Beware the Dangers in Unemployment Compensation Hearings

By Sean G. Williamson

An unemployment compensation hearing can be fraught with dangers for the unsuspecting or unprepared employer.  Many employers disregard such proceedings as low risk because any benefits will be paid from the state’s unemployment insurance fund to which all employers must contribute.  But the factual issues raised in unemployment compensation hearings closely relate to more significant sources of employer liability, such as the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.  The recent decision of the Kentucky Court of Appeals in Hicks v. Kentucky Unemployment Insurance Commission, — S.W.3d —, No. 2014-CA-001061-MR, 2015 WL 7351398 (Ky. App. Nov. 20, 2015), illustrates the potential intersection between those seemingly distinct areas of law and the need for a forward-looking strategy to avoid future claims.

Tarsis Hicks worked as an interpreter for Fairview Community Health Center (“Fairview”).  She assisted Spanish-speaking patients in communicating with medical staff.  During her employment, Hicks received a diagnosis of breast cancer.  She then took leave from work under the FMLA to undergo chemotherapy treatments.  After exhausting her twelve weeks of FMLA leave, Hicks requested that Fairview allow her to work from home by

Have You Updated Your FMLA Forms?

By Michelle D. Wyrick

Many employers use the United States Department of Labor’s (“DOL’s”) certification forms when evaluating and authorizing employee requests for family and medical leave. A few months ago, the DOL revised those forms. If you use the DOL forms, make sure you are using the updated forms.

Since the regulations under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) were enacted in 2011, we have advised employers to include GINA “safe harbor” language on their Family and Medical Leave Act (“FMLA”) certification forms. GINA generally prohibits employers from using genetic information to make employment decisions. If certain requirements are met, however, an employer will not be held liable under GINA if it acquires genetic information inadvertently. In particular, the GINA regulations state that if an employer includes language similar to the following in any request for medical information, any receipt of genetic information in response to the request will be

Texas Federal Court Stays Enforcement of DOL’s New Definition of Spouse in Texas, Arkansas, Louisiana and Nebraska

The U.S. Department of Labor (DOL) issued a final rule, effective March 27, 2015, changing the definition of spouse for purposes of same-sex spousal leave under the FMLA. The former rule, a “place of residence” rule, stated that an employer was required to provide same-sex spousal leave to qualified employees under the FMLA only if the marriage was enforceable in the employee’s state of residence. The new “place of celebration” rule states that same-sex spousal leave must be provided to qualified employees if the marriage is valid in the place where the marriage is performed. Therefore, under the new rule, if an employee is married in California (where same sex marriage is valid), but resides in Kentucky (where same sex marriage is not valid), the Kentucky employer must provide spousal leave to qualified employees.

Texas, joined by several other states, sued the DOL over the new rule and sought a preliminary injunction in federal court enjoining its enforcement. Texas argued that

FMLA Protections Apply to Same-Sex Couples if Marriages Are Valid in State of Celebration

The Department of Labor issued a final rule yesterday that extends FMLA protections to eligible employees in same sex marriages so long as the marriages are legal where the ceremonies were performed. This is the so-called “place of celebration” rule. The former rule authorized FMLA spousal leave only if same-sex marriage was valid in the employee’s state of residence (i.e. “state of residence” rule). Under the new place of celebration rule, if an eligible employee is married in a state that authorizes same-sex marriage, FMLA spousal leave is permitted even if same-sex marriage is not valid in the employee’s state of residence.

The issue of whether the FMLA permitted same-sex spousal leave arose after the United States Supreme Court ruled in United States v. Windsor, 133 S.Ct. 2675, 2693 (2013), that the Federal definition of marriage excluding same-sex marriage was unconstitutional. Courts had held that the Federal definition of marriage applied to FMLA spousal leave, even though the FMLA regulations stated the state’s law of the employee’s residence applied to determine the validity of the marriage. Since Windsor found the Federal definition of marriage unconstitutional, the FMLA definition of “spouse” applied. Many commentators were dissatisfied with the FMLA place of residence rule because

National Defense Authorization Act Expands Military Leave Provisions of FMLA

By Laurel Cornell

On October 28, 2009, President Obama signed the National Defense Authorization Act of 2010, which made several key amendments to the military family leave provisions of the FMLA:

•           The Act expands qualifying exigency leave to cover