Employment Law Updates

The U.S. Department of Labor (DOL) today issued its long-awaited final rule adjusting the salary level for exempt employees. The new rule will go into effect January 1, 2020 and raises the "standard salary level" from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker).

For those employers covered by the Family and Medical Leave Act (50 employees within a 75 mile radius), be on the lookout for changes to the 7 optional-use FMLA forms published by the U.S. Department of Labor’s Wage and Hour Division. On August 5, the DOL published a notice announcing a 60-day public comment period on the proposed revisions.

The notice states that the goal in revising the forms is to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use. The forms were drafted with input from the public and include:

• Fewer questions requiring written responses; replaced by statements that can be verified by simply checking a box
• Reorganization of medical certification forms to more quickly determine if a medical condition is a serious health condition as defined by the FMLA
• Clarifications to reduce the demand on health care providers for follow-up information
• More information on the notification forms to better communicate specific information about leave conditions to employees
• Changes to the qualifying exigency certification form to provide clarity to employees about what information is required
• Changes to the military caregiver leave forms to improve consistency and ease of use
• Layout and style changes to reduce blank space and improve readability

The notice can be found at https://www.dol.gov/whd/fmla/forms2019.htm, and contains links to the proposed changes in each form.

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The Family and Medical Leave Act (FMLA) applies to employers with 50 or more employees within a 75 mile radius.  Employees who have worked for a covered employer for at least 12 months and have at least 1,250 hours of service in the previous 12 months are eligible for up to 12 weeks of job-protected leave for certain medical-related reasons.  Many employers, however, incorrectly assume that once an employee has been out of work for 12 weeks of FMLA-covered leave, that employee may then automatically be terminated for excessive absenteeism if he/she misses additional time from work for a medical condition.

We have received several inquiries recently concerning whether an employer covered by the Family and Medical Leave Act is required to designate leave as FMLA leave if the leave is for an FMLA-qualified reason. A recent opinion letter from the U.S. Department of Labor (DOL) answers that question in the affirmative.

In the wake of the U.S. Department of Labor’s issuance of the revised proposed rule concerning the change to the salary level for exempt employees, employers should make preparations now for the anticipated change.  The proposed revised salary level of $35,308 gives some relief to employers who were facing the previous proposed increase to $47,476 annually.  Both levels are an increase from the current $23,660 ($455 per week).  For many employers, however, even the increase to $35,308 annually ($679 per week) might be a burden.

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