Requiring an Employee to Return from FMLA Leave "Without Restrictions" or "Fully Healed" Is Playing with Fire

Posted in ADA, Court Decisions

no restrictionsDo you know what happens when you maintain a policy or practice that requires an employee to return to work without restrictions or “100% healed”?  You pay.  A lot.

Just ask Brookdale Senior Living Communities. Brookdale employed Bernadine, who suffered from fibromyalgia. According to the EEOC, Brookdale refused Bernadine’s accommodation requests for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office.

The EEOC also alleged that the Company required Bernadine to remain on “full FMLA until she [was] fully released.”  In other words, she could only return if she was able to perform her job without any restrictions or accommodations. Brookdale later terminated Bernadine, contending that the employee caused a breakdown in the reasonable accommodation process.

The EEOC later brought suit on behalf of Bernadine, claiming that the Company’s failure to accommodate and its alleged requirement that Bernadine return “fully released” violated the ADA.  Access the EEOC’s lawsuit here.

Of course, these are simply the EEOC’s allegations, and we’ll never get to the truth, since Brookdale and EEOC agreed to settle the case before any discovery occurred.  As part of the resolution, as explained in an EEOC press release, Brookdale is required to:

1.  Pay $112,500 to Bernadine as alleged back pay and alleged compensatory damages.

2.  Train all local employees and managers on the ADA’s requirements, including the need to provide reasonable accommodation to qualified individuals with disabilities.

3.  Report to the EEOC if there are any complaints of disability discrimination or retaliation.

What’s the Problem with a “Fully Released” Approach? 

Whether or not Brookdale engaged in the conduct alleged by EEOC, this scenario is instructive. When employers require that employees be “fully released” or “100% healed” before returning to work, the far majority of courts have found that these policies and practices discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.  And such an approach raises the ire of the EEOC.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA to determine whether an accommodation can be provided to help the employee return to work; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Insights for Employers

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 evidence that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  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.  In light of the EEOC’s recent litigation in this area, including the most recent one against Brookdale, this approach is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation, and inviting a conversation about what assistance they might require to return to work.  If you remember the report of my presentation with EEOC Commissioner Chai Feldblum last year, this communication is critical to remain compliant, and it should come early and often.

A Cruise Aboard the Love Boat is Not Protected by the FMLA, Even When the Doc Says It's a Good Idea

Posted in Abuse of FMLA leave, Court Decisions, Interference

Love-BoatThis post has nothing to do with Netflix and its new, generous parental leave policy.  Or GOP presidential candidate Carly Fiorina’s latest position on paid leave. Sorry to disappoint.

But it does involve an exotic boat cruise. And of course, the FMLA. Tantalizing? Jump aboard the Love Boat to find out…

The Facts

Lucy worked for the State of Washington Employment Security Department.  During her employment, Lucy suffered from and was given intermittent FMLA leave for migraine headaches, a condition which is covered by the FMLA.  The following year, in January 2011, Lucy submitted a doctor’s note excusing her from work for a two-week period for “FMLA vacation,” presumably because of her migraines.

Per the plan, Lucy headed off a few weeks later on a two-week boat cruise.  Her excursion flew under her employer’s radar until her step-father (huh!?!) unwittingly shared the news with Lucy’s co-worker that Lucy and her husband were spending two weeks away on the Love Boat.  This drew the employer’s skepticism about Lucy’s need for FMLA leave (and likely some expletives, too).  As a result, the employer reached out to Lucy’s doctor directly, expressed “some concern” about the two-week vacation and posed a number of questions to Lucy’s doctor about her medical condition.

The doctor failed to timely respond, and when he finally did, he indicated that Lucy was not incapable of working during the time she was on the cruise.  After her termination, however, Lucy’s physician sent another note to her employer stating, in part:

A common medical practice, which I followed, was to see if a break from the problem for a few weeks would ameliorate [her migraines] . . . I found that the separation did alleviate the problem, by the second week the headaches has dissipated and she was recharged, anxious to return to work . . . .

Lucy was anxious to return to work, I’m sure.

Waiting for Lucy upon her return to work was a 12-page termination letter citing six different reasons for her termination. [Apparently, someone wanted to ensure this termination would stick.] Among other reasons, the Department terminated Lucy’s employment because she “inappropriately and in violation of agency policy took a pre-arranged cruise,” which was not related to the FMLA.

A termination decision that makes perfect sense.

cruiseThe Ruling

After her termination, Lucy filed an FMLA interference claim, but she needed far more than a life preserver to save her claim.  The court quickly dismissed her FMLA lawsuit, finding that: 1) Lucy presented no evidence that actually she was incapacitated from working while she was gone from work; and 2) there was no evidence that a two-week cruise was medically necessary to deal with her migraines. Notably, the doctor’s response indicated that he did not consider Lucy incapacitated during the two-week period and that he was approving “FMLA vacation” time simply because Lucy told him she had vacation time available to her.  These admissions undermined Lucy’s FMLA claims, effectively leaving her stranded at sea. Fitterer v. State of Washington Employment Security Department

Insights for Employers

A few useful takeaways for employers here:

1.  Some time back, one of my clients was wrestling with a similar situation — a doctor who submitted a note approving a trip to Disney World to alleviate an employee’s stress, which was causing her to miss work.  [Not that there’s anything wrong with Disney — it’s a most magical place, as one of my previous posts attests!]  My client relented, ultimately allowing the employee to take the Disney trip and declining to contest its medical necessity.  This decision gives employers in my client’s situation the courage to stand up to situations like these that absolutely smack of FMLA abuse.  In short, if the employee is not incapacitated and is not seeking treatment wherever she is heading, her absences do not trigger the FMLA, and they should be treated as such.

2. Use the FMLA tools available to you to obtain more information about the medical condition and the certification.  Here, it seems apparent that the employer did not ask any follow-up questions when it received a doctor’s note excusing Lucy for “FMLA vacation.”  Some basic questions come to mind: What’s the reason for a two-week “FMLA vacation”? Will she be unable to work during this time period?  Will she be seeking treatment?  The employer asked these questions only after it learned that she was on a cruise. In some situations, however, this might be too late.

3.  Be extremely careful about contacting the employee’s health care provider directly without the employee’s permission.  Under the FMLA regulations, employers may contact a health care provider directly only to authenticate or clarify certification.  Here, the employer arguably was clarifying Lucy’s certification and need for FMLA leave, a communication that must have been approved first by Lucy (through a HIPAA-complaint release).  The employer arguably committed a technical violation of the FMLA in reaching out to Lucy’s physician without her permission, which, in turn, could have undermined its defense against Lucy’s FMLA claims. Don’t make this mistake — clarifying certification must be approved by the employee in advance and in writing.

4.  With number 3 above in mind, I still admire the employer for informing the physician of its “concern” about whether Lucy’s cruise was consistent with her need for FMLA leave and asking him to answer a series of questions about Lucy’s medical condition (all within FMLA bounds assuming they first obtained her permission to do so).  I encourage my clients to use similar and blunt terminology and questions to discuss suspected FMLA abuse with an employee’s health care provider, as it suggests that the employer is taking the employee’s absences/patterns seriously and that it’s not a situation to be taken for granted.

DOL and EEOC Explain How They Will Approach FMLA and Reasonable Accommodation Enforcement

Posted in ADA, Regulatory Activity

Employment-Word-Cloud-300x152This week, I had the pleasure of presenting with Department of Labor and EEOC officials on key developments out of Washington with respect to leave management and accommodations.  Our presentation was part of the annual conference of the Disability Management Employer Coalition. If you’re an employer and not a member of DMEC, you’re doing yourself a disservice.  Find out more about the organization here.

What’s on DOL’s Mind in 2015 and 2016?

Helen Applewhaite, the DOL’s Branch Chief for FMLA, presented on DOL enforcement initiates in the FMLA arena, and I offered comments from the peanut gallery on the practical impact on employers in light of these initiatives.  Here are the takeaways:

1.  DOL’s Focus on Systemic Compliance Issues is Top Priority.  The DOL is focusing its attention on systemic FMLA problems.  What this means is that DOL is broadening its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.

EEOC has made a killing off investigating systemic issues, often leading to costly and burdensome investigations and litigation. For the foreseeable future, we can expect the same from DOL — broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions.  Why?  Because this is already happening.  Over the past couple of years, the DOL’s information requests have covered a several- year period, and the agency typically requests data on all leave requests, grants and denials over that period, among a host of other subject areas. In a previous post, I included samples of information requests my clients have received in the past, like this burdensome one from the DOL.  Yep, they’re ugly.

What’s an Employer to do?  Friends, we must conduct self-audits of our FMLA processes and recordkeeping.  Now.  This means we must ensure that our FMLA policies, forms and correspondence are up to snuff, and that our FMLA processes are compliant.  In a previous post, I included specific recommendations on what our self-audit should look like.  [Shameless plug alert: I offer these self-audits through our CALM service.]

2.  Avoid these Common Errors.  Applewhaite identified several compliance problems that pop up regularly during DOL investigations:

  • Employers’ inability to recognize the need for FMLA leave and then disciplining employees for an absence that should be covered by FMLA
  • Failing to meet notice deadlines established by the FMLA
  • Failing to properly administer medical certification, including requests for recertification more frequently than permitted

The first bullet point is particularly troublesome, as I find that many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request.  In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

As I’ve warned employers before, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

3.  New Same-Sex Spouse Rule: Yawn!  Applewhaite briefly discussed the DOL’s recent regulatory change which edited the definition of spouse to include same-sex marriage.  As I told my DMEC friends, this regulatory change should not create any administrative concerns for us.  Simply put, we administer leave for a same-sex spouse in the same manner we administer leave for a heterosexual spouse.  Case closed.

For more information on the DOL’s same-sex spouse regulation changes, see my post here.

And the EEOC…

Pierce Blue, Attorney and Special Assistant to EEOC Commissioner Chai Feldblum, and I spent some time analyzing the implications of the Young v. UPS case, which expanded the potential for pregnant employees to secure workplace accommodations.

The EEOC has modestly edited its pregnancy discrimination guidance in light of the Young decision, but there is otherwise not much new news to share on the pregnancy accommodation front, as the lower courts generally have not yet applied the Young balancing test to real life situations.

That said, an early read on courts which have followed the Young reasoning suggests that employees may be given some latitude in advancing their case when alleging that the employer did not provide a requested accommodation during their pregnancy.  In one such case, Bray v. Town of Wake Forest, an employee defeated an early motion to dismiss her sex discrimination claim after her employer refused to assign her light duty work during her pregnancy.  The plaintiff, Erin Bray, was a Wake Forest police officer, and she provided a doctor’s note during her pregnancy limiting her to light duty positions. Shortly thereafter, Erin was terminated because she could not perform the essential functions of her position as a police officer.

The court refused to dismiss Erin’s sex discrimination claim, finding that, on two occasions, male police officers were allowed to perform light duty, apparently because they were injured on the job. In finding two other accommodations sufficient to survive a motion to dismiss, the court took a rather liberal reading of the Young case, but in any event, it indicates that even the slightest difference in how accommodations are distributed may very well breathe life into a gender discrimination claim.  Remember the key question raised by the Young court: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?

Apparently, in Bray’s case, “so many” may simply equal two.  If so, employers better watch out.

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:

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.


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?


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 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.