by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
January 19, 2020
Last month we provided a 2019 review and 2020 look ahead regarding leave law legislation. You can find that post here. Now let’s look at what the enforcement agencies accomplished in 2019 and what to expect for 2020.
Part 2: DOL and EEOC Activities
US DEPARTMENT OF LABOR UPDATE
Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the DOL of how a particular law applies in specific circumstances. An opinion letter provides an official, reliable interpretation of the FMLA and its regulations.
We may not always agree with the DOL’s opinion, but at least we know where the agency stands!
The DOL issued 3 new opinion letters in 2019:
- Opinion Letter FMLA2019-1-A clarified the question of whether an employee, or employer, can delay
the designation of a leave of absence taken for an FMLA-qualifying reason, to allow the employee to
use or exhaust any paid leave benefits prior to doing so. The DOL concluded that the answer is no –
once the employer is on notice that the employee is seeking leave for a potentially FMLA-qualifying
reason, it is obligated to provide the required FMLA notices and, if supported, designate the leave as
FMLA leave. The opinion letter also reminds us that, while the FMLA allows employers to be more
generous and grant an employee more leave than FMLA requires, any time the employer gives beyond
FMLA is not FMLA but, rather, a company policy leave. To read more about this opinion letter, check
out our prior blog post.
- The above opinion was amplified in Opinion Letter FMLA2019-3-A. An employer asked the DOL whether
it could delay FMLA designation when the terms of a collective bargaining agreement required employees
to take company paid leave before taking FMLA. The DOL concluded that the employer cannot delay
designation as FMLA any leave taken for an FMLA-qualifying reason, even if the terms of a collective
bargaining agreement appear to require otherwise.
- Finally, Opinion letter FMLA2019-2-A, addressed the question whether an employee could take FMLA
to attend meetings to discuss a child’s Individualized Education Plan. The DOL concluded the answer was
yes. Attending such meetings constituted “care” for a child with a “serious health condition,” even if the
meetings did not include a medical provider. For more details, read our prior blog post on this topic
Coming in 2020: New DOL FMLA certification forms?
In 2019 the DOL issued proposed new FMLA certification forms for public comment, which we discussed in a prior blog post. We understand that these proposed certification forms resulted in a deluge of comments to the DOL and Matrix was among that chorus of commentators. No one knows if or when the DOL will issue new forms but we will certainly be watching will tell you all about them when they do!
Coming in 2020: DOL request for input on FMLA regulations?
Also in 2019 the DOL announced that it “will solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.” The notice did not provide a specific timeline for the Request for Information and nothing has happened since the announcement. There is certainly much to improve in the FMLA regulations – see a discussion in Jeff Nowak’s FMLA Insights blog. We hope the DOL in fact proceeds with this RFI. If it does, we will weigh in on changes we feel are needed based our Matrix’s administration of thousands of FMLA claims every year.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION UPDATE
2019 brought the appointment of Janet Dhillon as Chair of the EEOC. Chair Dhillon comes from a strong business background, which may be good news for employers. Time will tell. That leaves 2 openings on the Commission and about a year (or 5) for President Trump to appoint new commissioners. The other 2 current Commissioners, in addition to Chair Dhillon, include Charlotte Burrows, appointed by President Obama (2nd term ends in 2023) and Victoria Lipnic, also appointed by President Obama (2nd term ends in 2020).
Also in 2019, Sharon Fast Gustafson was appointed as General Counsel for the Commission.
Focus on disability and pregnancy.
A couple of months ago we took a look at the prevalence of disability and pregnancy-related press releases issued by the EEOC in 2019 through October 20. That post is available here. We’ve updated the numbers through the end of 2019:
- The EEOC issued over 300 press releases relating to lawsuits it filed or
settled in 2019.
- 134 (approximately 45%) of these were lawsuits alleging disability or
and failure to accommodate (109 disability-related, 20 pregnancy-related,
and 5 involving both).
- Settlements ranged from $16,000 to $2,650,000 in damages awarded to
- The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit
alleging failure to accommodate a cart pusher at a Walmart store.
More on that in the blog post linked above!
In late November 2019, the EEOC published its Agency Financial Report. In the report, the EEOC boasts of reducing its inventory of charges to the lowest number of pending charges – 43,580 – in 13 years. The EEOC also touts its collection of $159.6 million in connection with its mediation process, and $39.1 million in connection with 177 litigation matters. In its Fiscal Year 2018 (which ended September 2019), the EEOC filed 144 lawsuits, 17 of which alleged a systemic pattern and practice and 27 which were “non-systemic” but had multiple alleged victims of discriminatory practices.