Join EEOC Commissioner Chai Feldblum and me for a Webinar on the EEOC's New Resource on Leave as an ADA Reasonable Accommodation

Posted in ADA

webinarWhen: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)

Online registration: Click here

This is going to be fun!

Earlier this month, the EEOC issued a technical assistance resource on leave as an ADA reasonable accommodation under the ADA. I am delighted that EEOC Commissioner Chai Feldblum will join me for a webinar to take a deep dive into the information provided in the EEOC’s resource and apply the technical assistance to a variety of real-life scenarios.

This complimentary webinar comes at a critical time for employers, as employers need to be informed about the extent to which they should provide a leave of absence to an employee with a medical condition – either before or after the employee’s FMLA leave has expired (or when FMLA doesn’t apply at all). Whether it’s the obligation to provide light duty, how and when employers can obtain medical information about an employee’s need for leave, or how many extensions of leave must they provide, employers often struggle with their obligations to provide leave as an ADA reasonable accommodation.

The webinar will provide employers much-needed technical assistance for staying compliant with the ADA and related laws. Commissioner Feldblum and I will cover a variety of common, yet difficult issues, including:

  • At what point must an employer consider leave as a reasonable accommodation?
  • What information can an employer obtain from an employee’s health care provider to support a request for leave? How often can an employer request this information?
  • How should employers structure their paid leave and related policies to comply with the ADA?
  • Can an employer maintain an “automatic termination” policy that sets a specific end date upon which an employee is terminated when they cannot return to work?
  • At what point is an employer required to reassign an employee to another position as a reasonable accommodation?
  • How many extensions of leave must an employer provide before it can permanently fill an employee’s position or terminate employment?

Maybe I’ll even entice Commissioner Feldblum to sing with me! Register HERE.

Feel free to email me questions in advance at

My law firm is an approved provider of Illinois Minimum Continuing Legal Education (MCLE). This program is approved for 1 hour of MCLE credit. This program also has been submitted to SHRM and the HR Certification Institute for review and approval for accreditation.

EEOC Issues New Resource Document Addressing Leave as a Reasonable Accommodation under the ADA. What's the Impact on Employers?

Posted in ADA, Regulatory Activity

EEOC-bannerFor years, employers across America have been clamoring for guidance from the EEOC about how they should manage an employee’s request for extended or intermittent leave from work and how much leave is considered as a reasonable accommodation under the ADA. This week, employers received an answer.

Well, kind of.

Yesterday, the EEOC issued a resource document — entitled Employer-Provided Leave and the Americans with Disabilities Act — that addresses “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency contends “serve as systemic barriers to the employment of workers with disabilities.”

Noting the “troubling trend” in charges of discrimination that allege violations of the ADA (up 6% from last year), the EEOC believes this resource document “explains to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs.”

Although the resource document was developed by EEOC staff and approved by EEOC Chairwoman Jenny Yang, it is not voted on by the entire Commission and technically does not carry the weight of official guidance issued by the agency.  Still, this resource still should guide employer decision-making when considering leave as an ADA reasonable accommodation.

Key Points 

The resource covers six main topics, but here are the key points, based on my initial read:

  • Equal Access to Leave under an Employer’s Paid Leave Policies.  According to the EEOC, if an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing paid leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.  For example, if an employer requires a doctor’s note to support a leave request made by a non-disabled individual, it can require the same for a leave request made by a disabled employee. However, if the employer generally places no conditions on the use of paid leave, it cannot require a disabled employee to jump through hoops to obtain the same paid leave.  One of the examples provided by EEOC is instructive:

An employer provides four days of paid sick leave each year to all employees and does not set any conditions for its use. An employee who has not used any sick leave this year requests to use three days of paid sick leave because of symptoms she is experiencing due to major depression which, she says, has flared up due to several particularly stressful months at work. The employee’s supervisor says that she must provide a note from a psychiatrist if she wants the leave because “otherwise everybody who’s having a little stress at work is going to tell me they are depressed and want time off.” The employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee’s statement that he or she needs leave. The supervisor’s action violates the ADA because the employee is being subjected to different conditions for use of sick leave than employees without her disability. (Example 1)

  • Unpaid Leave must be considered as a Reasonable Accommodation.  Where an employee’s paid leave has run out, or where the employer maintains no paid leave policy, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if: 1) the employee requires it; and 2) it does not create an undue hardship for the employer (see my analysis below on how employers establish undue hardship).  Another EEOC example is illustrative:

An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. (Example 5)

  • All Requests for Leave Must be Treated as a Request for a Reasonable Accommodation.  Yes, you read that correctly.  If the EEOC ever was ambiguous on this point before, it’s cleared it up now — each time an employee requests leave from the job because of a medical condition, the request must be analyzed through the lens of FMLA and ADA.  This concept is hardly earth-shattering, and it makes sense. Where an employee needs leave from work because of a serious medical condition, any good employer should use it as an opportunity to engage in the interactive process to determine how we can best address the employee’s situation in an effort to keep them engaged and at work.  A leave of absence is only one tool to help us accomplish our goal in maintaining a productive and healthy workforce.
  • Utilize “Automatic termination” Provisions at Your Own Risk.  In this resource, the EEOC again strongly counsels against policies which call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.), since these policies do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process and to determine whether a reasonable accommodation is necessary.  As I explain more fully below, employers should make a case-by-case assessment of the individual employee’s situation before hitting the termination button.
  • Reassignment to a Vacant Position.  The EEOC uses this resource as a reminder that an employer has an obligation under the ADA to reassign an employee if their disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.
  • Undue Hardship Still a Nebulous Beast to Figure Out.  The EEOC offers guidance and some additional criteria to consider when determining whether a possible accommodation causes an undue hardship (which the employer then does not need to implement), but as we might expect, the resource document does not necessarily provide any enlightenment as to what point requests for intermittent leave or repeated extensions of leave actually pose an undue hardship.  In determining undue hardship, EEOC states that employer may consider the following:
    • the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
    • the frequency of the leave (for example, three days per week, three days per month, every Thursday);
    • whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
    • whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
    • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
    • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

Insights for Employers

This new resource doesn’t necessarily clear up the particularly troublesome issues for employers.  And as my friend, Dan Schwartz, points out, the resource does nothing to address abuse of leave or whether an employer can finally say “enough leave is enough.”  The resource also does not address the fact that a request for leave as an accommodation must be reasonable and effective in helping the employee return to work.  In footnote 5 of the document, EEOC presumes that an employee’s request is reasonable.  Yet, that’s a far cry from the day-to-day reality employers faces. Indeed, employers would argue that the majority of leave requests are not reasonable because the period of time (or multiple extensions) requested would not be effective to return the employee to work.

That all said, there are plenty of really good, practical takeaways for employers in this new EEOC resource:

1.  Employers Can Obtain Critical Medical Information from The Employee’s Health Care Provider to Help Us Make Decisions on Leave Requests.  EEOC outlines for employers the information we can obtain from the employee’s health care provider (with the employee’s permission) before making a decision on an employee’s leave request:

  • the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
  • whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
  • when the need for leave will end

Additionally, EEOC makes clear that employers may specifically ask the health care provider to respond to questions drafted by the employer and designed to enable the employer to understand: 1) the need for leave; 2) the amount and type of leave required; and 3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

As part of my CALM service (see information on CALM here), I have drafted model correspondence for employers to use in these situations.  Please email me if you’re interested.

2.  If an Employee Asks for An Extension of ADA Leave, Employers Can Obtain Even MORE Information.  According to EEOC, if an employee requests additional leave that will exceed an employer’s maximum leave policy or is continuous in nature, the employer should again engage in an interactive process, including obtaining from the health care provider:

  • Medical documentation specifying the amount of the additional leave needed;
  • The reasons for the additional leave;
  • Why the initial estimate of a return date proved inaccurate; and
  • Information the employer considers relevant in determining whether the requested extension will result in an undue hardship

3.  Engaging the Employee in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (particularly when FMLA has already expired), I ask the client for a detailed report of all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

when-is-enough-plenty-orange.jpg4.  Edit Your “Automatic termination” provisions NOW.  To the EEOC’s credit, the resource confirms that a policy providing for a maximum period of leave is not per se unlawful. For those employers that maintain these kinds of policies, however, I strongly encourage you to include in your leave policies language informing the employee that, if he/she needs additional unpaid leave as a reasonable accommodation because of a serious health condition, the employee should request it as soon as possible so that the employer may consider whether it can grant an extension.

Employers also should edit any correspondence used during the FMLA and other leave processes to incorporate the above language.  Your employment counsel should have these at the ready for you.

5.  Requiring Employees to Return to Work “Without Restrictions” or “100% Healed” is Unlawful.  All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions.

Here’s my periodic reminder to employers: STOP!  Enforcing these types of policies or requiring documentation that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  And as the EEOC clarifies in this resource document, this practice is unlawful.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

6.  Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship.  In that post, I offer a number of criteria you should consider when making this determination.  I encourage you to use these in conjunction with the suggestions offered by EEOC yesterday.

One more thing about undue hardship:  As EEOC previously has acknowledged in a separate guidance, a request for indefinite leave — meaning that an employee cannot say whether or when he/she will be able to return to work at all — will always be considered an undue hardship and, as the EEOC puts it, the request “does not have to be provided as a reasonable accommodation.”


DOL Issues New FMLA Poster and Publishes Guide to Help Employers Administer FMLA

Posted in Uncategorized

FMLA posterThis week, the Department of Labor announced that it soon will issue a new general FMLA Notice that can be used interchangeably with their current FMLA posting.  In issuing this new directive, the agency also unveiled a new guide to help employers navigate and administer the FMLA.

Here’s the scoop:

New DOL Poster

Under the FMLA, an FMLA-covered employer must post a copy of the General FMLA Notice in each location where it has any employees (even if there are no FMLA-eligible employees at that location). According to the FMLA rules, the notice must be posted “prominently where it can be readily seen by employees and applicants for employment.”

The DOL has announced that it will release a new General FMLA Notice for employers to post its workplaces.  According to the DOL, the new poster won’t necessarily include a whole bunch of new information.  Rather, the information in the notice will be reorganized so that it’s more reader friendly.

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice.  She confirmed that employers would be allowed to post either the current poster or the new version.  In other words, employers will not be required to change the current poster.  For those that want to use the new poster, you can access it here.

New Employer FMLA Guide

In 2012, the DOL issued a guide to employees to help them navigate their rights under the FMLA.  Several years later, DOL now has issued a companion guide for employers.  According to the DOL, the Employer’s Guide to the Family and Medical Leave Act (pdf) is designed to “provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.”

DOL Employer guideThe new guide was unveiled by Ms. Applewhaite at an annual FMLA/ADA Compliance conference sponsored by the Disability Management Employer Coalition (DMEC). Generally speaking, the new guide covers FMLA administration from beginning to end, and it follows a typical leave process — from leave request through medical certification and return to work.

As for the Guide itself, my initial take is that it will be a decent resource for the employer community. I also appreciate the fact that the DOL asked me and a couple of other leaders on the employer side in the FMLA space to offer constructive feedback before the guide was released. At the time, I encouraged the agency to tackle in its guide some difficult FMLA administration issues that employers grapple with, feedback of which did not make its way into the DOL’s final draft (nor did I expect it, I suppose!).

While the guide helps explain the FMLA regulations in a user-friendly manner, the Guide primarily is meant to answer common questions about the FMLA, so it leaves unanswered leave issues that continue to frustrate employers in their administration of the FMLA.  However, the Guide is likely to have some benefit to employers when administering the FMLA.  For instance, the Guide:

  1. Follows the FMLA regulations and the course of a typical leave request in a relative orderly manner.
  2. Contains easy to follow flowcharts so that employers can better understand the typical FMLA process, including a cute little “Road Map to the FMLA” [yes, I think I just called the DOL “cute”] that provides an overview of the FMLA process.  You’ll even find some interactive cartoons along the way to further explain the regulations.
  3. Includes “Did You Know?” sections to give employers a heads-up on some of the lesser-known provisions and nuances of the FMLA regulations.
  4. Highlights user-friendly charts and explanation of the medical certification process, including what information is required in certifications.
  5. Provides a helpful overview of military family leave, which often can be a bit overwhelming to employers attempting to navigate this portion of the FMLA.

I welcome feedback on the new guide — what do you like?  Dislike?

Paid Family Leave Becomes Law in New York Through an Insurance-Style Scheme. Will Other States Follow?

Posted in Paid Leave, Regulatory Activity

New York paid family leave 1Could this be a game-changer when it comes to paid family and sick leave?

Yesterday, New York Governor Andrew Cuomo signed into law what is being dubbed the country’s longest and most comprehensive paid family leave program, which allows employees partially paid leave to care for a family member or a newborn child.

New York follows other states such as California, New Jersey and Rhode Island in providing paid leave in conjunction with unpaid leave entitlements under state and federal law.  All three states administer their programs through their respective disability insurance programs.

So then, what’s significant about New York’s law?  Similar programs in other states have fallen flat because those states have wrestled with how to fund these programs.  Take the State of Washington, for instance.  In 2007, Washington became the second state to pass a paid family leave law that would provide parents with $250 in weekly benefits for up to five weeks in the event of childbirth or adoption. However, the law has never taken shape because the state legislature has not funded it.

Unlike many of these other laws, New York’s version is funded not by the state or employers but by the employees themselves — through a ~$1 per employee weekly payroll deduction that will help fund a paid family leave program.

What’s the Entitlement?

Under the new law, after 26 weeks of employment, employees will be eligible for up to 12 weeks of partially paid family leave, which is defined as any leave:

  • to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition (as defined by the FMLA) of the family member; or
  • to bond with the employee’s child during the first 12 months after the child’s birth, or the first 12 months after the placement of the child for adoption or foster care with the employee; or
  • because of any qualifying exigency ( as defined under the FMLA) arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. Armed Forces.

Paid benefits will phase in over time.  Beginning in 2018, benefits will cover 50 percent of an employee’s average weekly wage with a cap at 50 percent of the statewide average weekly wage.  When fully implemented in 2021, the plan will cover 67 percent of an employee’s average weekly wage with a cap at 67 percent of the statewide average weekly wage.  The leave period also will sweeten from eight to 12 weeks over time.  At the outset in 2018, employees will be entitled to eight weeks of paid leave, increasing to 12 weeks of paid leave by January 1, 2021.

In touting the new law, Governor Cuomo’s office focused its attention on how women and families, in particular, will be aided under the new law:

Paid family leave also has the potential to serve as a great equalizer for women. In many instances, women who leave the workforce to care for a newborn not only forfeit their existing salaries in the short-term, but also suffer diminished future earnings and career trajectories in the long term. Establishing paid family leave marks a pivotal next step in the pursuit of equality and dignity in both the workplace and the home.

Will Other States Follow New York’s Lead?

Multitudes of paid leave legislation have sprouted at the state level across the country. Many of these bills have languished because of strong opposition from the employer community — and rightly so, since these laws generally mandate employers of all sizes to provide paid sick or family leave to their employers.  All without the state’s help.

New York’s new law seems to undercut this argument, since the employees themselves will be funding what is essentially an insurance-style scheme to cover time away from work for family obligations.  Thus, is it natural to assume that resistance to these kinds of laws will diminish over time? Not so fast. They still face opposition from the business community, which argues that employers will end up with higher expenses in overtime and training for employees who will cover for their co-workers on leave. Businesses also are rightly concerned about how much control they’ll have over employees taking leave under these state administered programs.

So, are we back to political gridlock then?

FMLA FAQ: What if the Doctor Refuses to Use the Employer's FMLA Medical Certification Form? And They Want to Charge a Fee for It?

Posted in Medical Certification

Dr LoveA couple of clients have asked me recently whether a health care provider can use his/her own medical certification form or “doctor’s note” to support the employee’s need for FMLA leave, or can we require the HCP to use the employer’s form. Or what if the HCP charges a fee to complete the form?  What do you do then?

I offer feedback originally provided by my colleague, Bill Pokorny, when he was my partner in crime on this little blog, since his take on this issue is spot on.  Here’s the question posed:

Q. We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor’s office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?

A. Generally speaking, it doesn’t matter whether a medical certification is written on your preferred form or on the back of a bar napkin. So long as the document is signed by a health care provider, and is “complete” and “sufficient” in the sense that it provides the employer with all of the information needed to determine if the leave is covered by the FMLA, then the certification should be accepted. But that does not mean that you should unquestioningly accept a “doctor’s note” in place of a complete FMLA certification.

In the scenario above, the doctor’s note does not include all of the necessary information, such as the dates and expected duration of the employee’s leave. Here, we would recommend informing the employee in writing that it is his responsibility to obtain a complete and sufficient certification, and to pay any associated costs or fees. Give the employee a reasonable period of time in which to do this – at least 7 days, and more if they employee has a reasonable explanation for the delay (which is required under 29 CFR 825.305(c)).

If the employee fails or refuses to provide a proper certification (on your form or otherwise), you can deny the leave. However, a more detailed note or letter from the doctor might suffice, even if it is not on your preferred form. Exactly how much information is needed will depend upon the specific circumstances. Again, if you need more information to determine whether the FMLA applies, the appropriate course is to inform the employee in writing of the specific information needed to make the certification complete and sufficient.

But what if the certification actually was written on the back of a bar napkin? Given the size of most cocktail napkins, it is unlikely that the certification would be complete or sufficient. (That would probably require at least a dinner napkin.) Even if it were, we would strongly recommend contacting the health care provider to authenticate the certification, and perhaps seeking a second opinion.  You think?

What if the Health Care Provider charges a fee for completing the medication certification form?

Charging a fee for completing the FMLA medical certification form is a rapidly growing practice among health care providers.  In short, because the employee is responsible for providing the employer with complete and sufficient medical certification supporting the need for FMLA leave, the employee also is on the hook to pay the fee charged by the HCP.  Not the employer.

In these situations, I find it helpful to refer the employee back to the Department of Labor’s Employee Guide to the FMLA — specifically, page 12, which very clearly states that the employee is responsible for any costs associated with completion of the form.

FMLA FAQ: How Does an Employer Calculate Intermittent FMLA Leave When an Employee Moves from Full-Time to Part-Time?

Posted in Intermittent Leave

Part-Time-EmploymentQ: One of our employees was at full-time  status (40 hrs/wk.) six months ago when he was granted intermittent FMLA leave for a GI issue that flared up from time to time. He took 120 hours of FMLA leave (or three weeks) through last month when he transferred to a part-time position (20 hrs/wk.). He continues to require FMLA leave, but we are not sure whether to calculate the intermittent leave based on his former full-time hours or current part-time hours.

A: This situation actually is covered by an FMLA regulation. Under 29 CFR 825.205(b)(2):

If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

In this question, the employee has reduced his weekly hours worked from 40 to 20 hours. And he already has used the equivalent of 3 weeks of FMLA leave. So, 9 weeks of FMLA leave remain in his FMLA year. Moving forward, you will use his part-time schedule to calculate any intermittent FMLA leave. Thus, he would have 180 hours remaining.

Keep in mind, though, that the Department of Labor requires us to calculate FMLA leave in workweeks. It may be easier to use hours of leave from an FMLA administration standpoint, and this approach would work just fine for an employee who works the same number of hours every week. But what about your employee who works 20 hours one week and 25 hours the next?  In this situation, you should calculate his FMLA intermittent leave not in “hours” but as a fraction of that particular workweek in which he is absent.

For instance, if an employee is scheduled for 20 hours one week and takes intermittent leave for a total of 10 hours that week, he has used 1/2 of a workweek for FMLA purposes. If an employee is scheduled for 25 hours the following week and takes intermittent leave for 5 hours that week, he has used 1/5 of a workweek for FMLA purposes.  Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

What about calculating FMLA leave for an employee who works a varying workweek? According to the DOL, this term should be used sparingly and only industries like the railroad industry where engineer and other employees’ schedules can vary widely such that you can’t determine with any degree of certainty what an employee’s schedule will look like in any given week. See my prior post for calculating a varying workweek.

This is riveting stuff, isn’t it?  Who says the FMLA ain’t sexy . . .

Butt Implants, Male Breast Reductions Among Top Plastic Surgery Trends. But Are These Procedures Protected by FMLA?

Posted in Eligibility, Serious Health Condition

butt pepperApparently, Kim Kardashian isn’t the only one whose derrière seems to have transformed over the years.

According to data provided by the American Society of Plastic Surgeons (ASPS) and published in a number of news outlets, butt implants and male breast reduction are now among the fastest-growing types of plastic surgery in the United States.

According to the ASPS, there were just under 16 million surgical and minimally invasive cosmetic procedures performed in 2015 — that shakes out to one in 16 adults. Since 2000, procedures to pump up your behind have surged 250%. ASPS also reported more than 68,000 breast reduction surgeries in 2015, and men accounted for more than 40% of those procedures.

Can an Employee Take FMLA Leave for Plastic Surgery?

As all good things in life come back to the FMLA, let me pose the question:  Can your employee take FMLA leave for plastic surgery?

Make no butts about it, it is entirely possible.

If the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the FMLA, then FMLA leave definitely is in play. So, for example, reconstructive surgery following a serious injury or illness would very likely qualify for FMLA leave.However, the FMLA regulations make clear that “conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘serious health conditions’ unless inpatient hospital care is required or unless complications develop.” Therefore, FMLA leave is generally not available for purely outpatient cosmetic procedures unless it:

  1. Involves an overnight stay in the hospital; or
  2. Results in complications that otherwise meet the definition of “serious health condition.”

Hat tip: To my friend Tiffany Passmore for passing along the perfect photo for this cheeky blog post!

Note to Self: Posting My Beach Vacation Photos on Facebook During FMLA Leave is Not a Good Idea

Posted in Abuse of FMLA leave, Court Decisions

Beach-Party-VacationI always love a good social media FMLA smack down. It’s even better when the employer handles the situation in textbook fashion. Today’s installment offers both, while also providing a road map for employers when investigating suspected FMLA abuse.

Let me share the story of Rodney.

Rodney was the activity director for Accentia Health, a local long-term care facility, and in that role, he was responsible for overseeing a staff which decorated the facility for holidays and events, and oversaw outings, parties and recreation for patients. Not a bad gig, if you can find it.

Rodney also had a bum shoulder. He took 12 weeks of FMLA leave for shoulder surgery and recovery, but he still was not able to return to work. For good measure, his doctor recommended one more month off work, and Accentia happily obliged. They called the additional month a “non-FMLA” leave of absence. As the story goes, during the final days of FMLA leave and during the month of his “non-FMLA” leave, Rodney took multiple trips to Busch Gardens in Florida and to the island of St. Martin, posting photos of his escapades on social media along the way. Rodney’s treasure trove of Facebook photos consisted of his favorite Busch Garden holiday decorations, and photos and updates about his trip to St. Martin, including some photos of him on the beach, posing by a boat wreck, and swimming in the ocean — all at the very time he should have been recuperating.

Swimming in the ocean? That shoulder must have been feeling pretty darn good.

It’s not surprising, of course, that Rodney’s employer later terminated his employment after he posted these photos.  Also understandable was the court’s quick dismissal of Rodney’s FMLA claims. Indeed, who could have counseled Rodney to sue here, knowing that he had engaged in this behavior? Click here for the court’s take on Rodney’s Facebook photos and its quick dismissal of his FMLA claims: Jones v. Gulf Coast Health Care of Delaware d/b/a Accentia Health and Rehab of Tampa Bay (pdf)

Insights for Employers

The result of this case in favor of the employer is not surprising. What’s instructive to us, however, is how the employer handled Rodney’s situation to best defend itself against an FMLA claim:

1. No Rush to Judgment: When the employer learned of Rodney’s Facebook posts, it did not rush to judgment and terminate Rodney on the spot.  Rather, it conducted a complete investigation of the facts at issue. Specifically, it invited Rodney to discuss his leave of absence.  During the meeting, Rodney’s boss confronted him with the Facebook photos in search of an explanation.  When Rodney responded with silence, it supported the employer’s honest belief that he had abused FMLA leave.

For what it’s worth, I would have counseled the employer here to be even a bit more methodical in its investigation of Rodney’s conduct. Before confronting Rodney with the Facebook pics, I first would have addressed the following with him:

  • Confirm that he required additional leave through the present because he was unable to perform his job
  • Confirm with him the extent of his injuries that he believed prevented him from performing his job
  • Ask him to confirm that he understood the requirements of the FMLA policy and how seriously the employer took fraudulent use of leave
  • Confirm that he remained in the local area during his FMLA and non-FMLA leave (whether he lies or tells you the truth that he took trips out of town, you get a good answer for your investigation)
  • Disclose that you have received information indicating that he was out of town during his leave, and specifically, Busch Gardens and St. Martin
  • Show him (or explain to him) the Facebook entries and photos so that he can address them directly

Simply put, employers lose these “honest belief” FMLA cases when there is a rush to judgment. Don’t do it. Follow the script above.

2.  The Employer used its social media policy to its advantage: Notably, Accentia maintained a social media policy which stated, in part:  “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of [Accentia] or violates the HIPPA privacy law may result in disciplinary action up to and including termination.”

Then, it used this policy as a basis for terminating Rodney’s employment, since his Facebook entries were entirely inconsistent with the policy.  Makes complete sense. This case is a reminder that it is critical for employers to maintain an effective social media policy, which among other things, includes strong language to address FMLA abuse that arises in situations like these.

ABA's Summary of 2015 FMLA Cases an Outstanding Resource for Employers, Attorneys

Posted in Court Decisions

aba_logo_01.jpgThis is one of the most exciting days of the FMLA year for me. Literally, one of those Steve Martin “The phone books are here!” days.


Every mid-February or so, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Although our little FMLA blog here catches some of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision from 2015. This year’s report is as comprehensive as always — it summarizes 2015 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to attorneys Jim Paul, Melissa Pierre-Louis and Heidi Parker, who head up the ABA’s FMLA subcommittee.


Can Employees Be Disciplined When They Exceed the Frequency or Duration on Their FMLA Medical Certification?

Posted in Medical Certification, Regulatory Activity

Sick-note.jpgOne of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.

Take, for example, Joe, who suffers from irritable bowel syndrome (IBS). On the FMLA medical certification you received for Joe, his physician indicated that he will be absent for this condition three times each month for one day each episode.  But here’s Joe’s pattern over the previous two months: in month one, he was absent five times (one day each) and in month two, he was absent four times, but one of these absences was four days in duration.

Can we discipline Joe for exceeding his frequency and duration indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Joe’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.  29 CFR 825.308(c)(2)

Joe’s circumstances clearly have changed significantly (i.e., more than double the frequency in month one, and a lengthy duration for one absence in month two).  Therefore, the regulations tell us we can do the following:

As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. 29 CFR 825.308(e)

Being the exceedingly reasonable, compliant employers we are, we follow the regulations and ask Joe’s physician to confirm for us whether this change in frequency and duration is consistent with Joe’s serious health condition and his need for leave. If your employment counsel is worth anything, they should be able to draft for you an articulate letter to the doctor explaining the pattern you have observed and your concerns about whether these absences are consistent with Joe’s need for leave.

The Response from Joe’s Physician

Eight times out of 10, Joe’s doctor simply will rubber stamp Joe’s pattern and confirm that these absences are related to his IBS. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Joe’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Joe’s pattern somehow is not consistent with his need for FMLA leave. If we’re lucky, in one in 100 situations, the doctor will tell us in not so many words that Joe is “full of c#&@”!  [In light of Joe’s situation, pun definitely intended.]

Can We Discipline Joe?  Here’s My Recommendation…

In these “20-percent” situations, can we discipline Joe for any absences that exceed the frequency and/or duration, as now confirmed by Dr. Zhivago?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by the Department of Labor to give guidance as to how employers might consider handling these situations.  Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation?  You issue discipline for any absences that exceed the frequency and duration.  

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Joe’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion.  After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Joe to miss work three times per month at one day each because of his IBS. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for the excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.