I have posted an article here that offers a number of practical tip for FMLA compliance.

This article addresses:

• What Forms of Documentation Can an Employer Require?
• Who Can Complete Certifications ?
• Can You Push Back Against Doctors?
• Other FMLA Leave Management Tips

Drug Testing of employees has been a common practice among private and public employers for over two decades. The federal government established a Drug Free Workplace Act for federal contractors, providing for policy changes and reporting of employees who were convicted of drug offenses. Some states, such as Georgia, encouraged private employers to create their own Drug Free Workplace Policies by providing for mandatory workers compensation insurance premium discounts in cases where the employer’s policy and practices met statutory requirements, including by drug testing all job applicants, and requiring both “for cause” and random drug testing procedures.

Read the Entire Article Here

In a ruling released yesterday, Coleman v. Maryland Court of Appeals, the Supreme Court held that the FMLA’s provisions for leave to care for an individual’s own serious health condition could not be applied to employees of State (not local gov’t) agencies under the doctrine of sovereign immunity (the 10th Amendment), and suits against states for violating the FMLA relating to the self-care provisions were barred by the 11th Amendment. It held e Congress did not have the power to abrogate the state’s sovereign immunity for such a purpose under the 14th Amendment.

This does not affect FMLA leave requirements where the purpose is to care for “: (A) “the birth of a son or daughter . . . in order to care for such son or daughter,” (B) the adoption or foster-care placement of a child with the employee, (C) the care of a “spouse . . . son, daughter, or parent” with “a serious health condition,”  In Nevada Dept of Human Resources v. Hibbs, the Court had held that there was evidence that states administered their leave policies in a sexually discriminatory manner with respect to granting leaves for care of immediate family members, so that the 14th Amendment allowed Congress to abrogate State sovereign immunity and permit suits against states for violation of the FMLA in such cases.  The Coleman case (decided by a 4-1-4 vote –with Kennedy writing the majority opinion and with Scalia separately concurring in a decision urging that the Court apply an even stricter standard against federal laws that permit suits against states) dealt only with the FMLA provision requiring leave to care for the employee’s own  serious health condition.  Thus the FMLA’s leave requirements for purposes listed in (A), (B) and (C) above still can be applied against states. If the purpose of the leave is to care for the State employee’s own serious health condition, enforcement in federal courts is blocked by the 10th and 11th amendments. Local governments don’t have sovereign immunity under the 10th and 11th amendments, and thus the FMLA in its entirety can be applied to them.

The DOL’s FMLA Forms Expired on December 31, 2011.

Should Employers Still Use Them?

The current forms approved by the U.S. Department of Labor (DOL) for obtaining medical certifications under the Family and Medical Leave Act (FMLA) expired on December 31, 2011. The law permits the DOL to continue using the forms while it seeks renewal of the forms. Thus, employers may continue to use the DOL’s FMLA forms, although consider our suggestions below before using these standard DOL forms. See article by clicking here.

Key to Satisfying EEOC

Thhe Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) created a sea-change for employers regarding the enforcement of employee rights and employer duties arising under the Americans with Disabilities Act of 1990. The EEOC took nearly three years to come up with new regulations governing how it will enforce and interpret the ADA/ADAAA; and the regulations it created pose significant dangers for private and public employers.

Read the entire publication here.

I am pleased to announce that I will be starting a blog that covers local government employment law in the new year.
Please check back often.
Michael Caldwell