Far-Reaching Changes Are On the Horizon, Part II

Independent Contractor Analysis Updated Guidance. The standard salary level adjustment for exempt employees has been proposed at the same time as guidance from the USDOL (in Administrator’s Interpretation No. 2015-1), regarding proper classification of a worker under the term “independent contractor.” The narrowing of the definition means that many previously classified independent contractors will now be properly classified as employees. The ultimate inquiry is whether the worker is economically dependent on the employer or truly in business for himself. The DOL identified six factors when conducting an economic realities test to focus on in determining whether an individual worker is an independent contractor or an employee. These are:

• The extent to which the work performed is an integral part of the employer’s business.
• The worker’s opportunity for profit or loss, depending on his or her managerial skill.
• The extent of the relative investments of the employer and the worker in the business.
• Whether the work performed requires special skills and initiative.
• The permanency of the relationship.
• The degree of control exercised or retained by the employer.

As an example, the DOL noted that a highly skilled carpenter may work for a construction firm, and despite his level of expertise, he may not work on a day-to-day basis in an independent matter. If he does not determine the sequence of the work, order additional materials, or think about bidding the next job, but is instead told what to work and how to perform, where, then he is not an independent contractor, but is simply providing skilled labor. On the other hand, a highly skilled carpenter who provides a specialized service for a variety of area construction companies (such as custom hand crafted cabinets made to order) may be demonstrating the skill and initiative of an independent contractor if he determines when to order materials, the quantity of materials to order, and determines which orders to fill.

Preparing basic job duties records and performing regular records updates is important to establish the nature of the working relationship. The more clear documentation that exists, the better able an employer is to defend its decisions regarding employee status. Employers also need to carefully consider each job (and job description) for staff members, so that workers are properly classified as employees (or not) and as exempt (or not).

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Far-Reaching Changes Are On the Horizon, Part I

Exempt v. Nonexempt Criteria. The Department of Labor has issued some revised guidance regarding overtime classification standards under the Fair Labor Standards Act. The DOL expects that 11 million employees will be impacted by these changed regulations.

The standard salary level for workers to qualify as exempt employees not eligible for overtime pay under the Act, will rise from $455 per week (approximately $23,660 annually), to $970 per week (or $50,440 annually) in 2016. This increase will apply to the following “exempt” categories tests–executive, administrative, professional, and computer employees. Employees of educational establishments must meet this salary standard, as well, to be “exempt.”
Additionally, the DOL proposes to adjust the highly compensated employees’ compensation level to $122,148 annually. Currently, in order to come within the highly compensated employees’ exemption, an employee must earn at least $100,000.

The changes to the salary level test under the proposed rule mean that in order to receive overtime pay, an employee must earn less than $50,440 per year (as of 2016), rather than the current figure of $23,660. It is expected that the salary level threshold would be updated annually after 2016, possibly adjusted for inflation. Employers must keep in mind that earning above $50,440 annually, does not automatically classify an employee as exempt from mandatory overtime pay, as the duties tests still come into play. However, generally, the highly compensated employees may be considered exempt without regard to the duties test.

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Correcting Deficient Medical Certifications

A recent Third Circuit case reconfirms the importance of following up on medical certification if there is any question about its completeness or clarity. An employee requested intermittent FMLA leave from her employer and provided certification completed by her physician. The physician failed to provide any information, however, regarding her condition or its expected duration. He indicated only that the employee would be seen two times a month for approximately one month. When the employee took five days off of work, her employment was terminated for excessive absenteeism. The employee was later diagnosed with diabetes.

The Third Circuit ruled that the FMLA does include a right to cure, and imposes an obligation on the employer to provide the employee with notices of deficiencies in medical certification, citing the applicable regulation. An employer is required to state in writing what additional information is necessary to make the certification complete and sufficient.

So, employers must keep track of FMLA records and forms, and ensure that they follow the required steps before taking action against an employee for failing to provide sufficient documentation of a need for FMLA leave. Therefore, it’s important that if certification is incomplete, the employer at least follow up with a request for clarification within the listed time frames, before pursuing disciplinary action against an employee who may be entitled to FMLA protections, but failed to have the FMLA certifications fully completed.

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New DOL FMLA Forms.

Early this summer, the Department of Labor updated the model FMLA Notices and Medical Certification forms. Interestingly, there are not a lot of changes to the forms. The only notable change is a reference to the Genetic Information Nondiscrimination Act. That Act, effective in 2008, requires that employers restrict their requests for health care information regarding employees so that they do not acquire genetic information regarding employees. The DOL added the following simple instructions to the FMLA forms: “Do not provide information about genetic tests, as defined in 29 CFR §1635.3(f), genetic services, as defined in 29 CFR §1635.3(e), or the manifestation of decease or disorder in the employee’s family members, 29 CFR §1635.3(b).” These updated forms may be used at least through their set expiration date of May 31, 2018.

Many employers already have included GINA disclaimers in their FMLA paperwork and those disclaimers likely are more reader friendly than the one endorsed by the DOL above. For example, FMLA forms prepared by others often added what was known as GINA “safe harbor language” to the medical certification request forms. Those forms provided more descriptive explanations of what the completing party needs to know, such as language (1) advising health care providers that GINA prohibits employers and others from requesting or requiring genetic information of an individual or family member of an individual except as provided by the GINA law. And, that (2) health care providers should not share any genetic information when responding to the medical certification request.

The DOL’s updated FMLA forms did not add any changes to remind users that now same sex spouses are eligible for FMLA benefits. In order to provide FMLA rights to a legally married same sex couple consistent with the United States v. Windsor decision and the President’s directive in June 2013, the Department subsequently issued a final rule on February 25, 2015, revising the regulatory definition of “spouse” under the FMLA. The final rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal, same-sex marriages may take FMLA leave for their spouse or family member’s qualifying condition regardless of which state they live in. The final rule was effective on March 27, 2015.

Now, eligible employees are able to take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition, take qualifying exigency leave due to their lawfully married same-sex spouse’s covered military service, or to take military caregiver leave for their lawfully married same-sex spouse. The definitional change also entitles eligible employees to take FMLA leave to care for their stepchild (child of employee’s same-sex spouse) regardless of whether the “in loco parentis” requirement of providing day-to-day care or financial support for the child is met. Finally, the change also entitles eligible employees to take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent regardless of whether the stepparent ever stood “in loco parentis” to the employee.

 

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By Ronald W. Ryan

A ski instructor, who sustained a neck injury after taking a jump in the terrain area, despite wearing a resort ski jacket and otherwise being “on-the-clock” as an instructor, was in pursuit of his own vanity at the time of the injury and therefore was not entitled to worker’s compensation benefits say the Courts in Michigan. Generally employees are entitled to worker’s compensation benefits when their injuries arise out of the course and scope of employment. However if their injuries arose out of a social and recreational activity, their claims are barred.

The ruling comes out of a 2007 alleged work injury filed against Swiss Valley Ski Resort of Jones, Michigan. The matter was hotly litigated. It twice found its way before the trial Magistrate and twice into the appellate system through a period that spanned six years. Initially the Worker’s Compensation Magistrate ruled in the favor of the plaintiff ski instructor. The Magistrate found that the ski instructor had discussed taking the ski jump earlier in the day in order to have his picture taken, took an indirect route to the ski lodge – and through the terrain park – to sign his time card, and then took the ski jump, all to accommodate a personal desire to have his picture taken. Despite having made these findings, the Magistrate was sympathetic to the plaintiff’s injuries and awarded benefits, finding him within the course and scope of his employment because he was wearing his ski instructor’s jacket and was on the premises when injured.

The matter was affirmed, in a split decision, on appeal to the Worker’s Compensation Appellate Commission. However, it was the dissenting opinion from one of the appellate judges that initially changed the tide toward the Swiss Valley Ski Resort. The dissenting appellate commissioner noticed that the Magistrate had made some very specific factual findings which should have constrained his result and should have led to a denial of benefits.

“The magistrate found that plaintiff learned in advance that his co-worker would be taking pictures in the terrain park. The magistrate did not believe the plaintiff came upon the picture taking activities by chance. The magistrate did not believe the plaintiff’s plan to ski a different route was changed in the moment. The magistrate found the plaintiff planned in advance to go to the terrain park to have his picture taken, because having his picture taken would ‘please him’.”

The dissenting commissioner found that she was “constrained by the specific factual findings of the magistrate” to apply the social and recreational bar.

“If we leave the magistrate’s findings unaltered, and we must, application of the law should lead to the reversal of benefits. The magistrate’s findings leave no alternative. How could the ski jump have anything other than recreation as its “major” purpose, given the magistrate’s conclusive findings that the plaintiff discussed the ski jump ahead of time with a co-worker, planned ahead of time to go over the jump, purposely took an indirect route to return to the ski lodge, all to accommodate a personal desire, fueled by pride and vanity, to have his picture taken?”

Convinced that the courts were now starting to understand its position, Swiss Valley requested leave to appeal to the Michigan Court of Appeals which, despite the dissenting opinion, affirmed the award of benefits to the plaintiff ski instructor. The Michigan Supreme Court then had its chance to weigh the matter and, in a one paragraph Order, sent the case back to the Worker’s Compensation Magistrate and ordered him to render an opinion consistent with its prior holding in Eversman vs. Concrete Cutting. The Supreme Court held that the Magistrate and the majority of the Appellate Commission “had applied an improper legal framework in analyzing the facts of the case by assessing whether the major purpose of the plaintiff’s overall activities were work-related.” However in Eversman, the Court held, “the major purpose of the plaintiff’s activity at the time of the injury determines whether the social or recreational bar applies.”

Despite specific direction from Michigan’s highest court, the Magistrate thumbed his nose and again wrote another sympathetic opinion in favor of the ski instructor. The matter was re-appealed to the Appellate Commission who, this time, reversed the Magistrate and issued an opinion consistent with Eversman vs. Concrete Cutting, thus applying the social and recreational bar. The ski instructor then sought leave to appeal to the Michigan Court of Appeals, however, leave was denied and the matter was then resolved in Swiss Valley’s favor.

It is important to examine the details of how an injury occurred. An employer needs to examine the circumstances of the injury and ask, what was the employee doing at the moment they were injured? Not all injuries that happen at work are compensable. If the employee sustains injury while doing something to benefit themself – if it was something of a social or recreational nature – rather than something to benefit their employer, benefits may be denied. In this matter it was particularly important to have the trial judge make findings of fact that compel himself to reach only one conclusion once the law was applied to the facts, despite his sympathies and preference to award benefits.

Ron Ryan, a Michigan attorney who focuses his practice on Workers Compensation litigation with the law firm of Lewis, Reed & Allen PC of Kalamazoo, represented Swiss Valley.

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Sheralee S. Hurwitz, January 7, 2014

Under the Family Medical Leave Act, employers may obtain medical certification to confirm an employee’s serious health condition as a basis for FMLA leave. Under the regulations, the timing for obtaining such a certification is within five business days after the employee gives notice of the need for leave, or in the case of unforeseen leave, within five business days after the leave commences. The employer may request certification at some later date if the employer has reason to question the appropriateness of the leave or its duration. The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not feasible under the particular circumstances to do so despite the employee’s diligent, good faith efforts.

There are circumstances, however, where the certification procedures set out in the FMLA regulations don’t work exactly as planned. Perhaps a holiday intervened or something else resulted in a delay in processing FMLA medical certification paperwork. Is an employer entitled to send out a certification request based on an employee’s serious health condition, after the initial “five-day period” has passed?

A recent Sixth Circuit case, Kinds v Ohio Bell Telephone Co., says the employer may request medical certification after that initial five-day period under certain circumstances. This case focuses on the language in the FMLA regulations (specifically, 29 CFR 825.305(b)) providing that the employer may request certification at some later date if the employer then has reason to question the appropriateness of the leave, or its duration. In the Kinds case, the employee challenged the employer’s request for medical certification which came after her FMLA leave request was granted, but also after a short-term disability carrier denied her request for short-term disability benefits. The plaintiff in Kinds argued that in order to seek medical certification after the initial five-day inquiry period, and after FMLA leave designation, the employer had to have a reason to doubt the appropriateness of the leave. In other words, the employer had to believe the employee was engaging in some kind of fraud related to the FMLA leave in order to seek medical certification information after the initial five-day inquiry period.

The regulations, however, are not so limiting. The Court in Kinds stated that there is “nothing in the text of the FMLA statute or regulations indicating that the discovery of employee fraud is the only acceptable reason for an employer to request a medical certification after the five-business-day period following an employee’s notification of leave.” The Court determined that it was inappropriate to adopt a regulatory interpretation “so devoid of any statutory, regulatory, or precedential basis.” Instead, FMLA certification regulations should follow the plain meaning of the regulations. In the Kinds case, that meant that a request for medical certification was proper when the short-term disability carrier denied her disability claim for the period in question, which raised a question about the “appropriateness” of the FMLA leave designation. The regulation also provides that if the duration of the leave is in question (in other words unclear), a later request for medical certification is appropriate as well.

The FMLA is a complicated statute, with various forms to consider and use. Experience is beneficial in making sure that they are appropriately and timely used. If an employer doesn’t have that kind of experience, consultation with an appropriate HR professional, or human resources attorney is the best practice to follow.

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By Sheralee S. Hurwitz

Employers, large and small, need various employment forms to document employment-related events or to be filed as required by various regulations and laws. There are forms for new hires, forms to comply with federal and state government requirements, and forms that are useful for day-to-day administrative tasks. Proper record-keeping allows employers to show that they complied with applicable employment laws. Standard forms improve the likelihood that those forms will be used by supervisors, and that policies will be enforced consistently. Employment forms should be included in an employee’s personnel file, where appropriate or required by law. Some forms, however, should be maintained by the employer in a separate file location.

A word of caution; many templates are available, but they may not meet the needs of a particular employer or workplace. Consultation with a knowledgeable employment lawyer or accredited human resources professional is an important part of developing the correct forms for appropriate employment record-keeping.

The following is a checklist (not exhaustive!) of forms commonly used in most work environments.

• Employment Handbook or Employee Policy Manual
• Required Employment Related Postings or Notices
• Job Descriptions
• Employment application form
• Reference Check form
• Other applicable pre-hiring documents (if desired and where appropriate)

o Driver’s record check
o Police record check
o Drug testing check

• Health insurance (and other benefits) election and other forms
• Employee Handbook Acknowledgement
• At-Will Employment Acknowledgement (if applicable)
• I-9 form
• W-2 forms
• Employment Agreements (if applicable)

o Confidentiality, Trade Secret and Non-Disclosure (as needed)
o Health care related (as needed)

• Disciplinary report forms
• Safety records and reporting forms
• Attendance/tardiness records
• Leave documentation forms

o Family and Medical Leave Act forms (if the Act applies to the employer)
o Return to Work forms (if employment policies permit/require)

• Other status change forms (for wage changes, transfers, other job changes to record)
• Payroll records
• Performance Appraisal or Evaluation forms
• Performance Improvement Plan forms
• Termination forms
• Exit interview forms (if desired and properly used)
• Unemployment Insurance forms
• Workers’ Compensation Forms and or/records

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When I ask business owners about the possibility of installing an employee incentive plan, I often hear one of two responses:

  • “I would like to do something to reward my key employees for their performance. ” OR
  • “You know, one of my best employees left last week for a company for more money. I think I’d better do something to stay competitive in the marketplace. ”

May I suggest that these two motives are not nearly self-serving enough? The purpose of installing a bonus plan for your employees is to motivate them to help you reach your exit goals.

While owners differ about when they want to leave their companies or how they wish to leave, the underlying ownership goal is consistent: to leave the company in style. No matter what type of employee incentive plan you create, it should be designed to support your fundamental exit goals by motivating your key employees to stay with your company and build its value.

Consider the following realities:

  • Few owners will take an extended vacation much less cut back on their involvement without leaving capable management in place to run the business.
  • Most sophisticated buyers will not seriously consider a company that lacks a good management team;
  • Many, if not most companies, are sold to key employees; and
  • Transferring a business to children can be especially risky in the absence of key employees who will remain with the new owners.

Whether your goal is to sell to a third party, transfer the business to children or to employees, the success of your strategy depends on the presence of motivated key employees.

We measure the effectiveness of an employee incentive plan in part by how well it motivates key employees to increase the value of a business. Effective plans necessarily reward employees as they increase the value of the business.

Usually, this means that owners (and their advisors) must develop an incentive formula that links increases in the income or cash flow of the business to the employees’ rewards. In its simplest form the incentive plan gives the key employee a cash bonus. Part of the bonus is paid currently and part is subject to vesting thus handcuffing the employee to the business.

Let’s look at how one fictional owner set up his company’s incentive plan.

After meeting with his advisors, Mel Houston decided to give two of his key employees 30 percent of the company’s pre-tax income above $100,000 (the company’s historic performance level). After Mel installed this plan, the company’s pre-tax income increased to $300,000 so his key employees shared 30 percent of the excess income ($200,000) or $60,000.

Because Mel wanted to retain his key employees over a long period of time, he decided to pay half of this bonus after the company’s year end, and subject the other half to a non-qualified deferred compensation plan with vesting over several years.

Mel’s plan (like yours should) provides that as the cash flow of his business increases (and thus the value of the business increases), he rewards his key employees accordingly. In doing so, both he and his key employees attain their goals.

Keep in mind that the formula you and your advisors create for your company can and should reflect the specific characteristics of your business. The head of the sales department might be rewarded for increasing the adjusted gross profit margin. A chef in a restaurant might be rewarded for reducing food costs (without affecting the quality of the meals served). Whatever factor you identify as a key to increasing the value of your company can be incorporated into your key employee incentive planning.

If you would like to discuss your options for installing employee incentive plans to support your exit goals, please contact me at gstarnauld@lewisreedallen.com.

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by Nicholas J. Daly, Esq.

Commonly, creditors are unsure of how to proceed after they receive notice that their debtor has filed for bankruptcy relief. This is a general overview of some of the issues that may initially arise for a creditor once a bankruptcy is filed. Since every case presents its own unique set of facts and legal issues, it is always important to contact your legal counsel.

1. Stop any on-going collection efforts and contact legal counsel.

In order to protect your rights when a bankruptcy has been filed, it is important to contact legal counsel as soon as possible. It is also important that attention is paid to the automatic stay that is imposed by the filing of a bankruptcy petition, which generally stops all collection efforts against the debtor and/or property of the bankruptcy estate.

A creditor’s willful violation of the automatic stay can result in the bankruptcy court awarding sanctions against the creditor, which may include actual damages incurred, including costs and attorneys’ fees, and even punitive damages. Needless to say, it is very important for a creditor to be cognizant of the filing of a bankruptcy and respect the automatic stay.

The “bottom line” is that, in order to avoid any potential violation of the automatic stay, you should immediately contact legal counsel when you receive notice that your debtor has filed for bankruptcy. This will give you a better chance of collecting debts and avoiding legal trouble.

2. Pay attention to deadlines.

The notice of the bankruptcy that you receive should include information regarding the first meeting of creditors and the deadline by which any objections to the discharge of certain debts must be filed (not all debts are discharged in a bankruptcy proceeding). Special attention should be paid to the deadline for filing proofs of claim and deadline to challenge the discharge of debts.

The initial notice of the bankruptcy may not include a deadline for filing proofs of claim; rather the notice may state that a separate notice for the filing of proofs of claim will be sent to you. However, a creditor is well-advised to file their proof of claim as soon as possible in order to avoid inadvertently missing the deadline for filing claims. Claims can be subsequently amended.

3. Make sure to timely file a proof of claim.

The Bankruptcy Code requires that an unsecured creditor file a proof of claim in a timely manner in order to be entitled to a distribution. A timely filed proof of claim is deemed allowed unless a party in interest objects to the claim (such as the trustee, another creditor, or the debtor). In the event an objection to a claim is filed, the Bankruptcy Court will provide the parties with notice and have a hearing to determine the amount of the claim that is to be allowed. You must make sure that your claim is timely filed and attach any documentation that supports your claim.

4. Attend the meeting of creditors if you have questions about the bankruptcy.

A useful tool for creditors in a bankruptcy proceeding is the meeting of creditors. The United States Trustee is required by the Bankruptcy Code to convene and preside at a meeting of creditors within a reasonable time after the bankruptcy is filed. This is not a formal court hearing and the Bankruptcy Court is prohibited from presiding or attending a meeting of creditors. The date of the meeting of creditors will be set forth in the initial notice sent to interested parties informing them of the bankruptcy filing. You may want to mark this date on your calendar when you receive the notice.

The debtor is required to appear at the meeting of creditors and to submit to examination under oath (much like a deposition). The scope of the examination is limited by Rules of Bankruptcy Procedure, which generally limit the scope of examination to the assets, liabilities, and financial condition of the debtor, or any matter which may affect the administration of the bankruptcy estate or the debtor’s discharge. The meeting of creditors is a good opportunity for creditors to listen to questions asked by the trustee and also have an opportunity to ask their own questions of the debtor (within the scope permitted by the Bankruptcy Rules). This is often an underutilized opportunity for creditors to obtain more information about the bankruptcy case.

Nicholas J. Daly is an attorney with LEWIS REED & ALLEN P.C. His legal practice focuses on litigation, bankruptcy, creditor’s rights, landlord-tenant, and municipal matters. If you have questions or would like to schedule a free consultation, please do not hesitate to contact Nick by telephone at (269) 388-7600 or email him at ndaly@lewisreedallen.com.

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by Sheralee Hurwitz

1.  Michigan is one of a handful of states which now protects employee on-line privacy.  The Internet Privacy Protection Act prohibits employers (and educational institutions) from asking for passwords and other account information used to access private internet and email accounts, including social networks like FaceBook and Twitter.  According to the Act:

  • An employer cannot request an employee or an applicant for employment to grant access to or allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.
  • An employer also cannot discharge, discipline, fail to hire,
  • or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.

There are exceptions that specifically permit an employer to access employer provided devices, business related on-line accounts, or employee social media accounts in connection with certain work place investigations.  Employers can also continue to restrict access to certain websites and monitor employee communications on its network, and discipline them for transferring the employer’s proprietary or confidential information without authorization.

2.  The United States Department of Citizenship and Immigration Services has implemented a new I-9 form.  That I-9 form is accessible at: http://www.uscis.gov/files/form/i-9.pdf.  Employers are required to begin using the form immediately, but there is a transitional period until May 7, 2013, which allows employers to transition the new forms into their existing hiring processes.  There is no need for employers to replace all I-9 forms for current employees.  If an employee is re-hired, or re-verification is required for another reason, the new I-9 form should be used.  Employers will find that the format and layout of the form has changed, but the nature of the data required is substantially similar.

3.  Finally, for employers with 50 or more employees, the DOL published new FMLA regulations effective March 8, 2013, which made changes to (1) model FMLA certification forms, (2)  intermittent leave requirements, (3) exigency and military caregiver leave, and (4) flight rules.  The final rule includes:

  •  A new category of exigency leave for parental care increases the maximum number of days (from 5 to 15 calendar days) for qualifying employees to take  exigency leave to bond with a military member on rest and recuperative leave;
  •  Makes effective amendments that extends military caregiver leave to familymembers of certain veterans with qualifying serious injuries or illnesses;
  •  Clarifies the scope of exigency leave to family members of those in the regular armed forces, and;
  •  Clarifies the existing regulation regarding the appropriate increment to calculate intermittent and reduced-scheduled leave.

The DOL has revised various FMLA forms to reflect these new regulations, including the Certification Of Health Care Provider For Employee Serious Health Condition, Certification Of Health Care Provider For Family Member Serious Health Condition, Certification for Serious Injury or Illness of a Current Servicemember-For Military Family Leave, and Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave).

If you have any questions regarding the updated regulations, or how to access appropriate FMLA forms, please contact your Lewis Reed & Allen, P.C. attorney.

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