Please Nominate FMLA Insights for the ABA Blawg 100

Posted in Uncategorized

man-beggingDear fellow FMLA aficionados:

Can I get your vote?  What if I promised that it would only take 30 seconds out of your day, or less than the time it would take to read one of my rambling blog posts?

Last year, for the 4th consecutive year, our little FMLA blog was named one of the top 100 legal blogs by the ABA Journal. Voting is now open for the best legal blogs of 2015, and we would love to have your support!

If our FMLA Insights blog has been helpful to you in navigating the FMLA (or if you find it practically useless but nevertheless humorous in a cheesy kind of way), we would be forever grateful if you took a moment to nominate us for this year’s Blawg 100. Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked. You will be asked to provide your contact information and a simple statement about why you’re a fan of FMLA Insights.  If you include a memorable (or even corny) line or two about why the blog adds value to your professional life, the ABA Journal might even highlight your quote!

The online form also asks you to identify your favorite blog entry over the past year. What was your favorite? Perhaps it was the post about how employers deal with an employee who uses FMLA leave to shirk overtime duty; our practical insight on how employers should implement the new same-sex spouse regulations; our extensive coverage of an employer’s obligation to provide accommodations to pregnant employees; or our opinion about whether an employer should send FMLA notices by mail, email or carrier pigeon in light of some rather odd recent court decisions.

Perhaps it’s that I am comfortable enough talking about how sperm and the FMLA (somehow) are connected.  Or maybe you simply respect the fact that I offer my FMLA and ADA counseling services for a reasonable and competitive flat monthly fee and then blog about it (damn, two shameless plugs in one blog post!).

Any of these blog posts (and plenty of others!) work for this nomination.  Nominations must be submitted by Sunday, August 16, 2015.

If you have any feedback on our FMLA Insights blog and how we might get your vote in the future, please do not hesitate to contact me: jsn@franczek.com.

Of course, I welcome your nomination. But more importantly, I am humbled by the feedback you provide nearly every day — whether it’s an email, social media shout out, or simply saying hello at a conference, I am humbled by your support of the blog.

I am indeed forever grateful.

Jeff

Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer's Lead

Posted in Uncategorized

investigateEven once in awhile an employer has handled an FMLA situation so effectively, you just want to shout out, “You Go Girl!” . . . or let out a fist pump (like you just sank a 70-foot birdie) . . . or initiate a wild chest bump in the hallway with a colleague (after you just landed that new client).

This is one of those cases.

Employers often struggle with handling an internal workplace investigation or issuing discipline where the employee in question has played the good ‘ol FMLA card just as you are about to investigate misconduct or issue discipline.  This story below proves that the FMLA cannot be used as a shield to ward off legitimate discipline.

The Facts

Andrew was a middle school teacher who somehow was involved in an incident with a student in a school hallway.  The student claimed that Andrew grabbed her by the arms, shook her, and pinned her against a wall.  Andrew, of course, had a different story.  After a state-required child protective services investigation, the state cleared him of any charges.  However, per school district policy, the school board conducted its own investigation (at the same time) focusing on whether Andrew had violated any school policy during his interaction with the student.

During the investigation, Andrew took FMLA leave because of reported stress, anxiety and high blood pressure. He returned to work sporadically over the next couple of months, but had panic attacks at work, apparently after being “berated” by the school principal.  While Andrew was on leave, the school ordered him to report to work on one occasion to participate in the ongoing board investigation and on one other day to participate in a disciplinary conference.  In that conference, he was issued a written reprimand for “engaging in physical contact by using a technique that escalated a situation that could have been handled differently.”

Before eventually returning to teach, Andrew submitted a doctor’s note requesting assignment to a different school in the district because returning to the same school could spur “panic attacks and other manifestations of his illness.” Per the request, the school district assigned Andrew to new school and returned him to work (after he had more than exhausted his 12 weeks of FMLA leave).

All good, right?

Wrong.

Andrew sued the district. Whaaat!?!

Andrew claimed the school district interfered with his FMLA leave when it required him to : 1) report to work to participate in the internal investigation; 2) attend appointments with other doctors; and 3) return to a different school that included children with behavioral issues.

The Ruling

The trial court (and appellate court) both smelled a rat, and they quickly dismissed Andrew’s FMLA claims.  You can read the court decision here, but I weave the court’s reasoning into my insights below. Adams v. Anne Arundel County Public Schools

Insights for Employers

This decision provides a few golden nuggets for employers’ FMLA administration.  Let’s discuss:

1.  Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave.  This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Note the court’s words here: “There is no absolute right to restoration to a prior employment decision.”  In other words, carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.  In fact, employers arguably have a duty to conduct a prompt investigation into allegations of this kind.  As the court pointed out, employers (and schools in particular) have an obligation to investigate and address serious allegations of employee misconduct “or else face accusations and lawsuits for not looking promptly into allegations of improper” conduct of its employees.

2.  You can indeed ask an employee during his FMLA leave to report to work to participate in an internal investigation.  Within reason, of course.  Heed the court’s guidance here:

In certain circumstances, required meetings may unlawfully interrupt an employee’s leave.  Here, however, the one-time conference was a legitimate piece of an ongoing investigation into the January 19 incident between Adams and the student.

. . . the record here points to a standard procedure during which due process was accorded to Adams every step along the way.

A common sense, thoughtful approach by the court.  In other words, if an employer follows its standard internal investigation procedures (which means you should have these procedures in place!) and affords a level of due process during the investigation to the employee, a court will endorse your process.  I like it.

In situations like these, however, I recommend that employers not count the investigatory meeting with the employee against his FMLA allotment, since he reported to work on this occasion.

3.  A closer call here is that the school district apparently required the employee to attend three different medical appointments as part of the FMLA’s second opinion process.  Interesting angle. We often find in unionized environments that employers have the right (under the collective bargaining agreement) to send employees off for fitness-for-duty exams separate and apart from the FMLA process.  As the court did here, these provisions generally are upheld.  But let the employer beware — I would advise against multiple “second” opinions unless you are in close contact with your legal counsel.

In the meantime, my hat’s off to the Anne Arundel County School District for a job well done.  You gave the rest of us employers a good model to follow.

FMLA FAQ: Must an Employer Provide Intermittent FMLA Leave So An Employee Can Attend to an Autistic Child?

Posted in ADA, Caring for Family Member, FMLA FAQs

autismQ:  One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son.  In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school.  For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t not drop him off and pick him up.

The difficulty we have is this — our employee not only misses the first hour of work and another hour in the middle of the work day, but she claims she needs the entire day off to attend to her son.  First, is autism a serious health condition under the FMLA? And if so, are there any limitations we can place on the employee’s need for FMLA leave in these situations?

A: These are not uncommon questions posed by employers, who wonder whether they are required to provide intermittent FMLA leave to an employee in this kind of situation.

To be clear, employers generally don’t deny that autism is a serious health condition (since it often is considered a disability under the ADA). However, employers struggle with an employee’s unpredictable attendance in situations where it presents a burden on staffing, like the example above.

Is Autism a Serious Health Condition?

Generally speaking, courts have found that autism is a serious health condition.

As we know, an otherwise eligible employee can take leave to care for a child with a serious health condition.  Under the FMLA regulations, a serious health condition  includes a period of incapacity which is “permanent or long-term due to a condition for which treatment may not be effective.” A “period of incapacity” includes the inability to attend school or perform other regular daily activities due to the serious health condition, including treatment or recovery.  29 C.F.R. § 825.114.

In the example above, there appears to be sufficient facts for a jury to conclude that the employee’s son likely suffers from a serious health condition because he is has a permanent medical condition rendering him unable to participate at school in certain situations.

If Autism is a Serious Health Condition, are there any limitations we can place on the employee’s need for leave?

Put aside the question about whether autism is a serious health condition, as that’s a definition over which the attorneys can argue.  What you’re really worried about is whether your front reception desk gets properly staffed and whether you have to accept your employee’s erratic schedule on days when she tells you she must attend to her son.  In short, there are not many limitations you can place on your employee if they need FMLA leave in these situations to care for her son.  But there are tools available to employers:

1.  Analyze the medical certification.  In many instances, the certification will articulate the kind of care the employee is required to provide to the autistic child.  Does the certification appear to cover the need for transport, drop off and pick up?  If it is unclear, follow the FMLA’s cure process to obtain the information you need.

2.  Rein in the excess time off.  Does the certification require your employee to take the entire workday off (or even a significant portion of the workday) for trips to school with her son at 8am and at 2pm?  If so, why does the certification make such a pronouncement?

Assuming the cert does not contain this information, the employer should consider having a candid conversation with the employee about the need for leave for the entire or even a significant portion of the workday.  Keep in mind that intermittent leave is required only where it is medically necessary. FMLA leave from work from the period of ~9am to 2pm does not appear to be medically necessary, so if you can’t come to an understanding with your employee as to the additional time during the workday, employers should require that the employee cure the certification (to obtain additional information about the need for leave), and clarify the certification, if necessary.

Hat tip: Thanks to Linda Croushore for suggesting that I address this question on my blog!

Now That Same-Sex Marriage is a Constitutional Right, How Do Employers Administer FMLA Leave?

Posted in Court Decisions, Eligibility, Regulatory Activity

gay marriageOn Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution.

So, I’ll give you one guess as to the topic of my blog post today.

How is the FMLA Impacted by the Supreme Court’s Ruling on Same-Sex Marriage?

Earlier this year, the Department of Labor issued a final rule allowing an otherwise eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognized their marital status.  Now that the Supreme Court has declared that same-sex marriage is a Constitutional right, states can no longer prohibit same-sex marriage.  Obergefell v. Hodges (pdf)

As a result of the Supreme Court’s decision, it appears any questions regarding the DOL’s Final Rule have been all but eliminated.  This means that employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons.

What About the Four States Covered by the Texas Court Decision Halting Issuance of the DOL’s Final Rule?

As  I reported in a previous post, four states (Texas, Arkansas, Louisiana and Nebraska) obtained an injunction stopping enforcement of the DOL’s final rule. Although we don’t know how these four states will proceed in light of the Supreme Court’s decision, the Court’s decision validates the DOL’s definition of “spouse.” The DOL has not yet issued any statement on enforcement in these four states, but employers in these states that elect not to provide FMLA leave to same-sex spouses are taking on significant risk.

What Do Employers Need to do Now?

In another of my previous posts, I gave employers extensive guidance on what they should do in light of the new DOL rule on same-sex spouses. Among other things, employers should:

1. Update FMLA policies and forms.

2. Train supervisors and administrators on the new rule.

3. Determine whether any state leave law applies, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

4. Be mindful that the DOL’s new rule covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater leave rights than those provided for under the FMLA.

Introducing Our "CALM" Service: The Key to an Employer's Compliance with FMLA and ADA

Posted in Uncategorized

CALMFMLA and ADA friends: You’ve known me long enough to appreciate that I don’t engage in a whole lot of shameless self-promotion.  But can you indulge me one time to do so here?

Let me explain.

Over the past few years, employers have increasingly asked me to develop a service in which I provide practical guidance on troublesome FMLA and ADA issues they face for a flat monthly fee.  They’ve grown weary of running up a costly and unpredictable legal bill with their attorneys, and they need an alternative.

Here is your alternative.

Beginning July 2015, I am offering employers CALM — Compliance in Accommodations and Leave Management — which is a flat $750 per month service to assist them with day-to-day FMLA and ADA questions. Under our CALM service, I am delighted to answer whatever FMLA/ADA question you throw at me, but the value of this kind of retainer is to provide employers and third party administrators practical guidance and clear direction on the most complex and difficult leave management and accommodation questions you face, answers to which you won’t find online or even with a ton of research. You and I develop the arrangement in a manner that works best for you – whether it’s a series of short calls, quick email communications, or several calls or emails that require longer, strategic discussions. The arrangement is flexible, allowing you to designate the individual(s) to contact me directly.

A more detailed outline of our CALM service can be accessed here.

Examples of Issues Covered by our CALM Service

Over the past few months, the following is a sampling of the questions I have helped employers address with our CALM service:

  • How to deal with FMLA administration where an employee returns certification after the 15-day deadline or never returns one at all
  • Helping an employer analyze whether a handful of text messages from an employee constituted sufficient notice of the need for FMLA leave
  • Administering FMLA leave in a workforce where employees hours vary from week to week (requiring analysis and application of 825.205(b)(3))
  • Whether a TPA should designate an absence as FMLA leave where an employee sought leave to care for a spouse, but where the only “caring for” function was babysitting the kids (this issue is hardly a slam dunk – it required discussion and analysis of the Gienapp case, which I highlighted in a previous blog entry)
  • Best practices in applying the same-sex spouse FMLA regulations in the four states covered by an injunction issued by a federal court in Texas
  • Providing critical guidance to an employer in responding to DOL inquiries during an audit of FMLA administration
  • Addressing potential light duty accommodations for a pregnant room attendant at a luxury hotel who was placed on restrictions throughout her pregnancy
  • Helping employers draft and revise model correspondence to an employee seeking a workplace accommodation
  • Reviewing a customized FMLA medical certification form and reasonable accommodation questionnaire an employer wanted to implement for its multi-state locations

Why Jeff?

For the past five years, I have maintained this FMLA Insights blog to provide you practical guidance in handling extremely difficult and sensitive FMLA and ADA issues.  I also have built a national practice counseling and defending employers ranging from small family-owned businesses to Fortune 100 companies on some of the most difficult leave management and workplace accommodation issues. I have developed this practice by providing employers practical advice that matches their business objectives. If you know me at all, you know that your questions will be answered directly, with a specific recommended course of action that is reliable, practical and lawful.

It’s worth noting that I will be the attorney helping you address these issues – I am not going to pass you off to another colleague less experienced in the area.

Who is the Ideal CALM client?

That’s the beauty of this service.  It matches your needs with one flat, monthly cost.  It’s predictable, and I am convinced it beats any arrangement you have with your current counsel.

If you need to touch base several times each month on questions for your workforce of 200 employees, I address your needs.  If you are a busy in-house counsel or HR professional who doesn’t specialize on leave or accommodation issues or you simply need timely answers for internal clients to help lighten your workload, I am a mere phone call away.

Why a Flat Fee and Why is this Particular Rate Effective?

You face increasing pressure to lower your legal and HR costs, so you need to engage counsel that can help you solve problems in the most cost-effective manner.  This flat-fee service helps you maintain predictable legal costs in one of the most troublesome areas of employment law.  You don’t have to worry about how much each phone call or email is going to cost — everything is included in a flat, monthly cost.

Why $750?  I find that many of my clients contact me several times each month and for several hours at a time.  This flat fee assures you that you will always get your money’s worth without having to worry about your attorney dinging the bell every time you call.  We will re-evaluate after three months to ensure your leave management and accommodation needs have not changed.

CALM clients also receive reduced costs on FMLA training, audits and state updates in the leave management area.  Our CALM brochure explains more.

How Do We Begin?

Let’s discuss this service further.  Email me at jsn@franczek.com or by phone at (312) 786-6164.

FMLA FAQ: If Your Employee Checks into the Hospital After Midnight, Is It an "Overnight Stay" under the FMLA?

Posted in Court Decisions, Interference, Serious Health Condition

midnightQ: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight.  He spent most of the day in the hospital and was discharged later that same day. In total, he missed two days of work. Is this absence covered by the FMLA?

A: Under the FMLA, an employee can take job-protected leave for “any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital.” So, your employee’s protection under the FMLA hinges on whether his visit to the hospital is considered an overnight stay.

Consider this scenario, which answers our question:  Jeff (a fabulous name, as an aside) worked for a tool manufacturer and had a history of heart problems. One day he was having chest pains at work — curiously, they occurred as he was being disciplined for sleeping on the job — and he asked his supervisor if he could leave work to go to the hospital. The supervisor granted his request to leave work.

Jeff arrived at the hospital before midnight, but was not admitted until after midnight.  He remained in the hospital for 14 hours, at which point he was released.  He missed work that day and was fired for “walking off the job.” There must be another story we’re missing here, but we’re not privy to it.  Jeff (which may not be a fabulous name after all), filed suit, claiming FMLA interference and retaliation.

The Court Ruling

The FMLA regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. Sec. 825.113(b), or any subsequent treatment in connection with such inpatient care.”

Therefore, the appellate court reviewing Jeff’s case was charged with defining “overnight stay” under the FMLA.  Earlier, the trial court had determined that the employee had to stay at the hospital from “sunset on one day to sunrise the next day.”  That was not workable, according to the appellate court.  After all, how could that principle work on a wintry December day in Fairbanks, Alaska, where those poor souls live in near darkness the entire day?

Ultimately, the court determined that an “overnight” stay had to constitute a “substantial period of time” from one calendar day to the next calendar day “as measured by the individual’s time of admission and time of discharge.”  Here, Jeff did not satisfy this test — although he arrived at the hospital before midnight, he was not admitted until after midnight.  Thus, his hospital stay did not span one calendar day to the next and was not protected by the FMLA.

Although it was not applicable in this case because Jeff did not stay overnight, the court also advised that the individual must remain overnight for a substantial period of time.  In other words, if the employee is admitted at 11:59 p.m. and discharged one hour later at 1:00 a.m., this would not constitute an overnight stay protected by the FMLA.  Short of creating a bright line rule, the court suggested that “a minimum of eight hours would seem to be an appropriate period of time.”  But it left closer analysis of this eight-hour time frame to another day.

A 57-page decision to decide all of that.  Must have been written by a true FMLA wonk, and I like it!  You can read the decision here: Bonkowski v. Oberg Industries

How Fowl! Is An Employee's Text and His Girlfriend's Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast...

Posted in Interference, Notice, Retaliation

chickenThis one just smells fowl.  Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s supervisor that he “would be absent or late” on December 28. On that same day, Delbert texted his supervisor, stating that he was “having health issues, would be out a few days, and needed to see a doctor.”

Delbert then missed the next couple days of work (Dec 29 and 30), but aside from the one text and his girlfriend’s vague report on December 28, he did not notify Tyson of his absences.  Not a word. On January 2, he was diagnosed with back pain and depression (which, usually go hand in hand, don’t you know?).  On January 3, he returned to Tyson’s health services office with a vague doctor’s note in hand stating “Delbert . . .  has been under my care  . . . for illness and was unable to work.”  At the time, Delbert signed a leave of absence application, which allowed the employee to check one of two boxes explaining the reason for leave — one box for FMLA leave and another box for non-FMLA leave.  The “non-FMLA leave” box was checked on Delbert’s application, although he later denied checking the box.

Tyson investigated Delbert’s time off and determined that he failed to follow Tyson policies for properly reporting his absences.   After all, Tyson call-in policies clearly stated:

“All management team members are expected to personally call their direct supervisor to report an unplanned absence or to report that they will be late.”

Note that the policy does not allow notice by text, by girlfriend, or even by carrier pigeon.  To the contrary, it specifically required Tyson employees to “personally call their direct supervisor.”  Seems fairly straightforward to me, you think?  Tyson investigated Delbert’s absences, and the Company Tyson relied on this policy to terminate Delbert’s employment because it considered all of his December absences to be unexcused.

So, you might understand my surprise when Delbert not only filed suit claiming FMLA interference and retaliation, but that a court found that he had thrown up enough evidence to try his case in front of a jury. Although the trial court had dismissed Delbert’s FMLA claims, the appellate court breathed life into his case, finding that Delbert’s vague text message and nondescript report from his girlfriend could have constituted notice of the need for FMLA leave.

Insights for Employers

Wow, this decision absolutely stinks.  And I use that as a legal term!  Access the court’s short-sighted decision here (Hudson v. Tyson Fresh Meats).

Bucking precedent established by other courts, this court ignored Tyson’s unambiguous call-in policy and allowed an employee ‘s personal texting practice to trump the Company’s call-in policy.  Yet, several other courts unreservedly have upheld policies of Tyson’s kind and specifically rejected FMLA claims where employees reported their absence by text.  If it doesn’t follow the call-in policy, they say, it’s not notice of the need for FMLA leave. Take, for instance, Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf), where the court found that the employee’s text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father who was in the emergency room. Or even Banaszak v Ten Sixteen Recovery Network (pdf), where the employee simply texted that she was not well, and even after much prompting, texted, “As of today, I will be off until July 12th per my doctor for medical reasons.” Here, the court found that even these messages were insufficient to trigger FMLA protections and the plaintiff’s FMLA claims were dismissed.

These might seem like harsh results to some, but the FMLA regulations (requiring employees to follow the employer’s usual and customary call-in policies) are there for a reason.  And as employers, we follow the regulations to be treat our employees fairly and consistently and to ensure predictable results if these practices are challenged in court.  This court decision does not give employers, including Tyson, the result they deserve.

A hard lesson.  But it should be a lesson to the rest of us employers in a few ways:

1.  Texting: The court certainly was influenced by evidence indicating that Delbert and his supervisor regularly communicated by text message and, in particular, on previous occasions when he would be absent.  Keep in mind that an employer can uphold its usual and customary call-in procedures (e.g., requiring that an employee personally call (and not text) their supervisor) only if these call-in procedures are  . . . usual and customary, which means the employer must be consistent in how it handles employee call-ins.  This may be a hurdle for Tyson if its approach was inconsistent.

2.  Leave of Absence Applications: I typically counsel against an employer using a leave of absence application that requires the employee to check a box indicating whether the request for leave amounts to FMLA leave or not.  Why? Do you think the employee actually knows whether the FMLA applies to any given absence or not? Do all of your employees even know what FMLA stands for?  Sure, some or even most of them do, and you have a better argument in those situations that they understood what F-M-L-A meant, but I come across plenty of other employees who don’t.  Therefore, I counsel my clients to use a form that requires the employee to state more specifics about the reason for their absence (for any leave of absence), but not one in which they are required to determine at the outset whether FMLA applies or not.  Your employment counsel should have a model form you can implement right now.  If not, they aren’t an employment attorney.

3.  Use the Employee’s FMLA History Against Him: Delbert sounds like he was a serial (or kinda serial) absentee. Therefore, he knew — or by any objective measure should have known — what the rules were for calling in his absences.  So, use his history against him to defeat his FMLA claims here! Where an employee has regularly utilized FMLA or medical leave in the past, courts have held that the employee should be aware of the employer’s practices for reporting an absence.  If you can show the employee had followed the policy in the past and did not do so here, you have a strong defense on the FMLA notice requirement.  See, for example, Ritenour v. State of Tennessee, which I blogged about here.  In that case, the court effectively held the plaintiff to a heightened standard because it was clear she took leave on previous occasions and knew what the call-in requirements were.  Delbert should be held to the same standard here, and on remand to the trial court, Tyson should use this argument to their advantage.  If Delbert correctly used the call-in policy in the past (i.e., occasions when he actually called into his supervisor to request time off), then he knew how to use it for his December absences.  When he didn’t, his absences lost the protection of the FMLA.

As for the ending of this story above, I’d put my money on Tyson to win at trial if I were a bettin’ man.

DOL Publishes New FMLA Forms -- Good Through May 2018

Posted in Regulatory Activity

wh380f.jpgThose sneaky little rascals! While the rest of us were enjoying our Memorial Day holiday, those crazy kids over at the Department of Labor were still working away. This time, they were busy posting the new model FMLA notices and medical certification forms. Expiration: May 31, 2018!

No more month-to-month extensions or lost sleep over when the long-awaited forms would be released. Now, we can rest easy through spring 2018. Relief.

That said, it couldn’t have taken DOL a whole lot of time to draft the updated forms.  After a relatively close review of the *new* forms, I can find only one (somewhat) notable change: a reference to the Genetic Information Nondiscrimination Act (GINA).  In the instructions to the health care provider on the certification for an employee’s serious health condition, the DOL has added the following simple instruction:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

DOL added similar language to the other medical certification forms as well.  This is nothing new.  For years, employers have included GINA disclaimers in their FMLA paperwork, and those disclaimers typically have been far more robust (and reader-friendly) than the cryptic one endorsed by DOL above. In fact, many employers have used a GINA disclaimer I recommended in a previous post a few years back, and I still advise you to use that disclaimer in your forms.

For easy reference, here are the links to the new FMLA forms:

The forms also can be accessed from this DOL web page.

Hat tip: Thanks to Holly Moyer for watching out like a hawk for these new forms and alerting me to them!

EEOC Commissioner Offers Helpful Guidance to Employers on Providing Accommodations to Pregnant Employees

Posted in Pregnancy, Regulatory Activity

eeocLast week, I had the pleasure of presenting with EEOC Commissioner Victoria Lipnic on the EEOC’s pregnancy discrimination guidance and how employers should address pregnancy accommodations in the workplace.  Our presentation was part of an outstanding FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access Bloomberg BNA’s coverage of our presentation here (pdf).

From the employer perspective, there were several key takeaways from Commissioner Lipnic’s comments about the recent Young v. UPS pregnancy discrimination case and her opinion on whether an employers have an obligation to provide accommodations to pregnant employees:

1.  We can’t really figure out what the Supreme Court is telling us in Young v. UPS.  As you may recall, I gave feedback to employers on the Young case here.  In that case, the Supreme Court gave pregnant employees a path to argue that a workplace accommodation provided to other non-pregnant employees but denied to them is illegal under the Pregnancy Discrimination Act (PDA). However, the Court was hardly clear in explaining how a pregnant employee actually establishes her case.

2.  Given the lack of clear guidance from the Supreme Court, Commissioner Lipnic bluntly concluded, “Why wouldn’t employers accommodate pregnant employees as they do others?” Refusing to do so carries a whole lot of risk.  Keep in mind: if one of the Republican EEOC Commissioners is telling us we need to provide accommodations to pregnant employees (ahem, that’s Cmmr. Lipnic), then we can expect that the EEOC clearly will be taking a fairly liberal position when it comes to providing accommodations to pregnant employees in the workplace.  Just giving fair warning now.

3.  Commissioner Lipnic and I both encouraged employers to consider how they have treated comparable employees before refusing to provide an accommodation to a pregnant employee. Although the Supreme Court didn’t give employers a clear road map in the Young case, the Court took pause over the fact that UPS offered light duty to several groups of employees (e.g., those injured on the job, those with an ADA disability, and those who temporarily lost their DOT license) but did not offer the same to Young when she sought an accommodation after her pregnancy restricted the work she could perform.

The Young court opinion raised a key question that I believe other federal trial court judges likely will pose to employers: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?” It is critical that employers be prepared to address this question, so it should be central to our discussions now about how we implement the Young decision in our workplaces.

In short, before we deny accommodations to pregnant employees who are restricted in their work, employers must be prepared to distinguish accommodations provided to other employees. For instance, is there anything particularly unique about the accommodation provided to others but not to a pregnant employee? If only provided to one group of employees, what’s our rationale?

4.  Commissioner Lipnic confirmed that the EEOC already is revising its July 2014 pregnancy discrimination guidance in light of the Young decision, and the changes will focus largely on the evidence necessary to establish a pregnancy discrimination/accommodation claim under the “burden shift” analysis identified by the Supreme Court. Think the EEOC will allow employers to comment on any proposed changes?  Who wants to make a friendly wager with me?

Bloomberg BNA article above reproduced with permission from Daily Labor Report, 78 DLR A-7 (April 23, 2015). Copyright 2015 by The Bureau of National Affairs, Inc.

DOL Will Not Enforce Final FMLA Regulation Regarding Same-Sex Spouses in Four States

Posted in Court Decisions, Regulatory Activity

gavel - same sexLast week, I reported that a federal district court in Texas had halted the DOL’s enforcement of its final rule that would allow employees to take FMLA leave for their same-sex spouse.

Following that court order, the DOL now has represented that it will not enforce the rule in the four states covered by the decision — Texas, Arkansas, Louisiana and Nebraska. In a court filing, the DOL said in no uncertain terms:

[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .

In the same filing, however, the DOL confirmed it will enforce the rule as to employers located in the other 46 states. ¡Ay de mi! Best wishes to that poor employer with operations in multiple states, including some inside and outside those four states. Call your favorite employment counsel to assist with these land mines!

Today (April 10), the court heard the DOL’s motion to reconsider the court’s earlier ruling prohibiting enforcement, and it refused to overturn the ruling, according to a press release issued by the Texas Attorney General.

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