by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation
July 05, 2017
One of the challenges of administering leaves under the Family and Medical Leave Act is dealing with issues not well addressed by the law and the regulations – and there are many. How long can an employer rely on an FMLA third opinion certificate? How does an employer deal with an employee’s fluctuating work week when it doesn’t have historical information regarding the employee’s work schedule? How late is too late for an employee to return an FMLA certification? The list goes on.
In years gone by, the Wage and Hour Division of the DOL (responsible for enforcement of the FMLA) issued opinion letters as guidance on the murky issues submitted in inquiries by employers or employees. In 2010 the Division stopped this practice and instead issued occasional “Administrator Interpretations” – broad, general interpretations of a select FMLA provision applicable to all employers or broad groups. These Administrator Interpretations were few and far between (only 2 specifically for the FMLA from 2010 through the present) and gave little more than a regurgitation of information found in the regulations themselves. As a result, in the absence of opinion letters, employers and FMLA administrators had no resource for requesting official DOL guidance on the tough and tricky FMLA issues. Oh sure, we could call our local DOL office for help, but experience has shown that you can get different answers from different offices, or even from different Wage and Hour personnel within the same office. (Who answers the phone on Tuesdays?) And, the answers are verbal, never in writing, so hard to rely upon with accuracy.
Now, the DOL has announced that it is reinstating opinion letters as assistance to employers and employees. Hurray for the DOL! As the DOL explains, “An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion.” Thus it provides an official, reliable interpretation of the FMLA and its regulations. We may not always agree with the Division’s opinion, but at least we know where the agency stands.
I can provide a recent example of the value of opinion letters. In researching a thorny issue relating to FMLA leave to care for an “adult son or daughter” and the in loco parentis relationship, I discovered two opinion letters that will assist me in my interpretation of a specific fact situation for one of our clients. There were no court opinions that helped with my issue, so I was glad to get this guidance from the Division’s library of FMLA opinion letters. I feel another blog post coming on!
The Division has established a website where users can review existing guidance (including opinion letters, Administrator Interpretations, and other materials) and submit a request for an opinion letter. As explained on the website, “The Wage and Hour Division exercises discretion in determining which requests for opinion letters will be responded to and the appropriate form of guidance to be issued in response (i.e., Administrator-signed opinion letter, non-Administrator opinion letter, Administrator Interpretation). The Wage and Hour Division processes requests for guidance as expeditiously as possible.”
Time will tell how actively the agency will resume this practice and how long it may take to receive a response.
MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].