Same Sex Marriage Now Allowed in New Mexico and, yes, Utah

By: Megan G. Holstein, Senior Counsel, Compliance and Employment Law

For those of you keeping track at home, two more states have joined the growing list of states where same-sex couples can legally marry.

On Thursday, December 19th, the New Mexico Supreme court ruled that New Mexico is constitutionally required to provide same-sex couples the same rights, protections, and responsibilities of marriage as heterosexual couples under New Mexico law.

On Friday, December 20th, a federal court in Utah ruled that the state’s ban against same-sex marriages was unconstitutional.  A request for a stay on this ruling was denied and so Utah joins the 17 other states and the District of Columbia in issuing marriage licenses to same-sex couples.    The court decision in Utah will likely be appealed, so check back for updated information on Utah and the ever- changing landscape of same-sex marriage  –  and analysis of how legislative changes like these affect leaves of absence.

Major New Feature For ACOEM Practice Guidelines: Beta Formulary Just Added

The ACOEM Practice Guidelines have long been respected for offering evidence-based, scientific content to medical practitioners, utilization reviewers, claims adjusters and others who need to refer to treatment guidelines in the course of their work. Reed Group, the exclusive publisher and distributor of the ACOEM Practice Guidelines, just released a new beta formulary that links various data elements to medication and injection recommendations. The ACOEM beta formulary allows users to search and quickly find out what medications are/are not recommended for a specific condition. Most other formularies available on the market don’t offer condition-specific searches.

The formulary is in beta release to allow users to provide feedback. Early reviews have been very positive. 

“This formulary directly links the scientific evidence behind the use of specific medications for specific conditions and provides information on alternative drugs which may be useful or, conversely, are potentially harmful.  It is one of the clinically useful formularies currently available which also provides the necessary information for claims adjustors,” said Dr. Kathryn Mueller, medical director of the Colorado Division of Workers Compensation.

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If you’re a clinician, utilization reviewer, insurance adjuster or someone else who needs a tool like this, we’d love your feedback on the beta formulary. If you’re willing to take a short survey after using the formulary, you might be eligible for a free trial of the ACOEM Practice Guidelines and the beta formulary. Email us at guidelines@reedgroup.com if you’re interested in the trial.

Sick? Or just sick of working during the holidays?

Employers, if you’re seeing a seasonal surge in family and medical leave requests, you should start looking for signs of FMLA abuse in your workforce. Here’s a quick checklist you can use when reviewing FMLA requests around the holidays:

1) Denied PTO request?  
Did the employee already ask for paid time off close to a holiday, and have that request denied?

2) Out of PTO?  
Has the employee run out of PTO hours for 2013?

3) FMLA requests close to other holidays?  
Does the employee have a pattern of asking for family or medical leave adjacent to paid holidays?

If you answered “yes” to any of the above questions, you should examine the request carefully to ensure it is appropriately supported by the employee’s new or pre-existing certification.  If you are seeing a suspicious pattern, you may be able to ask for recertification.

Remember that the holiday season is truly stressful for some people, especially for individuals with personal or financial problems. Some medical conditions flare up under stressful conditions, so keep this in mind when reviewing FMLA requests.

If you’re looking for clearly defined guidance on what laws and regulations allow you to challenge employee claims, such as asking for recertification or following up with an employee on specific absences, LeaveAdvisor™ is a good place to start. Learn more about LeaveAdvisor™.

RULE CHANGE COMING: The DOL plans to amend the FMLA definition of “spouse” to provide leave to care for all same-sex spouses

By Megan G. Holstein, Senior Counsel, Compliance and Employment Law

The Family and Medical Leave Act (FMLA) allows eligible employees 12 work weeks of unpaid leave to care for a spouse, child, or parent who has a serious health condition. But the FMLA defines a spouse as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides (not where the employee works). 29 C.F.R. §§ 825.102, 825.122(b).

This June, the United States Supreme Court issued a decision, United States v. Windsor, striking down a key provision of the Defense of Marriage Act (DOMA,) allowing employees to take FMLA leave to care for a same-sex spouse if the employee resides in a state that recognizes same-sex marriages. We’ve previously written about the Windsor decision as well the Department of Labor’s (DOL) updates to incorporate Windsor into its regulatory and enforcement activities. Even after the Windsor decision and the DOL updates, however, the FMLA still didn’t cover employees who reside and/or work in states that do not recognize same-sex marriages, but who married in a state that does recognize such unions. (Yes, it’s confusing.)

The DOL announced that it plans to revise the regulatory definition of “spouse” under the FMLA “in order to fully implement the Supreme Court’s decision”. The DOL plans to fill the gap and confusion of the FMLA’s current definition of “spouse” by issuing a notice of proposed rulemaking to revise the FMLA regulations accordingly. Reed Group will be monitoring the DOL’s proposed rulemaking and the FMLA regulations revision process and will provide periodic status updates, including an announcement when the final regulations are issued. Stay tuned!

Do You Have to Retain An Employee if You Uncover Poor Performance During FMLA Leave?

By Lori Welty, Compliance Attorney and Marti Cardi, Chief Compliance Officer

We’ve all heard stories of an employee going on leave, only to have a co-worker find a hidden pile of work with long-expired deadlines.  Many employers – and employees – are under the assumption that employees on leave are insulated from adverse employment actions during leave, or that somehow information obtained during leave can’t be used against employees.   Simply because information is discovered during a period of leave does not prevent the employer from acting on the situation.  So under what circumstances can an employer take action? Read more. 

Which States Have Same Sex Marriage? Employers Need to Know [INFOGRAPHIC]

As of last night, Illinois became the 15th state to approve gay marriage. Employers need to make sure that benefits provided to married couples are correctly being applied to same-sex spouses, who are now entitled to them under Illinois law as well as the law in 14 other states. Don’t forget that your employee leave policy has to keep up with changes in marriage laws, too.

If you’re finding it tricky to keep track of which states have same-sex marriage laws on the books, and want to see the details behind each state’s law (civil unions? Marriages? Both?), here’s a map.

The Boss is Watching… And Two Courts Said That’s OK.

So, your employee calls in and requests time off under FMLA. You grant the request. You’re checking Facebook the next day and find fresh photos of your “sick” employee, enjoying a night on the town with friends. What can you do about it? Read more.

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