Yeah, I get it. He’s taller than me. Significantly taller.

Ever since my son, Luke, was a wee lad, we dreamed of going on a major league baseball road trip together.

Baseball runs through our veins, so after years of dreaming, 2022 was our year.  Since the beginning of this year, we’ve been plotting, planning and scheduling the trip of a lifetime.

Just a few weeks ago, Luke and I made our way from Chicago to the east coast to catch major league baseball games at six different stadiums – Pittsburgh, Baltimore, Philadelphia, Boston, New York (Mets and Yankees).  Then, we finished with a visit at the Baseball Hall of Fame in Cooperstown, NY.  In between, we walked the Freedom Trail, visited the 9-11 Memorial and Museum, and took a swing past the Statue of Liberty.

As you might imagine, this nine-day jaunt was indeed a trip of a lifetime, some of the best quality time ever with my boy. We had conversations we’ve never had before, he introduced me to music by this dude named Harry Styles and a band called AJR, and then he tolerated my 80s greatest hits. Many laughs, and memories of a lifetime.

Luke chronicled our trip on his You Tube page with daily posts about each park, so please click through and check it out here.

How would we rank the stadiums on our list? We’re not in complete agreement, but I’d put the order generally like this (click through to hear Luke’s take on each park):

1a. PNC Park (a beauty of a park, can’t beat that gorgeous skyline towering above the Clemente Bridge)

1b. Fenway Park

3.  Camden Yards*

4.  Citi Field (where we saw Max Scherzer fan Aaron Judge three times!)

5.  Citizens Bank Park

6. Yankee Stadium (where we saw an Aaron Judge walk-off HR in the bottom of the 9th!)

*  Luke would put Citi ahead of Camden, but I am not going to quibble, as Citi was far better than I had anticipated.

This is Sweet and All, Jeff, But What Does this Baseball Road Trip Have to do with the FMLA?

Glad you asked.

As you well know, all roads in life lead back to baseball . . . and the FMLA.  So naturally, I had time to reflect during our travels about what an MLB baseball road trip might teach us about the FMLA.

One of the small delights of the trip is that I truly was able to break away from work during the trip.  Colleagues and clients were fabulous: those who received my out-of-office message made clear they didn’t want to hear from me until my return, and my colleagues graciously hit the pause button on the FMLA and ADA questions while I was away.  So very grateful for the time away.

It got me thinking: Does an employee have the right to be left alone during FMLA?

I am reminded of Joan Smith.

You remember Joan, right?

Joan was a manager in the Ethics Department at an energy company, and she requested FMLA leave for surgery to remove a cyst from her neck. As Joan reported, her supervisor then became really nasty, and during Joan’s FMLA leave, required her to perform much of her regular work.

During the two-month leave, Joan claimed that the Company required her to perform 20 to 40 hours of work “updating compliance cases, revising a safety review project and dropping off files at the office.” Based on my rough math, that’s anywhere from 3 to 5 hours worked each week during her FMLA leave.

She quit her job and later sued, claiming that the 20-40 hours she was required to work interfered with her FMLA leave, which she claimed entitled her to a slew of damages.

The court thought this was a ton of work, too, and the judge answered it this way, as most courts have done:

…reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.

Put another way, there is no right under the FMLA “to be left alone” or be allowed to skirt the employer’s “discrete inquiries.” But if looks like work, it’s gunna be work, and an employee shouldn’t be doing substantive work while on FMLA leave.

The Collection of Recent Cases

As you might imagine, there is a growing body of FMLA cases dealing with situations where the employee allegedly performed work while on FMLA leave.  Here are a few to keep in mind:

  • Reilly v. Revlon and Kesler v. Barris et al: fielding occasional calls about one’s job is a “professional courtesy” that does not interfere with FMLA rights (FMLA claims dismissed)
  • Persson v. Bos. Univ.: no FMLA interference where the plaintiff’s coworker reached out to her to locate a work-related e-mail during her FMLA leave, and all calls stopped after the employee asked that she not receive any more calls [yikes, sounds like a really fun employee…] (FMLA claims dismissed)
  • Spivey v. Elixir Door & Metals Co.: This one is a first. Plaintiff’s supervisor visited him in the hospital, at which time he claimed he was getting pressure from company management to meet deadlines and stated that Plaintiff’s return to work early would be considered when discussing bonuses. Spivey returned to the office to assist with end of the month deadlines and then resumed taking FMLA leave shortly thereafter. The court found that the several requests to work and the threat regarding a bonus could be viewed as coercion not to take leave. (FMLA claims go to trial)
  • Arban v. West Publishing Corp.: checking in with plaintiff on sales leads he was expected to generate during leave also evidence of interference (plaintiff prevailed at trial)
  • King v. McIntosh: Plaintiff was an attorney, and her boss required her to draft exit memos for all her pending cases while she was on leave to care for her sick father, and then complained about her leave of absence. (FMLA claims go to trial)

So, back to Joan. In light of the work Joan apparently was required to perform while on leave, the court determined that Joan had presented enough evidence of FMLA interference that a jury would need to decide whether her employer violated the FMLA.

Insights for Employers

One of the highlights of the trip was spending time at the Yankees game with my friend and one of my favorite employment law bloggers, Dan Schwartz, despite his extremely poor taste in hats.

As we see above, there is no bright line rule about contact between employee and employer during FMLA leave, but you can start to see where the courts tend to line up on this issue.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as also evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to pass along institutional knowledge. Similarly, the employer can contact the employee to check on return dates or possible extension of leave.

And of course, it’s also acceptable to contact the employee to negotiate terms or conditions of employment to help the employee transition back to work. As long as the contact is necessary or related to preserving the employee’s position or coordinating a return, the contact arguably is justifiable.

But you can see where to draw the line here, right?   As you make out the patterns from the cases above:

  • Answering occasional and discreet emails or calls to pass along institutional knowledge = GOOD
  • Writing memos, generating sales leads, being guilted into putting in a little work = BAD

I leave you with two rules to live by:

  • Rule #1: When employees are on FMLA leave, leave ’em the heck alone!  Just like you did on my baseball road trip.
  • Rule #2: When you have the chance to spend quality time with your kid, you do it every time.  Every. Single. Time.

In the aftermath of the Supreme Court’s Dobbs decision, the FMLA questions are coming fast and furious: Can an employee take FMLA leave to obtain and recover from an abortion? What if the abortion is elective? And now that abortion will be illegal in at least some states, is travel to another state to obtain an abortion covered by FMLA?

Oddly enough, the Department of Labor has never provided meaningful guidance on these specific questions. Nevertheless, it seems apparent that the FMLA covers abortion and travel to obtain an abortion.

Let me explain.

Is abortion covered by the FMLA?

There are several reasons why obtaining and recovering from an abortion would be covered by the FMLA:

  1. You seemingly need not go further than Section 120(a)(4) of the FMLA regulations, which very clearly tells us that the FMLA applies in situations where the expectant mother has an “incapacity due to pregnancy.”  When these two elements are present: a) an incapacity, and b) the incapacity is due to pregnancy, we have FMLA leave.  Section 120 even states further: “The expectant mother is entitled to leave for incapacity due to pregnancy . . . even if the absence does not last for more than three consecutive calendar days.”
  2. It seems to me that the passage above makes clear that FMLA protects time off to obtain and recover from an abortion, but one could also rely on the traditional definitions of serious health condition in finding FMLA applies to an abortion.  For instance, if the individual has an overnight stay in the hospital due to the abortion, it’s covered by FMLA. If the individual undergoes “continuing treatment” because of the abortion, it’s covered by FMLA.  When administering these leave requests, it’s critical that you obtain medical certification from the employee’s healthcare provider and maintain the confidentiality of the employee’s medical information.
  3. The legislative history indicates that miscarriage is considered a “serious health condition” under the FMLA, so it tends to lend support for the notion that other abortive procedures would be covered. H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993).   The House and Senate Committee Reports listed the (non-exhaustive) types of illnesses and conditions that would likely qualify as serious health conditions:

Examples . . . include but are not limited to . . . ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth. S. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993).

With this regulatory language and legislative history in mind, it leads to the conclusion that an absence from work to obtain and recover from an abortion is covered by the FMLA.

Reminder: I have not touched upon state law here, but it’s quite possible, in fact likely, that various state leave laws would afford an employee protection in these instances, so be sure to check whether state law also would apply here.

Does it make a difference if the abortion is elective or medically necessary/recommended (such as in the case where the mother’s life is in danger)?

I had a chance to discuss this at some length with one of my fellow FMLA die hards and my good friend, Matt Morris, Vice President at ComPsych, and we agree: If the health care provider certifies a serious medical condition, we arguably must approve the leave. It does not matter whether the procedure is elective or not.

Is Travel to Obtain an Abortion Covered by the FMLA?

Very few courts have given us guidance as to whether travel time itself qualifies as part of the FMLA leave allotment.  My quick take: If it’s clear that the treatment involved will occur on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

One case I find persuasive on this issue is Michaels v. City of McPherson, a federal trial court case from a few years ago. In Michaels, the employee’s step-daughter was required to travel out-of-town for medical treatment. The employee requested leave for two days, planning to help his wife drive, and then attend the exam with his daughter. The employer denied the request, requiring that the employee work instead of traveling with his daughter.

In defending against the FMLA suit, the employer argued that leave from work was merely a convenience, and not a medical necessity. The employee, however, argued that leave was medically necessary in order to travel to the out-of-town medical appointment. The court declined to dismiss the case, finding that travel to another state for treatment very well could be covered by FMLA.

Here, travel was so intertwined with the treatment itself (which independently was covered by FMLA) that it also likely was protected by the FMLA. Seems to be a persuasive case in the “travel for abortion” context, too.

__________________________

A final word: I’d be remiss if I didn’t acknowledge that this blog post was difficult to draft. You see, I am pro-life and deeply Catholic, and I also am a firm believer in what the late Cardinal Joseph Bernardin championed as the “Seamless Garment,” a principle that calls us to a consistent ethic of life — the notion that being “pro-life” involves not only fighting against abortion, but also against the death penalty, war, social injustice, anti-immigrant sentiment, racism and sexism, and a host of other social issues that can also result in the suffering and mistreatment, and even death, of human beings, whether directly or indirectly.

I also am a firm believer in stare decisis, the doctrine that courts will adhere to precedent in making their decisions. I am gravely concerned that the Dobbs decision turns stare decisis on its head, thereby undermining the critical importance of predictable outcomes in the law. Without stare decisis, the law swings like a pendulum depending on the politician in power.

So, as you might tell, I am a conflicted mess.  Nevertheless, the conflict doesn’t blind me to the law here — FMLA arguably covers the situations identified above. I just wish the DOL might use this as an opportunity to provide clarity so we won’t have to continue guessing.

Can an employer violate the FMLA even though it never denies an employee’s request for FMLA leave?

Ask Salvatore Ziccarelli, who we’ll call Sal for short. Sal worked for the Sheriff as a corrections officer in my backyard, Cook County, Illinois.

Over the course of 27 years working for the Sheriff, Sal developed a number of health conditions, including work-related post-traumatic stress disorder. Sal took quite a bit of FMLA leave over time, and as of September 2016, he already had used more than two-thirds of the 12 weeks he was allotted for FMLA. So, when he lined up to take FMLA leave yet again, the benefits manager overseeing FMLA benefits allegedly told Sal this time around:

You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.

Ouch.

As the story goes, Sal retired days later, and he did what former employees are oft inclined to do — he sued his former employer.

His claim?  Even though he was never denied FMLA leave, he alleged that the County interfered with his FMLA rights, which is a violation of the law.

The Ruling

The County made the best argument an employer could under the circumstances: it didn’t interfere with Sal’s FMLA rights because his FMLA request was not actually denied. He simply elected to retire.

Not so fast, Sheriff John Brown, said the court.

The court noted that the FMLA specifically states in the statute itself that it is illegal for an employer “to interfere with, restrain, or deny” the exercise of FMLA rights.  So, it found that it is unlawful either to “interfere with” or to “restrain,” or to “deny.” Notably, if a plaintiff had to show a denial of FMLA leave in every case, there would be no point to the words “interfere with” or “restrain.”  The court’s own words sum up the issue well:

Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.

In other words, the employee need not establish that the FMLA leave request actually was denied.  Words or actions meant to restrain an employee from taking FMLA leave now or in the future is enough to support an FMLA claim.  Ultimately, a jury would need to weigh whether the manager’s words so interfered with his remaining FMLA leave time available by threatening to discipline him for using his remaining FMLA leave.  You can read the decision here: Ziccarelli v. Cook County (pdf)

Insights for Employers

To be fair, we’re only hearing Sal’s side of the story on this one. Cook County has denied that the benefits manager ever made the statement attributed to her.  But in the meantime, let’s identify the lesson here:

Employers, Your Managers Are Killing You. And there is one, simply reason why this is happening: You are not training your managers on their responsibilities under the FMLA. Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave, including any whiff of comments that an employee would be disciplined for using FMLA leave in the future. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

Secondly, what should an employer do in this situation, other than making clear to managers that they must never ever never utter the kind of comments alleged here? My friend, Robin Shea, offers a good suggestion – send the employee a short letter outlining your discussion and inviting follow-up if the employee wants to use FMLA leave in the future.  This kind of communication shows that you take seriously your obligation to administer leave and it undermines any argument by Sal that you were coercing him not to use FMLA leave in future.

Training and authentic communication with your employees — two basic tools to drastically improve your FMLA compliance.

The client calls are a regular part of my everyday, increasingly so during the COVID-19 pandemic.

Stress. Anxiety. Depression.

The causes are as numerous as the stars in the sky.

Simply put, a growing number of our employees are dealing with serious mental health issues that render them unable to come to work. It’s our new reality, and as employers, we need to know how to manage and support our employee during these difficult times.

Yesterday, the U.S. Department of Labor issued guidance reminding us that the FMLA covers situations when an employee’s mental health condition inhibits them from working.

The DOL provides several examples of FMLA-triggering situations in its new Fact Sheet # 28O and FAQ:

  • Flare ups of a mental health condition. For instance, Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift.
  • Appointments with a physician to manage an anxiety condition.
  • Attending a family counseling session for a spouse who is in an inpatient treatment program for substance abuse
  • Caring for an adult child who was recently released from several days of inpatient treatment for a mental health condition.  For example, Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities as a result of the condition.
  • Caring for a servicemember.  Gordon’s spouse began to have symptoms of PTSD three years after she was honorably discharged from military service overseas. Gordon uses FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a Veteran’s Administration hospital and to assist her with day-to-day needs while she is incapacitated.

Insights for Employers

This isn’t brain science. And DOL’s guidance certainly isn’t earth-shattering. But as we recognize May as Mental Health Awareness Month, it reminds us where our priorities should be.

When our employees are suffering through difficult personal times, this is when they need to count on us the most. I’ve shared this before, but there are a few important principles to keep in mind when managing an employee with a mental health condition.

  1. The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for leave due to a mental health condition. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return.  To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence.
  2. FMLA Notice Doesn’t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. To be clear, an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
  3. Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior, it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee and that you are there to help. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. As a David Fram disciple, I advise my clients that they are best served by first asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.
  4. Be Patient with Medical Certification and Overall Responsiveness.  The FMLA teaches us that an employee is obligated to return medical certification within 15 days of receiving it from you. But what if their mental health gets in the way of a timely certification. If you have reason to believe the delay is due to their condition, again let empathy be your guide. Not saying that anything goes, but a few extra days to return the certification might be one of the simple things you can do to show you care.
  5. Train managers to help you achieve the kind of workplace you’re trying to cultivate. Front-line managers often fail to recognize when an employee may need a leave of absence protected by the FMLA, especially where mental health issues are present. Even worse, some make derogatory comments about an employee’s use of FMLA leave.  Indeed, 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.

Every once in awhile we need that simple reminder:

Be sincere.

Be empathetic.

FMLA and ADA compliance will follow.

Luke and White Sox closer, Liam Hendriks

I love baseball.

I love the sport so much that, in our family, we are taught that America’s favorite pastime was formed in the story of Creation somewhere between the placement of the stars and Adam’s rib.

As a lifelong Chicagoan, I long for spring as a survival tactic after a long winter.

With spring comes spring training, the time of year when my beloved Chicago White Sox begin their annual tune up. Last week, I enjoyed a little slice of baseball heaven, as our family traveled to Arizona, in part, to catch a few days of spring training.

The crack of the bat, the pop of the catcher’s glove, the youthful cackle of professional baseball players competing in the game of their childhood. Ah, the priceless sounds of spring.

One morning during our trip, my son, Luke, and I camped out for several hours behind a Chicago White Sox practice field with about 25 other die-hards to catch a glimpse of our players a few feet away. Moments into our morning, however, it became clear that three to four strangers in the group had no interest in our hometown heroes. These gents came with boxes of baseball cards in tow, looking for a quick autograph on a player’s baseball card so they could shop the card for as much as the the market would bear. It didn’t take long to figure out these peddlers quickly were deemed persona non grata on the practice field. Players avoided them, some scowled at them.

For a moment, the innocence of baseball was lost. After all, we were simply a dad and his son searching for an unblemished, up-close glimpse of the successors of Ruth and Gehrig, honing their craft before a long baseball season. For a brief time, a few rotten apples ruined the moment for the rest of us.

Don’t Be “That Guy”

Like baseball, a few rotten apples ruin the FMLA for the rest of us.

When it comes to the FMLA, don’t be the person who:

  1. Fails to identify an employee’s need for leave. At a minimum, maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave — all within a certain period of time. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf.  At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.  If the employee does not follow these call-in requirements and does not identify an “unusual circumstance” as to why he could not follow your call-in procedure, the leave is not covered by the FMLA and is unexcused. Also, include 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.
  2. Reacts inappropriately to an employee’s request for FMLA leave. If I had a nickel for every manager’s (poor) reaction to an employee’s request for medical leave, I would be one rich FMLA puppy.  Remember when I told you the story about the manager who terminated an employee while she was in the hospital, even though her son maintained constant contact with the boss?  Yeah, don’t be that boss.  Remember, too, the manager who actually put into an email a justification for terminating an employee: because she submitted a request for medical leave. Yeah, don’t be that boss either.
  3. Badgers employees during their FMLA leave.  Can you make sporadic calls to an employee on FMLA leave to transition work or ask to pass along institutional knowledge? Sure, these won’t lead to any FMLA violation. But as a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  So, leave them alone!
  4. Blabs about an employee’s medical condition to others. Remember a few years back, I told you the story of a manager who learned of an employee’s medical condition and then proceeded to: a) blab about the medical condition at a meeting involving other employees; and b) joked about the condition and made obscene gestures about the employee among other employees?  Don’t be that boss.
  5. Don’t Automatically Terminate employment after FMLA leave ends! When an employee exhausts 12 weeks of FMLA leave, it does not mean that the employee transitions into unprotected leave. At that point, we must consider our ADA obligations in determining whether additional leave is required as a reasonable accommodation to help the employee return to work.  Instead of wondering, “Is this the chance to terminate the employee?” our thoughts should focus on, “What can we reasonably do to help this employee return to work?”
  6. When you terminate your employee (for unexcused absences), think long and hard before you contest their unemployment compensation.  As a general rule, the employee you just canned doesn’t sue you because they believe you broke the law; they believe you treated them unfairly. And when you contest their unemployment comp benefits claim because you’ve got some spite leftover from their employment, you only further cement their belief that they were treated unfairly as they headed out the door. Don’t get me wrong, I am not saying their termination was unjustified. [Remember, I am on your side.] But it simply give them another reason to sue you, instead of facilitating an exit where you never hear from them again.  Don’t believe me? Then believe my friends, Jon Hyman and Suzanne Lucas, who know much more than I do!

In the meantime, go White Sox!

If you’re not attending my two-day FMLA master class/party next week (there still is time!), you might find this additional resource helpful for your FMLA efforts.

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. Although this little FMLA blog catches a few of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes all FMLA decisions from this past year.

Every. Single. One. Of. Them.

This year’s report is as comprehensive as always — it summarizes 2021 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

This year’s report, which was just released and is FREE, can be accessed here (pdf). I encourage you to print it off and keep it by your side as a valuable FMLA resource.

They’re baaaaaack!

Earlier this month, the Department of Labor announced that it would ramp up FMLA audits (as well as wage and hour audits generally) on employers, particularly those in the warehouse and logistics industries.

Noting the increased demand and the constraints on the global supply chain “have combined to place enormous strain on the nation’s warehouse and logistics industries,” the DOL seemingly thinks its best move is to further burden these industries with intrusive FMLA and wage and hour audits.

Well, a big wet kiss for you, Secretary Walsh.

Does this all sound familiar?

Back in 2014, you may recall that the DOL warned that it would increase the frequency of its FMLA investigations and look for opportunities to come on-site to review employer policies and practices in FMLA administration.

The DOL made good on that promise, as the back half of the Obama administration’s second term saw a marked increase in FMLA investigations and far more aggressive tactics all in the name of ensuring employer compliance with the FMLA. Anecdotally speaking, although FMLA audits cooled slightly during the Trump years, the Biden DOL in last week’s press release has promised to take “heightened action” to make FMLA and wage and hour compliance top priority again. Although the DOL appears focused on employers in the warehouse and logistics industries, none of us should breath easy.

The DOL is back at the FMLA audit game, so all of us are wise to prepare for the inevitable.

Insights for Employers

This is your not so gentle reminder that employers will continue to face scrutiny by the DOL on their FMLA procedures, and that they increasingly face liability where their FMLA practices do not adhere to the FMLA regulations.

As you prepare your HR and legal budgets for 2022 and beyond, grab your favorite employment attorney, and make an FMLA self-audit a priority for your workplace in the New Year.  Your self-audit should focus on the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure they are up to date. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?  Remember my article about all the things wrong with your FMLA policy and how to fix them? Take another look and update that policy now!
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff. Take a peek here at my analysis of the new FMLA forms issued by the DOL.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the regulations in calculating FMLA leave?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.  The DOL tends to make fairly broad information requests, so excellent recordkeeping is imperative.
  7. Train your employees! Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because these managers are creating a liability for you.  Indeed, 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 can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Don’t become the latest DOL press release when it comes to FMLA.  Heed the DOL’s warning that this is a pivotal year and get your house in order now.

As I celebrate my third anniversary at Littler, I’d like to invite you to an FMLA party.

Seriously.

A party where we spend seven hours together over two straight days discussing nothing but the F-M-L-A.

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

FMLA Master Class

For years, many of you have encouraged me to conduct a comprehensive FMLA course that covers all the bases to help you understand the ins and outs of FMLA leave.  Thanks to Littler for providing the platform, I’m finally coming through for you.

In an interactive, two-day (seven-hour) virtual training course, I will help you master the critical components of the Family and Medical Leave Act, and dare we say, the content might even get you a wee bit excited about administering our favorite federal law!

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

In this FMLA Master Class, you and your colleagues will learn how to:

  • Determine an employee’s FMLA eligibility
  • Identify a request for FMLA leave
  • Understand the reasons for FMLA leave and what qualifies as a serious health condition
  • Determine when an employee has put you on notice of the need for FMLA leave, and how to send out the appropriate FMLA notices
  • Implement effective and compliant call-in procedures for your employees
  • Properly review medical certification and recertification
  • Effectively manage intermittent FMLA leave
  • Root out FMLA misuse in your workplace
  • Properly maintain employee benefits during leave and return employees to work
  • Administer FMLA leave where COVID-19 related issues are involved

Seven absolutely blissful hours of the F-M-L-A. Are you dancing yet?

I’ll use case studies to keep you thinking. I’ll include skits to provide real life examples of what you will encounter when managing FMLA. And I’ll send you off with detailed PowerPoint slides so you have a resource to refer to long after our class ends.

This FMLA Master Class will benefit you no matter your experience level. Are you just breaking into human resources and need a critical foundation on the FMLA?  This class is for you. Are you a more seasoned HR or leave of absence professional who needs some practical ideas to manage intermittent leave, fight FMLA misuse, or apply the FMLA to tricky COVID-related scenarios?  This class is for you. Are you an attorney who seeks a better understanding of the FMLA’s pain points so you can appropriately counsel your clients? This class is for you, too.

Here Are the Details

When: March 8 and 9, 2022 (12:00 to 3:30p.m. central time)

Cost: $295 (Access the registration link here)

What will I cover?  Access our detailed two-day agenda here.

Materials: Attendees will receive a copy of Jeff’s FMLA Guidebook and a copy of the PowerPoint

For those who read all the way to the end of this blog post, congratulations!  Email me at jnowak@littler.com to receive a $30 discount code for a limited time.

See you there!

Hey, thanks for hitting on that clickbait!

Now that you’re here, let me tell you the story of Antonio Brown, soon-to-be former football player for  the Tampa Bay Buccaneers. This past Sunday, Brown engaged in a verbal spat on the sidelines with the Buc’s head coach, Bruce Arians, over whether he should play in the game.

Brown twice refused to go into the game. When he refused the second time, the coach reportedly told him to “get out.”

In a bizarre next couple of minutes, Brown proceeded to rip off his shoulder pads and jersey, tossing them on the bench as he made a beeline for the locker room. On his way, he removed his undershirt and gloves, throwing them into the crowd, then streaked half naked through the end zone and into the locker room.

Click here for Brown’s complete rant.

After the game, Coach Arians informed the media that Brown “was no longer a Buc.”

Wow.

Can The Bucs Lawfully Terminate Brown?

In a world where these kinds of strange outbursts are increasingly common, did the Bucs have the right to terminate Brown’s employment with the club? Or could we look at this a different way — was Brown’s erratic behavior a cry for help?

Was this, in fact, a “cry” for FMLA leave?

For the overwhelming majority of you who are yelling at me, “Oh, gawd, no, Jeff,” I hear you. If you follow football in the NFL, you know that Brown has engaged in erratic and mind-boggling behavior for several years, so this latest outburst arguably doesn’t implicate the FMLA. Of course, the Bucs have a very good argument that Brown was insubordinate and then walked off the job, two fatal errors for any employee.

Case closed.

But wait one minute. At times like these, I am reminded of another case we’ve covered before on this little FMLA blog — the case of Noemi, who worked for a school district in suburban Chicago. During six years of work, Noemi received excellent performance evaluations (kind of like Brown did when he formerly played for the Pittsburgh Steelers?). Shortly thereafter, Noemi’s mental state began to deteriorate—she experienced insomnia, uncontrollable crying, an inability to concentrate and exhaustion. On several occasions, she arrived late to work and left early because she could not control her crying. Noemi then abruptly resigned, walking off her own football field, but later asked to rescind her resignation, a request her supervisor declined.

As the story goes, Noemi filed an FMLA lawsuit, arguing that her behavior put her employer on “indirect” notice of the seriousness of her health condition based on observable changes in her behavior and conduct. The court agreed, and Noemi later prevailed on her FMLA claim at trial.

Might Noemi’s story give the Tampa Bay Bucs pause?

Maybe not, but what if I added one more fact: prior to the game, Brown apparently obtained medical documentation from an independent surgeon confirming that he was dealing with a great deal of pain in his ankle. This medical finding conflicted with the Bucs’ physicians, who earlier cleared Brown to play.

Insights for Employers

There’s plenty to unpack here. Let’s put the conflicting medical notes aside for the moment, as I will cover this at the end of my post, and let’s deal first with Brown’s behavior.

I am far more comfortable with a termination decision where we can show that we have addressed the employee’s increasingly erratic behavior before and offered assistance before hitting the the termination button. Why? Where there are clear abnormalities in an employee’s behavior, it is critical that the employer explore whether it can provide further assistance to the employee – including assessing the need for medical leave and/or an accommodation — before termination.

If the employee refuses this assistance after notice and fair warning (kinda like Brown did), then and only then do we look for the termination button.

So, a couple of things to keep in mind:

  1. FMLA Notice Doesn’t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. Noemi’s case above is a reminder that an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
  2. Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior, it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. As a David Fram disciple, I advise my clients that they are best served by first asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.

Based on widespread reports, the Bucs did just this — despite Brown’s worrisome behavior in past, the Bucs offered him help, so his latest outburst can’t really be used as a shield to ward off termination.

But what about those conflicting doctor’s notes? It’s been reported that the spat between Brown and Arians was due to Brown’s insistence that he was in too much pain to play, and that he had his own doctor’s note to back him up. When faced with conflicting medical opinions, an employer generally has one of two options: 1) be darn sure that the medical information it’s relying on is objectively reliable, and the other medical opinion is not; or 2) obtain an additional medical option to act as a “tie-breaker.” The latter is time consuming and will cost money, of course, but it’s effectively a get out of jail free card in the event you need to defend the decision with the EEOC or in court.

Meanwhile, Brown took advantage of all the free publicity by releasing a rap song right after his altercation. Seriously, you can’t make this stuff up. If you’re interested, you can listen to the song here.

Thanks to those who attended my webinar last week with Matt Morris on “Managing Remote Work Requests During (and After) the Pandemic.” You still can access the recording here (a short registration is required), and the presentation PowerPoint slides can be downloaded here (pdf).

To the nearly 6,000 people who registered for the webinar, thank you. Among other things, you were rewarded with photos of Golden Retriever puppies and even a live look at Matt’s work-from-home throne!

During the webinar, we covered:

  • An overview of studies taken during the pandemic regarding work from home.  We highlighted the benefits to employees and employers of remote work but also the challenges when your employees work from home.
  • Why these studies are critical. The findings within the studies — particularly when it comes to the challenges remote work causes — give employers some arguments to establish undue hardship
  • How to approach a remote work accommodation request.   We walked you through the thought process in managing a remote work request — the questions to ask the employee and managers, the considerations for remote work, and how best to implement a remote work arrangement.
  • How important the interactive process is. Using recent case law, we addressed the importance of engaging in an authentic interactive process with our employee who is requesting remote work as an ADA accommodation.
  • Finally, we provided the critical components of a remote work program.  

Want some insight into managing your employee’s remote work request?  Access the recording here!

Thanks again to all who attended.  I wish you a peaceful, healthy and happy holiday season!