Use The "Rolling" Method to Calculate FMLA Leave! This Employer Learned the Hard Way

Posted in Court Decisions, Eligibility, Interference

FMLA-CalendarEvery once in awhile, I find myself counseling an employer with either no FMLA policy or one completely lacking any meaningful details. Often, these policies fail to include key provisions to protect against liability.

Take, for instance, the FMLA 12-month period.

As employers are aware, an otherwise eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. What happens when an employer fails to disclose the 12-month period in its FMLA policy? They may end up like the Illinois Department of Corrections (IDOC).

IDOC apparently maintained an FMLA policy, but it failed to inform employees how the 12-month FMLA period was defined. When that happens, the 12-month option that provides the most beneficial outcome for the employee is used. IDOC learned this the hard way. One of its employees, Mike, took and seemingly exhausted FMLA leave. He later was terminated for three unexcused absences.

Finding that IDOC did not inform employees of what it was using as the 12-month FMLA period, the court determined that the “most beneficial” outcome should be used for Mike, effectively earning him back two weeks of FMLA leave that he could have used in this instance. Caggiano v. Illinois Dept. of Corrections (pdf)

Ouch. That stings.

How Many Ways are There to Count to 12?

Let’s use IDOC’s loss as an opportunity to discuss what 12-month FMLA period you should use for your workforce.  The FMLA regulations allow employers to utilize any one of four different methods to calculate the amount of FMLA leave an employee uses within a 12-month period.  Per the regulations, an employer may choose any one of the following 12-month periods:

  1. The calendar year
  2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins
  4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave

Pros and Cons in Choosing a Particular 12-Month Period

Employers may select any one of these four counting methods, so long as the method is applied consistently and uniformly for all employees.  Once the employer chooses a particular 12-month period, however, it cannot change to another 12-month period without first giving all employees at least 60-days’ notice of the change.  29 CFR 825.200(d)(1)  As I referenced above, if the employer fails to select one of the above 12-month periods, or if the employer has changed the method but it is within the 60-day window, the employer must use the 12-month period that provides the most beneficial outcome to that employee.

Clearly, there are pros and cons with each of these four methods.  But one method stands out above the rest: the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

Let me explain.

Methods One and Two

The first two methods are materially the same in that they set a fixed point in time by which to start calculating FMLA leave.  Although these two options are by far the easiest to administer, they allow for employees to “stack” 12-week FMLA periods back to back, thereby potentially providing more leave than necessary.  “Stacking” means taking FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.

Take Jane, for example.  Under her employer’s “calendar year” method, Jane takes four weeks of FMLA leave the first time on February 1.   Later in November, she takes another eight weeks of leave, which takes her through the end of the calendar year.  In theory, beginning on January 1, Jane could utilize another 12 weeks of FMLA leave.  In this example, this method of calculation allows Jane a total of 20 consecutive weeks of FMLA leave.  (It could have been worse — Jane could have taken 12 weeks at the end of the year and another 12 at the beginning of the following calendar year, for a total of 24 consecutive workweeks of FMLA leave.)  For employers seeking a continuity of business operations, this unintended result might be a difficult pill to swallow.

Method Three

The third method is not entirely different from the two above, but it offers a marginally better balance between protecting the continuity of businesses operations and ease of administration. Under this method, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  From an administrative perspective, this is easier to understand:  the employee begins leave on February 1, so the employee’s leave year begins on February 1.  However, this method does not avoid the “stacking” conundrum identified above.  Here, employers cannot avoid a situation where an employee takes FMLA leave later in the FMLA leave year, which is followed consecutively by as many as 12 weeks taken at the beginning of the following FMLA year (on February 1).

Notably, under the FMLA regulations, employers must use this method when calculating leave for an employee who is caring for a covered servicemember with a serious injury or illness. 29 C.F.R. 825.200(f)

Method Four

The most common method (but clearly the most confusing) that employers use is referred to as the “rolling” method.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  Therefore, when calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

The regulations provide a fairly straightforward example of how the employer would calculate leave using this method:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

29 C.F.R. 825.200(c)

The Winner

When using the rolling calendar or look-back period, an employee’s FMLA leave remaining in his or her 12-week FMLA leave entitlement literally can change daily, since the employer must add days (or hours) used upon the 12-month anniversary of an FMLA absence.  Although this method can be confusing to administer (such as calculating the leave available from different FMLA dates for each employee, and to do so each time FMLA leave is requested), it is the only method available under the regulations to ensure that an employee will not take a block of FMLA leave for more than 12 consecutive weeks.  Implementing this method is an employer’s best defense against FMLA abuse, and it tends to save costs in the long run.  Moreover, it discourages employees’ use of extended periods of leave across consecutive 12-month periods. When balanced against the others, this method often is the best choice for employers.

Work with your employment counsel to ensure you’re using an FMLA year that meets your operational and business needs.


Don’t make the same mistake IDOC did above.  Regardless of what 12-month FMLA period you choose, make sure it is clearly defined in your FMLA policy.

A Big Yawner? DOL Issues FMLA Fact Sheet Regarding Joint Employers

Posted in Regulatory Activity

baby-yawn.jpgJoint employer issues are all the rage right now. Recently, the National Labor Relations Board (NLRB) put the screws to McDonald’s in finding that the Company is liable “jointly” along with their franchisees for alleged labor violations. So, it’s not shocking to learn that the U.S. Department of Labor recently jumped on the bandwagon, putting in its two cents on joint employers.

Last week, the DOL quietly issued a new Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers. Although the AI focuses largely on the Fair Labor Standards Act, the DOL issued Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.  This new AI and FMLA fact sheet were highlighted on the DOL’s own blog!

What precisely is a joint employer, you ask? The DOL sums it up in one sentence: “When a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute.”

Where a joint employer relationship exists under the FMLA, one employer is considered the primary employer, while the other is the secondary employer. As the DOL points out, “determining whether an employer is a primary or secondary employer depends upon the particular facts of the situation.”  The main factors include:

  • who has authority to hire and fire, and to place or assign work to the employee;
  • who decides how, when, and the amount that the employee is paid; and,
  • who provides the employee’s leave or other employment benefits.

Keep in mind: According to the FMLA regulations, where a temporary placement or staffing agency provides employees to another company, the staffing agency is most commonly the primary employer.

In its AI, and as provided in the FMLA regulations, the DOL outlines the FMLA responsibilities for both primary and secondary employers:

Responsibilities of Primary Employers

  • Providing required FMLA notices to its employees, and providing FMLA leave
  • Maintaining group health insurance benefits during the leave
  • Restoring the employee to the same job or an equivalent job upon return from leave, and
  • Keeping all records required by the FMLA with respect to primary employees

Responsibilities of Secondary Employers

  • Prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA
  • Restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer, and
  • Maintaining basic payroll and identifying employee data with respect to any jointly-employed employees

Generally, a yawner of an AI. Come on, you have to agree, yes?

That said, the DOL did include in its AI this handy-dandy chart that at least looks pretty and contains links to other relevant fact sheets.  It’s worth a look.

FMLA Responsibilities of Joint Employers Primary Employer Secondary Employer
Count jointly-employed employees for coverage and eligibility determinations (Fact Sheet #28) Yes. Yes.
For employee-eligibility determination, use its worksite for the eligibility test (50 employees within 75-miles of the worksite)(Fact Sheet #28) Yes, unless the employee has physically worked at the secondary employer’s facility for at least one year. No, unless the employee has physically worked at the secondary employer’s facility for at least one year.
Provide FMLA notices to the jointly-employed employee (Fact Sheet #28D) Yes. No; however the secondary employer must provide FMLA notices to its own employees.
Provide FMLA leave to the jointly-employed employee (Fact Sheet #28F) Yes. No; however the secondary employer must provide FMLA leave to its own eligible employees.
Maintain benefits for the jointly-employed employee (Fact Sheet #28A) Yes. No; however the secondary employer must maintain benefits for its own employees who take FMLA leave.
Restore the jointly-employed employee to work (Fact Sheet #28A) Yes. No, unless the secondary employer is continuing to use the placement agency and the agency places the employee with that secondary employer.
Not retaliate, discriminate or interfere (Fact Sheet #28A and Fact Sheet #77B) Yes. Yes.
Keep records Yes, the primary employer keeps all required records. Yes, the secondary employer keeps payroll data and identifying employee information.

Insights for Employers

Any practical insight gleaned from this AI is nicely outlined by my friend, Marti Cardi, in her article on the new AI.  In short, Marti encourages us to:

  • Analyze your worker arrangements that are not straight-up employer-employee relationships
  • Inquire about the FMLA practices/procedures of any staffing or labor agency you use to ensure it is fulfilling its FMLA obligations
  • Coordinate FMLA compliance with any other employer with which you share workers.  Do it now so that you’re not deciding as on the fly
  • Joint employer obligations extend beyond FMLA obligations – don’t forget compliance with the wage and hour rules established by the Fair Labor Standards Act and its state law counterpart

FMLA FAQ: How Do Snow Days Affect FMLA Leave?

Posted in FMLA FAQs

funny-snowman4Q. Like many east coast employers preparing for the impending blizzard, we want to know how we calculate FMLA leave if our office is closed due to the weather. I have an employee out on FMLA.  Do I count the snow day against this employee’s 12-week leave entitlement?

A. Although the FMLA rules do not directly address this question, the general rule for counting FMLA leave during a holiday week would likely apply. So, if the employee is out on FMLA for the entire week, then yes, you can count the snow day against the employee’s 12 weeks of FMLA leave. If the employee worked any part of the week, then only the days the employee would actually have been expected to report to work should be counted as FMLA leave.

Note that this rule applies for closures of less than a week. If an employer’s operations are shut down for one or more full weeks (for example, if your roof collapses under the snow and shuts down operations for a few weeks while repairs are made), any days the employee would not be expected to work should not be counted against the employee’s FMLA leave entitlement.

East coast friends — hope your snowblowers are working.  Those of us west of you will be enjoying the warm glow of El Nino (assuming you call 30 degrees in Chicago “warm“)!

An Employee's "Hope" That She'll Return to Work Isn't Enough to Require Additional Leave under the ADA

Posted in ADA, Court Decisions

draw the lineOne of the most difficult issues an HR professional or in-house employment counsel faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave beyond 12 weeks required? The answer is almost always ‘yes.’ But how much leave are we obligated to provide? And what if the employee already has taken months of leave and doesn’t really know when she’ll return?

Take, for instance, a situation involving Penelope.  We’ll call her Pippy, for short.

Pippy suffered from sarcoidosis (inflammation of the lungs) and arthritis related to her condition. In September, she inquired about reducing her work schedule as an accommodation for her condition. Before her employer responded, however, Pippy suffered an injury that aggravated her medical condition.  The injury caused Pippy to take time off in December and January, and in February, she stopped working.

Between February and May, Pippy’s employer sent her multiple letters requesting documentation of the injury, but she didn’t respond. In June, her employer told her that she either had to report to work or provide medical documentation supporting her need for leave. Soon thereafter, Pippy sent her employer a “disability certificate” signed by her doctor indicating that the injury suffered a few months earlier left her “totally disabled” and she would remain so “indefinitely.” In contrast to her physician, however, the employee told her employer that she “hoped” to return by September 2007. Unwilling to wait any longer for Pippy’s uncertain return, her employer terminated her employment.

Like a typical, litigious former employee, Pippy filed suit.  It didn’t last long.  Pippy forgot one basic principle — an employer is never required to provide an employee an indefinite leave of absence. Particularly after the employer has already provided a reasonable amount of leave as an accommodation to help the employee return to work.

Like many others have done in similar situations, this court dismissed Pippy’s ADA claim in large part because her employer provided her a reasonable amount of leave (here, three months), and she could not provide a reasonable estimation of her return to work.  In other words, she was asking for an open-ended, indefinite leave of absence.  Courts almost always will support an employer’s right to terminate employment in instances like these.  Other employers should take note — when an employee cannot provide a reasonable estimate of when they will again be able to perform their essential job duties, their ADA claims skate on thin ice.  Minter v. District of Columbia (pdf)

But let’s not be too confident…

In situations like these, it is imperative that employers engage in the interactive process with the employee to determine whether any accommodation is available to help the employee return to work. When employers don’t, they risk significant liability under the ADA.

Just ask the Wayne Township Fire Department.  The Fire Department hired Kristine as a reserve paramedic in February 2009 and as a full-time paramedic a few months later, knowing that she had Type 1 diabetes. While on the job, Kristine’s blood-sugar levels dropped on two occasions while she was on duty — once while she was driving and again while she was caring for a patient in the back of an ambulance. Kristine told her supervisor and other officials what had happened.  Shortly thereafter, she was told she could not return to work without approval from the agency’s medical director, who refused to return her to work because she could not “guarantee” any further incidents. Declining to engage in any interactive process, the Fire Department simply terminated Kristine’s employment.

That cha-ching sound is the Fire Department’s cash register, which opened wide to the tune of $725,000 to pay Kristine for its ADA violations and her attorney’s fees.  Rednour v. Wayne Township Fire Dept. (pdf)  One of the “fundamental” issues for the jury’s verdict in favor of Kristine? The mere fact that the employer did not engage in the ADA’s interactive process.

Think about it: Three-quarters of a million dollars simply because the employer failed to engage in the interactive process.  What a waste.

In her analysis of Kristine’s case, Miriam Rosen identifies several steps that an employer should take to identify accommodations in situations like these.  I really liked her suggestions, so I paraphrase them here:

  • Obtain information from the employee and employee’s physician (through the employee, of course) to understand the medical condition and how it affects the employee’s ability to perform essential job functions.
  • Identify the essential job functions that the employee must perform with or without an accommodation. Up-to-date job descriptions are key to this process.
  • Do not make assumptions about whether the employee can or cannot perform the essential job functions. Rather, engage in a dialogue with the employee about what modifications would help the employee perform the essential job functions. Consider whether other options for accommodation are available if the suggested accommodations are not reasonable.
  • Determine if it is possible to provide reasonable accommodations that allow the employee to perform the essential functions of the position. Remember that accommodations such as a leave of absence or, if available, light duty may allow the employee to perform job functions within a reasonable time.
  • If an accommodation is identified, put it into place. If it is not possible to provide a reasonable accommodation, communicate that to the employee as well and any employment related consequences.
  • Document the process and outcomes to establish that obligations to engage in the interactive process have been met.

Engage in a meaningful interactive process. Conduct an individualized assessment. Be creative in providing accommodations to keep the employee on the job.  Avoid liability.

Easier said than done, right?

FMLA FAQ: Should an Employer Invite to the Holiday Party an Employee out on FMLA Leave?

Posted in Retaliation

ugly-sweater-party‘Tis the season for employer-sponsored holiday parties. And I’ve been queried several times about whether an employer should invite to the annual holiday party all of those employees who presently are on FMLA leave.

Several of you are already shouting at me through your computer screen or mobile phone: “Nowak, why the %*#@&* would we ask employees to attend a holiday party when they should be off work?” After all, some might argue that allowing employees on FMLA leave to attend sends the wrong message to the employee’s co-workers that it is permissible take leave from work while at the same time attending an employer-sponsored party and revel with their co-workers.

I enjoyed one comment, in particular, posted on social media on this issue:

In our younger days we were always led to believe that if you called out sick from school then you were not allowed to participate in the extracurricular activities of that day. The same thought should be viewed as adults, in the professional world.


Seriously though, friends.  Let’s not forget we are in the human relations business.

Clearly, if an employee is utilizing FMLA leave for his or her own serious health condition, the employee should not be required to attend an employer-sponsored holiday party. At the same time, an invite to the holiday can be quite a powerful thing — it communicates to your employee that you care about them, you consider them to be part of the team, and that you want to keep them engaged even though they are not presently at work.

Let me take this a step further: Might an employer even have an obligation to extend the invite? While on FMLA leave, the employee still is entitled to enjoy the benefits and privileges of employment, and should be free of discrimination or retaliation because they are on leave. (See 29 CFR 825.220) Therefore, if the employee is able to do so, he/she should be invited and permitted to attend the party.

In the end, it seems to me to make a whole lot of sense.  Don’t you think?

Employee Tells a Co-Worker That He Plans to Misuse FMLA Leave. Court Says It's OK to Demote 'Em!

Posted in Abuse of FMLA leave, Interference, Retaliation

bad-managerKeith was a manager for Costco. By all accounts, he wasn’t a very good employee.  The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.  Consequently, he was placed on a performance improvement plan. Shortly after receiving the PIP, Keith told a subordinate that he planned to take FMLA leave “to secure his managerial rate of pay and position in the event of demotion.” This employee then reported the conversation to the store’s managerial staff because the employee was concerned that Keith was going to “scam” the company. The store promptly demoted Keith to a cashier position as a result of the report.

Two days after the demotion, Keith requested and was provided FMLA leave. During his leave, he requested a transfer to a different store, but his current store refused because he remained on FMLA leave. After his doctor released him to work, he was transferred to a position at a different store.

Keith immediately filed an FMLA and ADA lawsuit, claiming that the Company interfered with his FMLA leave when it demoted him and refused to allow him return to work when he requested.  He also added an FMLA retaliation claim.

Insights for Employers

The problem with Keith’s lawsuit?  Let me count the ways:

1.  The Company demoted him before he took FMLA leave.  Additionally, he did not provide proper notice of the need for FMLA leave when he told his subordinate that he was seeking FMLA leave. Because Keith did not follow the Company’s very specific policy for requesting FMLA leave, his request was not protected under the FMLA.

2.  Even if notice to the subordinate was enough to trigger the FMLA, Keith’s conduct still was not protected because the Company honestly believed that Keith was trying to “scam” the store, as reported by the other employee.  The Court put it this way:

Keith failed to produce any evidence that [his manager], or any other Costco manager, did not rely on the information gained from [Keith’s subordinate] in deciding to demote him. Keith was on a 90-day PIP at the time of his comment to the subordinate.  Costco honestly believed Keith violated its Manager Standard of Ethics by contemplating a fraudulent medical leave, and Keith presented no evidence to dispute this fact.  [My emphasis]

Based on the information it received from the subordinate, Costco surely had the right to suspect that Keith might be abusing leave. Me thinks, however, that Costco dodged a bullet when it did not conduct an investigation into Keith’s alleged comment.  As I have referenced in a previous post, courts typically will support an employer’s “honest belief” defense only after they have conducted a complete and exhaustive investigation into the facts.  The court reviewing this case didn’t fault Costco for failing to conduct an investigation, but the risk is that a different court easily could have, which would have required the Company to head to trial on Keith’s FMLA claims when they otherwise never should have seen the light of day.

3.  What about Keith’s request to transfer to another store while he was out on FMLA leave?  The Court’s response to this issue is helpful in practice for employers: Simply put, employers “are under no obligation to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.”  Here, Keith remained on FMLA leave, so he clearly could not perform the functions of the job — whether at his current store or at another store.  As a result, Costco was well advised to keep Keith on leave and deal with the transfer request when he was able to perform the essential functions of his demoted cashier position.

The Curtis v. Costco court decision can be found here (pdf).

FMLA Insights Selected as One of Top Legal Blogs for Fifth Straight Year!

Posted in Uncategorized

Blawg100HonoreeBadgeMy dear blog readers:

I am delighted to announce that our FMLA Insights blog has been selected for the fifth consecutive year as one of the Top 100 Legal Blogs of 2015 by the ABA Journal! In its 9th Annual ABA Journal Blawg 100, we were only one of six employment blogs to receive the honor.

I am honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In this week of all weeks, I am so thankful for your support of my little FMLA blog. Thousands subscribe to the blog, and tens of thousands more visit our site every month. Thank you! Thank you! Thank you!

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other employment blogs who made the list – they are worth the read:  Eric Meyer’s The Employer Handbook, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,  A hearty congratulations to my friend Jon Hyman, whose Ohio Employer’s Law Blog, was voted into the blogging Hall of Fame this year!

Much to be thankful for this year.  Happy Thanksgiving!


P.S. Some of you may not be familiar with the ABA or the ABA Journal.  Here is some background, so you have some context for our blogging award:

About the American Bar Association (ABA) 

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.  Quick note: On December 1, 2015, I will be a panelist in an ABA webinar entitled, “FMLA: The Basics that You Need to Know“! This webinar will be of benefit to your colleagues just getting started out administering FMLA. Please register here!

About the ABA Journal

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.


Best Practices for Employers from my Webinar on FMLA and ADA Overlap Issues (and a Link to our Recording!)

Posted in ADA, Webinars

webinar1.jpgThanks to those who attended my webinar last week on FMLA and ADA Overlap Issues.  If you missed the program, you can access the webinar here.  Our PowerPoint from the webinar can be downloaded here (pdf).

In a mere hour plus, Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management CorporationMatt Morris (Vice President at ComPsych) and I covered a number of FMLA and ADA overlap conundrums, such as:

  • Handling an employee’s request not to work overtime or more than eight hours in a day
  • Managing an employee’s sporadic, yet frequent absences after the employee exhausts FMLA leave
  • Responding to an employee’s request for a new supervisor due to stress caused by the workplace
  • How many extensions of leave is an employer legally obligated to provide after an employee exhausts FMLA leave

And we sang a Thanksgiving jingle. Which, of course, was god-awful. Thankfully, this can be skipped over in the recording.

During the webinar, some common themes emerged:

  • When a triggering event occurs (e.g., a request for leave), the interactive process is paramount.  The employee’s request must always be taken seriously, and it is critical that the employer engage the employee to determine whether any accommodations exist that would enable the employee to perform the essential functions of his job. We outlined what this engagement should look like.
  • The determination regarding whether a requested leave must be granted as a reasonable accommodation requires a fact-intensive inquiry.  We provided attendees a very specific approach to handling requests for leave as a reasonable accommodation, focusing on: 1) how an employer should deal with vague and/or non-responsive information from the employee and the health care provider; and 2) how an employer can identify the undue hardship on the employer’s operations as a result of the employee’s continued absence.  To borrow a phrase from Sara during the webinar, “leave is not a destination . . . it’s a tool to help the employee get back to work.”  Well said.
  • An employer absolutely can insist on an employee’s regular and reliable attendance. However, where the FMLA and ADA are implicated, how you communicate and document your attendance expectations sets the foundation for taking appropriate and lawful personnel actions at a later time.  The path is full of potholes, however, so we recommended an approach to maneuver around those landmines.
  • Beware of automatic termination policies & examine “no fault” attendance policies.  Although these policies are not per se illegal, we discussed how to practically and lawfully implement them in your workplace.
  • When it comes to leave and reasonable accommodations, don’t assume a leave of absence is the only option.  We highlighted considerations for alternative accommodations, including reassignment.

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed. Feel free to post a comment here or email me at

DOL Continues to Warn Employers of Investigation of Systemic FMLA Issues

Posted in DOL Initiatives, Regulatory Activity

Edepartment-of-labor-300x300arlier this month, I had the pleasure of presenting on complex FMLA issues at the American Bar Association’s Annual Labor and Employment conference. During the session, entitled “The FMLA 20 Years Later,” we covered key FMLA notice and medical certification issues and other difficult FMLA scenarios.

Notably, one of my co-panelists, Andrea Appel, Regional Counsel for Civil Rights in the Department of Labor’s Philadelphia office, reminded employers of the DOL’s key focus on systemic FMLA problems during their investigations of employers’ FMLA practices.  As I have reported in my previous blog posts, the DOL’s interest in systemic issues means that the agency will regularly broaden its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.  With increasing regularity, the DOL will move beyond a single complainant to an entire group, department, employer location and onto multiple employer locations to ensure compliance across a company’s work sites.

As reported by Thompson Information Services, who was covering our ABA conference session, and as I have reported in my previous blog posts, the DOL’s systemic investigations will generally take aim at three types of information:

  • statistical — leave trends, leave requests, leave approvals and responses to leave requests by supervisor, job group, type of request or any other grouping;
  • anecdotal — based on interviews with employees, supervisors, administrators and managers; and
  • documents — records of leave requests, notices provided, leave determinations, employer’s FMLA policy and handbook, and medical certifications and re-certifications.

Insights for Employers

This is yet another reminder that employers will continue to face scrutiny by the DOL on their FMLA procedures, and that they increasingly will become party to consent decrees where their FMLA practices do not adhere to the FMLA regulations.

I know I sound like a broken record, but as you prepare your HR and legal budgets for 2016, make an FMLA self-audit a priority for your workplace in the New Year.  As I have highlighted in a previous post, your self-audit should focus on the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.  As the DOL’s Appel made clear in our ABA presentation, the DOL will be making fairly broad information requests, so excellent recordkeeping is imperative.
  7. Train your employees! Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because these managers are creating a liability for you.  Indeed, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

FMLA FAQ: Can an Employer Require That an Employee Sign a Form Confirming He Took FMLA Leave for the Reason Provided (To Combat FMLA Abuse)?

Posted in Uncategorized

fraud-finalQ. In trying to reduce the amount of FMLA abuse in our Company (about 30% usage), we are contemplating having employees returning from FMLA leave complete a form that asks why they were out, had they been out for this reason before (and when), and that they took leave for the reason they provided. Can we implement this procedure without violating the FMLA?

A.  This procedural requirement does not necessarily run afoul of the FMLA, but I have some concerns about FMLA interference if you only require it for employees returning from FMLA leave.

As an initial matter, you have the right to ask your employees questions about their leave of absence so as to determine whether FMLA applies. So, asking them why they were out and whether they’ve been out for this reason before is acceptable. In fact, I encourage you to ask these questions up front.  (See Tip #2 below)

Asking them to confirm that they actually took leave for the reason provided? This is where it gets a bit tricky. My concern in asking this kind of question is the risk that it tends to treat differently those who are returning from FMLA leave versus those who are returning from other forms of leave, thus causing the employer to be susceptible to an FMLA interference claim. Here, the argument is that the employer is treating the FMLA folks differently than other employees when it requires them to complete a form attesting to their FMLA usage.  As a result, a plaintiff’s attorney will argue that your practice denies the exercise of FMLA rights, which is prohibited by the FMLA regulations. 29 CFR 825.220(a)(1)

To avoid the risk of an FMLA claim, it’s best to implement this procedure for an employee returning from any leave of absence — FMLA or for another medical reason.  My suggested form goes something like this:

Personal certification

The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document.

Other Tips to Combat FMLA Abuse

Fortunately for employers, there are several tools available to combat FMLA abuse.  In addition to the Personal Certification outlined above, I’ve made the following suggestions to clients:

  1. Require that Employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee provides verbal notice of the need for FMLA leave and they articulate an unusual circumstance as to why they could not follow proper procedures, requiring the employee to put a leave request in writing and return it to Human Resources tends to deter them from gaming the system.
  2. Prepare a list of probative questions you ask of all employees when they ask for time off. Employers have the right to obtain information from the employee about their need for leave. Prepare a list of questions that you ask your employees when they call in an absence.  These will help you better determine whether FMLA is in play and if the request might be fraudulent:

– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/illness?

– Have they previously taken leave for this condition? If so, when?

– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?

– When do they expect to return to work?

  1. Enforce call-in procedures. Employers typically may deny FMLA leave (and potentially discipline the employee) if the employee fails to follow your customary call-in procedures, absent an unusual circumstance.  (See questions to ask the employee above.)
  2. Certify … and Recertify! Clearly, one of the best tools to fight FMLA abuse is the use of medical certification at various intervals: initially to verify the serious health condition; every new leave year; every time the reason for leave changes or the employee requests an extension.  Employers should require recertification: at regular intervals; if the frequency or duration of the absences changes significantly; if there is a pattern of suspicious absences; or if the employer receives information that casts doubt on the reason for leave.  Keep your employees honest – require them to certify their absence and seek recertification at the earliest opportunity.
  3. Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.
  4. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy and forms are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.