Employment Law Updates

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.

Employers who provide health insurance coverage for their employees should be aware of the Medicare Secondary Payer (MSP) rules that are often misunderstood.  The MSP rules are designed to shift costs from the Medicare program to private sources of payment (such as employer-sponsored group health plans) in certain situations. The MSP provisions govern the coordination of benefits rules for determining when an employer-sponsored group health plan will pay primary or secondary to Medicare.

Employers often receive subpoenas to produce an employee’s personnel records.  These subpoenas are frequently issued in cases involving divorce, custody or support disputes or personal injury cases, but are used in many other types of disputes.  Employers must be careful, however, because the federal HIPAA law and Virginia Code § 32.1-127.1:03 place restrictions on the dissemination of health or medical records. 

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