Many Michigan employers of all sizes and stripes offer some form of paid leave, sick leave or paid time off as a fringe benefit. And, for large employers with 50+ employees, it would not be uncommon to permit additional time off even beyond the unpaid leave entitlements of the Family and Medical Leave Act (“FMLA”).
Some state or local laws may even require paid leave beyond FMLA entitlements. Seeking to maximize qualifying time away from work, employees may even ask to take paid leave before commencing the allotted 12 weeks of unpaid FMLA leave [ 26 weeks, in the case of military caregivers ]. For morale purposes in a tight labor market, some employers may even independently also permit various other employee favorable arrangements.
But – Not Anymore. By Opinion Letter, dated March 14, 2019, the United States Department of Labor (USDOL) now prohibits this approach.
The USDOL’s Opinion Letter requires the FMLA entitlement to commence from the earliest possible date, irrespective of a covered employer’s paid leave policy or applicable policies, or the employee’s preferred leave sequencing. Since federal law preempts state laws on such subjects, the federal regulations rule supreme.
USDOL now takes the position that an employer “may not designate more than 12 weeks of leave as FMLA leave” [military caregivers – 26 weeks]. It is worthy to note that the USDOL’s most recent Opinion Letter is a departure from its former Opinion Letter No. 49 [1994], which allowed employers to “extend” FMLA benefits by delaying the start of the FMLA leave period until after employees exhausted other paid leave benefits.
With appropriate notice in written policies and in the required FMLA Rights and Responsibilities Notice, employers may still continue to require employees to take paid leave concurrently with unpaid FMLA leave.
Alternatively, employers may permit employees to elect to take other employer provided paid leave concurrently with FMLA leave; or, to take FMLA leave as unpaid and save paid leave for later use.
Now, according to the USDOL, in every circumstance, the first 12 weeks of FMLA qualifying leave in the applicable calendar year [military – 26] must be designated as FMLA leave.
In relation to Michigan’s newly adopted PMLA, and the many procedural requirements of the FMLA, a trap is now set for the ill-informed. Guidance from experienced labor counsel should help to avoid interference with employees’ companion FMLA/PMLA rights, while at the same time attempting to minimize potential risks of misuse or ‘gaming a system’ designed to build moral and assure staff retention.
Note: as an aside, relative to the implementation date of Michigan’s new MPLA, following the applicable Parliamentary Rules, the implementation date is March 29th, 2019. If one follows Michigan’s Constitution respecting the 91 day subject – the implementation date is April 1st, 2019. The newly required MPLA posters now being circulated by MIDOL, of course, reflects the earlier date.
$2 billion in Roundup lawsuit award. Are deer hunters at risk?
If you, a friend or family member has been exposed to Roundup and has been diagnosed with non-Hodgkins lymphoma, please contact Attorney Tim Smith at 231.946.0700 for a free consultation and click for more information about Smith & Johnson’s Roundup Glyphosate litigation.
Second Jury Rules Roundup Causes Cancer
Reuters reports that a jury in San Francisco federal court became second in the U.S. to rule that Roundup weed killer caused cancer. The article says in part:
More from Reuters.
Pedestrian Traffic Fatalities Increase, Michigan Improving
In recent years, the number of pedestrian fatalities in the United States has grown sharply. During the ten year period from 2008 to 2017, the number of pedestrian fatalities increased by thirty five percent from 4,414 deaths in 2008 to 5,977 deaths in 2017. At the same time the combined number of all other traffic deaths declined by six percent. The GHSA estimates that the nationwide number of pedestrians killed in motor vehicle crashes in 2018 was 6,227 which was an increase of four percent from 2017.
Increases of pedestrian fatalities are occurring largely at night. From 2008 to 2017 the number of nighttime pedestrian fatalities increased by forty five percent compared to a much smaller eleven percent increase in daytime pedestrian fatalities.
Despite the overall increase in pedestrian deaths there was some good news in this national report by the Governors Highway Safety Association. Six states including Michigan reported double digit declines in both the number and percent change pedestrian fatalities in the same period in 2017. Even though Michigan saw a decline over from 2017 in the number of pedestrian fatalities they still ranked fifteenth among all states nationwide for total fatalities between January and June 2018. The study showed a number of factors that put pedestrians at risk including darkness and the light conditions, distracted driving and cell phone usage, alcohol and/or drug impairment by both the pedestrian and/or the driver and an increasing shift in U.S. vehicle sales away from passenger cars to light trucks with light trucks generally causing more severe pedestrian impacts than cars. Although passenger cars are the largest category of vehicles involved in fatal pedestrian crashes, crashes, the number of pedestrian fatalities involving SUVs increase at a faster rate-fifty percent- from 2013 to 2017 compared to passenger cars which increased by thirty percent.
The article pointed out that Michigan is implementing a variety of measures to improve pedestrian safety including law enforcement training and mobilization, public education, Road Safety Audits (RSAs), a Work Zone Mobility Manual featuring guidance on the treatment of pedestrians in work zones, Complete Streets policies and traffic control devices. Over the last two years Michigan has used Section 402 funds to conduct a comprehensive pedestrian and bicyclist crash evaluation through Western Michigan University. The pedestrian and bicyclist safety statewide conference was held in May 2016 using 402 funds to share the information results of the 2016 Michigan Comprehensive Pedestrian and Bicyclist Crash Evaluation Report.
If you as a pedestrian are struck and injured by a vehicle, Michigan’s no-fault automobile insurance rules of priority will apply. A pedestrian or bicyclist will first look to their own auto insurance company for certain benefits. These benefits include medical benefits for treatment related to injuries sustained in the accident, household assistance up to twenty dollars per day if prescribed by a physician, reimbursement of lost wages at eighty five of your gross wage pre accident if taken off work by a physician and other no-fault benefits. If you as a pedestrian or bicyclist do not have your own auto insurance, you will then look to the auto insurer of your spouse or a relative domiciled in the same household as yourself. If you do not have a spouse or resident relative that is insured, you will then look to the insurer of the owner or registrant of the motor vehicle involved, then the insurer of the operator of the motor vehicle involved and lastly if none of the above are applicable you can receive no-fault coverage through the Michigan Assigned Claims Facility.
If you have any questions about any of the above issues or other Michigan auto accident no-fault questions, please contact Tim Smith at Smith & Johnson Attorneys, P.C. at (231)-946- 0700.
Michigan Employers Beware: FMLA Leave Cannot Be Delayed. But what about Michigan’s new Paid Medical Leave…
Many Michigan employers of all sizes and stripes offer some form of paid leave, sick leave or paid time off as a fringe benefit. And, for large employers with 50+ employees, it would not be uncommon to permit additional time off even beyond the unpaid leave entitlements of the Family and Medical Leave Act (“FMLA”).
Some state or local laws may even require paid leave beyond FMLA entitlements. Seeking to maximize qualifying time away from work, employees may even ask to take paid leave before commencing the allotted 12 weeks of unpaid FMLA leave [ 26 weeks, in the case of military caregivers ]. For morale purposes in a tight labor market, some employers may even independently also permit various other employee favorable arrangements.
But – Not Anymore. By Opinion Letter, dated March 14, 2019, the United States Department of Labor (USDOL) now prohibits this approach.
The USDOL’s Opinion Letter requires the FMLA entitlement to commence from the earliest possible date, irrespective of a covered employer’s paid leave policy or applicable policies, or the employee’s preferred leave sequencing. Since federal law preempts state laws on such subjects, the federal regulations rule supreme.
USDOL now takes the position that an employer “may not designate more than 12 weeks of leave as FMLA leave” [military caregivers – 26 weeks]. It is worthy to note that the USDOL’s most recent Opinion Letter is a departure from its former Opinion Letter No. 49 [1994], which allowed employers to “extend” FMLA benefits by delaying the start of the FMLA leave period until after employees exhausted other paid leave benefits.
With appropriate notice in written policies and in the required FMLA Rights and Responsibilities Notice, employers may still continue to require employees to take paid leave concurrently with unpaid FMLA leave.
Alternatively, employers may permit employees to elect to take other employer provided paid leave concurrently with FMLA leave; or, to take FMLA leave as unpaid and save paid leave for later use.
Now, according to the USDOL, in every circumstance, the first 12 weeks of FMLA qualifying leave in the applicable calendar year [military – 26] must be designated as FMLA leave.
In relation to Michigan’s newly adopted PMLA, and the many procedural requirements of the FMLA, a trap is now set for the ill-informed. Guidance from experienced labor counsel should help to avoid interference with employees’ companion FMLA/PMLA rights, while at the same time attempting to minimize potential risks of misuse or ‘gaming a system’ designed to build moral and assure staff retention.
Note: as an aside, relative to the implementation date of Michigan’s new MPLA, following the applicable Parliamentary Rules, the implementation date is March 29th, 2019. If one follows Michigan’s Constitution respecting the 91 day subject – the implementation date is April 1st, 2019. The newly required MPLA posters now being circulated by MIDOL, of course, reflects the earlier date.
Smith & Johnson Lawyers React to Purdue Pharma Settlement in Oklahoma
Earlier this week, Purdue Pharma settled out for $270M in the state case brought by the State of Oklahoma. Mara Thompson with TV 7&4 has been following the progress of our Federal Opioid Litigation team since our first press conference on December 19th, 2017 at the Macomb County Medical Examiners office when we announced the filing of our first nine cases, which included Grand Traverse County.
Mara reached out to Smith & Johnson attorney Tim Smith with questions regarding the Oklahoma state court settlement and how it might affect the Federal cases filed here in Michigan. The article from Up North Live is here.
The Oklahoma case, which is a state court case, will continue to trial on May 28, 2019 against the remaining manufacturers and distributors in that lawsuit. Our federal lawsuits filed here in Michigan are part of a National MDL currently based in Federal court in Cleveland, Ohio. The first of those federal cases will begin trial on October 21, 2019.
Medical Providers’ Collection Lawsuits Against Michigan No-Fault Auto Insurers Remains Valid With A Patient Assignment
On May 8, 2018, the Michigan Court of Appeals issued a binding decision in Shah, et al v State Farm Ins Co, ___ Mich App ___ (2018). This is the first post Covenant v State Farm Ins Co, case that has decided a substantive issue born out of Covenant, itself. As a reminder, our Supreme Court held in Covenant that medical providers did not have an independent statutory right to bring a lawsuit to collect unpaid medical bills against a responsible no-fault insurer. The court, however, made clear in its ruling that its decision did not prohibit other legal theories, e.g., by way of an assignment from the patient/insured. In fact, it was State Farm’s appellate counsel that advocated to the Supreme Court that such an action would still be viable, were it to rule in State Farm’s favor disavowing the independent statutory theory. Following Covenant, medical providers began initiating their collection lawsuits pursuant to assignment. And predictably, State Farm and its brethren no-fault insurers immediately defended the claims arguing that their insurance policies did not allow their insureds to assign their rights under the no-fault policy. Well, the answer to that question has now been decided in favor of the insured and his/her medical provider: Yes she can, thus permitting the medical provider to sue the no-fault insurer and collect the unpaid medical bill the insurer should have paid in the first place. The reasoning of the court in Shah is that the anti-assignment clauses only pertain to pre-loss risk that the insurer clearly did not bargain for. On the other hand, once the loss has occurred, that risk was bargained for; all that remains is who the payee is; and the insured may assign the right to that owed benefit. This has been the common law in Michigan for over 100 years, without rebuke. See, e.g., Roger Williams Ins Co v Carrington, 43 Mich 252 (1880). So until our Supreme Court says otherwise, medical providers’ collection lawsuits against no-fault insurers remains valid with a patient assignment. Individual insured/injured persons and medical providers with questions about the Shah decision or how to draft a proper assignment compliant with the no-fault law are free to contact Smith & Johnson, Attorneys, P.C.
Authored by L. Page Graves
Announcing Associate Attorney Danica L. Powell
Ms. Powell completed her undergraduate degree at Indiana University, and obtained her law degree at The John Marshall Law School in Chicago, Illinois.
Prior to joining Smith & Johnson, Ms. Powell practiced law in Chicago, with a focus on complex commercial litigation. Ms. Powell is licensed to practice law in the State of Michigan and State of Illinois.
Ms. Powell, originally from Chicago, Illinois, relocated to Traverse City in 2015 with her husband, and has recently welcomed her first child.
News Roundup: Opioid Suit Filing
Smith & Johnson involved in Montmorency County opiod litigation
The Alpena News reports Smith & Johnson attorney Tim Smith and lawyers from the firm will meet with Montmorency County departments regarding the opioid litigation:
Tim Smith discusses Opioid Lawsuit
Smith & Johnson attorney Tim Smith discussing Leelanau County’s decision to enter the lawsuit against opioid manufacturers. More about Smith & Johnson’s Municipal Opioid Litigation right here.