FMLA Changes Son/Daughter Definition

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave. Employers who have questions about challenging a request for FMLA leave under these circumstances are urged to contact the lawyers of the Roetzel & Andress Labor and Employment Group if there are any questions.

Author: Doug Kennedy


New Proposed Rules Governing Reactivation of Claims and Payment of Amputation/Loss of Use Awards

The Ohio Bureau of Workers’ Compensation announced proposed amendments to Ohio Administrative Code (OAC) sections 4123-3-15 and 4123-3-37. The amendments would increase the time before a claim becomes inactive from 13 months to 24 months. The amendments would also change the procedure for amputation/loss of use awards. The revised rule would permit payment of the award based on information contained in the claim file (such as the initial injury report) and change the method of payment to pay the award as a lump sum.

According to the Bureau of Workers’ Compensation, the current 13 month timeframe in OAC 4123-3-15 for a claim to become inactive is too short. After an evaluation, the Bureau determined that a 24 month timeframe will result in increased system efficiency and reduce overall administrative resources necessary to review and respond to reactivation requests.

The Bureau of Workers’ Compensation is also eliminating language in OAC 4123-3-37 regarding lump sum advancements in permanent partial awards as these are to be addressed under a new section, OAC 4123-3-15(C). This section would allow for payment of an award for amputation or loss of use of a body part to be paid to an injured worker for the full amount of the award, as opposed to the current bi-weekly payments. This section has already been revised since its initial draft to allow for continued bi-weekly payments while an order to pay the award is on appeal. One issue which has not yet been resolved, and which may be a major sticking point with the proposed rule, is the conflict the new OAC 4123-3-15(C) would have with Ohio Revised Code Section 4123.57(B), which continues to mandate that such awards be paid out on a weekly/bi-weekly basis.

As developments arise regarding the proposed amendments, we will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.


Department of Labor Determines Employers Must Compensate Unionized Employees for Time Spent Changing

The Department of Labor (DOL) issued an Administrative Interpretation on June 16, 2010, requiring employers to compensate unionized employees for putting on and taking off protective equipment that is “required by law, by the employer, or due to the nature of the job.” Section 203(o) of the Fair Labor Standards Act permits employers not to pay employees for time spent changing “clothes” if payment is excluded under the terms of a collective bargaining agreement or barred by the custom or practice. The DOL’s Administrative Interpretation determined that protective equipment is not “clothes” under this exception.

The DOL’s determination reinstates its position taken from 1997 through 2001. In 2002, however, the DOL issued an Opinion Letter determining that “clothes” included protective equipment. The DOL’s latest interpretation is in line with court decisions from several federal courts.

The DOL went a step further and determined that putting on protective equipment may be a principal activity. The practical impact is that when an employee changes into protective equipment, this may mark the beginning of the workday and count as compensable time. In short, once an employee changes into protective equipment, you may be required to compensate them for subsequent activities, such as walking to their work station. Regardless of the terms of the collective bargaining agreement, employers must compensate employees for adding and removing protective equipment if that equipment is required by law or required by the employer.

Author: Jon Secrest