FMLA Insights Selected to Join the Hall of Fame!

Posted in Uncategorized

HallofFame200pxV3As a young tyke growing up on the South Side of Chicago, I regularly reminded my mom and dad that when I grew up, I planned to be the editor of the Chicago Tribune and a second baseman for a major league baseball team, right before I became the first American Pope.

Foolish as I was, I didn’t lack confidence. Can you tell?

As you might have predicted, I fell woefully short of my three rather ambitious goals above.  No sweat, cause little did I know at the time that I would reach even greater heights — some 30 years later, in 2016, I would be named to the ABA Journal‘s Blogger’s Hall of Fame!

Seriously, did you even know something like the Blogger’s Hall of Fame actually existed? Surely not my mom who, with an authentic Catholic soul, is still holding out hope I might rekindle that ambition for the Papacy!

That was far too long an intro to announce that, for the 6th straight year, our FMLA Insights blog has been selected as one of the Top 100 Legal Blogs of 2016 by the ABA Journal! In its 10th Annual ABA Journal Blawg 100, we were only one of seven employment blogs to receive the honor.

I’m even more excited to announce (as forecasted above) that our blog was named to ABA Journal’s Hall of Fame!  Though the honor includes no plaque in Cooperstown and no rambling acceptance speech, I am humbled by the fact that this tiny little FMLA blog has caught the attention of the finest attorneys and HR and leave professionals over the years, and that so many of you have come to rely on my advice when it comes to all things FMLA. I am extremely grateful for your support.

Despite this really cool Hall of Fame honor, we ain’t going anywhere — our FMLA blog posts will still come fast and furious!  So, if you are not already 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.

ABA blawg 2016About 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. ABAJournal.com 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.

Does Paid Leave Become Reality in a Trump Administration? And Who is His Likely Choice to Head the Department of Labor?

Posted in Regulatory Activity

TrumpEvery other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical leave, of course!

How likely is employee paid leave to become reality in a Trump administration?  In short, don’t bank on it.

Trump’s Position on Employee Paid Leave

On the campaign trail, Mr. Trump did not offer a detailed position on federally-mandated paid leave for employees, though it certainly is notable that he was the first Republican presidential nominee to propose paid maternity leave for employees across the country.  Under his proposal as highlighted on his campaign website, Mr. Trump would provide six weeks of paid maternity leave to new moms, and he would pay for it by funds recovered in fighting unemployment compensation fraud.  Mr. Trump would not offer any paid leave to a father after the birth of a child, nor any paid time off (for either) for the adoption of a child.

If Mr. Trump carries through on his campaign promise and continues to endorse such a proposal, which has been pushed publicly by his daughter, Ivanka Trump, it faces a rocky road in a Republican-controlled Congress.  It’s hardly clear whether the Republican Congressional leadership would advance any of Mr. Trump’s priorities, but if the past is any indication, the GOP Congressional leadership has long been opposed to paid leave. There is little chance this position will change with Mr. Trump taking office.  Shout out to SHRM for providing a thorough analysis on this topic, too.

How Might Trump Administration Affect other areas of employment law, such as the impending FLSA regulations and Immigration?  My colleagues Bill Pokorny, Tejas Shah, and Karlie Dunsky provide some excellent insight.  View their thoughts on FLSA here and immigration here.

Who Will Become the New Secretary of the U.S. Department of Labor (aka the new “Head FMLA Nerd”)?

Speculation has been swirling that current EEOC Commissioner Victoria Lipnic, who holds one of the two Republican spots on the Commission, is the leading candidate to become Secretary of Labor. If her name rings a bell, Ms. Lipnic was the leading author of the changes to the (more employer-friendly) 2009 FMLA regulations.  From 2002 to 2009, she served as an assistant secretary of labor for employment standards, a role which allowed her to oversee the Wage and Hour Division, including FMLA enforcement.  Since 2010, she has served as an EEOC Commissioner, delicately advocating that the agency take a more moderate position on some of its most publicized priorities.

During her time as an EEOC Commissioner, she has become known for working collaboratively with her Democratic counterparts.  Notably, however, she criticized the EEOC’s decision to issue the 2015 Pregnancy Discrimination Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court was taking pregnancy and accommodations issues up at the time in Young v. UPS. She also has expressed concern for the gap in pay for men and women, but also opposed the EEOC’s push to try and fix it, again voting against a proposal that would require certain employers to disclose their pay data to the government.

Personally, I have found Commissioner Lipnic to be delightful and down-to-earth, not to mention realistic and thoughtful about the burdensome nature of government regulations on employers. Her appointment would be a benefit to the employer community.  As a related aside, I also can say “I knew her back when . . .” when she and I co-presented about pregnancy accommodations at a DMEC conference last year.

Can an Employer Require That an Employee Submit FMLA Certification from a Specialist to Support the Need for FMLA Leave?

Posted in Medical Certification

mad-doctor-nerd.jpgWhen it comes to FMLA medical certification, my clients have many complaints.

One beef, in particular, is vague medical information they receive on a certification completed by the employee’s primary care physician. This is particularly true where the employee’s mental health is at issue. Employers (rightfully) complain that they deserve medical information from a specialist who is far more knowledgeable about the employee’s specific medical condition. As a result, my clients ask me whether they can require that the employee return initial certification or fitness-for-duty certification from a specialist.

I have been a bit reluctant to give the green light. Until now.

Facts

Take the case of Erica, a community outreach worker for the City of Milford. Erica had a knack for taking a leave of absence after she was disciplined or coached about her performance. Coincidence, I’m sure.  On one such occasion, Erica requested a continuous leave of absence due to “severe anxiety.” In support of her leave, Erica submitted certification from her primary care doctor, who indicated that Erica was “under care of psychiatrist and therapist.”

Given the psychiatric nature of the problems that led to Erica’s leave of absence, the City’s HR Director required that Erica submit a “new” certification from her “treating psychiatrist.”  Even more, she told Erica that she also would be required to provide fitness-for-duty certification from the same psychiatrist to confirm that she is able to perform the duties of her job at the conclusion of her leave.

Erica complied. After she submitted certification from her psychiatrist, her leave was approved.

Upon return to work, Erica provided certification again from her psychiatrist stating that she was “cleared medically to return to work.” Concerned about whether she could safely perform her duties at work, the HR Director required that Erica provide additional details about her ability to return to work. Specifically, the City wanted Erica’s psychiatrist to review Erica’s job description and confirm that she could safely perform the job.

Notably, the City delayed Erica’s return to work for six days until she provided the additional information. Erica provided another letter from her psychiatrist explaining his observations of her condition and stating the following: “Having reviewed [Erica’s] job description and observed her demeanor in-person, it is my conclusion that [Erica] is medically cleared to return to work.”

In a twist to thicken the plot, Erica then resigned. And as former employees are inclined to do, she sued. Among other things, she claimed that the City interfered with her FMLA rights when it required her to provide a second initial certification and when it delayed her return to work and ordered her to provide additional information from psychiatrist about her ability to return to work.

Initial Certification

The Court soundly rejected Erica’s argument that the employer violated the FMLA when it required initial certification from her psychiatrist. Noting that Erica’s primary care doctor “repeatedly” referenced her treating psychiatrist when describing the basis for FMLA leave, the court determined that it was perfectly acceptable for the employer to request that the treating psychiatrist cure the ambiguities in the medical certification.

The court also found compelling the fact that the City clearly laid out for Erica the specific actions needed to cure the deficiencies in her original certification and gave Erica ample time to obtain the information.

Fitness-For-Duty Certification

The court also found that the employer had the right to delay Erica’s return for six days and require a more specific fitness-for-duty certification. Score!

When it comes to fitness-for-duty certifications, employers can require that the health care provider address two important criteria in the documentation:

  1. Confirm that the employee is able to resume work
  2. Specifically address the employee’s ability to perform the essential functions of the employee’s job

Therefore, a generic note even from the psychiatrist stating that the employee can return to work is not good enough. As the court also affirmed here, the employer has the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties. And, according to this court, the employer can require that this information be provided by the psychiatrist, as opposed to a primary care doctor. Bento v. City of Milford

Insights for Employers

This is good stuff, isn’t it?

A couple thoughts before we break open the bubbly:

  1. Does this court decision give employers carte blanche to require that two doctors certify an FMLA leave? Not quite. However, it does give us fairly clear guidance in situations where the primary care physician completing the certification appears to have had little to no role in the actual treatment of the employee’s underlying medical condition. This is particularly helpful where we are dealing with a mental health condition. Therefore, in those instances where it is clear that the primary care doc is relying on (and refers to) treatment provided by a specialist, this court decision tells us that we can safely require that the employee obtain medical certification from the specialist treating the employee before we can grant or deny the FMLA leave request.  This is good stuff!
  2. This decision also is helpful in delaying a return to work where the employee provides a simple prescription pad note clearing her return to work. As this court decision makes clear, we can require that the health care provider confirm that the employee can return to work and that (upon review of the job description) the employee can safely perform the duties of her position.
  3. Keep in mind, however, that the FMLA regulations have very specific requirements for seeking fitness-for-duty (FFD) certification upon return to work:
  • The employer must provide written notice to an employee of the need to provide a FFD certification prior to returning to work.
  • This notice must be provided with the FMLA designation notice and include the essential job functions to be reviewed by the doctor.
  • The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same medical condition) who take leave for such a condition to provide FFD certification.
  1. Some employers have genuine concerns about whether the employee is actually fit to return to work, even after receiving an otherwise compliant FFD certification. Can employers require that an independent medical examination be completed before the return to work? Maybe. But you have to follow very specific procedures, which I previously outlined for employers here.
  2. Where you have any concerns about whether you can push back on initial or FFD certification, be sure to discuss first with your employment counsel. Although this court decision is a welcome confirmation for employers, we’re still venturing into unchartered territory here, as I don’t know of another court addressing these issues as specifically as this one has done. So, we must tread carefully – and in a compliant manner.

Sounds like a topic I will need to discuss at my upcoming webinar on using medical certification to combat FMLA abuse.  Have you signed up for it yet?  Click here!

Photo credit: Dreamstime.com

Join Me for a Free Webinar: "FMLA Abuse Got You Down? Best Practices for Using FMLA Medical Certification as a Tool to Deter FMLA Misuse"

Posted in Medical Certification

Webinar2When: Tuesday, November 15, 2016 (12:00 – 1:15 p.m. central time)

Online registration: Click here

FMLA Medical certification can be the most effective tool to help employers confirm an employee’s medical condition and their need for time off from work. So, why does such a critical tool tend to create angst, confusion and frustration for employers when administering FMLA leave?

Not any more. Please join Megan Holstein, Vice President of Compliance at Reed Group, and me for a complimentary webinar that will once and for all conquer difficult FMLA medical certification issues employers face. Megan and I will cover certification in detail to help employers deal with the most confusing and maddening medical certification issues.

This is not an FMLA basics presentation, and it’s not for the faint of heart. Using real life situations from our own experiences in dealing with the FMLA, we will cover topics such as:

  • Analyzing the key parts of the medical certification form, and what sections you should focus on to ensure you have the information you need?
  • Best practices for employers when an employee fails to return medical certification or turns it in late – can you deny some or all of the leave?
  • Contacting the employee’s physician – can you get permission in advance to contact the doc?
  • What can employers do when they notice a pattern of misuse or suspect FMLA abuse? How best to use recertification
  • Is a second/third opinion really worth the cost and time?

This session promises to be practical and fun. Click here to register for this complimentary webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions that you would like us to address.

This program has been submitted to the HR Certification Institute and SHRM for review. Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

When Employers Don't Recognize an Employee's Notice of the Need for FMLA Leave, They Pay the Price

Posted in Notice

sick-day.jpgAs employers, we face a sobering reality: at every turn, the FMLA sets us up to fail.

Whether it’s deciphering medical certification, assessing fitness for duty upon return to work, or dealing with the always frustrating intermittent leave, the FMLA is full of booby traps ready to nail us the instant we slip up.

Chief among these traps is trying to determine precisely the moment when an employee has put the employer on notice of the need for FMLA leave. To those not familiar with the FMLA, it seems easy enough — after all, FMLA isn’t triggered until the employee informs the employer they need leave covered by the FMLA.  The FMLA regulations provide only the following guidance when it comes to employee notice:

An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. 29 CFR 825.303(b)

Sufficient information, huh? Don’t we wish it were that easy! How do we know when the employee has provided information sufficient enough for us to realize they are asking for leave that may be covered by the FMLA? There is no magic formula to get it right. Yet, when we don’t get it right, the liability can be tremendous.

Take, for instance, a real-life situation I recently encountered. My client employed a custodian who, by any measure, had a deplorable attendance record. You name the excuse for not showing up for work, and she used it.

She also had a bad back — a chronic bad back that she didn’t report until her deposition with me.  In that deposition, instead of acknowledging that she simply called in “sick” on the night that later led to her termination, she manufactured a reason, claiming she reported to her manager that she would miss work because of her “bad back.” The problem for my client was that it did not properly log her call and the reason for her absence, which opened the door for this former employee to put her own spin on the excuse she gave that day.

Insights for Employers

Employers, when it comes to employee notice, it is critical that we formulate specific call-in procedures for reporting leave and set up a compliant system for handling and memorializing the reason(s) employees give us when they miss work. When we don’t do so, we take on way too much risk. Implement the following to substantially minimize your liability:

1. Maintain effective call-in procedures.  Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), the person to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse, help you address staffing issues at the earliest time possible, and establish a strong defense if litigation ensues.

2. Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe further to determine the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies:

• First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you’ll also want to include expectations for completing a leave of absence request form, which I also recommend.) My model policy provision looks something like this:

When you contact Human Resources to report your need for leave, you must provide at least the following information:

o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;

o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

o A telephone number where you may be reached for further information.

• Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.

3.  Use a Uniform Approach to Documenting Absences. Many of you “log” all the call-ins for a particular shift in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which requires as much information as possible and a review by HR or a leave administrator so that the employer follows up on potential FMLA-related absences.

4.  Use a Leave Request Form for all absences.  Where possible, require your employees to submit a leave request form for all absences so you know — on paper — the reasons for their need for leave. If they have an unforeseeable absence, require that they fill out a form upon their return to work. Having the reason in writing helps you better determine whether FMLA might be in play.

5.  Use Personal certification. For those who can pull this from an administrative standpoint, require all your employees to provide personal certification after every absence (FMLA or otherwise) confirming that they look leave for the reasons provided.  See my previous post that addresses personal certification in greater detail.

6.  Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, please please please conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.

7.  Train any and all managers remotely involved in the FMLA process.  Employers, I love you dearly, but many of you are guilty of this FMLA 101 principle — you require that your manager play some role in the attendance or call-in process (e.g., they pick up the phone to take the employee’s call when they can’t come to work), but you do nothing to train them about the FMLA and how to recognize a potential FMLA absence.  Simply put, the average manager doesn’t have a clue as to their responsibilities in the FMLA/leave of absence process.  As a result, because you save a few pennies now in not training them now, you exponentially increase the potential for litigation (and a judgment against you).

Don’t waste another minute. Train. Them. Now.

Can Hillary Clinton Take FMLA Leave for Pneumonia? And Can Her Campaign Give Her the Boot Because She's a Key Employee?

Posted in Key employee, Serious Health Condition

Clinton pneumoniaDisclaimer! Disclaimer! This is not a political post. This is meant to be good, clean fun. But where current events meet the FMLA, I’m as giddy as a five-year old boy coming eye-to-eye with his first dump truck!

Unless you’ve been living under a rock the past week, or you plug your ears and go “la-la-la-la . . . I can’t hear you” every time 2016 presidential news echos over the airwaves, you know that Democratic presidential candidate Hillary Clinton is battling pneumonia.

Naturally, Hillary’s predicament raises some curious questions in this one-track FMLA mind:

First, can Hillary take FMLA leave for her pneumonia, and does it matter that she still keeps showing up to work? [Frankly, I found myself more fascinated by the John Lennon sunglasses she was sporting when she fell ill on Sunday.]

Second, is Hillary a “key employee” under the FMLA who does not need to be returned to her position?

Is Hillary’s Pneumonia a Serious Health Condition?

Assuming Hillary is otherwise qualified to take FMLA leave and her campaign a covered employer, she can take job-protected leave so long as her medical condition involves either:

  • Inpatient care (i.e., an overnight stay in a health care facility); OR
  • An absence from work for more than three consecutive calendar days and either
    • two or more in-person visits to the health care provider within 30 days of the date of incapacity or
    • one in-person visit to the health care provider with a regimen of continuing treatment, such as prescription medication or physical therapy.

Keep in mind: simply staying at home, drinking fluids, and staying in bed (even if exposed to decades old hits sung by longtime Clinton supporter Barbara Streisand) are activities which can be initiated without a visit to a health care provider and do not establish a serious health condition.

What about the fact that Hillary keeps coming to work? Aside from a quick visit to recuperate on Sunday at daughter Chelsea’s home, Hillary has continued her full campaign schedule, despite her illness. Having received medical documentation confirming her serious health condition, any other employer (besides, of course, a presidential campaign two months out from the election) would designate the FMLA leave and require Hillary to remain off work until she provided a fitness for duty certification.  After all, she has pneumonia!

Is Hillary a “Key Employee” Who Can Be Denied Reinstatement to Her Position After FMLA Leave?

First off, Hillary ain’t going no where on her own campaign.  But let’s suppose for a nanosecond that we lived in some bizarro world (which is not all that far-fetched this election season), and in an 11th-hour attempt to gain the nomination, Bernie Sanders convinced the Clinton camp to invoke the “key employee” exception and not return Hillary to her position. Would it work?

Under the FMLA’s “key employee” exception, the campaign could give her the boot so long as it could show that:

1. Hillary is among the highest paid 10 percent of all the employees on the campaign. (Ummmm . . . Is that really in doubt?)

2. Having to reinstate Hillary would cause substantial and grievous economic injury to the campaign’s operations.  This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA. In other words, an employer has to show it would be in a world of hurt because of a key employee’s reinstatement after FMLA leave. Given that she is the whole show herself, I *think* the campaign just might be able to show such an injury here.

Notice to “Key Employee” is Critical. Even if the campaign could satisfy the above factors, it still must provide Hillary written notice at the start of her FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits.  If the campaign fails to do so, it cannot deny her reinstatement.  Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the campaign must provide notice to Hillary, including the determination that her reinstatement will cause such injury, and the basis for the determination.  If Hillary already has begun FMLA leave, the campaign still must provide FMLA leave but allow her a reasonable period to return to work in lieu of additional FMLA leave (again, so long as she is fit to return).

If Hillary does not return after receiving this notice, she still is entitled to take FMLA leave. If the campaign continues to find that this substantial and grievous economic injury still will occur, the campaign can deny reinstatement in writing and, like before, provide the basis for the determination.  Keep in mind: the “key employee” provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.

Hmmm, after all that, I’m no longer feeling like that five-year old with his new dump truck . . . .

Sweet Justice! Dismissal of Bully's FMLA Claim Proves Employers Can Safely Terminate an Employee on the Heels of FMLA Leave

Posted in Court Decisions, Retaliation

bullyI hate bullies.

Back in 4th grade, Sister Mary Demetria, OSF, told us that “hating” someone was a sin.

I’m convinced Sister never met a bully.

Forgive me, Father, for I have sinned. Cause, you see, whenever I read about a bully getting a good smack down, I get all warm and fuzzy inside.

Such is the story of Tim, a manager for Tyson Foods. Over the course of several years, Tim had all the makings of a bully: in 2010, he was disciplined for intimidating a subordinate; in 2011, he was disciplined for openly harassing another employee; in 2012, he again was admonished for threatening an employee with termination for their (legitimate) use of overtime.

What followed in 2013 was the last straw: according to multiple employees, Tim intimidated and was condescending toward others around him, he undermined a supervisor by calling him out in front of others, and otherwise acted unprofessionally toward his co-workers.

Upon considering Tim’s latest conduct, Tyson had enough and quickly terminated his employment. In this era where individuals tend not to take accountability for their actions, Tim filed suit, alleging that Tyson terminated him, in part, because he had just taken FMLA leave a few weeks earlier.

Not so fast, bully,” said the court. Well, it didn’t really say that, but it would have been way cool if it had. Still, the court dismissed Tim’s FMLA retaliation claim in a New York minute, finding that there wasn’t a scintilla of evidence that Tyson was motivated by Tim’s FMLA use when it terminated his employment.  Shell v. Tyson Foods, Inc. (pdf)

Sweet justice!  As with every bully smack down, there always are lessons to be learned:

Insights for Employers

1. Don’t shy away from terminating an employee who has recently requested or taken FMLA leave. Employers often are gun shy about disciplining an employee while the employee is on FMLA leave and/or after they have requested 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.

Employees facing discipline or termination regularly use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. But don’t let their would-be FMLA shield cause you to act differently. In other words, carry on with disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave. In doing so, it often will be critical to show that you have engaged in progressive discipline with the employee before and after the employee requested and/or took FMLA leave.

Here, Tyson’s reasoning was sound.  For some length of time, Tim simply was awful to his co-workers and failed to meet Tyson’s reasonable expectations. This conduct continued through his eventual termination, despite the employer’s continued patience. In the end, this employee (and others like him) simply cannot show that the FMLA had anything whatsoever to do with the termination.

2. But Don’t Rush to Judgment. Where investigations into alleged misconduct are necessary, conduct them! Employers lose when the evidence shows a rush to judgment. See my other posts here and here on conducting lawful investigations where alleged misconduct is at issue.

3.  Similarly, don’t short circuit performance improvement plans (PIPs). If you utilize a PIP for an employee’s deficient performance, don’t accelerate the termination process simply because the employee has taken FMLA leave. Take the case of Sherena, a financial analyst, who was placed on a 60-day performance improvement plan and was told that her continued performance issues could result in termination. After being provided a mid-term review of her PIP at the 30-day mark, Sherena requested FMLA leave.  Rather than giving her a chance to take leave and then finish the PIP, the employer short-circuited the situation, deciding to terminate Sherena’s employment instead.  Not good, as it was clear that the employer did not intend to terminate her employment for her failure to meet the demands of the PIP prior to her taking leave.  Turner v. Florida Prepaid College Board

Are Foreign Nationals on H-1B Work Visas Eligible for FMLA Leave?

Posted in ADA, Eligibility

Photograph of a U.S. Department of Homeland Security logo.

Over the past few months, I’ve been asked by clients whether foreign nationals who are in the United States on work visas are eligible for FMLA leave.

Honestly, I didn’t know the answer to the question when I was first asked. So, I took this question to the one and only person I entrust with all my immigration questions: my colleague Tejas Shah.

As a General Matter, an H-1B Worker Must Be Paid (with some exceptions)

Tejas is quick to point out that a U.S. employer hiring an H-1B worker is required to pay the worker while he/she is working for the employer.  In other words, an employer is not permitted to “bench” an H-1B worker, or otherwise give an H-1B worker an unpaid leave, except in rare instances. Placing an H-1B worker on an unpaid leave without authorization creates substantial risk, as an employer becomes susceptible to a back wage and/or front pay award by the Department of Labor.

The FMLA and ADA Exceptions

What are those rare instances when an H-1B worker can take an unpaid leave?  The Immigration and Naturalization Services (INS) and DOL have made it clear that H-1B workers are entitled to FMLA leave on the same terms as U.S. citizens, whether the leave is paid or unpaid under the employer’s policies. So, an H-1B worker can request and be approved for an unpaid FMLA leave on the same terms as the employer’s U.S. workers.  Of course, whether the leave is paid depends on the employer’s policies for paid leave.

The same individual also is protected by the Americans with Disabilities Act, so leave as a reasonable accommodation under the ADA must be considered in the same way it would for a U.S. national.

Documentation is Critical

Because of the risks associated with a DOL finding that an unpaid leave was not authorized, Tejas reminds us that it is critical for employers to properly document the FMLA leave.  Whenever possible, an employee leave request form should be used, and the employer must provide the requisite FMLA notices and secure medical certification so it can provide DOL and/or INS with all the information necessary to establish that the employee was appropriately on an FMLA-protected leave of absence.

What About U.S. Citizens Working Abroad?  Are They Protected by the FMLA?

Nope.  With the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company.  So, a U.S. national loses FMLA protection once he steps off U.S. soil.

Fascinating. Who knew?

[Special hat tip to my colleague Tejas Shah, who not only is a phenomenal immigration attorney you should entrust with all of your foreign national visa work but, more importantly, one of the most sincere and honorable guys you’ll meet in our line of work.]

Why Should Employers Take Pregnancy Discrimination and Accommodation Seriously? Here Are More Than 500,000 Reasons Why.

Posted in Pregnancy

AA6JDB memo note on notebook I m pregnant

Doris worked for the Chipotle restaurant chain. And she was pregnant. After she announced her pregnancy to her supervisor, Doris claimed her boss began monitoring her bathroom breaks (then berated her for taking too long), required her to “announce” her bathroom breaks to others, prohibited her from taking shift breaks, denied access to water, and eventually terminated her employment in front of other employees because she attended a prenatal doctor’s appointment.

I have no idea whether these facts are true, but a jury believed them. And earlier this month, it hammered Chipotle to the tune of $550,000, plus attorneys fees.

Chipotle’s bad day reminds me of another case just like it from this past year.

This one involved Anne. As the story goes, Anne happily announced to her boss that she was pregnant and expected his support and approval of her maternity leave. Instead, her supervisor expressed irritation that Anne would be on leave during the busiest part of the year. Days later, Anne’s work-from-home privileges were revoked, and her supervisor made her take paid time off to attend doctor’s appointments that had already been approved. Shortly following the revocation of her work-at-home rights, Anne had to leave work unexpectedly due to a family emergency, which she reported to the employer. However, her supervisor terminated her employment the following day, citing her failure to return to work. See Anne’s case here: Karanja v. BKB Data Systems

This is a problem.

Don’t get me wrong. I’m cynical about nearly any FMLA lawsuit, but these all can’t be untrue. Am I correct? Thankfully, employers are in an ideal position to do something about it.

So, what can we do?

  1. As a very simple, initial gesture, dare we show some excitement for the mother-to-be? This is a life-changing event for your employee. Indeed, one of the sure joys in life. Affirm this! At the same time, recognize that mom-to-be is very worried about your reaction to her pregnancy and whether she’ll still have a job upon her return. So, resist any foolish urge to admonish her for taking leave at one of the busiest times of the year. Duh!
  2. The Timing of a Termination Decision is Important no matter what you think the courts say.  Every employment defense attorney (including yours truly) makes the argument that the timing of the employment decision alone is not sufficient to support a retaliation claim.  This argument isn’t as persuasive to the courts as it once was, as courts are allowing far more tenuously timed decisions to support employee claims.
  3. When you terminate an employee shortly after they make a request for FMLA leave, please make sure you can back it up!  Here, Chipotle argued that it terminated Doris because she left work without permission (to attend a prenatal visit). Employers, let this case be a warning to you — before terminating an employee who has requested leave, it is critical that you have established some reliable level of well-documented progressive discipline prior to the decision. Going into the decision without documentation is a recipe for disaster.  And when you terminate her employment because she needs to attend a prenatal visit, you’re asking for a $500K verdict.
  4. Be mindful of state pregnancy accommodation laws and EEOC Guidance regarding pregnancy discrimination.  With a growing number of pregnancy accommodation laws at the state level, employers face even more scrutiny when pregnancy discrimination claims arise.  These local laws now shift the burden of proof from the employee, who previously had to prove she was entitled to an accommodation, to the employer, who now has to prove that it would be an undue burden. Also keep in mind the EEOC’s Guidance on Pregnancy Discrimination, which makes clear the obligation to provide workplace accommodations to pregnant employees.  So, if we have not taken seriously the reasonable accommodation requests of expectant moms, including the need for leave from the job to attend to pregnancy-related issues, we must do so now.
  5. Keep in Mind: Moms and Dads make for sympathetic plaintiffs.  If I still have not convinced you, and you frankly could take or leave child bearers and expectant parents (and money is your bottom line), it still makes eminent business sense to treat these employees fairly when they request time off to attend to pregnancy-related issues.  Just ask Chipotle.

FMLA FAQ: Must an Employer Accept FMLA Medical Certification from an Online Health Care Provider? And What If It's an LCPC?

Posted in FMLA FAQs, Medical Certification

Online HCPQ: Our employee is trying to support his need for FMLA leave with medical certification from an online health care provider. Is this valid under the FMLA?  And What if It’s a Licensed Clinical Professional Counselor? 

A: Tackling the online doctor issue first, my knee-jerk reaction is NO WAY! After all, the FMLA regulations make clear that treatment by a health care provider means an “in-person” visit to the doc.

Case closed, right?

No so fast.

Before you slam the door on this FMLA request, reacquaint yourself with the definition of “health care provider” in the FMLA regulations. You may not have spent much time with it since it’s among the most boring provisions in the bunch. 29 CFR 825.125. There, the DOL has inserted a rather weasly, catch-all provision for health care provider.  Way down there, in subsection 125(b)(4), the regulations state that there are “others” capable of providing health care services, specifically:

Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Drat! So, the regulations go to some length to define “who” a health care provider is, only to open the door to virtually anyone your health plan is willing to cover. The DOL acknowledges as much in the preamble to the regulations (see discussion of this issue at page 67954).  Mind yourself accordingly. In short, if your group health plan accepts the physician, you are in a tough spot to argue that this professional is not a health care provider for purposes of FMLA.

What About Licensed Clinical Professional Counselors (LCPCs)?  Are They Considered a Health Care Provider?

I am asked this question often enough. If you take a close look at the regulations, although clinical social workers are covered by the FMLA regulations, Licensed Clinical Professional Counselors are not. That said, the same issue above applies here. If your group health plan covers LCPCs, the regulations indicate that you have to accept medical certification from these professionals on behalf of your employee.

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