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Archives for February 7, 2013

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

Wiletsky_MarkBy Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves. The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition. The AI also clarified FMLA leave to care for an adult child injured during military service. Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child. However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability.

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met. The adult son or daughter must:

1)     have a disability as defined by the Americans with Disabilities Act (ADA);

2)     be incapable of self-care due to that disability;

3)     have a serious health condition; and

4)     be in need of care due to the serious health condition.

Disability Determination. Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities. Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care. The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc. Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition. If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA. This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA. However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed. Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition. This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old. For purposes of FMLA leave, it does not matter when the disability commenced. The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period. Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance. Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.

Mark B. Wiletsky is Of Counsel at Holland & Hart. He has experience representing public and private entities in all aspects of employment law, including defense of claims at the administrative, trial, and appellate levels under Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, Section 1981 and 1983, and First Amendment retaliation claims. He also has experience with a variety of state law claims, including wrongful discharge in violation of public policy, Colorado’s Wage Claim Act and defamation, and he has handled traditional labor issues and arbitrations as well. Mr. Wiletsky blogs at, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Summary Judgment Upheld Under Foreign Sovereign Immunities Act

The Tenth Circuit published its opinion in Hansen v. PT Bank Negara Indonesia (Persero) Tbk.   on Tuesday, February 5, 2013.

The plaintiff-appellant, Theodore Hansen, owned gas stations, convenience stores, and other businesses. He decided to sell these assets and related liabilities to defendant Native American Refinery Company (“NARCO”) for $50 million. To secure its obligations, NARCO provided various financial instruments from PT Bank Negara Indonesia (BNI), some of which were bank guaranties, others were letters of credit. When NARCO failed to meet its obligations, Hansen contacted BNI, which refused to make payment and denied issuing or authenticating any of the instruments.

The district court granted BNI’s motion for summary judgment for lack of jurisdiction under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1604 (“FSIA”). BNI was majority-owned by the government of Indonesia so it was immune from suit in the United States under the FSIA unless plaintiffs met their burden of showing a FSIA exception applied. BNI argued the commercial activity exception did not apply. It had not engaged in commercial activity with the plaintiffs because all the instruments at issue were fraudulent.

Hansen had gotten a phone number from BNI from a BNI website and spoke to two individuals he believed to be BNI employees who confirmed the bank’s relationship with NARCO and the guaranties. Hansen argued the phone conversations were admissions of party-opponents under FRE 801 so the district court erred in finding they were inadmissible hearsay. The Tenth Circuit disagreed. It found the calls could not be authenticated under FRE 901 because there was no evidence the phone number was assigned to BNI by the telephone company. The court also found the website where Hansen got the phone number could did not have sufficient indicia of reliability to be self-authenticating under FRE 902.

The court also found no abuse of discretion in the district court’s exclusion of an affidavit from a man who claimed to have met with BNI officials in Indonesia on behalf of NARCO. The affidavit failed to meet the personal knowledge standard required by F.R.C.P. 56. The court affirmed the grant of summary judgment to BNI.

Tenth Circuit: Bar on Reviewing Fourth Amendment Violations Applies to 28 U.S.C. § 2255 Motions

The Tenth Circuit published its opinion in United States v. Lor on Tuesday, February 5, 2013.

A Wyoming Highway Patrol trooper stopped the defendant, Lee Vang Lor. for speeding in March 2007. After gaining consent to search the vehicle, the trooper found methamphetamine. The district court denied Lor’s motion to suppress the methamphetamine, and he entered a conditional guilty plea to one count of possessing methamphetamine with intent to distribute and one count of conspiring to do the same.

After the denial of the suppression motion was affirmed, Lor filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255 on the basis of newly discovered evidence. The new evidence was that the Wyoming Highway Patrol terminated the trooper who stopped Lor because the trooper called in a false dispatch report after Lor’s arrest but before his suppression hearing. Lor argued that “he had no full and fair opportunity to litigate his Fourth Amendment claim because he did not have ‘crucial evidence needed to impeach the Government’s sole witness to establish reasonable suspicion.’”

Because the Fourth Amendment exclusionary rule is for deterrent purposes, the Tenth Circuit has extended the U.S. Supreme Court’s Stone v. Powell bar on reviewing Fourth Amendment violations in habeas proceedings to § 2255 motions, when the defendant had a full and fair opportunity to litigate his Fourth Amendment claim at trial and on direct appeal. “Absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim.”

Lor made no ineffective assistance of counsel claim and there was no evidence that the government withheld the potentially impeaching evidence as the trooper was not put on paid leave until four months after Lor’s suppression hearing. Additionally, the trooper had not made the false report in the unrelated case at the time of Lor’s stop and search, so it would have had no affect on his actions during the search. The court affirmed the denial of § 2255 relief.

Tenth Circuit: Unpublished Opinions, 2/6/13

On Wednesday, February 6, 2013, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.

Jackson v. Champion

United States v. Stevenson

Peterson v. Timme

United States v. Dutton

Seely v. Jones

Fairfax Portfolio v. Owens Corning Insulating

United States v. Snow

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 2/5/13

On Tuesday, February 5, 2013, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Webster v. City of Bixby

ClearOne Communications, Inc. v. Bowers

Vigil v. Hughes

United States v. Mark Hopkins

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 13-043: Prohibiting Persons Licensed to Sell Alcoholic Beverages for On-Premises Consumption from Permitting Patrons to Remove the Beverages from the Premises

On Wednesday, January 16, 2013, Sen. Andy Kerr introduced SB 13-043 – Concerning the Prohibition Against Knowingly Permitting Removal of Alcohol Beverages from an Establishment Licensed to Sell Alcohol Beverages for On-Premises Consumption. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law prohibits a retail gaming licensee that is licensed to sell alcohol beverages for on-premises consumption from knowingly permitting patrons to remove an alcohol beverage from the licensed premises and protects a retail gaming licensee from prosecution if the licensee either stations personnel at each exit to prevent removal of alcohol beverages from the premises or posts a sign by each exit notifying patrons that removal of alcohol beverages is illegal.

The bill applies the prohibition and protection from prosecution to all persons licensed under the “Colorado Liquor Code” to sell alcohol beverages for on-premises consumption. Additionally, the on-premises licensee may post a sign that is smaller than that required at retail gaming establishments. On Feb. 1, the Senate amended and approved the bill on 2nd reading.

Since this summary, the bill was passed on Third Reading in the Senate, introduced in the House, and assigned to the House Business, Labor, Economic, & Workforce Development Committee.

SB 13-041: For Purposes of Perfecting a Water Right, Expanding the Definition of “Beneficial Use” to Include Storage of Water

On Wednesday, January 16, 2013, Sen. Mary Hodge introduced SB 13-041 – Concerning the Protection of Stored Water, and, in Connection Therewith, Preserving Supplies for Drought and Long-Term Needs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In the case of Upper Yampa Water Conservancy Dist. v. Wolfe, 255 P.3d 1108 (Colo. 2011), the Colorado Supreme Court held that storage of water is not a beneficial use, at least where flood control and fire or drought protection are not the stated uses of the water, and that to perfect a conditional storage right, the water must be released from storage and put to beneficial use. Further, an applicant must show that it has exhausted its absolute storage rights before its conditional storage rights can be perfected.

The bill reverses these holdings by:

  • Expanding the definition of “beneficial use” to include the impoundment of water for firefighting or storage for any decreed purpose;
  • Specifying that:
    1. An applicant doesn’t have to demonstrate that all existing absolute decreed water rights that are part of an integrated system have been utilized to their full extent to establish the need to exercise a conditional water storage right or to make it absolute, in whole or in part;
    2. When conditional water storage rights are made absolute, the decreed volume should be the extent of the volume of the appropriation that has been captured, possessed, and controlled at the decreed storage structure; and
    3. Carrying water over in storage from one year to another is not grounds for a determination of abandonment.

On Jan. 31, the Agriculture, Natural Resources, and Energy Committee approved the bill and moved it to the Senate 2nd Reading Consent Calendar.

Since this summary, on Second Reading, the Senate laid the bill over daily with amendments.

SB 13-038: Providing for Confidentiality of Certain Communications of Emergency Responders

On Wednesday, January 16, 2013, Sen. David Balmer introduced SB 13-038 – Concerning the Confidentiality of Certain Communications Among Emergency Responders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law makes certain communications between law enforcement officers and firefighters and their peer support team members confidential for purposes of testifying in court. The bill extends this confidentiality to emergency medical service providers and members of rescue units. The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, unamended, to the Consent Calendar of the Senate Committee of the Whole.

SB 13-033: Providing for In-State Tuition Classification at Colorado Institutions of Higher Education for Students Completing High School in Colorado

On Tuesday, January 15, 2013, Sen. Angela Giron introduced SB 13-033 – Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires an institution of higher education (institution) in Colorado to classify a student as an in-state student for tuition purposes if the student:

  • Attends a public or private high school in Colorado for at least three years immediately preceding graduation or completion of a general equivalency diploma (GED) in Colorado; and
  • Is admitted to a Colorado institution or attends an institution under a reciprocity agreement.

In addition to the above requirements, a student who does not have lawful immigration status must submit an affidavit stating that the student has applied for lawful presence or will apply as soon as he or she is able to do so. These students shall not be counted as resident students for any other purpose, but are eligible for the college opportunity fund stipend pursuant to the provisions of that program, and may be eligible for institutional or other financial aid.

The bill creates an exception to the requirement of admission to an institution within 12 months after graduating or completing a GED for certain students who either graduated or completed a GED prior to a certain date and who have been continuously present in Colorado for a specified period of time prior to enrolling in an institution.

The bill exempts persons receiving educational services or benefits from institutions of higher education from providing any required documentation of lawful presence in the U.S. On Jan. 24, the Education Committee approved and the unamended bill to the Appropriations Committee.

SB 13-032: Amending the Statutes Governing the Life and Health Insurance Protection Association

On Wednesday, January 9, 2013, Sen. Cheri Jahn introduced SB 13-032 – Concerning the Life and Health Insurance Protection Association. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill amends the statutes governing the life and health insurance protection association (association).

The bill defines new terms such as “authorized assessment,” ”impaired insurer,” and “principal place of business.” The bill provides that annuity contracts and certificates under group annuity contracts include allocated funding agreements, structured settlement annuities, and any immediate or deferred annuity contracts. Also, it says that the association is not obligated to provide coverage for amounts in excess of $5 million for an owner of multiple nongroup policies of life insurance and $300,000 for long-term care insurance.

The bill requires a majority vote of the board to make meetings or records of the association open to the public. The bill establishes that if a member insurer is an impaired insurer, the association may guarantee, assume, or reinsure or cause to be guaranteed, assumed, or reinsured any or all of the policies or contracts of the impaired insurer or provide such moneys, pledges, loans, notes, guarantees, or other means as proper to assure payment of the contractual obligations of the impaired insurer. The protection does not apply when any guaranty protection is provided to residents of this state by the laws of the domiciliary state or jurisdiction of the impaired or insolvent insurer other than this state.

The bill provides that if two or more assessments are authorized in one calendar year with respect to insurers who become impaired or insolvent in different calendar years, the average annual premiums for purposes of the aggregate assessment percentage limitation is equal and limited to the highest of the 3-year average annual premiums for the applicable account. This section also contains procedures for the protesting of an assessment.

The bill requires the association’s plan of operation to establish procedures whereby a director may be removed for cause, and a policy to address conflicts of interest.

The bill allows the board of directors of the association to notify the commissioner of any information indicating that a member insurer may be impaired or insolvent. The bill addresses record-keeping requirements and provides that the association is entitled to receive a disbursement of assets to reimburse it as a credit against contractual obligations. The bill is assigned to the Business, Labor, and Technology Committee.

Since this summary, the Business, Labor, and Technology Committee referred the bill, amended, to the Senate Committee of the Whole’s Consent Calendar.