The FMLA entitles an eligible employee to take up to 12 weeks of protected leave from work for personal and family medical matters, including to care for a son or daughter with a serious health condition. “Son or daughter” is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a persona standing in loco parentis, who is – (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

A child under 18 years of age is a “son or daughter” for FMLA-purposes regardless of whether the child suffers from a disability. This means that in order for an eligible employee to take FMLA leave for a son or daughter under 18 years of age, the employee need only show that s/he is needed to care for the child due to the child’s serious health condition.

However, a child 18 years of age or older must have a mental or physical disability and be incapable of self-care because of that disability in order to meet the definition of a “son or daughter” for FMLA-purposes. If that definition is met, the parent must also be needed to care for the son or daughter, who is experiencing a serious health condition. In summary, the adult child must be “disabled,” must have an active “serious health condition,” and must be “incapable of self-care” due to the disability, and the parent must be “needed to care for” the adult child’s serious health condition.

The DOL articulated a four-part test for determining if an FMLA-eligible employee’s leave to care for an adult child with a disability is FMLA qualifying leave.

(1) The adult child must suffer from a disability as defined by the Americans with Disabilities Act (ADA) (as amended by the Americans with Disabilities Act Amendments Act of 2008 (the ADAAA)). Recall that the ADA’s definition of a disability was greatly broadened by the ADAAA.

(2) The adult child must be incapable of self-care due to that disability. According to regulations, someone is “incapable of self-care” if s/he “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living.’” Activities of daily living include, but are not limited to, grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include, but are not limited to, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using the post office.

(3) The adult child must have a serious health condition. As defined by the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

(4) The adult child must be in need of care due to that serious health condition. A parent may be needed to care for the adult child to fulfill basic needs such as medical, hygienic, or nutritional needs, but also to provide psychological comfort and reassurance that would benefit the child’s serious health condition.

All four parts must be satisfied for an FMLA-eligible employee to be entitled to FMLA-qualifying leave.

The DOL further clarified that the child’s age at onset of the disability—whether before or after the child’s eighteen birthday—is “irrelevant to the determination of whether an individual is considered a ‘son or daughter’ under the FMLA.”

We already knew that the FMLA permits leave for a son or daughter who is 18 years of age or older and incapable of self-care because of a mental or physical disability. However, this Administrative Interpretation provides a helpful test employers can apply when evaluating whether requested leave qualifies for FMLA protections. Because the FMLA is complex and highly-regulated, it is prudent to consult with an employment attorney when there is doubt surrounding an employee’s FMLA eligibility.

On November 6, 2012, Iowa’s polls are open from 7 a.m. to 9 p.m. Therefore, employees who begin work after 10 a.m. or who end work before 6 p.m. are not entitled to time off to vote. All other employees may be entitled to some amount of paid time off work. How much time off must be provided for voting leave depends on the particular facts of the employee’s schedule. A regular 8:00 a.m. to 5:00 p.m. employee would not be entitled to voting leave.

Voting is more convenient in Iowa due to options for absentee ballots and early in-person voting (a/k/a satellite absentee voting). These options may reduce the number of employees requesting time off from work on election days. Nonetheless, employers are reminded to permit voting leave despite the availability of early voting options.

The changes came about because of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which transferred rulingmaking authority for many consumer financial protection laws from various federal agencies to the Bureau of Consumer Financial Protection (BCFP). Among the transfers was rulemaking authority for most of the provisions of the Fair Credit Reporting Act (FCRA), which was formerly the responsibility of the Federal Trade Commission. Pursuant to the transfer, the BCFP has published an interim final rule that mirrors the former FCRA regulations, but includes technical and conforming changes to reflect the transfer of authority. The interim final rule does not make substantive changes to the existing FCRA regulation, but moves the regulations from their former locations at 16 C.F.R. Parts 603, 610, 611, 613, 614, 642, and 698 to 12 C.F.R. Part 1022.

As a reminder, the FCRA imposes requirements on employers who obtain “consumer reports” (i.e. background checks) from credit reporting agencies (CRAs). The General Summary of Consumer Rights form must be provided to the subject of a consumer report in two instances: (1) along with a “pre-adverse action” notice; and (2) along with disclosure notices when running any “investigative consumer report” (i.e. reports based on personal interviews conducted by a CRA). In addition, it’s a good idea to include the General Summary of Consumer Rights form with “adverse action” notices, too.

Plaintiff Pereda was hired on October 5, 2008.  In June 2009, she advised her employer that she was pregnant and would be taking FMLA leave following the birth of her child around November 30, 2009.  Pereda’s lawsuit alleges that following her FMLA request, her managers disciplined her for using accrued sick and personal leave to visit the doctor.  Pereda also alleges that she was disciplined for notifying management of an absence via e-mail rather than seeking verbal authorization.  In September 2009, Pereda’s doctor advised her to take a few days of bed rest.  Pereda’s lawsuit alleges that she notified the employer of her doctor’s order in a message left for the Executive Director prior to taking the time off.  Pereda claims she was not contacted by the employer during her bed rest and was terminated upon returning to work immediately thereafter.  Pereda alleges she used accrued sick and personal leave for the absences.      

The district court dismissed Pereda’s lawsuit.  It held that the employer could not have interfered with Pereda’s FMLA rights because she was not entitled to FMLA leave at the time she requested it.  The district court also held that because Pereda was not eligible for FMLA leave, she could not have engaged in protected activity, and therefore the employer could not have retaliated against her. 

The Court of Appeals reversed, because “allowing the district court’s ruling to stand would violate the purposes for which the FMLA was enacted.”  The Court reasoned that the FMLA’s requirement of notice in advance of leave means employees are protected from interference with their FMLA rights prior to the occurrence of the triggering event, such as the birth of a child.  “As the statute requires advance notice, logic mandates that [the] FMLA be read to allow a cause of action for employees who, like Pereda, in goodwill exceed the notice requirement.”  The Court also held that employees giving pre-eligible advance notice of a need for FMLA leave are engaging in protected activity, and they are therefore protected from retaliation “because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in the planning for the absence of employees on FMLA leave.”  The Court emphasized that it was not creating a “new class of employees,” as argued by the employer.  “We are simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

The Eleventh Circuit is not alone in its analysis of this issue.  The Pereda Court cited a similar decision by the Sixth Circuit Court of Appeals, as well as two decisions of federal district courts in the Northern District of Illinois and the Eastern District of Pennsylvania. 

Pereda sends a clear message that going forward, employers subject to the FMLA need to carefully scrutinize all employment decisions, including discipline, for potential FMLA liability regardless of an individual employee’s eligibility for the same at the time of the employment decision.      

Iowa employers should also be aware of Iowa’s law prohibiting termination of employment “because of” an employee’s pregnancy.  Iowa law further requires that an employer grant to an employee disabled by pregnancy a leave of absence from work “if the leave of absence is for the period that the employee is disabled because of the employee’s pregnancy, childbirth, or related medical conditions, or for eight weeks, whichever is less.”  Iowa law also prohibits an employer from retaliating against an employee who exercises her right to maternity leave.  Similar to the FMLA, Iowa’s law provides that for this protection, the “employee must provide timely notice of the period of leave requested and the employer must approve any change in the period requested before the change is effective.”  An employee, perhaps one not yet pregnant, making inquiry about an employer’s policy on “notice” under this statute would probably be regarded as engaging in protected activity under this provision.

Under the new regulation, holders of a commercial driver’s license (CDL) who are operating a CMV are prohibited from: (1) holding a cell phone to conduct a conversation, (2) using a cell phone by pressing more than one button (a driver can initiate, answer, or terminate a call by touching a single button), and (3) reaching for a cell phone in an unacceptable and unsafe manner (such as reaching for a cell phone located on the passenger seat, under the driver’s seat, or in the sleeper berth).  Hands-free use of a cell phone is allowed using either a wired or wireless earpiece or the speakerphone function of the cell phone. 

The rule provides a limited exception for use of a hand-held cell phone when such use is necessary to communicate with law enforcement officials or other emergency services.

Drivers who violate this regulation may be assessed a federal civil penalty of up to $2,750 for each offense.  Drivers with multiple offenses may be disqualified from operating a CMV.  Also, drivers with two or more serious traffic violations of state or local laws or ordinances may likewise be disqualified from operating a CMV. 

While the new rule does not require motor carriers to establish written company policies or training programs for their drivers, companies employing operators of CMVs (as defined by 49 CFR 383.5) would be wise to implement an employment policy explaining this new federal regulation and prohibiting operators from violating it.  This would be particularly prudent given that under the rule, commercial truck or bus companies that require or allow their drivers to use hand-held cell phones while driving be may penalized up to $11,000 for each offense.

Tips for Employers:

1. Consider implementing a restrictive cell phone policy for all employees operating any company vehicle;
2. Consider placing stickers or decals inside company vehicles reminding employees of their obligations under your company’s policy; and
3. Check with your insurance carrier for any special provisions that may apply to operation of company vehicles.

We have assisted many of our clients in developing not only policies for DOT compliance, but general policies concerning cell phone usage while operating any company vehicle.  If you have questions about this topic, please contact attorney Sara Laughlin at 515-246-4549 / slaughlin@dickinsonlaw.com or another member of our firm’s Iowa Employment Law and Labor Law Group at employmentlaw@dickinsonlaw.com.

OSHA’s initiative is in response to statistics recently released by the U.S. Department of Labor’s Bureau of Labor Statistics.  With respect to nonfatal occupational illnesses and injuries requiring days away from work, data showed the incidence rate for health care support workers increased 6 percent in 2010.   This is nearly 2.5 times the rate for private- and public-sector workers.  The rate among nursing aides, orderlies, and attendants rose by 7 percent in 2010. The rate of musculoskeletal disorder cases with days away from work for nursing aides, orderlies and attendants increased by 10 percent.

Nursing homes and residential care facilities would be wise to revisit their policies and procedures with respect to these areas, as well as employee training and compliance efforts.

Many states restrict the gathering and use of criminal background information in employment practices.  The increased prevalence of such laws is thanks in part to the EEOC and advocacy groups such as the Legal Action Center, a non-profit organization whose mission is, in part, to eradicate discrimination based on criminal history.  Such organizations believe, and the EEOC has concurred, that excluding individuals from employment because they have criminal conviction records may disproportionately affect persons protected under EEO laws—for example, certain racial groups such as African-Americans and Hispanics. 

Accordingly, the EEOC’s position is that an employer who uses criminal background information in employment decisions should be able to show that a decision is “job related and consistent with business necessity.”  To that end, the EEOC advises employers to consider, on a case-by-case basis: “(1) the nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.” 

To be clear, federal law does not currently prohibit a private employer from using criminal background information in employment decisions (though companies need to comply with the federal Fair Credit Reporting Act).  The EEOC’s stance is that some employment practices that bar employees with criminal arrests or some types of convictions may have a disparate impact on protected categories of people and thus violate Title VII.  Because federal law does not have an outright prohibition, some states have picked up this mantle.  Thus, the bigger pitfall for expanding companies is compliance with various state laws that regulate how a company can gather criminal background information, what information it can gather, and whether such information can factor into any employment decision made about a particular individual.  The following are a few examples of how various states deal with the issue of criminal background information:

Connecticut:  Connecticut prohibits an employer from asking an applicant or employee “to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased” pursuant to Connecticut law.  In Connecticut, an employment application form that contains questions concerning an applicant’s criminal history must contain “a notice, in clear and conspicuous language: (1) That the applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased pursuant to… [Connecticut law], (2) that criminal records subject to erasure pursuant to…[Connecticut law] are records pertaining to a finding of delinquency or that a child was a member of a family with service needs, an adjudication as a youthful offender, a criminal charge that has been dismissed or nolled (sic), a criminal charge for which the person has been found not guilty or a conviction for which the person received an absolute pardon, and (3) that any person whose criminal records have been erased pursuant to… [Connecticut law] shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”  Further, the state of Connecticut prohibits an employer from making an adverse employment decision “solely on the basis that” the individual “had a prior arrest, criminal charge or conviction, the records of which have been erased pursuant to… [Connecticut law] or that the prospective employee had a prior conviction for which the prospective employee has received a provisional pardon pursuant to” Connecticut law.

Illinois:  Illinois prohibits an employer from asking an applicant or employee about arrests.  Illinois law also prohibits an employer from making employment decisions based upon “the fact of an arrest or criminal history record information ordered expunged, sealed or impounded” under Illinois law.  However, Illinois law explicitly permits an employer to obtain or use “information which indicates that a person actually engaged in the conduct for which he or she was arrested.”

Massachusetts:  Massachusetts law prohibits an employer from asking about, maintaining a record of, or making an employment decision based upon any of the following: (1) Arrests or prosecution that did not lead to a conviction; (2) A first conviction for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; (3) Misdemeanors where the date of conviction or the end of any period of incarceration was more than five years ago, provided that there have been no subsequent convictions within those five years; (4) Any record of a court appearance which has been sealed under state law; and (5) Anything pertaining to juvenile record, including delinquency and child in need of services complaints, unless the juvenile was tried as an adult in Superior Court.  At or after an interview, an employer may ask a candidate or employee about the following: (1) Felony convictions; and (2) Misdemeanor convictions, except for (a) first convictions for the misdemeanors of drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (b) misdemeanor convictions over five years old.  Further, an employer may not request a release from an applicant or employee for the purpose of running a background check that would produce information about which the employer is prohibited from asking the applicant or employee. 

Virginia:  Virginia prohibits an employer from requiring a job applicant “in any application, interview, or otherwise…to disclose information concerning any arrest or criminal charge against him that has been expunged.”  

The lesson for companies is this: before expanding into a new state, practice due diligence with respect to laws regulating the gathering and use of criminal background information on applicants and employees.  Some states, like Iowa, have no such law.  Others do, and some of those treat a violation of those laws as a criminal offense, in addition to providing liability for civil litigation.  At least one state, Massachusetts, currently permits the “wronged” applicant or employee to pursue a civil lawsuit for discrimination.

Sara comes to Dickinson from another Des Moines law firm, where her practice included employment law and civil rights.  Prior to entering the private practice of law, Sara spent two years as a judicial law clerk for judges in the Fifth Judicial District of Iowa, including Chief Judge Arthur E. Gamble as well as Artis I. Reis, Robert A. Hutchison and Scott D. Rosenberg.  Sara received her J.D. with honors from Drake University Law School, where she served as Research Editor for the Drake Journal of Agricultural Law.  She received her B.A., magna cum laude, from Gustavus Adolphus College in 2004. 

Sara is admitted to practice in the state of Iowa, before the U.S. Court of Appeals for the Eighth Circuit, and before the U.S. District Courts for the Northern and Southern Districts of Iowa.  She is a member of the Iowa State Bar Association, Polk County Women Attorneys, and the Blackstone Inn of Court.