Georgia News & Analysis

  • Black Lives Matter apparel at work evokes legal, business, social concerns

    The Black Lives Matter (BLM) movement has sparked significant emotion in the past few months. Ever since the NBA season restarted, TV viewers are seeing the phrase emblazoned on the courts and on some players' jerseys. What you won't see on TV are the large employers that have faced significant backlash for attempting to prohibit employees from wearing BLM masks and other apparel. For example, several Whole Foods employees recently initiated a class action lawsuit claiming they've been subjected to race discrimination and retaliation for wearing BLM masks and other clothing, even after the company reversed its initial prohibition on the face coverings. Let's look at the legal, business, and social considerations in play here.

  • What to do if employees 'can't wear mask because of medical condition'

    Many employers are wondering what to do if employees say they can't wear a required mask at work because of a medical condition. Read on to learn more.

  • Oompa-Loompa doompety doo, Willy Wonka's got an employment law issue for you

    In the 1971 movie Willy Wonka and the Chocolate Factory, the Oompa-Loompas were small humans whom predators in their homeland preyed upon before Wonka invited them to work at his factory. Among other things, they loved to play practical jokes and sing songs. According to Wikipedia, they were paid in their favorite food, cocoa beans. Which, of course, raises a larger question for us employment law enthusiasts: Were the Oompa-Loompas employees or independent contractors?

  • Pregnant employee terminated for her threatening behavior ― not discrimination

    In a recent case decided by the federal district court in Shreveport, an employee's pregnancy didn't curb her own threatening behavior that led to her termination. The court had to decide if her termination was really due to her threatening behavior or whether other motivations were at play, such as her pregnancy or complaints about not being accommodated.

  • New Georgia law protects breastfeeding moms in workplace

    Working mothers who return to the workplace after childbirth and wish to pump breast milk received enhanced legal protection on August 11, when Georgia Governor Brian Kemp signed legislation requiring employers to provide paid lactation breaks and private locations at the worksite. The new law, known as "Charlotte's Law,"? eliminates an employer's discretion about whether to allow or prohibit employees to take the time they need to pump breast milk at work.

  • When in (or not in) doubt, flesh it out!

    We all know the drill. You interview multiple employees/applicants for a position, and one just stands out. Your gut tells you he's the right guy for the position, but on paper, he's less qualified than the other candidates. Oh, and the others are members of a protected class. How can you avoid landing in hot water if you hire Mr. Right Guy? A Mississippi school district recently learned this lesson the hard way.

  • Employer's failure to do its homework leads to six-figure defamation award

    A Louisiana employer's allegations during a hearing about a former employee's unemployment benefits claim ― that she had engaged in fraud ― resulted in a $224,000 judgment in her favor for defamation of character. The case serves as a reminder to employers of the potential pitfalls of even a lowly unemployment claim proceeding and the risks of accusing an employee of fraud when they don't take steps to ensure the allegation is factually sound.

  • Korean carmaker outpowers the opposition

    In a controversial, bitterly divided decision, the 11th Circuit (whose rulings apply to all Alabama, Florida, and Georgia employers) recently held a Georgia automaker's decision to fire an HR representative after it had suspected her of recruiting another employee to sue the company was lawful and nonretaliatory.

  • Supervisor's retaliatory motive nearly tanks firing after fourth strike

    A former Walmart employee who was fired for her inappropriate handling of a suspected shoplifter ― her fourth disciplinary action ― cannot continue with her retaliation claim under Title VII of the Civil Rights Act of 1964 despite her supervisor's retaliatory motive. She argued her supervisor harbored a retaliatory motive against her due to sexual harassment complaints she made against him less than two months earlier. The 5th Circuit found that although the supervisor played a role in the investigation, the employee didn't present evidence the investigator relied on the supervisor's statements when making the termination decision. Of note for employers is the court's warning that the outcome would have been very different for Walmart had the supervisor inappropriately influenced the investigation.

  • 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 lberg@stearnsweaver.com.