Meet Ray.

Ray is to the FMLA as Patrick Mahomes is to football. Ray is an FMLA pro, having taken FMLA leave a total of 158 times over three years. No joke. F-M-L-A simply rolled off Ray’s tongue, enabling him to take leave on countless occasions.

As the story goes, Ray started his latest FMLA journey with a three-week leave of absence for pneumonia.

Ray worked as a mechanic, regularly operating and repairing the loin-puller machine for his employer, a pork-production company. Ray must have loved that loin-puller machine, since he got really salty upon his return to work when his boss told him he would be assigning Ray to a different machine at the plant.

Accusing his employer of “punishing” him for being absent three weeks for his illness, Ray announced that he would “take a vacation until [the employer] figured it out.” [Whatever that means . . . ] His vacation request was summarily denied, since it was not requested in advance as required by policy.

Ray then used the old stand-by: FMLA leave. His wife allegedly had a cardiovascular
disease that would “flare up” several times each month, requiring Ray to care for her. Upon denial of his vacation leave, Ray immediately told his supervisor he was going “home on FMLA” because his wife was “not feeling very good.”

In the days to follow, Ray’s managers came to the conclusion that Ray’s wife did
not need him at home, and that he invoked FMLA leave to hide his true reason for leaving his shift that day, which was his anger at his reassignment. As a result, the company swiftly terminated his employment.

Do You Smell a Rat?

It’s not a stretch by any reasonable measure to find that Ray’s antics stink to high heaven.

You know what also stinks? A court decision that actually breathed life into Ray’s FMLA claims.

Upon his termination, Ray filed an FMLA lawsuit, alleging that the employer interfered with his right to take FMLA leave and instead terminated his employment. Acknowledging that the evidence suggested that Ray’s initial request for vacation indicated that his wife’s condition was not the true motivation for his leave request [ya think?], the court concluded that the evidence also showed his employer may have interfered with Ray’s FMLA entitlement by refusing to treat his absences as covered by the FMLA.

As a result, the court determined a jury needed to decide whether the employer interfered with Ray’s FMLA leave. [Access the court’s decision here.]

Brutal. Just brutal.

Insights for Employers

These kinds of cases are big fat traps for employers. Every bone in our body tells us Ray was up to no good when he used his FMLA excuse to get out of work that day.

But if we act on this reasonable inference, we sadly face the same serious risk that the employer did. Here, an actual court case warns us what can happen if we too quickly hit the termination button in instances like these.

When faced with an employee like Ray, employers seem to have two choices:

  1. You hit that termination button. It’s the reasonable thing to do, and it makes perfect sense for the reasons identified above.
  2. You hit the pause button, using the opportunity to reach out to the wife’s physician, explain the scenario, and ask for the physician’s input as to whether Ray’s reason for leave was consistent with his need for FMLA on this specific occasion. [This approach is perfectly defensible under Section 308(e) of the FMLA regs.]

Option 1 often proves successful, as the employee typically realizes that he should rightfully be held accountable for his poor judgment, and he moves on with life and finds a new job, hopefully with the resolve to do better. But option 1 comes with the risk that a termination decision based on these facts alone potentially raises an FMLA claim, as evidenced by the court’s decision here.

Option 2 admittedly is more methodical, but it does several things:

  1. At a minimum, it sends the message to the employee and the physician that you are not simply going to roll over and allow Ray to misuse FMLA leave in this kind of suspicious manner.
  2. If you’re lucky and the physician actually agrees with your concern that Ray didn’t have a reasonable basis to take FMLA leave, it arguably lays the foundation for the lawful basis to terminate Ray’s employment.
  3. It likely saves you hundreds of thousands of dollars defending this FMLA claim at trial, which the employer faces now.

In the meantime, I wish I could just give this employer a big bear hug, cause we all have a “Ray” in our workforce and we pull our hair out every time.

Beads of sweat formed on my forehead, and my eyes began tearing up.

It was one month ago, and all it took was five minutes.

I was seated among 35 of my Littler colleagues, all of us participating in a week-long Executive Leadership Program through Northwestern’s Kellogg School of Management.

Halfway through the week, we attended a session, “Managing and Motivating Across Differences” by Northwestern Professor Lauren Rivera. At the beginning of the session, Professor Rivera handed each of us one sheet of paper, which upon first glance included some seemingly simple instructions. It read:

Below is a list of privileges in the workplace, or things many of us might take for granted at work. For the purposes of this exercise, assume that you do not have any privileges and need to acquire them for your organization. Each privilege listed below costs $100 and you have a budget of $500. You must decide which 5 privileges you personally would like to purchase.

Below the instructions was a list of 25 “privileges,” a few of which stood out to me:

  • I’m never the only member of my gender or racial group at a meeting at my organization.
  • I can expect to be paid equitably for my work.
  • I can take a job without having others suspect I got it because of my gender or race.
  • I can expect time off to celebrate major holidays for the religion I practice.
  • I can assume that my workplace will be accessible to me without having to request modifications.

There were 20 additional “privileges” listed among those five. As I scanned the list, however, I realized that none of these applied to me. I’ve never had to worry about even one of these privileges of employment. I simply took them for granted.

You see, I am a straight, white man and father, a person without a disability. And I am Catholic, the most common religious affiliation of those living in the Chicagoland area.

Yet, all it took was one sheet of paper to help me appreciate just how many workplace barriers have been removed for me simply because I’ve always lived in the majority.

In that moment, I was overcome with emotion. And perhaps for the first time ever, it helped me appreciate in a very real way that I need to be a better ally.

We All Need to Be Better Allies, and Employers Have the Ability to Effect Change

We’ve heard much lately of the terms diversity, equity and inclusion (DEI). For too many of us, we sharpen our defenses when we encounter the letters D-E-I.

But it doesn’t have to be this way.

The Northwestern exercise served as a candid reminder to me that not everyone in our Republic starts from the same place, particularly when we take into account characteristics such as race, gender, disability, and religion.

Sadly, the statement above will undoubtedly awaken the DEI-haters, as a few will see it as an attack on them simply because of their skin color, gender, parenthood.

But for those of you will keep and open heart and mind to my own recent epiphany, consider the words of President John F. Kennedy and my own mother, who often quoted the words of Luke 12:48 as I was growing up:

“For of those to whom much is given, much will be required.”

For many of us, we’ve been able to navigate corporate America and our careers with privileges of the workplace that others simply do not enjoy and have never enjoyed.

Put another way, we’ve been given much; now, much is required of us.

Don’t get me wrong. As a kid who grew up with barely two pennies to rub together and a dad as our breadwinner who was in and of jobs his whole life, I was taught at an early age that hard work will open doors for me and help me live a life more secure than my mom and dad ever had. Without question, hard work is imperative. But extolling hard work and embracing DEI principles are not mutually-exclusive concepts.

Indeed, they can’t be if we want to achieve a healthy workplace.

Ok, Jeff, I hear You. But How Does This Apply to Me?

We find ourselves in the final days of Disability Pride Month, and as longtime subscribers of this blog are aware, I nudge employers from time to time to be better when it comes to their ADA obligations. If we are the typical employer, we maintain our standard EEO policy prohibiting discriminatory treatment of individuals with disabilities, among others. Many of us also have reasonable accommodation policies inviting employees to inform us of the need for workplace accommodations.

But for many employers, this is where the ideals and support end.

We can do better in supporting our colleagues with disabilities.

As my Littler colleague and friend, Paul Bateman, reminds us, it starts with basic ideals such as enabling closed captions option in your Zoom account for meetings, asking someone you work with about their preferred communication methods, and engaging in active listening.

A Harvard Business Review article, “4 Ways to Improve Your Company’s Disability-Inclusion Practices,” also is particularly instructive. Authored, in part, by former Accenture General Counsel Chad Jerdee, this HBR article encourages employers to consider adopting the following practices to ensure employees with disabilities enjoy equal opportunities in the workplace:

  1. Identify and change processes that support unconscious bias. The article highlighted how Microsoft found that people with autism weren’t getting hired despite clearly having the required knowledge and intellect. So, the Company changed the standard interview process to an assessment program involving a series of exercises designed to test teamwork and technical skills; it also provided real-time training.
  2. Help all employees understand the challenges that persons with disabilities face and contribute to solutions. Training to help people better understand and empathize with the challenges their colleagues may face and reduce the stigma of being disabled is critical. And then ensure that employees have access to employee resource groups (ERGs), including those focused on empowering persons with disabilities.
  3. Strengthen the hiring pipeline by engaging with community groups.  Employers can build a robust recruitment pipeline in part by engaging with groups that support people with disabilities.
  4. Create a mutually supportive community. Mentoring and coaching initiatives are also vital lifelines. Persons with disabilities who serve in senior positions should strongly consider becoming mentors or champions — both internally and externally.

Another Littler colleague, Julia Diniz Tavares, offers even more tangible “interpersonal actions” here to make yours a more inclusive and accessible work environment.

Disability Pride Month 2024 ends this week. Let’s make it our mission to keep these ideals not only front of mind, but put into practice, long after July 31 is over.

And I pray that the good Lord nudges me to be a better ally every chance I get . . .

The wheels are turning, aren’t they?

This question is another arising out of a webinar I recently conducted with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas (Job Accommodation Network) regarding the Pregnant Workers Fairness Act (PWFA).

A few weeks back, I addressed whether FMLA medical certification could be requested from an employee who seeks leave due to pregnancy limitations.

Now, let’s talk breaks for lactation. And bottles.

In our webinar, the following question was asked:

We have an employee whose baby will not take a bottle. Does the PWFA require accommodations that will enable the mother to leave work to feed her child (e.g., telework close to daycare, schedule modification, breaks, etc.)?

Thousands of you are screaming “PUMP Act! PUMP Act!”

Your chants are not misplaced. But what does the PUMP Act actually tell us?

Last year, the PUMP Act expanded workplace protections for lactating employees by requiring employers to provide all employees who are nursing with reasonable time and private space to express breast milk.  The PUMP Act expands upon a 2010 amendment to the Fair Labor Standards Act (FLSA), which required employers to provide lactating employees who are non-exempt under the FLSA with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  This amended law expands this right to cover all employees covered by the FLSA, both exempt and non-exempt.  

But the PUMP Act doesn’t really neatly cover instances in which the baby will not take a bottle.

Does the PWFA fit here? Anywhere?

Here, too, it’s tough to wedge this issue under the umbrella of the PWFA. After all, the PWFA covers the “known limitations” of an employee, not the employee’s child who won’t take a bottle. Denying the PWFA request in this instance is technically correct.

But let’s be careful about our response to this kind of scenario.

First, there is an optics issue in refusing to work with your employee on the need for a flexible work arrangement to address the bottle-latching issue. Be sure to assess the risk before you say, “No,” and remember, we are in the human relations business. Before you say, “No,” let’s find an alternative.

Second, don’t forget that the final rule provides that a lactation accommodation can include permitting the employee to nurse during work hours where the child “is in close proximity” to the employee—e.g., when the employee is teleworking or when an employee takes a break to travel to a nearby or onsite daycare facility.”

Of course, this addresses breastfeeding, not bottle feeding. But as we see above, it doesn’t take much to turn a lactation request into a PWFA-protected time away from work, particularly where the child is in “close proximity” to your employee. As such, it’s critical for employers to carefully assess these requests. Deny them at your risk!

For decades, employers have applied the usual FMLA rules for an employee who cannot work because of limitations due to pregnancy. When these limitations render a pregnant employee unable to work, the employer has always had the right to obtain medical certification to confirm the limitation and the employee’s need for leave from work.

When the FMLA became law in 1993, there was no such thing as the Pregnant Workers Fairness Act (PWFA), which as of last year requires employers to provide accommodations to individuals limited by pregnancy-related conditions (unless undue hardship exists).

In its final rules implementing the PWFA, the EEOC went to unusual lengths to rein in an employer’s ability to obtain medical documentation when an employee requests a pregnancy accommodation. The agency rejected the ADA’s more expansive approach to supporting documentation, instead allowing medical documentation only if it is reasonable under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation.

Is It Inappropriate to Request FMLA Medical Certification from an Employee Who Seeks Leave Due to Pregnancy Limitations?

In light of the PWFA’s limitations on medical certification, this is an obvious question.

I had the chance to take this question up directly with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas from the Job Accommodation Network in a webinar the three of us conducted in April.

As a reminder, employers should first exhaust all reasonable efforts to keep the employee in their current position or in a temporarily-reassigned position while she still has limitations due to pregnancy. As EEOC makes clear in its final rules, and as reinforced by Ms. Miaskoff, a leave of absence truly is the accommodation of last resort under the PWFA, as the key purpose of this new law is to keep employees on the job.

Step One: Seek FMLA Certification First

Not surprisingly, Ms. Miaskoff agreed that FMLA medical certification would be an acceptable tool to use first if an employee limited by pregnancy is seeking leave from work, or if leave is the only option available.

Easy enough. If an employee needs leave, we first seek FMLA medical certification, which likely will give us more information than we’d otherwise obtain through a streamlined PWFA certification.

Step Two: What Should an Employer Do if the Employee Does Not Return the FMLA Medical Certification?

If the employee returns the FMLA medical certification, all’s well. We make an FMLA and pregnancy accommodation decision based on the FMLA documentation.

But what’s the employer’s response if the employee fails to return the FMLA certification? Ms. Miaskoff’s take on this topic was instructive. She indicated that, at this point, the employer should:

  1. Remind the employee of the right to request a pregnancy accommodation; and
  2. Request that the employee provide basic documentation supporting their need for an accommodation.

Of course, Ms. Miaskoff isn’t offering the EEOC’s “official” position on this issue, but I think she offers some sound advice on this point, doesn’t she? When the employee fails to return medical certification, it seems to make a whole lot of sense to remind the employee that we remain open to discussing an accommodation that would help her perform essential job functions and encourage her to provide documentation supporting the need for an accommodation if she believes one is needed.

What Should This Pregnancy Accommodation Medical Documentation Look Like?

As an initial matter, the EEOC rejected adopting the ADA’s approach to supporting documentation. In other words, employers should not use your ADA medical certification form in a pregnancy accommodation situation.

In the final rule, the EEOC limits “reasonable documentation” to the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) describe the change or adjustment at work needed due to the limitation.. In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask the expected duration of the requested modification.

Confirm. Confirm. Describe. Ideally, on a form no more than one to two pages in length.

Ask your preferred employment attorney for their model form!

Love is in the air! Cupid’s arrow came in the form of something special this year – the ABA’s summary of 2023 FMLA decisions!

Every spring, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision issued in 2023.

Every. Single. One. Of. Them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a key FMLA resource for HR professionals and employment attorneys. I refer to it throughout the year.

All the credit goes to Bridget Penick, Diana Nobile and Sara Faulman, who helped spearhead the annual summary this year with a few other employment attorneys.

Happy reading!

This morning, the day after the Super Bowl, 16.1 million of your employees will call in “sick.”

Over 6 million of these employees will face discipline for their call-in, according to UKG, which provides workforce management and human resource management services.

I didn’t need this survey to remind me that employers face an employee shortage the day after the Super Bowl. Many of my clients bemoan the arrival of football’s annual spectacle, knowing that the excitement of the day leads to the dreaded hangover of Super Bowl Monday.

Heck, one school district in Kentucky has even closed its doors today, recognizing the productivity challenge associated with the day after of watching hours of football, Usher, Taylor Swift sightings, and entertaining commercials.

Still, the stats from UKG’s survey are pretty fascinating:

  • 14% of U.S. employees — about 22.5 million employees — plan to miss at least some work on Monday following the big game. This includes 1 in 5 managers.
  • For those scheduled to work Super Bowl Sunday itself, about 3.2 million U.S. employees plan to call in sick or just not show up to work so they can watch the game.
  • More than a quarter of all U.S. employees (28%) — roughly 45.1 million employees — say they’ll be less productive than usual at work on Monday after the Super Bowl this year.
  • Over a third of U.S. employees (37%) believe the day after the Super Bowl should be a national holiday. These Kentucky kids clearly are onto something.

Employers, Don’t Sit on your Hands!

Stay vigilant, my friends. How can you minimize the chances of getting sacked by FMLA leave misuse after Super Bowl Sunday?

1. Confront the Employee if There is a Pattern of Call-Offs. A couple clients over the years have studied the frequency with which their employees call off work on the day or and the day after the Super Bowl. What they found was a group of employees who call in year after year on the day of or the day after the Super Bowl. Coincidence? We think not, and these employers rightfully discussed the matter with the employees. Where you see these patterns of suspicious misuse, don’t just sit on your hands. Set up a meeting with the employee immediately upon their return to work this week, inquire further about the reason for their absence, and confront them with the pattern. Press them to explain how the pattern (of calling off several Super Bowls in a row) is consistent with how their medical condition flares up and with their need for FMLA leave.

If you remain suspicious after the discussion, follow up with the employee’s physician. Don’t forget that employers have the right to reach out the employee’s physician where patterns of suspected misuse occur. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. 

2. Discuss with the Employee Your Expectations During Leave. This one is quickly becoming my favorite go-to tactic. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. Even tell them that you watch for patterns of misuse, like call-ins around the Super Bowl, so they are aware that you take this stuff serious and aren’t simply going to roll over. Summarize these expectations in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.

3. Certify … and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.  Keep your employees honest — require them to certify their absence and seek recertification at the earliest opportunity.   Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.

4. Use the “Cure” Process to your Advantage When Following Up on Certification.  Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider’s responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form.  In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies.  Here, you might consider asking questions that probe further into the information you find particularly suspect. Also, seek clarification whenever the employee has failed to cure and the certification remains incomplete or insufficient.  Additionally, consider using a physician or a nurse to contact the employee’s health care provider on the employer’s behalf (but remember: you must have the employee’s permission to contact the employee’s health care provider).

5. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy, process and forms are up to date, that you are employing the best strategies to combat FMLA misuse and that your FMLA administration is a well-oiled machine.

Do you, by chance, offer your employees “Paw-ternity” leave?

More seriously, how about NICU leave?

With the ever-increasing reality that the federal government will offer no lifeline to streamline the ever-growing list of states mandating employee paid leave, employers have decided to take the lead, leading to a new wave of creative leave benefits to attract and retain talent.

Employers are on a quest to perfectly meld employee physical and mental health as well as financial wellness to offer benefits that lead to an emotionally, socially, and financially healthy workforce. This makes sense, since a recent report indicated that a whopping 60% of employees said that mental health benefits will factor into selecting their next job.

Mental Health Leave Benefits Are Here to Stay [Not to Mention, They Are Freaking Necessary]

Leave to care for one’s own mental health is increasingly gaining momentum in the American workplace. In its 2024 “Leave of Absence and Workplace Accommodation Forecast,” AbsenceSoft, a leading cloud-based platform built to manage and track FMLA, STD, and LTD leaves as well as ADA accommodations, surveyed HR professionals who cited “managing mental health” as the most common reason cited for leave from work.

Think about that.

Mental health tops pregnancy, illness or injury, and caregiver leave as the most-commonly requested need for leave. Don’t believe me? See AbsenceSoft’s survey results below:

Get your copy of AbsenceSoft’s survey HERE.

Parental Leave is Yesterday’s News; Others Take It Up a Notch with NICU Leave

For the mom-founded and women-led infant formula manufacturer, Bobbie, ordinary parental leave wasn’t enough, though they could have stopped there and been a wild success, at least by American business standards. After all, in addition to 16 weeks of paid parental leave, the Company offers another 36 weeks of unpaid leave if they wish to take it. And then, when you need to transition back, the Company pays for this time, too.

But Bobbie didn’t stop there.

If an employee’s child is admitted to the NICU at or shortly after birth, the employee is entitled to up to 16 additional weeks of paid leave. Did you suffer a miscarriage or stillbirth? Bobbie offers 15 days off in these life-altering instances as well.

What’s even more amazing is that Bobbie offers its entire parental leave benefit policy online for all of us to see. Get your copy here, then go make some changes within your own workplace.

Bereavement Leave is a Must

Thanks to bereavement leave champions like Joyal Mulheron and advocacy organizations such as Evermore, we are finally seeing a breakthrough in paid leave benefits for bereavement. It’s a long time coming for what should seem like a basic employee right in every workplace. Anecdotally speaking, paid bereavement leave and meaningful additional time off work to deal with the loss of a family member or close friend has picked up a tremendous amount of momentum in the past five years.

The key next step? A federal bereavement leave law. Though a host of new states have enacted (unpaid) bereavement leave laws, a change in federal law seemingly is the only way to etch this benefit in stone once and for all.

Is Paw-Ternity or Fur-Ternity Leave Really a Thing?

In a webinar I conducted last fall with my friend Angel Bennett, Assistant Vice President, Leave and ADA Solutions at Unum, we both agreed “fur-ternity” leave made our hearts happy.

But this kind of leave is nothing to growl at. In an era where Generation Z is making its work-personal life balance needs known, leave to bond with our furry friends has increasingly made its way onto the paid leave benefits charts, notable enough for this Generation X, Golden Retriever lover to take note.

theSkimm Provides a Public Database of Paid Leave Family and Leave Benefits

In 2022, theSkimm, a media company, unveiled as part of the Company’s #ShowUsYourLeave initiative a database of the policies of 480+ companies, including American Express, Etsy, General Motors, Goldman Sachs, Pfizer, Zoom and more, all of whom are making their parental and paid leave policies open to the public. The resource is a free excel spreadsheet that allows the public to search and compare these leave benefits across industries.

If you need even more paid leave benefit ideas, access theSkimm database here.

Paid Leave Benefits Actually Makes Employers More Money

If your employees’ emotional, social, and financial well-being is not enough, providing paid leave benefits is worth it simply because it actually makes employers more money.

As Lori Welty, SVP, Product Compliance for FINEOS, notes in her 2024 benefits forecast, “companies that implemented paid leave yielded 4.6% greater revenue and 6.8% greater profit for each full-time employee.” The reality is this: not providing these critical paid leave benefits, as Lori notes, causes a huge leakage in profits.

If this ain’t enough to motivate you, perhaps you need to take a sabbatical, yet another benefit trend.

Hat tip to Orli Cotel, a highly-experienced and thoughtful paid leave champion, who offered her thoughts with me on paid leave benefits trends.

After years of hosting FMLA parties, I invite you now to an ADA party!

Seriously.

A party where we spend nine hours together over three straight days discussing nothing but the A-D-A.

Are you excited yet!?! Let me explain more.

For years, many of you have attended my FMLA webinars and master class. In your feedback, your most common refrain (aside from “Ditch the singing!”): “When are you hosting an ADA master class?”

You asked for it, and we have delivered!

ADA Master Class

In this interactive, three-day (nine-hour) training course, I will help you master the critical components of the Americans with Disabilities Act and become more comfortable with managing an employee with a medical condition. Dare we say, the course might even get you a wee bit excited about implementing ADA accommodations in the workplace.

You read that correctly: Get ready to be ADA-energized!

In this ADA Master Class, I will use case studies and a bit of humor to help you master the ADA from beginning to end! Ditching the legalese, I also will highlight a TON of case law developments that impact how you implement reasonable accommodations, enforce attendance policies and issue discipline, make medical inquiries of your employees, ask interview questions without stepping in it, and ensure your employee’s fitness for duty.

Access the detailed agenda HERE.

In this three-day, nine-hour course, you and your colleagues will learn how to:

  • Analyze the point at which an employee’s medical condition rises to the level of a disability
  • Recognize when to start the interactive process and what this process requires
  • Determine whether an accommodation is reasonable, and what type of accommodation is needed
  • Make appropriate medical inquiries where you’re concerned about an employee’s fitness for duty or safety in the workplace
  • Implement Jeff’s (un) patented three-step process for managing leave as a reasonable accommodation
  • Effectively manage remote work as an accommodation
  • Navigate light duty programs for your employees
  • Properly implement accommodations for neurodiverse employees
  • Better understand the intersection of ADA, FMLA and worker’s compensation issues
  • Implement pregnancy accommodations
  • Safely manage the hiring process to comply with the ADA

Nine absolutely blissful hours of the A-D-A. 

Are you dancing yet?

I’ll use case studies to keep you thinking. I’ll highlight several new cases from 2023 that will help you administer accommodations. And I’ll send you off with an ADA workbook and detailed PowerPoint slides so you have resources to access long after our class ends.

This ADA Master Class will benefit you no matter your experience level. Are you just breaking into human resources and need a critical foundation on the ADA?  This class is for you. Are you a more seasoned HR or accommodations professional who needs some practical ideas to manage the interactive process and reviewing accommodation requests or apply the ADA to tricky scenarios?  This class is for you. Are you an attorney who seeks a better understanding of the ADA’s pain points so you can appropriately counsel your clients? This class is for you, too.

Here Are the Details

When: March 5 and 6, 2024 (12:00 to 3:30p.m. central time) and March 7, 2024 (12:00 to 2:00p.m. central time); this course will be presented virtually, so you can attend from the comfort of any place you wish!

Cost: $495 (Access the registration link HERE) For a limited time, use the code BLOG50 to take $50 off this price. Reach out to me at the email below for large group rates.

What will I cover?  Access the detailed three-day agenda HERE.

Credits: SHRM/HRCI and continuing legal education (CLE) will be offered (nine hours of it!)

Materials: Attendees will receive a copy of my ADA Guidebook and a copy of the PowerPoint.

Got any questions? Email me at jnowak@littler.com. See you there!

Join me for my annual webinar in which I cover the key issues of the day. Unless you prefer to pay me, this webinar comes to you free of charge.

When: Wednesday, December 13, 2023 (12:00 – 1:15 p.m. central time)

Online registration: Click here

This year, we’re talkin’ pregnancy accommodations.

Managing employee accommodation requests is among the most difficult jobs for any HR professional and in-house counsel. The job is even more challenging now, as the recently enacted Pregnant Workers Fairness Act (PWFA) requires employers to provide reasonable accommodations due to an employee’s limitations associated with pregnancy, childbirth, or related medical conditions.

In this complimentary 75-minute webinar, my good friend, Matt Morris, Vice President at FMLASource, and I will tackle the most common and difficult pregnancy accommodation scenarios that employers face and provide practical suggestions on how employers can address these situations.

Through the use of case studies, Matt and I will answer the following:

  • Isn’t the PWFA just another version of the ADA? How are they different?
  • How broad is the PWFA? Does it cover in vitro fertilization and related conditions and treatments outside of pregnancy?
  • How do I communicate with an employee when they request a pregnancy accommodation?
  • When can we place an employee on a leave of absence instead of providing an on-the-job accommodation?
  • When can an employer seek medical documentation to support the need for an accommodation?
  • For how long is a pregnancy accommodation reasonable and required?
  • Does the PWFA require employers to maintain a light duty policy exclusively for pregnant employees?

And of course, there will be plenty of cheesy humor. And we’re writing our annual holiday song right now!

When you register (click here), please pose your most pressing pregnancy accommodation question, and we’ll do our best to cover it during the webinar.

Quick note:  This program has been submitted to the HR Certification Institute and SHRM for review and credit. Continuing Legal Education credit also will be available to attorneys attending the program.

We look forward to hosting you!

Halloween 2023 was a tough day in our house.

Every year, the holiday approaches with a great deal of parental anxiety not because we fret over what costume our 9-year-old daughter will select for the day.

Sheesh, that’s the easy part.

The hard part?

Waiting [hopelessly] for an invite from even one kid in her class to go trick-or-treating.

Every year, we follow the same routine. In early October, we start with hope that this year will be different. Hope begins to fade in the latter part of the month, where it becomes clear that an invite just isn’t coming.

Our daughter is extremely shy and, at times, struggles with friendships. She typically focuses her attention on friendships with one or two kids at a time, which tends to narrow the pool of candidates for friendship.

Employing the same tactic we’ve followed each of the previous years, we reached out this past weekend to the parents of a couple of kids she calls “friends” — one boy and three girls. The boy’s mom responded that he had other plans with another boy in class, which is understandable. After all, the genders begin to split in third or fourth grade, only to return when they’re college age.

The parents of the three other girls? We were met with either the usual lame excuses or silence. Frankly, I am not sure which was worse.

I know some of you can relate. There is perhaps no worse a feeling as a parent than to watch your child be rejected by their peers. And when other parents enable their kids to perpetuate the rejection, it’s a pill even more bitter to swallow.

All is not lost, however. When the boy above learned she had no trick-or-treating pals, he invited her to hang out after trick-or-treating for a candy trade.

Though the sting of rejection from the other girls still hurt, kindness won.

What Does This Story Have to Do with Employment Law?

To be clear, I ain’t looking for some pity party. Oh no! I know I join many of you whose daughter is on the outside of the popular girls looking in. In time, we pray our daughter will overcome these social obstacles but, in the meantime, she’s learned another tough lesson on how important it is to enlarge the welcome tent.

But some won’t overcome these obstacles.

A few of them are our employees.

So, a few observations on this feast of all saints:

  • In all that we do, be kind. Always. Be. Kind.
  • In our professions — HR professionals, leave administrators, employment attorneys –it’s easy to become cynical of employees, right? The migraine headache? Fake. The delay in returning certification? Fake. Let us remember: the overwhelming majority of our employees are good people in need of a workplace lifeline from time to time, like my daughter could have used from the girls above. For sure, we have no idea what many of our co-workers are dealing with in their own lives. They come to work with plenty of personal baggage, and each one copes differently with it. Next time they ask for time away from work or an accommodation, let’s lead with respect and support, not ridicule or silence.
  • Finally, let’s not forget: Like parents to our children, we managers of people set the example. When we live by the Golden Rule in the workplace, our subordinates and co-workers see firsthand the respective culture we are trying to build. Use this real-life example as gentle reminder to reconnect with each other.

In a world in desperate need of kindness today, let it begin with me.