Updates on COBRA and FMLA
Department of Labor publishes form for review of denied COBRA premium subsidies
On May 22, the DOL published an application form on its website for expedited review of a denied COBRA premium deduction. While in some cases employers can deny the subsidy, they should do so carefully, provide detailed reasons and be familiar with the application.
Opinion letter clarifies when employees must give notice of unforeseen FMLA leave
In a new opinion letter, the DOL clarifies that employees must provide notice of the need for FMLA leave, "as soon as practicable" and that an employer can require an employee to follow its "usual and customary" notice requirements before taking leave under FMLA. Employers still must allow exceptions when it is not reasonable to expect an employee to call in and may not impose more stringent notification requirements for FMLA-covered leave than is required for similar non-FMLA absences.
FMLA Federal Decisions
The following are decisions made by the 7th U.S. Circuit Court of Appeals. It's important to note that state laws may be more restrictive than federal laws:
Falsification of Doctor's Note Prevents FMLA Leave
In Smith v. Hope School, the Court of Appeals for the Seventh Circuit held that an employee's falsification of medical paperwork precluded her from being entitled to FMLA leave.
Employers now have the right to contact a health care provider's office directly about the authenticity of any medical report. Unlike the rest of the country, California employers should not contact the employee's health care provider directly to verify leave requests.
Discharge may be based on problems discovered during FMLA leave
In Kevin Cracco v. Vitran Express, Inc., the 7th U.S. Circuit Court of Appeals found when an employer discovers information during an employee's FMLA leave that would otherwise form the basis for a valid termination; the FMLA does not bar the termination. Employers have the burden of proving that the termination was not related to the FMLA leave.