Your employee, Thelma, has requested FMLA leave to take her mom, Louise, to regular doctor appointments. Though the appointment itself will take one hour, Thelma wants to schedule it in the middle of the workday and for a total of five hours. The travel, she says, takes “quite a bit of time . . . and it’s none of your business.”

Beginning 2026 a little salty, we see?

Naturally, you’re frustrated, since you sense that Thelma purposefully encouraged that appointment for midday, and in any event, there’s no way this doc is two hours each way, since the physician is 15 minutes from work and Louise lives close by.

The medical appointment itself clearly is covered by FMLA. But is travel time associated with the medical appointment covered as well?

In an opinion letter issued this week, the Department of Labor answered the question:

. . . when an eligible employee travels to or from a health care provider for a medical appointment regarding the employee’s [or family member’s] serious health condition, he or she may take FMLA leave not only for the actual appointment, but also the time traveling to or from the appointment.

Not all is lost, my employer friends. In this same opinion letter, the DOL made clear, “by contrast, travel time that is not related to the . . . serious medical condition is not protected by the FMLA.”

What Have the Courts Said on the Issue of Travel?

The DOL guidance is fairly clear. But have the courts agreed? Very few courts have given us guidance as to whether travel time itself qualifies as part of the FMLA leave allotment, but those that have, generally side with the DOL.  

My quick take on the courts’ logic: 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 or on Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Good for Employees

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 argued, however, 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 arguably is protected by the FMLA.

Good for Employers

As the DOL opinion letter notes, Thelma’s five-hour medical appointments may amount to unprotected boondoggles to the extent that the time away is not specifically associated [or intertwined!] with the travel to/from the appointment and the treatment itself. Take, for instance, one of our favorite cases here at the blog, Tayag v. Lahey Clinic Hosp., in which a federal appellate court upheld a denial of FMLA leave and the plaintiff’s termination because a significant portion of a trip to meet with a “faith healer” actually was spent visiting socially with family.  The court held that the employee failed to notify the employer of these activities and in any event, the FMLA “does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation.”

In light of the above, I encourage you to have a conversation with your employee about: 1) scheduling this regular appointment around your operations (e.g., early or late in the day to avoid interrupting the workday); and 2) the travel time. To this end, you have the right to know why it takes two hours each way. It could be legit (a specialist, perhaps, or maybe you find out there are other “caring for” duties Thelma is performing) but if it ain’t two hours each way, we’ve got some pushing back to do.

In the meantime, still thinking about that faith healer. Hmmm. Maybe this is what I need to get my 2026 off right . . .

Another year in the books—hope 2025 was a big win for your team!

For some, and hopefully all of you, you are ready to pay out year-end bonuses as the final pennies are counted for the year. In the meantime, however, you’ve debated with your bean counters whether you can prorate or deny of a bonus to an employee who has taken, let’s say, 10 weeks of FMLA leave this year.

Ten weeks of FMLA leave seems like a lot. And it probably impacted the number of gold-plated widgets your employee made this year. So, can you prorate or even deny a bonus because this employee missed work due to FMLA leave?

In a word, yes.

Here’s the deal: If your bonus is tied to hitting a goal—like perfect attendance, hours worked, or sales—and someone didn’t hit that goal because of FMLA leave, then, no soup for you!

The catch? You have to treat these employees the same as anyone on similar leave that’s NOT FMLA.

Per Section 215 of the FMLA regulations, an employer can disqualify an employee from a bonus based on achievement of a specified goal, such as hours worked or perfect attendance, even where the employee has not met the goal due to FMLA leave.  The regulations provide guidance for us here:

. . . if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.  For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

29 C.F.R. § 825.215(c)(2) (my emphasis and bold). 

Let me put this another way.

When qualifying employees for and/or calculating bonus payments or incentives, employers must treat employees who take FMLA leave the same as those who are on “an equivalent leave status for a reason that does not qualify as FMLA leave.” 

But Jeff, give me some case law support for this concept!

I got your back! In situations like these, I find helpful the Clemens case, which often is cited on FMLA bonus issues. 

Clemens v. Moody’s Analytics, Inc. (2nd Cir. 2019). Clemens argued that his former employer unlawfully prorated bonus payments owed to him under an incentive program offered by Moody’s. Under this incentive program, Clemens was eligible to receive incentive payments for completing certain work throughout the year. Moody’s prorated payments based on the length of an employee’s leave, regardless of the employee’s reason for leave. In other words, if you missed time — regardless of the reason — you lost bonus money. Since the evidence showed that the employer’s proration was neutrally applied based on the length of the employee’s leave (regardless of the reason for leave), there was no interference with his FMLA rights, and the claims were dismissed.  The Second Circuit affirmed the decision. 

What About State/Local Leave Laws?

We’ve covered the federal FMLA rules—but what about state or local paid sick leave laws? Could they cause problems for your bonus policy?

The answer: maybe. Most state leave laws don’t specifically address whether you can deny a bonus to someone who uses state or local paid sick leave. In those cases, you could probably apply the same standard you use for FMLA.

But be careful! Many of these laws include anti-retaliation provisions that might come into play. For example, my hometown Chicago’s sick leave ordinance says employers can’t take adverse action against employees for using protected paid sick leave. That’s pretty broad and generic, so it’s unlikely to affect how you handle bonuses.

Minneapolis, on the other hand, takes a much harder line. Their sick and safe time ordinance explicitly says employers cannot consider legitimate sick and safe time use when rating attendance for purposes of awarding benefits—like bonuses. Doing so would be considered unlawful retaliation.

Bottom line: Before you prorate or deny a bonus, check your local paid leave laws. And when in doubt, pick up the phone and call your favorite employment attorney.

Other Holiday Pay Issues

What about other FMLA issues you face around the holidays, such as holiday pay during FMLA leave, calculating FMLA during the holidays, and dealing with an employee who plays hooky during the holidays?  Take a look at my other posts on these issues below:

We’ll cover prorating bonuses for FMLA leave at some length at my 2026 FMLA & ADA Master Class – check out the details HERE!

Merry Christmas and Happy Holidays!

Today is my birthday! Yay for me!

To celebrate, I am inviting you to a five-day FMLA & ADA Party!

This ain’t no joke. Join me for five days (13-hours!) at an interactive master class that will have you singing FMLA and ADA from the mountaintops! 

What’s in Store?

Think case studies, real-world examples, 2025 – 2026 case law, and yes – plenty of corny Jeff/dad humor. By the end, you’ll master the critical components of the FMLA and ADA and become more comfortable with managing an employee with a medical condition.

Due to popular demand, I have added a fifth day to this year’s master class! We will meet over four days during the first week of March 2026, then return in September 2026 for a bonus day, at which time I will highlight the FMLA and ADA developments that have occurred over the previous six months.

Yep, you read that correctly: Get ready to be FMLA- and ADA-mazing!

Agenda

This year’s Master Class will feature entirely new content taken directly from FMLA and ADA court cases over the past year. The class will be evenly split between FMLA and ADA topics, along with issues that overlap both laws.

All the FMLA and ADA topics that I am covering can be accessed in this detailed agenda.

In this master class, we’ll cover at length:

  • FMLA and ADA trends in 2026, and in particular, the Department of Labor’s and EEOC’s priorities and initiatives, including its recent enforcement activity, DOL opinion letters, and what we can expect from these agencies in 2026
  • Determining an employee’s FMLA eligibility, what qualifies as a serious health condition, and how to properly calculate FMLA leave
  • Identifying when an employee has put you on notice of the need for FMLA leave, and how to send out the appropriate FMLA notices
  • Conducting a review of FMLA medical certification and learn how to push back on vague certification
  • Effectively managing intermittent FMLA leave and combatting fraudulent use of FMLA
  • Recognizing when to start the ADA interactive process and work toward “getting to YES” in the accommodation process
  • Determining whether an accommodation is reasonable, what type of accommodation is needed and how to implement it
  • Analyzing specific accommodation issues and what the courts are saying about leave as an ADA accommodation, remote work, accommodations for neurodiverse employees, reassignment, light duty, and pregnancy accommodations)
  • Making appropriate medical inquiries where you’re concerned about an employee’s fitness for duty or safety in the workplace
  • Navigating situations where there is an intersection of FMLA, ADA and worker’s compensation issues

Who Should Attend?

New to HR and need a solid foundation in FMLA and ADA? You’re in the right place. A seasoned pro looking for practical strategies to manage leave, accommodations and tricky performance issues? We’ve got you. In-house counsel wanting to understand the current-day pain points so you can better advise your team? Yep, this is for you too. You attended my Master Class in previous years but you’re looking for an analysis of all the key FMLA and ADA cases over past year and how they impact your day-to-day work? This course is for all of you!

What’s Included in Your Registration?

  • A workbook that you can use as your FMLA and ADA “bible” long after the course has ended. This workbook provides detailed analysis of virtually every aspect of the FMLA and ADA, along with the latest 2025–2026 case law for your reference as you manage these issues.
  • Detailed PowerPoint slides from the Master Class
  • Can’t attend live or miss one of the days? No problem! You will receive a personalized link to access the Master Class recording afterward so you can listen to the course again and again for up to SIX months after the party has ended
  • SHRM/HRCI and continuing legal education (CLE) credit will be offered
  • A FMLA and ADA Master Class attendee badge to post in your email signature or social media profile

Need Permission from your Boss to Attend? We drafted the Request Letter for You!

Though the above should convince your boss that this Master Class is the place to be in March 2026, we recognize some need a bit more persuasion. We’ve got you covered! Click HERE to access a model letter convincing your boss to unlock the funds for you to attend this five-day course. Just sign the letter, email it to your manager, and your ticket to FMLA & ADA utopia awaits!

Link to Register with 10% Discount Code!

When: March 3-6, 2026 (12:00 to 3:00p.m. central time on March 3, 4, 5 and 12:00 to 2:00p.m. CT on March 6) and September 16, 2026 (12:00 to 2:00p.m.). This course will be presented virtually, so you can attend from the comfort of any place you wish.

Cost: All five days for $595 (Access the registration link HERE). Use the discount code BLOG10 for 10% off registration. Email me at jnowak@littler.com to receive greater discounts for groups of 10 or more.

What will I cover?  Access my detailed five-day agenda HERE.

Materials: Attendees will receive a copy of my 200-plus page FMLA & ADA workbook, a copy of the PowerPoint, and a link unique to you to access the recording of the master class for up to six months afterward.

Five days and 13 absolutely blissful hours of the F-M-L-A and A-D-A. Are you dancing yet?

Join me for my annual FMLA/ADA webinar, which comes to you, as always, free of charge.

This year’s webinar focuses on how employers can proactively guard against misuse of FMLA and ADA leave.

And there will be singing, plenty of singing.

When: Thursday, December 11, 2025 (12:00 – 1:15 p.m. central time)

Online registration: Click here

The reasons for (suspicious use of) FMLA leave get more creative each year.  Like the guy who said he was helping his wife at home with IVF treatments…but the employer knew his wife wasn’t at home. We’ll tell you about him and how they knew he was fibbing—you’re not gonna believe it. Or the truck driver who injured himself by crashing his company car…only there was no evidence of a crash. We’ll tell you about him, too.  And most importantly, we’ll provide every bit of reassurance that you shouldn’t feel helpless when dealing with suspected FMLA and ADA fraud!
 
In this complimentary 75-minute webinar, my friend Matt Morris and I will provide practical suggestions on how employers can address suspected FMLA and ADA leave misuse in your workplace, focusing on the steps you can take to root out and minimize fraudulent use of these job-protected leaves.
 
Through the use of case studies (and always a bit of humor), we will cover the following during our time together:

  • Identify and understand the most common forms of FMLA fraud
  • Effectively use certification and recertification to respond to a pattern of misuse or suspected FMLA or ADA misuse
  • Manage intermittent FMLA leave—a main culprit of FMLA misuse
  • Conduct effective investigations into potential misuse of FMLA and ADA leave
  • Implement must-have personnel policies to prevent FMLA fraud
  • Learn how to use the “honest belief” tool to protect your organization against misuse of FMLA and ADA leave
  • Navigate whether you can assess attendance points or issue discipline for an absence protected by the ADA

And, of course, we’ll sing. We’ll definitely sing.

When you register (click here), please pose your most pressing FMLA or ADA fraud question (or success story!), 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!

John always sat in the same spot in the same pew, positioned about 50 feet from the side entrance of the church.

Deep in prayer, a rosary wrapped around his left hand, John would lift his head and turn toward me as I entered that side door every Friday morning.

With a slight nod of his head and a warm smile, he made me feel welcome.

That’s all it took. A nod and a smile.

For the past six months, John has been noticeably absent from Friday morning Mass. Last week, we received the difficult news, as the priest announced that John had passed away after a battle with cancer. John’s story was made even more powerful when I learned that he served as caregiver for his very ill wife at the same time he was battling terminal cancer himself.

I never spent any meaningful time with John. Still, in what seems a rather broken world right now, John’s simple act of kindness toward me each time I walked by — a nod and a smile — led me to believe I mattered.

John’s kindness was a gentle reminder to reject the knee-jerk cynicism we often employ when responding to a leave or accommodation request.

So, a few observations:

  • 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. 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, like John, let’s lead with respect and kindness, 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.

Yesterday, the US Department of Labor resurrected its Payroll Audit Independent Determination (PAID) program, which encourages employers to own up to potential minimum wage and overtime violations under the Fair Labor Standards Act and resolve them at an early opportunity.

For the first time in history, the DOL is extending this program to potential violations under the Family and Medical Leave Act as well.

As several of my Littler colleagues explain in this thorough analysis, the PAID program is summarized in a couple steps:

  • The Employer conducts a self-audit to identify potential FLSA or FMLA violations.
  • The Employer then works with the DOL Wage & Hour Division to correct these apparent violations and pay back wages (if any) or implement other remedies.

The program is voluntary and aims to promote compliance without litigation. As my Littler colleague David Jordan notes, the PAID program allows employers that discover wage and hour compliance issues to take advantage of the DOL’s supervisory powers and reduced financial risk to get releases from exposure when they remedy the issue.

Enter the FMLA

For the first time ever under this PAID program, DOL has announced that employers may not only self-report FLSA violations, but FMLA violations, too.

Is this supposed to be double the fun?

I doubt it.

But is self-disclosure of potential FMLA violations worth it? Let’s see . . .

Which Employers are Eligible to Self-Report Suspected FMLA Violations?

DOL has outlined the following eligibility criteria for participating in the PAID program to disclose any suspected FMLA violations:

  • The employer is a covered employer under the FMLA.
  • The employees included in the employer’s PAID self-audit are not subject to prevailing wage requirements.
  • Neither the DOL nor a court of law has found an FMLA violation at the employer within the last three years.
  • The employer is not currently a party to any litigation (e.g., private, with DOL or with a state enforcement agency) claiming a violation of the FMLA practices at issue in the proposed PAID self-audit.
  • DOL is not currently investigating the FMLA practices at issue in the proposed PAID self-audit.
  • There are no FMLA or state leave law complaints with the DOL or a state enforcement agency claiming that the leave practices at issue in the proposed PAID self-audit violate the FMLA.
  • The employer has not participated in PAID within the last three years to resolve potential FMLA violations (resulting from the leave practices at issue in the proposed PAID self-audit).

The Process

For employers who wish to self-audit and report their possible FMLA violations, the DOL anticipates that you first will review its “FMLA checklist,” which consists of a rather rudimentary set of topics that will be part of your FMLA self-audit. The program also raises some uncertainties, for instance:

  • When the employer applies to conduct a self-audit, it must self-identify with the DOL. As a result, there is no ability to explore possible participation anonymously before deciding whether to participate.
  • Employers must complete a “certification of compliance” with the FLSA or FMLA, as applicable. It is unclear, however, exactly what the employer will be expected to certify.
  • There is no guarantee an employer will be accepted by the DOL to perform an approved self-audit under the program. It is unclear what action, if any, the DOL might take with respect to an employer that is not accepted into the program.

Insights for Employers

As to the FLSA side of this house, there is no question that the PAID program is an encouraging development for employers, since the potential exposure of class claims and DOL-initiated litigation is real.

When it comes to FMLA, however, this development is a bit of a yawner. Unlike the FLSA, class claims are unheard of under the FMLA. It’s also true that the DOL virtually never pursues litigation against an employer for alleged FMLA violations. Rather, these claims are regularly pursued as single-plaintiff private actions.

Given the modest exposure from an FMLA standpoint (particularly in comparison to FLSA claims), I’m struggling to identify a scenario where I might counsel an employer to fall on their sword to the DOL. Without the fear of class claims or DOL-initiated litigation hanging over my head, I’m far more likely to defend our actions to the DOL and beyond.

Friends, don’t go this alone and don’t assume the DOL PAID program is for you. When faced with an FMLA compliance issue or a DOL FMLA complaint/audit, call your favorite FMLA attorney to strategize next steps before falling on your own sword.

There must be something in the water in EmployerLand, USA.

On multiple occasions lately, employers have confessed frustration to me with the lack of information provided by an employee’s physician in an FMLA medical certification or in support of an ADA accommodation.

But their next line is always troubling: “So, Jeff, I just picked up the phone and called the doctor directly with a few of our questions about the form.”

[Cringe]

Friends, whether it’s an FMLA or ADA situation, employers must follow very specific rules when communicating directly with an employee’s physician about the employee’s medical condition. They start with these:

  • Employers may communicate directly with the physician only with the employee’s express permission.
  • The scope of the information sought must specifically relate to the leave of absence or accommodation requested.

Let’s take a look how this issue arises under both the FMLA and ADA.

FMLA

The FMLA regulations contain a specific process employers must follow before communicating directly with a physician. Where the medical certification does not sufficiently answer the questions posed or the health care provider’s responses tend to raise doubt, 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.

Upon your request, the employee has a choice — either provide sufficient information from the health care provider or give you permission to contact the physician directly.

If the employee decides to “cure” the certification himself, and the cure still does not provide the information necessary to either grant or deny FMLA leave, then the employer has the option to seek a conversation with the employee’s physician. To be clear: you must have the employee’s permission — with a HIPAA compliant release — to contact the employee’s health care provider in these instances.

ADA

The EEOC’s guidance on communicating directly with a physician is far less clear, but employers are expected to obtain the employee’s consent to contact the health care provider when making medical inquiries.

In its Guidance on Disability-Related Inquiries, EEOC cautions that:

  • Any medical inquiry must be job-related and consistent with business necessity.
  • The scope of the inquiry must be limited to what is necessary to determine the employee’s ability to perform essential job functions or to assess the need for a reasonable accommodation.
  • The employee must authorize any direct communication with their healthcare provider.

The conundrum over whether to contact the physician often arises when the employee requests an accommodation, appears unfit for duty, or provides vague/non-responsive information from a physician. In these situations, a couple of key points to keep in mind:

  • As an initial matter, since a physician cannot disclose information about a patient without his/her permission, an employer must obtain a release from the employee that will permit the doctor to answer questions. The release should also be clear as to what information will be requested.
  • Where documentation supporting an accommodation request or fitness for duty is insufficient, EEOC counsels in its Guidance on Medical Inquiries that employers should consider communicating first with the employee’s physician — with the employee’s consent — before making accommodation decisions or sending the employee to an independent medical provider. (See answer to Question 11 in the Guidance).

Please note: I make reference to using a “HIPAA-complaint release” above not because the employer necessarily needs to worry about HIPAA. To be clear, HIPAA does not implicate the medical information exchanged between employer and employee. Within the confines of your confidentiality obligations under FMLA and ADA, employers clearly have the right know why their employee can’t report to work or needs an ADA accommodation. However, the employee’s physician is obligated under HIPAA and prohibited from disclosing protected health information without valid authorization. Therefore, a HIPAA-compliant release is functionally necessary for the employer to obtain this medical information.

What if the Employee Fails to Cooperate?

What if the employee fails to provide responsive medical certification and refuses to allow communication between the employer and physician?

Simply put, the employee suffers the consequences.

Take this court decision from just a couple weeks ago. In Tarquinio v. Johns Hopkins University Applied Physics Lab, the Fourth Circuit Court of Appeals upheld the dismissal of Sally Tarquinio’s ADA lawsuit after she refused to provide documentation in support of her accommodation request and refusal to allow the employer to communicate directly with her physician.

Sally, an engineer with a history of Lyme disease, requested a medical exemption from the lab’s COVID-19 vaccine mandate, citing “Lyme-induced immune dysregulation.” However, she refused to allow the lab to consult her doctors or provide sufficient medical documentation. As a result, the lab denied her exemption and terminated her employment when she remained unvaccinated. The court determined that, because Sally obstructed the lab’s ability to assess her condition, she failed to establish a valid ADA claim.

ADA claims dismissed.

And all is right with the world again . . .

Here’s a story about Dyamond, who will forever impact the manner in which you review FMLA medical certification.

If this teaser doesn’t have you on the edge of your seat, nothing in this little FMLA blog will.

Dyamond’s Story

Dyamond worked at an assisted living facility run by the State of Illinois (DHS), and she became pregnant. It was a difficult first trimester for Dyamond, who was absent several days due to morning sickness associated with her pregnancy. When she missed five workdays in a bit more than a week due to reported morning sickness, DHS provided her FMLA notices and asked her doctor to complete medical certification. One week later, she even left her shift early due to another bout with morning sickness.

Dyamond’s obstetrician completed medical certification, noting that her medical condition was “pregnancy.” As she suffered from lupus, her pregnancy was considered high-risk, and her OB required additional testing periodically throughout her pregnancy. In the FMLA medical certification, the OB noted Dyamond’s need for FMLA leave for the following:

  • To attend biweekly appointments, and weekly appointments in the month leading up to childbirth;
  • Six weeks of recuperation following childbirth (and possibly more in the event of a c-section).

Notably, Dyamond’s OB answered “NO” to the question: “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions.”

Can you guess what was noticeably absent from the certification? Any passing reference to morning sickness.

As the story goes, DHS later denied FMLA for a portion of the day in which Dyamond left work early, finding that her absence went beyond the scope of the FMLA approval, since morning sickness was not certified by her OB.

Makes perfect sense, yes? After all, if morning sickness is not listed in the certification, then it’s not FMLA leave, right?

Not so fast.

Apparently, FMLA Medical Certification is a Girl’s Best Friend?

In an odd twist of legal reasoning, the federal appellate court breathed life into Dyamond’s FMLA claims, ruling that an “employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.” Davis v. Illinois Dept. of Human Services (pdf)

Say what?

No joke. Here, as the court pointed out, DHS knew that Dyamond not only was pregnant, but suffered from bouts of morning sickness that caused her to miss work. As such, the court determined that a reasonable jury could find that, given DHS’ knowledge of Dyamond’s morning sickness, it knew that her OB’s medical certification was incomplete, in which case DHS should have provided Dyamond with an opportunity to supplement it.

I don’t buy it.

To be clear, medical certification is the FMLA’s holy grail. Ok, perhaps less dramatic, it’s our north star. As employers, we rely on this medical document –indeed, we need to rely on it — because it outlines the parameters of leave that is medically necessary. Its sole aim is to take the guesswork out of why and when the employee needs to take FMLA leave, as employers can’t be thrust into the role of playing doctor.

What would the court have us do? Send the certification back to the OB and ask, “Are you positively sure you didn’t miss anything, doc?” Or perhaps, “Hey doc, pretty please, is there anything you want to add?”

Rules are rules, and the employee should be held accountable to the statements the health care provider makes — and does not make — in medical certification. In the immortal words of Cosmo Kramer, “Without rules, there’s chaos!”

The court doubled down on its curious reasoning when it refused to acknowledge that morning sickness is a “flare up” of Dyamond’s pregnancy complications. Oddly, the court explained that the regulations expressly define “morning sickness” as a serious health condition, apparently to indicate that the term stands on its own as a basis for FMLA leave (and need not be specifically noted in the certification). But this statement of fact simply is wrong. The regulations simply offer “morning sickness” as an example of a symptom of early pregnancy. In other words, morning sickness is a “flare up” of pregnancy incapacity, which Dyamond’s OB specifically stated was not present here.

Wow. A legal blunder, I think. But nevertheless, one that now must guide our review of medical certification.

Insights for Employers

It ain’t easy making sense of this one, but I offer a few suggestions for your consideration:

  1. Incorporate this decision into your clarification strategies. Look, I am not saying that morning sickness is not covered by the FMLA. All I am saying is that it should be covered only when it’s supported by medical certification. Clearly, the court expects employers to inquire further if the employee’s symptoms are inconsistent with the contents of the medical certification. Here, the employer was indeed on notice that Dyamond suffered from morning sickness, which would be protected by the FMLA if certified by the health care provider. Dyamond’s case reminds employers that they should follow up with the doc if the employee’s reported or observed need for leave is not expressly covered by the physician’s statements in the certification.
  2. When in doubt, seek recertification. The [easier?] route here is simply to request recertification for absences based on the same condition but that come different in form (e.g., continuous vs. intermittent leave). When the need for intermittent leave due to flare ups of a condition has not been supported by previous medical certification, yet the reason for leave is the same, it makes sense (in providing legal cover) to seek recertification to determine whether the need for this form of leave (e.g., morning sickness) is medical necessary.
  3. Discuss the situation with your employee. What’s the harm in doing so? Something like, “Hey, Dyamond, you were absent on a number of days earlier this month because of morning sickness. Any thoughts on why your physician didn’t include this in the certification?” Perhaps your employee shares some info that allows to follow up, as noted in No. 1 above.

A funny thing happened as a result of the COVID-19 pandemic. Employers everywhere sent their employees home to work, many of whom will work forever more out of their home or remote worksite, never to see the Company headquarters again.

Coming out of the pandemic, some employers have drastically scaled back their brick-and-mortar headquarters. Others have ditched the company HQ, replacing it with a modest store front or even a Post Office Box. [All you Gen Z peeps: if you are wondering what a “Post Office box” is, ask your parents!]

As remote work cements itself into the fabric of the 21st Century workplace, it’s wreaking havoc on how an FMLA-covered employer determines whether its remote employees are eligible for FMLA leave.

Why, you ask?

Consider the definition of an eligible employee. Under the FMLA, an employee is eligible for FMLA leave if they have worked 12 months and 1250 hours prior to FMLA leave. These two, of course, are relatively easy to determine. However, the employee must also work at a worksite with 50 employees who are located within 75 (surface) miles of each other.

Of course, neither Congress nor the DOL contemplated that in year 2020, we’d suffer through a global pandemic that resulted in remote workers everywhere but the local brick-and-mortar office. No doubt, the regulations simply have not kept up with the realities of today’s workplace.

Here’s Your Conundrum

Let’s assume you have an employee, Vanessa, a surgical laser technician for your mobile surgical services company.

Although Vanessa was hired through your Ohio headquarters, she lived and primarily worked in Texas (occasionally her work required her to travel to other states, but not Ohio). To be clear, Vanessa has never stepped foot in the Ohio headquarters. Vanessa’s supervisor also was a remote employee working from Texas, and he reported to a Chicago-based supervisor, who in turn reported to another in Ohio.

Are you tired yet? As a reminder, Vanessa (Texas) —> boss (Texas) —> boss’ boss (Illinois) —> boss’ boss’ boss (Ohio HQ)

Vanessa’s supervisor managed the Texas region, oversaw logistics for the region, paired surgical techs with assignments, and handled Vanessa’s requests for time off.  According to the court’s characterization of the facts, Plaintiff’s supervisor “spoke, text messaged, and emailed with technicians about their cases.”  Though the employer claimed that the supervisor evaluated her performance and had authority to discipline her, Vanessa disputed this fact. 

As to the crux of the issue here, Vanessa sought FMLA to care for her mother after surgery in Mexico.  Not surprisingly, the supervisor told her by text message that she was ineligible for FMLA leave, stating that “there has to be a certain amount (sic) of employees working within 75 miles. None of us qualify down here.” 

As the story goes, her employment ended while she was with her mother in Mexico, and Vanessa sued.

The Court Ruling on Vanessa’s FMLA Claims

To be eligible for FMLA leave, Vanessa has to show that she’s employed at a worksite where 50 employees are located within 75 miles.

Since Vanessa had no fixed worksite, the FMLA regulations tell us that her worksite (for purposes of the 50/75 rule) can be one of three locations: 1) the site to which Vanessa is assigned as her home base; 2) the site from which her work is assigned; or 3) the site to which she reports.

The employer’s Ohio HQ was the only worksite in which the company had 50 employees in a 75-mile area. So, if Vanessa can’t show she somehow feeds into that Ohio HQ, she’s out of luck on her FMLA claims.

In its analysis, the court gave its take on Vanessa’s worksite:

  • Home Base: The court effectively threw up its hands as to whether the Ohio HQ was Vanessa’s home base. Notably, the court used the Worker Adjustment and Retraining Notification Act (“WARN”) as a guide, finding that the employee’s home base “must at a minimum be a location at which the employee is physically present at some point during a typical business trip” and “refers not to the physical base of the employer’s operations . . . but rather to the physical base of the employee.” Since Vanessa never stepped foot in Ohio, she could not credibly argue that Ohio was her home base.
  • Assignment of Work: The site that assigns the work arguably is an important factor. Here, it’s the site where the “source of the day-to-day instructions” is given to the employee . . . “where the people were who were ultimately responsible for creating and receiving the assignment information.” Vanessa and the employer differed on this very point. According to her employer, Vanessa’s supervisor assigned work from his home in Texas, and he directed cases to specific employees within the Texas region. However, Vanessa characterized her supervisor’s assignment of work as “clicking the mouse on his computer at his house and sending the instructions from [the Ohio HQ] to one technician or the other in his region.” Inexplicably, the court found persuasive that the Plaintiff’s supervisor appeared to have been a “mere conduit” between an assignment originating at headquarters in Ohio and Vanessa. [Wow, this seems like a stretch to me.]
  • Reporting Worksite: The court also couldn’t safely determine Vanessa’s reporting worksite. The location to which an employee reports is determined based on the “location of the personnel who were primarily responsible for reviewing . . . reports and other information sent by the employee, in order to record tasks, assess employee performance, develop new sales strategies, and the like.” Oddly, Vanessa’s supervisor did not review reports from her. In fact, she sent reports only to Ohio and never sent anything to her supervisor. There also was no evidence to establish that her supervisor performed any evaluations or had the power to impact her employment status.

The court refused to dismiss Vanessa’s FMLA claims, finding it impossible to determine Vanessa’s worksite, and instead placing the decision in the hands of a jury which, of course, will have an even more difficult time than the judge trying to determine Vanessa’s actual worksite. Read the actual decision here: Landgrave v. Fortec.

Insights for Employers

With this (lack of) guidance in mind, how is an employer to navigate these remote worker waters?

You’ve got a range of options:

  1. Everyone is eligible. Well, kind of. Given the difficulty in applying the 50/75 rule, many employers have simply removed this element as an eligibility requirement, which naturally broadens FMLA eligibility for employees. Simply put, if you have worked 12 months and 1,250 hours, you’ve reached the FMLA promised land.
  2. Keep Climbing till you find a corporate worksite. Some employers, particularly those who use third-party administrators to administer their FMLA leave, keep searching up the chain until they are able to assign the employee to a corporate worksite. For instance, in Vanessa’s case, the employer would look up the corporate chain until it found the Ohio HQ to assign as her worksite. Like Option 1, this, too, will result in many employees like Vanessa being eligible for FMLA leave.
  3. Follow the Landgrave approach, but do a better job. If you don’t want to hand your employee an FMLA freebie, you’ve got some work to do. A critical factor in identifying the employee’s work site is determining the location from which the employee receives assignments and the location to which they report. In Vanessa’s case, it was not clear whether her supervisor actually assigned her meaningful work or reviewed her work. This is instructive. If we hope to tag the supervisor’s location as the employee’s “worksite,” then it’s critical that we show the supervisor is more than a “conduit” (a term coined by the Landgrave court). Rather, we need to show that the supervisor: a) plays a meaningful role in the assignment of work; and b) actually reviews the work.

What are we craving right now?

The Rule of Law!

Let me tell you, the American Bar Association delivered this past week!

Every spring, the ABA’s Labor and Employment Section Wage and Hour 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 the 12-month period ending October 31, 2024.

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 Bethany Hilbert, who helped spearhead the annual summary this year with a few other employment attorneys.

I’ll be covering a ton of these new FMLA cases at my FMLA & ADA Master Class next week, so come join me. Can’t wait to dive in!

Happy reading!