The Department of Labor issued an opinion letter today regarding the FMLA and whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement (26 weeks for military caregiver leave). The answer is "NO" on both questions. An employer may not delay the designation of FMLA-qualifying leave, even if the employee would prefer that the employer delay the designation. Additionally, an employer may not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.
As of June 22, 2017, OMAG is providing defense-only coverage for FMLA and OADA claims up to $25,000. As many of you are aware, prior to this, OMAG declined coverage altogether of FMLA and OADA claims because the only recoverable damages in those cases are wages and employee benefits.
This new defense-only coverage will allow members to have expert legal counsel at OMAG legal counsel rates. Here are the highlights of the terms of coverage:
• This coverage is not available when OMAG is providing coverage and defending any of the above causes of action under a reservation of rights.
• This Coverage does not and shall not be construed as an agreement by OMAG to indemnify, pursuant to this Coverage, the plan member for any sums the plan member becomes legally obligated to pay.
• OMAG will not commit you or a plan member to any settlement under this Coverage without your consent unless OMAG at our sole discretion deems it to be in the best financial interests of OMAG.
• $25,000 Total Defense Allotment: The total cost of defense which OMAG will be responsible to pay shall not exceed twenty-five thousand dollars ($25,000.00). The $25,000 allotment cannot be used by you to offset any settlement or judgment.
• Plan member will enter into an agreement with OMAG defense counsel prior to commencement of a defense under this Coverage to address the legal defense once the allotment under this Coverage has been exhausted.
• Any claim under this Coverage shall be defended in your name by the counsel selected by us.
• If a plan member retains separate counsel, any charge made by separate counsel will be the plan member’s responsibility. Our counsel will cooperate with separate counsel.
• Plan member shall have authority to control the legal proceedings, including determining whether OMAG defense counsel has primary defense responsibility or merely provides assistance to your separate counsel.