Employment Law Fall Newsletter – 2013

 “Misconduct” expanded for Unemployment Benefits cases

Tennessee has recently expanded the definition of “misconduct” disqualifying persons from receiving unemployment benefits.  As of July 1, 2013, “misconduct” now includes any conduct constituting a criminal offense for which the claimant has been convicted or charged that:

• involves dishonesty arising out of the claimant’s employment or
• was committed while claimant was acting in the scope of his employment.

Although the previous version of T.C.A. § 50-7-303(b) allowed misconduct for dishonesty arising out of a claimant’s employment, the dishonesty had to be an essential element of a crime for which the claimant was convicted.  Under both old and new versions, a claimant discharged for work-related misconduct will be disqualified from unemployment benefits until he has secured new work covered by an unemployment benefits law and has been paid 10 times the weekly benefit amount by the new employment.

FMLA Definitions CLARIFIED ON Care of Disabled Adult Children

The US Department of Labor has issued a new guidance letter to clarify how the Family Medical Leave Act (FMLA) applies to employees seeking leave to care for a disabled adult son or daughter.  The FMLA allows up to 12 weeks of unpaid leave in a 12-month period to care for a son or daughter, age 18 or older if the adult child:

• Has a disability as defined by the Americans with Disabilities Act (ADA);
• Is incapable of self-care due to that disability;
• Has a serious health condition; and
• Needs care due to the serious health condition.

Under the new guidance, the child’s age at the onset of disability is irrelevant to the FMLA’s definition of “son or daughter.”  As the legislative history recognized, a disabled child may still need care after age 18, and disabled adults can have the same compelling need for care as disabled minors.  ADA amendments have expanded the scope of a qualified disability by broadening activities considered a “major life activity.”  Under ADA, a disability is an impairment substantially limiting one or more major life activities, a record of such impairment, or being regarded as having such impairment.

The new guidance also may affect military caregivers.  An injured or ill military service member’s parent is entitled to up to 26 weeks of FMLA leave in a 12-month period to care for that son or daughter upon satisfying all other FMLA requirements.  The new guidance may allow a service member’s parent to take FMLA leave in subsequent years after the 12-month military caregiver period to care for the adult child if the serious health condition and self-care incapability persist.

Practice Point:  Be aware of employees with adult children with disabilities and serious health conditions requiring the parent’s care, especially employees with adult children serving or having served in the military.  With the expanded definition of a qualifying “disability” and serious health conditions arising even in adult children, more employees may be entitled to FMLA leave.

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2013 Fall Employment Newsletter