Category: General

  • Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

    Department of Education Releases Title IX Rulemaking on Transgender Student Eligibility in School Athletics – CUPA-HR

    by CUPA-HR | April 12, 2023

    On April 6, the U.S. Department of Education released a Notice of Proposed Rulemaking (NPRM) on student eligibility for athletic teams under Title IX. The proposed rulemaking focuses on transgender students’ eligibility to participate on athletic teams as legislation and policies at the federal, state and local levels have been introduced to ban transgender student participation in athletic programs.

    Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a “one-size-fits-all” ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The Department further explains that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.

    The NPRM comes after the Biden administration announced its intention to release such a proposed rule after it excluded language on transgender student eligibility in athletics in its June 2022 Title IX proposed rule. The rule comes as policymakers at the federal, state and local levels have introduced and passed legislation that bans transgender participation on women’s athletic teams. Most recently, the House of Representatives passed H.R. 734, the Protection of Women and Girls in Sports Act, out of the Education and the Workforce Committee, where it now awaits a full floor vote. The bill would prohibit federally-funded education programs or activities to operate, sponsor or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that are designated for women or girls, defining “sex” as an individual’s reproductive biology and genetics at birth.

    Public comments in response to the NPRM will be due 30 days from the date of publication in the Federal Register. CUPA-HR will work with other higher education associations to fully analyze the NPRM and respond accordingly.



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  • Pay Increases for Higher Ed Employees Sharply Improve, But Still Fall Short of Inflation Rate – CUPA-HR

    Pay Increases for Higher Ed Employees Sharply Improve, But Still Fall Short of Inflation Rate – CUPA-HR

    by CUPA-HR | April 3, 2023

    New research from CUPA-HR has found that although employees across the higher education workforce saw the most substantial pay raises in 2022-23 than in the past several years, they are still being paid less than they were in 2019-20 in inflation-adjusted dollars.

    Some of the key findings from an analysis of CUPA-HR’s higher ed workforce salary survey data from 2016 to 2023:

    • This academic year, raises for higher ed employees were the largest seen in the past seven years, and all position types (administrators, professionals, staff and faculty) received an increase of at least 1.11 percentage points compared to the previous year.
    • Tenure-track and non-tenure-track teaching faculty continue to receive the smallest pay increases of any higher ed employee category. In 2022-23, tenure-track faculty saw a median pay increase of 2.9 percent and non-tenure-track faculty saw an increase of 3.2 percent. Tenure-track faculty salary increases have not kept pace with inflation since at least 2015, and non-tenure-track salary increases last met or exceeded inflation in 2016-17, meaning full-time faculty in general continue to be paid less every year in inflation-adjusted dollars.
    • Staff, which is typically the lowest-paid category of higher ed employees, saw the biggest raises this academic year at 5.3 percent (up from 2.9 percent in 2021-22).

    Explore this data and more in CUPA-HR’s newest interactive graphic.

    CUPA-HR Research

    CUPA-HR is the recognized authority on compensation surveys for higher education, with its workforce surveys designed by higher ed HR professionals for higher ed HR professionals and other campus leaders. CUPA-HR has been collecting data on the higher ed workforce for more than 50 years, and we maintain one of the largest workforce databases in existence. CUPA-HR also publishes numerous research publications and interactive graphics highlighting trends and issues around higher ed workforce planning, pay equity, representation of women and racial/ethnic minorities and more. Learn more about CUPA-HR research.



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  • Setting Up New Leaders for Success From Day One – Strategies for HR – CUPA-HR

    Setting Up New Leaders for Success From Day One – Strategies for HR – CUPA-HR

    by CUPA-HR | March 29, 2023

    Consider this scenario: An institution hires a new leader who has previously worked in higher ed. Assuming the individual has already acquired the knowledge and skills necessary to get the job done, HR guides them through a brief onboarding and launches them into their new role. Six months later, HR checks in with the leader to see how things are going and discovers a dissatisfied leader and a team in turmoil. What went wrong?

    According to Sara Reed, vice president of people and talent at Western Governors University, HR sometimes falsely assumes that new leaders with higher ed experience know how to get the job done. Consequently, expectations may not be clearly articulated, which can create rough patches for the leader to navigate on their own. In the recent CUPA-HR webinar Building Leader Confidence in Transition: We Can’t Do It Alone, Reed explained that to help create a smooth transition for new leaders and ensure success from day one, HR can consider implementing these strategies in the pre-hire and onboarding phases:

    • Pre-hire: Provide accurate and clear position descriptions. HR should be very clear about what the institution is looking for in the role. Is the institution looking for a different leader than in the past, or a leader who meets the status quo? What context is there surrounding the job description that the candidate should be aware of? For example, will the new leader be leading a team that is in transition or turmoil? If so, what resources and contacts can help the new leader in a situation like this?
    • Pre-hire: Be clear about the mission of the institution. What mission does this new leader need to advance and further? Do job candidates see the values and beliefs of the institution displayed on the website? Who is included in the interview process? Can a broad number of people be included in the hiring process to send the message that the position is of high importance?
    • Pre-hire: Have the individual meet the team they’ll be leading. Create an opportunity during the interview process for the potential new leader to meet the team they’ll be leading. Allowing job candidates and future team members to have conversations beforehand could reveal potential areas of conflict between the two parties.
    • Onboarding: Pair the new leader with a skills mentor and a cultural mentor. While a new leader’s knowledge, abilities and experiences in previous positions can be beneficial in helping them succeed in their new role, they still must learn the cultural and political landscape. In the webinar, Reed shared her personal testament to having a “nuts and bolts” mentor and a cultural mentor when she first began working in higher ed. While a “nuts and bolts” mentor explains institutional policies and how to use systems, a cultural mentor can help clue in a new leader to the cultural and political landscape and serve as a “safe space” to ask questions and get insights. As Reed suggested in the webinar, a cultural mentor is someone you can approach after a meeting and ask, “What just happened?”

    Interested in more pre-hire and onboarding strategies and tactics to help new leaders in transition? Watch the webinar recording: Building Leader Confidence in Transition: We Can’t Do It Alone.



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  • NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    by CUPA-HR | March 27, 2023

    On March 22, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to all field offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board decided that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements. According to the NLRB’s press release, the memo is to be used as guidance to assist field offices responding to inquiries from workers, employers, labor unions and the public about implications stemming from McLaren Macomb.

    The memo offers guidance on the decision’s scope and effect of the McLaren Macomb decision. In the memo, Abruzzo stated that the decision has retroactive application, and she directed employers who may have previously offered severance agreements with “overly broad” non-disparagement or confidentiality provisions to contact employees to advise them that such provisions are now void and will not be enforced. Abruzzo also clarified that confidentiality clauses that are “narrowly tailored” to restricting dissemination of proprietary information or trade secrets may still be lawful “based on legitimate business justifications,” and that non-disparagement clauses that are limited to “employee statements about the employer that meet the definition of defamation as being maliciously untrue (…) may be found lawful.”

    With respect to supervisors, Abruzzo specified that supervisors are not generally protected by the NLRA, but she added that they are protected from retaliation if they refuse to offer a severance agreement with broad non-disparagement or confidentiality provisions to their employees.

    As a reminder, CUPA-HR will be hosting a webinar on the McLaren Macomb decision Thursday, March 30 at 1:00 p.m. ET. The webinar will cover the McLaren Macomb decision and this subsequent memo, and presenters will discuss how the decision may fundamentally change how and when colleges and universities may use confidentiality and non-disparagement provisions. Registration is required for participation, but free to all CUPA-HR members.



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  • NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

    NLRB Issues Decision Blocking Certain Provisions in Severance Agreements, CUPA-HR to Hold Webinar – CUPA-HR

    by CUPA-HR | March 20, 2023

    On February 21, the National Labor Relations Board (NLRB) issued its decision in McLaren Macomb deciding that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements.

    The Board explained in its press release on the decision that if an employer offers a severance agreement with a provision that requires the employees to broadly give up their rights under the Act, the employer violates the NLRA. The simple offering of the agreement “is itself an attempt to deter employees from exercising their statutory rights, at a time when employees may feel they must give up their rights in order to get the benefits provided in the agreement.” NLRB Chair Lauren McFerran said “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act.”

    McFerran issued the decision alongside NLRB Democratic Members Gwynne Wilcox and David Prouty, while Republican Board Member Marvin Kaplan dissented. The decision reverses two Trump-era NLRB decisions, Baylor University Medical Center and IGT d/b/a International Game Technology. Both of these decisions determined severance agreements with confidentiality and non-disparagement provisions not unlawful in and of themselves.

    Importantly, this decision does not apply to public sector employees as the NLRB only has statutory jurisdiction over private sector employees. Additionally, the ruling does not apply to employees in supervisory or managerial positions.

    CUPA-HR will hold a webinar on this rulemaking and its potential impact on higher ed institutions on March 30, 2023 at 1:00 p.m. ET. Registration is required for participation, but free to all CUPA-HR members. To register, please visit the event’s web page.



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  • DOL to Host Webinar on the PUMP for Nursing Mothers Act – CUPA-HR

    DOL to Host Webinar on the PUMP for Nursing Mothers Act – CUPA-HR

    by CUPA-HR | March 8, 2023

    On March 16, the Department of Labor’s Wage and Hour Division (WHD) will present a webinar titled “The PUMP for Nursing Mothers Act: What Advocates and Employers Need to Know.” The free webinar is intended to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the law.

    In December 2022, the PUMP for Nursing Mothers Act was enacted into law through the Consolidated Appropriations Act of 2023. The bill amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. In the new law, protections are expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Following the passage of the Act, on February 9, WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees, and it may be discussed during the upcoming webinar.

    The webinar will be held on Thursday, March 16 at 2:00 p.m. ET. The webinar is free to the public, and participants can register to attend online. CUPA-HR’s government relations team will attend the webinar and keep members apprised of any significant updates related to the PUMP for Nursing Mothers Act.

     



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  • CUPA-HR Data Highlights Trends in Representation and Pay Equity in the Higher Education Workforce, and the News Is Mixed – CUPA-HR

    CUPA-HR Data Highlights Trends in Representation and Pay Equity in the Higher Education Workforce, and the News Is Mixed – CUPA-HR

    by CUPA-HR | March 1, 2023

    When it comes to representation and pay equity for women and people of color in the higher education workforce, colleges and universities have frequently struggled to make meaningful progress. Through several new interactive graphics representing years of research, CUPA-HR shines a light on the progress that has been made and the disparities that persist. These graphics represent data from CUPA-HR’s four signature higher ed workforce surveys — Administrators, Faculty, Professionals, and Staff — through 2022.

    Administrators

    While the proportion of people of color in higher ed administrator positions has grown steadily over the last 10 years, these increases have not kept pace with the rate at which minorities are obtaining graduate degrees. In 2022, people of color made up 18.2 percent of administrators, up from 12.9 percent in 2012.

    The data also show that pay gaps for women administrators of all races/ethnicities are consistent across the past 10 years and notably wide. Pay inequity is particularly egregious for women administrators of color (with the exception of Asian women). Men of color, on the other hand, have been paid salaries equitable to or greater than those of White men in recent years.

    The Administrators in Higher Education Survey collects data on administrator positions that manage a higher ed institution or a division within it.

    See the Administrators Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics, as well as data broken out by CEO, provost and chief HR officer.

    Faculty

    There are two notable findings in faculty composition. First, more women are represented in non-tenure-track than in tenure-track faculty. Second, for each tenure status and with each increase in rank, the proportions of women and faculty of color decrease. This means that women are over-represented in the lowest-paying and lowest-ranking positions. This remains the case despite the fact that the proportion of women and faculty of color have increased slightly at each rank over the past five years.

    Pay gaps for women faculty, regardless of tenure status or rank, continue to persist, particularly at the rank of professor. These gaps are most notable for women of color. Pay gaps at other ranks have narrowed over time, particularly for tenure-track faculty. Importantly, the factor that most impacts faculty pay is promotion to a higher rank. Often, the only significant increases in salary happen with these promotions. These data show that the only group that has greater representation with each increase in rank is that of White male faculty, and this pattern has persisted over time.

    The Faculty in Higher Education Survey collects data on tenure-track faculty positions and non-tenure-track teaching faculty positions.

    See the Faculty Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Professionals

    Women’s representation has increased across all professionals’ positions since 2017, and in 2022, women represented more than 60 percent of higher ed professionals. This change is due to slight increases in representation of women of color since 2017. In 2022, representation of people of color was 24 percent overall, with the highest percentage among human resources professionals (34 percent) and diversity and equal opportunity professionals (33 percent).

    In 2022, women were consistently paid less than White men, a pattern that has worsened since 2017. However, men of color were paid more equitably in 2022 compared to previous years.

    The Professionals in Higher Education Survey collects data on positions in specific functional areas in higher ed institutions, such as academic or student services, that usually require a baccalaureate degree.

    See the Professionals Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    Staff

    Staff employees have a higher representation of people of color than any other higher ed employee group. This is notable in that these are the lowest-paying positions in higher ed. In 2022, women of color represented about 19 percent of all higher ed staff, and men of color represented about 13 percent of all higher ed staff. These numbers have increased since 2017, though modestly. Skilled craft employees were the least racially diverse group, as 80 percent were White men, a finding that has persisted across the past six years. Notably, skilled craft staff are among the highest-paid staff positions.

    Since 2017, women in staff positions have been paid consistently and considerably less than White men in staff positions, a pattern that has worsened over time, particularly for women in office and clerical positions. Men of color were paid more equitably in 2022 when compared to 2017.

    The Staff in Higher Education Survey collects data on positions that are generally non-exempt and do not require a college degree.

    See the Staff Composition and Pay Equity by Gender and Race/Ethnicity interactive graphics.

    CUPA-HR Research

    CUPA-HR is the recognized authority on compensation surveys for higher education, with its workforce surveys designed by higher ed HR professionals for higher ed HR professionals and other campus leaders. CUPA-HR has been collecting data on the higher ed workforce for more than 50 years, and we maintain one of the largest workforce databases in existence. CUPA-HR also publishes numerous research publications and interactive graphics highlighting trends and issues around higher ed workforce planning, pay equity, representation of women and racial/ethnic minorities and more. Learn more about CUPA-HR research.



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  • Department of Education’s OCR Issues Resource Documents on Title IX Compliance for Athletic Programs – CUPA-HR

    Department of Education’s OCR Issues Resource Documents on Title IX Compliance for Athletic Programs – CUPA-HR

    by CUPA-HR | March 1, 2023

    On February 17, the Department of Education’s Office for Civil Rights (OCR) issued three resource documents on Title IX compliance for school athletic programs. The first resource document covers support for equal opportunity in school athletic programs generally, while the other two cover Title IX and athletic opportunities at K-12 schools and colleges and universities separately.

    According to the OCR, these documents were designed “to help students, parents, coaches, athletic directors and school officials evaluate whether a school is meeting its legal duty to provide equal athletic opportunity regardless of sex,” and they provide examples of situations that may mean a school is not complying with Title IX requirements. The guidance does not make any changes to existing enforcement procedures for the OCR, rather, it is intended to be used by institutions to ensure that their existing protocols and programs are compliant with Title IX.

    Supporting Equal Opportunity in School Athletic Programs

    The first resource document reiterates Title IX’s prohibition of discrimination on the basis of sex in education programs and activities, including athletic programs, that receive federal funds. It states that Title IX requires schools to effectively accommodate the athletic interests and abilities of their students regardless of sex, and provide equal opportunity in the benefits, opportunities and treatment provided for their athletic teams. It also clarifies that Title IX requires colleges and universities to not discriminate on the basis of sex in the provision of any athletic scholarships or financial assistance to students.

    The resource document included four examples of situations that may surface Title IX concerns at colleges and universities, which are listed below:

    • The men’s teams at a college receives new athletic apparel and gear each year, while the women’s teams must use old apparel and purchase some of their own equipment.
    • Across its entire athletic program, a college awards disproportionately more athletic financial assistance to men than women.
    • A university provides funds for its coaches to recruit athletes for its men’s football and basketball teams because it considers those teams to be “flagship sports.” It provides no funds for coaches to recruit women athletes. As a result, the school has difficulty attracting women to participate in its athletic program.
    • Women are underrepresented in a university’s athletic program compared to their representation in the student body. The university would have to offer 54 additional spots for its women students on existing or new teams for women to have substantially proportionate athletic participation opportunities. Women have expressed an interest in having more teams, and there are women students participating in club sports for which there are no varsity teams. Those club sports include lacrosse, water polo, ice hockey and bowling — all of which have intercollegiate competitions available and are sanctioned by the athletic governing body the university belongs to. Yet, the university has not added a women’s team for many years.

    Title IX and Athletic Opportunities in Colleges and Universities

    The resource document designed specifically for institutions of higher education dives deeper into background information on Title IX, as well as ways that students, coaches, athletic directors and school officials can evaluate a school’s athletic program and whether it’s meeting its legal requirements to provide equal athletic opportunity. With respect to the evaluation, the document guides readers with questions and examples of Title IX compliance with respect to the benefits, opportunities and treatment for men’s and women’s teams; athletic scholarships and financial assistance, and meeting students’ athletics interests and abilities.

    Benefits, Opportunities and Treatment for Men’s and Women’s Teams

    With respect to equivalent benefits, opportunities and treatment for men’s and women’s teams, the resource document lists several questions about an institution’s attempts to provide equal opportunities to both men and women student-athletes. These questions surround the following topics:

    • Equipment and supplies
    • Scheduling games and practice time
    • Travel and daily allowances
    • Coaching
    • Academic tutors
    • Locker rooms, fields, courts and other facilities for practice and competition
    • Medical and training facilities and services
    • Housing and dining services
    • Publicity
    • Recruitment

    The resource document explicitly states that if any of the questions listed under these topics is answered as a “no,” it may indicate a possible Title IX violation.

    Athletic Scholarships and Financial Assistance

    The document also creates questions that may be used to assess a school’s provision of scholarships and athletic financial assistance. The questions help guide users to measure the percentage of women and men participants at their institution and the percentage of scholarship awards provided to women and men, and it lists questions and examples to help compare these percentages. These questions may again point to disparities among programs that could be potential violations of Title IX, but the OCR states that it “will take into account all legitimate, non-discriminatory reasons for disparities provided by the school” if there are disparities present between percentages awarded to men’s and women’s programs.

    Meeting Students’ Athletic Interests and Capabilities

    The resource document refers to the “three-part test” that institutions may use to demonstrate that all Title IX legal requirements are being fulfilled. Schools are only required to use one of three options to show compliance with Title IX, which are detailed in the document and briefly listed below:

    • Option 1: Substantial Proportionality — This option looks to whether the percentage of women and men participants on athletic teams are about the same as, or “substantially proportionate” to, the percentage of women and men enrolled as full-time undergraduates at your school.
    • Option 2: History and Continuing Practice — This option looks to whether your school can show it has a history and continuing (i.e. present) practice of expanding its athletic program to respond to the interests and abilities of women, if women have been underrepresented, or if men have been underrepresented.
    • Option 3: Interests and Abilities of Students — This option asks whether your school can show that — despite the disproportionality — it is otherwise meeting the interests and abilities of the underrepresented sex.

    The resource document states that following longstanding practice for showing Title IX compliance — if an institution is unable to use any of the three options to show compliance with Title IX — may not be meeting legal requirements to provide equal opportunity to participate in athletics based on sex under Title IX.

    Options for Filing Complaints for Title IX Violations

    Both the general support and higher education-specific documents end their guidance with ways in which students, parents, employees and others in the school community may file Title IX complaints through their school’s grievance procedures if they believe their institution is not providing equal athletic opportunity based on sex. The documents first turn readers to their institution’s Title IX coordinator, but also provides the option to file a complaint online with the OCR. It also clarifies that anyone is able to file complaints with the OCR, which may include individuals outside of the school community.

    CUPA-HR will continue to monitor for any updates to Title IX compliance and will keep members apprised of any updates with respect to Title IX law and regulations.



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  • President Biden Nominates Deputy Secretary Julie Su to Head the DOL – CUPA-HR

    President Biden Nominates Deputy Secretary Julie Su to Head the DOL – CUPA-HR

    by CUPA-HR | February 28, 2023

    On February 28, President Biden announced he would nominate Julie Su to lead the Department of Labor (DOL). Su is currently the deputy secretary of labor under Marty Walsh, who announced he would leave the agency mid-March to head the National Hockey League Players’ Association.

    Given previous opposition during her nomination to become deputy secretary, Su will likely face a difficult nomination process. In 2021, Su was confirmed into her current position by a 50-47 vote with no Republican support. Republican criticism during her nomination process arose from her prior role as secretary of the California Labor and Workforce Development Agency. During her tenure in California, the agency handled oversight and enforcement of the state-passed bill, Assembly Bill 5 — a controversial law regarding independent contractor status and misclassification. Additionally, the agency oversaw COVID-19 pandemic relief and dealt with subsequent issues, including unemployment insurance fraud.

    President Biden said in his statement “It is my honor to nominate Julie Su to be our country’s next secretary of labor. Julie has spent her life fighting to make sure that everyone has a fair shot, that no community is overlooked and that no worker is left behind. Over several decades, Julie has led the largest state labor department in the nation, cracked down on wage theft, fought to protect trafficked workers, increased the minimum wage, created good-paying, high-quality jobs, and established and enforced workplace safety standards.”

    Su is backed by many Democrats and Asian American members of Congress as well as several labor unions, including the Service Employees International Union.

    Regardless of how her nomination goes, Su is in line to become the acting secretary of labor once Walsh leaves office. There are no limitations on what an acting secretary can do leading the agency, leaving Su with full authority over the DOL while her nomination is pending. Regulations anticipated in the near future, including the Wage and Hour Division’s overtime exemption rulemaking, will likely not be delayed as a result of this nomination.

    CUPA-HR will keep members apprised of major updates at the Department of Labor and any significant guidance or regulations released by the agency.



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  • DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    by CUPA-HR | February 21, 2023

    On February 9, the Department of Labor’s Wage and Hour Division (WHD) issued an opinion letter stating that employees with chronic serious health conditions may use Family and Medical Leave Act (FMLA) leave to reduce work hours indefinitely. The WHD opinion letters serve as a means by which the public can develop a clearer understanding of what FMLA compliance entails. This particular letter is the first issued by the Biden administration.

    The letter from the WHD and Acting Administrator Jessica Looman comes in response to an employer’s letter asking whether “an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a healthcare provider certifies that the employee has a medical need to limit their schedule.” The question only applies to employees who are regularly scheduled to work more than eight hours per day.

    The opinion letter specifies that if an employee is regularly scheduled to work more than eight hours per day but has an FMLA-qualifying condition that grants them to take FMLA leave, then the employee is entitled to use the 12 weeks of FMLA leave to reduce their work hours to eight hours per day. It adds that an employee may indefinitely reduce their work hours so long as they don’t surpass the 12 weeks of FMLA leave in a 12-month period that they are entitled to under the law.

    The letter also addresses concerns from the employer that the need for a work day limited to eight hours may be “better suited” as a reasonable accommodation granted under the Americans with Disabilities Act (ADA). The letter states that the requirements and protections of the FMLA and ADA are separate and distinct, and that employees may be entitled to use protections granted under both laws at the same time. It further states that an employee who has exhausted all of the afforded FMLA leave for a 12-month period may have additional rights granted under the ADA to continue to work at the reduced level, but it clarifies that the WHD does not “interpret or provide any advice for” the ADA and its requirements.

    Finally, the letter states that employees are entitled to the equivalent of 12 standard workweeks of FMLA leave, which may be more than 480 hours (equivalent to working 40 hours per week for 12 weeks) if the regular schedule of the employee is greater than 40 hours per week. The letter uses an example of an employee regularly working 50 hours per week, in which case the employee would be entitled to 600 hours of FMLA leave.

    It’s worth noting that the content of the letter is consistent with long-standing guidance and enforcement of the FMLA. The letter may draw increased attention to the issue, however, since the letter is the first provided by the Biden administration’s WHD.

    CUPA-HR will continue to monitor for any future WHD opinion letters and will keep members apprised of any significant updates in the future.



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