential changes to the current FMLA regulations. The agency is accepting comments through September 15, 2020. We will continue to monitor the developments.

    Lisa K. Berg is an attorney with Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., in Miami, Florida. You can reach her at

  • What to do when an employee refuses to return to work during pandemic

    When states and localities first began sheltering in place because of COVID-19, many employers scrambled to determine whether to furlough or terminate employees, while others set up work-from-home policies and procedures. Although most states have moved into phases two or three of reopening, the ever-growing number of positive coronavirus cases presents ongoing hurdles for employers seeking to bring employees back into the workplace. So what happens if an employee refuses to return?

  • Make wage and hour compliance priority during time of COVID-19

    Wage and hour compliance is an area that can trip up even the most diligent employers under the best of circumstances—let alone during a global pandemic when you're trying to keep employees healthy, safe, and employed. While the health and safety concerns are unquestionably important, it's prudent to make wage and hour compliance a priority, too. Frankly, it would be foolish to think employees and their legal counsel are going to take it easy on employers simply because of COVID-19 and the ensuing and still ongoing business complications. Given how technical the wage and hour laws are, this can be seen as low-hanging fruit to plaintiffs' lawyers. In fact, we're already seeing wage and hour cases related to COVID-19 being filed across the country.

  • New CDC guideline obviates need for COVID-19 retesting

    Based on previous guidelines and advice, many business owners have been telling employees who tested positive for COVID-19 to stay away from the workplace until they test negative. New guidance from the Centers for Disease Control and Prevention (CDC), however, has obviated the need for retesting if certain symptom-based hurdles can be met.

  • Staying on the clock for bridal shower gets employee fired

    Most of the time, the employer is the one who gets burned by timekeeping troubles. In a recent ruling from the 5th Circuit (whose rulings apply to all Louisiana and Mississippi employers), however, an employee was told to clock out before attending a bridal shower at work but chose to ignore the direct order and clocked out at her normal time (after the party). When she was fired for the falsification of her time records, she vowed to prove it was age discrimination but failed.

  • Discord over foreign workers has long history, elusive solution

    The fate of foreign workers in the United States remains up in the air amid the worldwide public health crisis and political disputes related to immigration and foreign worker programs. The COVID-19 pandemic had already slowed or stopped authorization of many foreign workers when the Trump administration in June restricted visas for some classes of foreign workers. The administration's action came on the heels of a U.S. Supreme Court decision that was at least a temporary win for certain young immigrant workers already in the United States. Then President Donald Trump hinted at more change on the way for those immigrants. So, the signals are mixed, making uncertainty the key word for foreign workers and their employers.

  • Adapt or die? Looking ahead to a post-COVID workplace

    It didn't take a worldwide public health crisis to pique people's curiosity about what the workplace of the future will look like. Managers and frontline staff alike have always pondered the best designs for productivity, efficiency, and safety. But COVID-19 has changed everything. The workplaces that are reopening in many cases have a different look and feel than anyone expected prepandemic. Temperature checks at building entrances, plexiglass barriers, spaced-out desks, and occupancy limits for elevators are just a few of the changes now in place in many workplaces. Some of the modifications may be short-lived, but experts, including designers and futurists, expect others will be long-term or even permanent.

  • Title VII: All persons are entitled to its benefit

    On June 15, the U.S. Supreme Court issued a landmark opinion that's a huge win for LGBTQ advocates—and it was well-timed, given that it was right in the middle of Pride Month. The Court ruled that a federal law prohibiting gender discrimination protects workers from discrimination based on sexual orientation and gender identity.

  • Guidance for employers responding to racial unrest

    The global response to George Floyd's tragic and shocking death and other recent acts of injustice (including those involving Ahmaud Arbery, Christian Cooper, Breonna Taylor, and Nina Pop, among others) and the ensuing protests and riots amid the COVID-19 economic crisis have affected businesses directly or indirectly. As the current events continue to unfold, employers may face a plethora of related workplace issues. You should be prepared to respond.