When: Wednesday, December 11, 2019 (12:00 – 1:15 p.m. central time)

Online registration:  Click here

The Family and Medical Leave Act is generally considered to be an employee-friendly law, and employers have often felt helpless to do anything but approve leave requests under FMLA and similar laws.

But we shouldn’t feel helpless!

In this complimentary webinar, ComPsych’s Matt Morris and I will provide practical suggestions on how you can address suspected FMLA misuse in your workplace, focusing on the steps you can take (as opposed to the steps you can’t take) to root out and minimize FMLA abuse.

Through the use of case studies (and perhaps a bit of humor), you will learn how to:

  • Identify and understand the most common forms of FMLA abuse
  • Effectively use certification and recertification to respond to a pattern of misuse or suspect FMLA abuse
  • Document FMLA effectively to curb FMLA abuse
  • Manage intermittent FMLA leave—a main culprit of FMLA abuse
  • Conduct effective investigations into potential abuse
  • Implement must-have personnel policies to prevent FMLA abuse
  • Learn how to use the “honest belief” tool to protect your organization against misuse of FMLA and ADA leave

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

Register here.  I look forward to hosting you on December 11.

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. 

I spend a decent part of my day reviewing FMLA forms, certification and correspondence. Exhilarating, for sure. 

When it comes to FMLA notices, do you care hear about one of my big pet peeves?  [You: Not really interested, Jeff, but we have the feeling you’re going to tell us anyway.]

It’s an issue that the far majority of employers and third-party administrators seem to violate all day, every day.

What Do I See?

In FMLA designation notices, or in correspondence approving FMLA leave, employers and TPAs invariably state something to the effect of “This leave is approved through [a specific date].”

I come across approvals of all kinds — some approve FMLA leave for one month, others up to six months out. The worst approve FMLA leave for ONE. FULL. YEAR. Or more.

¡Ay de mi!

Why Do Employers Do This?

Where do these lengthy approval periods come from? Was there some SHRM conference y’all attended where someone floated this grand idea to approve FMLA leave for months and years at a time?

The rationale for this practice seems rather simple: the approved FMLA period merely tracks the “duration” of the serious health condition as certified by the health care provider. Simple as that.

So, Why Is This a Problem?

  1. It’s not illegal but this approach technically is incorrect. The regulations say nothing about approving FMLA leave for a specific period of time.  If the employer grants FMLA leave after review of medical certification, the model DOL designation notice indicates simply that leave has been “approved,” but it does not require that employers identify an actual time period for approval, particularly where FMLA leave will be unknown in the future.
  2. It’s misleading and confusing to employees. Let’s say you approve intermittent FMLA leave for migraine headaches for one year because that’s how long the physician certified they would last.  One week into this one-year so-called approval, the frequency of the employee’s absences for migraines increases significantly. Is the employee still “approved” at that point? The employee thinks so; after all, the designation notice told him as much. At a minimum, it’s awkward to tell the employee at this point that their FMLA leave may not be approved after all, and you’ll need to recertify the absence. Why put yourself in this position in the first place?
  3. It may even embolden employees, who believe (in the migraine scenario above) that you can’t question their approval for one year, since it’s already stated as such on the designation notice.  They’re entrenched and ready for the fight. Why invite it in the first place?

The answer for me is rather simple – don’t lock yourself in by including an “approval” date in your designation notice or correspondence. Approve FMLA leave to date, and surely designate those absences in the future covered by FMLA where it’s appropriate to do so. But don’t let it be an open-ended approval for any period of time. It just ain’t worth it.

Can an employer discipline an employee for exceeding the frequency of expected absences indicated on an FMLA medical certification?

I’m actually going to answer this question tomorrow during a free webinar sponsored by the Disability Management Employer Coalition (DMEC), where we will cover key FMLA and ADA cases from 2019.  I hope you can attend. [Use the code 19COMPLIANCE4]

In the webinar, I will share the story of Tori, an executive assistant for an alarm monitoring company, who suffered from reactive arthritis. Because of this condition, she needed to be absent from her job for treatment and flare ups. Her doctor signed off on certification indicating she would need FMLA leave up to two days per month for flare ups and four hours, twice per month, for treatment.

Like many employers, Tori’s employer had an attendance point system in which employees were assessed points for unexcused absences.  At 10 attendance points in a 12-month period, an employee is terminated.

Tori’s pattern of absenteeism over a 12 month period might be familiar to many employers:

  • On six dates over a three-month period, Tori’s FMLA absences exceeded the amount certified by her doctor;
  • She missed several scheduled days because “her knee gave out”;
  • She failed to provide timely notice of the need for FMLA leave on multiple occasions without excuse; and
  • She was absent for a series of non-FMLA related absences

When Tori exceeded the absences indicated on her certification form, her employer asked her doctor to recertify these additional absences.  In the section of the recertification form addressing the frequency and duration Tori required for her flare-ups, her doctor wrote simply: “Refer to prior FMLA form.” As a result, Tori’s employer did not increase Tori’s monthly FMLA allotment of approved FMLA absences.  Notably, it also assessed attendance points for those absences that exceeded the frequency noted on the initial certification.

These absences later were used to terminate her employment.

That’s an FMLA violation, claimed Tori, in a later-filed FMLA lawsuit.

The Court Ruling

Not so fast, Tori, said the court. For this court, the equation was rather simple.  If an employee’s absences “exceed what was estimated in the certification,” the employer has the right to “notify the employee and give them a reasonable opportunity to cure the deficiency.”

When Tori’s physician recertified Tori “for the same frequency and duration of leave as his earlier certification,” the court determined that the employer “lawfully denied [Tori’s] FMLA leave for absences exceeding the amount certified (and later recertified) by her physician.”

The employer had the right to use those unexcused absences as part of the attendance point total. FMLA claim dismissed. Evans v. Cooperative Response Center (pdf)

Insights for Employers

Boom! 

For years, I have been counseling employers precisely along these lines. When an employee’s absences significantly exceed the frequency identified in the certification, the employer should recertify (usually along with a letter explaining the pattern). If the physician does not change the frequency despite the clear opportunity to do so, the employer arguably has the right to issue discipline for the excessive absences.

Now, I have a court case to support my counsel, as the above case gives us the authority we need to discipline employees in these situations.

As I’ve blathered on in previous posts, if Section 308 of the FMLA regulations (which allows you to recertify for excessive absences and contact the doctor regarding Tori’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion when the doctor is given the opportunity to change the frequency the second time around. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.

In this second go around, the doctor now has confirmed that he stands by his position that we can expect Tori to miss work two days per month because of her arthritis. It seems to me eminently reasonable — and now defensible in an FMLA lawsuit — to discipline an employee like Tori for the excess absences.

Hat tip to my colleague, Dana Connell, for pointing this case out to me.  Dana, you’re one of my favorite, fellow FMLA nerds!

Contrary to popular opinion, the biggest news lately out of the U.S. Department of Labor is not the fact that the agency just this week announced a final rule that would make over one million American workers newly eligible for overtime pay.

Oh, no way!

Why worry about minimum wage and overtime issues when the big news is forms? FMLA forms, that is.

Brand. New. FMLA. Forms.

In early August, the DOL published proposed new FMLA notices and medical certification forms, and asked the public to offer its feedback on these new forms by October 4, 2019. That deadline is one week from today.

This news is so big it’s taken me over seven weeks to tell you about it.  [Ummm, sorry.]

According to the DOL, these new forms effectively do the following:

  • Require fewer questions requiring written responses; replaced by statements that can be verified by simply checking a box
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • Provide more information on the notification forms to better communicate specific information about leave conditions to employees
  • Layout and style changes to reduce blank space and improve readability

What do I think of the new forms? Why don’t I answer this question with a memory you might relate to.

Let me take you back for a moment to our childhood. You remember those days, right? The days long before iPhones and Fortnite, when we’d spent the whole doggone day playing outdoors with our neighborhood friends. After a long day outside and having accrued 40,000 steps on our imaginary fit bit, mom would yell down the block to us, “Dinner’s ready.” Reluctantly, we’d traipse back home. As we got closer to the front door, though, our hunger took over and we were ready for dinner. But in that moment, we’d pray that mom wasn’t making the same thing we ate last night — hamburger helper.

As we entered the house, the smell gave it away. Nope, it wasn’t hamburger helper, but its close cousin — tuna helper. In the end, the look was slightly different, but with all due respect to Betty Crocker, it still had the same ‘ol processed taste just like the night before.

I view the proposed FMLA forms the same way. In a nutshell, they are a very modest transition from hamburger helper to tuna helper: tweaked around the edges, but still effectively the same meal.

Now that you have that delicious thought in your heads, let me share my thoughts really quick before that October 4 deadline passes (if you even care to read further):

What’s GOOD about the forms?

  • Font size is larger, which helps a guy who recently had to start wearing reading glasses!
  • There definitely are more boxes for ease of use, and streamlining can be good. The proposed forms include fewer questions that require a written response. Instead, these questions are replaced with statements that require the health care provider simply to check a box if the health care provider believes the statement applies. But the use of boxes is fraught with problems. See “Challenges” section below for my take on the new boxes.
  • Coverage of current and future treatment: As Abby O’Connell, senior counsel at Sun Life Financial, pointed out in this recent SHRM article, the new forms appear to do a better job at requiring that the physician provide substantive information about future treatment, which often is left out of the current forms.  Abby put it this way:

Under the current forms, the health care provider is not encouraged to explain future inpatient status or future treatment.  Contemplation of future treatment is critical, since employees are required to report leave at least 30 days in advance when the need for leave is foreseeable.  The revised forms also capture information to support leaves taken for chronic conditions and permanent or long-term conditions, while the existing forms do not.

  • Have I mentioned that font size is larger?

What are the CHALLENGES with the forms?

  • What the boxes giveth, they taketh away. On first thought, what’s not to like about boxes? They’re nice and square, and on a most basic level, they simplify things.  But here are my two beefs with the DOL’s boxes:
    • The main portion of the proposed medical certification form consists of a series of boxes associated with a “serious health condition” or pregnancy that the health care provider simply needs to “check.” This particular section leads the physician to conclude that he/she is obligated to check one of the boxes so as to confirm that the employee or family does indeed have a serious health condition.  In other words, simply checking a box causes the doctor to make a legal conclusion rather than provide actual medical facts to allow the employer to make the ultimate determination as to whether the absence is covered by the FMLA.
    • If the physician simply checks a box associated with one of the serious health conditions presented, it is possible that the actual medical facts supporting the need for leave are never addressed in the form. As a result, the employer doesn’t know what the heck is going on with the employee and, so long as a box is checked, the employer may not be able to question the condition through the clarification process or otherwise.
  • At times, the medical certification form can be a bit confusing, asking the physician to confirm whether the employee “was” or “will be” incapacitated for a period of time. These requests will invariably lead to inconsistent and confusing responses from the health care provider.
  • Requiring that the employee’s name be written at the top of every page of the medical certification. Where are we? The 3rd grade?  Let’s save everyone the extra work and cut that requirement out.

Changes that make you simply shrug your shoulders, right? I’ll save my excitement for the DOL’s impending request for information asking for input on what regulations we’d like to change.

In the meantime, enjoy an extra helping of hamburger helper.

Earlier this year, the Department of Labor made clear in an opinion letter that neither an employee nor an employer may decline FMLA leave where an eligible employee is absent for an FMLA-qualifying reason.  As the DOL noted in this March 2019 opinion letter, this is particularly true even where the employee would prefer that the employer delay the designation of FMLA leave.

This week, the DOL doubled-down on that opinion letter.

Notably, the DOL’s earlier missive to the masses failed to address how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows the employee to use paid leave first and then use FMLA leave at a later time only after paid leave is exhausted.

In a September 10, 2019 opinion letter, the DOL seemingly cleared up this issue.  Echoing its earlier opinion letter, the DOL declared that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement.

The bargaining agreements in question provided paid leave for family and medical reasons that arguably would constitute FMLA leave, but it required (or at least allowed them) to use paid leave before taking FMLA leave.   The DOL, however, would have none of this:

As noted in [the March 2019 opinion letter], once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave . . . this is the case, for instance, even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.

The DOL’s latest opinion letter again is unequivocal: Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

Insights for Employers

Granted, this opinion letter applies to unionized work environments and likely has a far greater impact on public-sector employers, which often allow their employees to use accrued paid leave before utilizing FMLA.  Nevertheless, the DOL makes clear several principles:

  1. Once the employer has enough information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave even where a collective bargaining agreement states otherwise.  Got it?  Ok, I won’t beat this dead horse any further . . .
  2. Employers surely can provide for more generous leave policies, but those policies still must comply with the FMLA.  And as we see here, additional paid or unpaid leave must follow FMLA leave.

Still, there is some question as to whether an employee actually is harmed when they are allowed to use paid leave first and FMLA leave afterward.  When you really think about it, what is the DOL really looking to accomplish here?

If I gave you a million tries, you’d never guess that the next Department of Labor FMLA opinion letter would answer the question [wait for it . . .]: Is an employee’s attendance at a child’s IEP meeting covered by the FMLA?

The Answer? Yes. Most definitely, yes.

In an opinion letter issued yesterday, the DOL concluded that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.

The Facts

Interestingly, the request for an opinion letter came from a set of parents whose two children have serious health conditions.  The employer for one of the parents approved intermittent FMLA leave to transport their children to and from medical appointments, but refused a request to take intermittent FMLA leave to attend school meetings.

As background, their children currently receive “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.”  Additionally, on four occasions throughout the school year, their school holds IEP meetings to “review their educational and medical needs, well-being, and progress.”  These IEP meetings include participation by a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district, all of whom provide services to the child under the child’s IEP.  The child’s teachers and school administrators also attend. [In case you’re wondering, an IEP outlines the program of special education instruction, support and services a child with a disability will receive as part of their education program. Each program is designed to meet a child’s exact needs.]

When one of the parents was denied FMLA leave to attend these IEP meetings, the parents together took the law into their own hands — and drafted a request for an opinion letter from the DOL regarding the issue.

DOL Opinion

Based on these facts, the DOL determined that the employee’s attendance at the IEP meetings constitutes “care for a family member … with a serious health condition.” Here’s the DOL’s rationale:

Care for a family member includes both physical and psychological care.  As noted above, “to care for” a family member with a serious health condition
includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b)

In finding that IEP meetings are covered by the FMLA, the DOL leaned heavily on: 1) a 2012 federal court case, Wegelin v. Reading Hosp. & Med. Ctr., and 2) an FMLA opinion letter the agency issued in 1998, to support its conclusion.

  1.  The Wegelin case: The DOL cited a few cases in support of its opinion, but only the Wegelin case seems to me to be somewhat analygous to an IEP situation. Here, the plaintiff was an employee whose child had autism and required around-the-clock care. During the workday, plaintiff placed her child in daycare. Due to factors beyond her control, she was forced to change childcare providers and took time off work to meet with potential daycare providers who would care for her child during the day. The court found that “arrangements for changes in care” (as stated in the FMLA regulations) made clear that her meetings with child care providers were covered:

Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available . . . she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.

2. 1998 FMLA Opinion Letter: Although short on factual detail, this rather dated 1998  opinion letter (FMLA-94) found that FMLA applied where an employee requested to take time off to attend “Care Conferences” related to her mother’s health condition because her attendance at these conferences was “clearly essential to the employee’s ability to provide appropriate physical or psychological care” to her mother.

Similarly, the DOL was persuaded that the parent attends IEP meetings to help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy; to discuss their children’s well-being and progress with the providers of such services; and to ensure that the school environment is suitable to their medical, social, and academic needs.

Insights for Employers

This opinion letter requires employers to properly handle IEP meeting requests as leave requests likely covered by the FMLA.  Keep in mind the following:

  1. Employers should treat a request for FMLA leave to attend an IEP meeting consistent with how they handle all other intermittent FMLA leave requests. That said, the employee is required to provide notice for a foreseeable leave of absence and provide appropriate certification to support the leave request.  In most instances, this should not be a last-minute leave request.
  2. At times, it can be tough to determine whether this is an actual IEP meeting, or if it’s just a regular school visit. For instance, disciplinary meetings at the school would not fall under the guidance provided in this opinion letter. As such, employers should closely review the need for attendance specifically at school meetings so that there is some connection to the child’s IEP or issues that implicate the Individuals with Disabilities Education Act (IDEA).
  3. That said, what 504 Plan meetings? If IEPs are covered, are 504 Plans covered, too?  Me thinks the DOL may have simply overlooked this issue. At a minimum, they decided to take a very narrow view of school meetings. Clearly, there are similarities and overlap in IEPs and 504 Plans, as they both provide accommodations in the learning environment for those with disabilities.  Take a look at the analysis from my friends Jon Hyman and Suzanne Lucas on this issue.
  4. Can the employer require proof of appointment for IEP meetings?  At a minimum, employers should insist that the medical certification contain specific language supporting the need for the employee to attend IEP meetings for the child. The leave request otherwise should be handled similar to an employee who requires doctor’s appointments.  Unless there is objective evidence that the employee is lying about attendance at the IEP meetings, employers should tread carefully in requesting documentation to support attendance at every IEP meeting.
  5. Train your managers about this new obligation so that these requests are not being outright rejected in the context of FMLA leave.  I mean, really. The manager’s knee jerk reaction to this request likely will be that such meetings are not covered by FMLA. They need to understand how this updated guidance affects these particular leave requests.

It’s a Friday in the middle of summer. So, approximately half of your workforce called off today due to an FMLA-related absence. [Well, not really, but I’m not that far off, amirite?]

Take heart. At least you’re not the City of Chicago.

As reported this week by the City’s Inspector General, three employees in the City’s Office of Emergency Management and Communications all took FMLA leave at the same time for various so-called ailments. Instead of laying up on the couch and recuperating, however, the employees took the first plane they could out of Chicago and headed down to the Caribbean for a “booze” cruise and other similar activities, according to the Inspector General’s report, which highlighted their fun in the sun:

The [employees] consumed alcohol, went to numerous restaurants, attended night clubs, toured Caribbean islands, went horseback riding, rode jet skis, and even went on a ‘booze cruise.’

In a move that would make even the most egregious FMLA abuser blush, two of the employees took a combined 10 cruises over a seven year period, using FMLA leave on these occasions to avoid work.

That’s not all.

A fourth employee used 19 days of FMLA leave to take two Caribbean cruises in 2014 and 2017.  During these cruises, he consumed alcohol, toured the islands, shopped and went clubbing at night.  When questioned about his boondoggle, the employee stated simply that he took FMLA leave “just to get away.”

Many of these FMLA days were paid by the City, all on the taxpayer’s dime. However, the employees apparently did not schedule their paid time off in advance, so that they could more easily slip away unnoticed.

When the pattern of their activities was snuffed out, they were terminated for their outrageous FMLA abuse. But not until the damage had already been done.

Insights for Employers

Stay vigilant, my friends. How can employers minimize the chances of getting stung by this same tactic? I’ve shared some of these ideas before, but here are a number of tools that have worked for my clients as they have fought FMLA leave abuse, especially in the dead of summer:

  1. Prepare a list of probative questions you ask all employees when they request time off. Employers, you have the right to know why your employee can’t come to work! So, prepare a list of questions that you ask your employees when they call in an absence. These will help you better determine whether FMLA is in play and if the request might be fraudulent:

– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/illness?

– Have they previously taken leave for this condition? If so, when?

– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?

– When do they expect to return to work?

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

As I referenced in a recent blog post, you should consider aligning your FMLA call-in policies with your regular PTO policies.

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

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

5. Discuss with the Employee Your Expectations During Leave. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. These expectations should be summarized in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.

6.  Have Employee Complete a Personal Certification. This could have come in handy for the City of Chicago. Upon return from any leave of absence (FMLA or otherwise), ask the employee to complete a personal certification asking them to confirm that they actually took leave for the reason provided.  The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document. My recommended form looks like this: 7. Check in on your Employee and/or Make Them Stay Put.  Want to be really aggressive but operate within the law?  I have a handful of clients who explicitly tell employees that it is their policy to check in on the employee if they are using paid sick leave, and then they actually check in on them. Taking this one step further, some clients require their employees to remain in the immediate vicinity of their home while they are recuperating.  If they don’t follow this policy, they face discipline. Think this tactic is illegal?  Think again. One court already upheld this very approach!

8. Follow up on Patterns of Absences. Monday/Friday absences. Taking days off around a holiday to extend time off. These situations smack of FMLA abuse. If you witness a pattern of absences over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can obtain your own sample letters for these situations.)

9. Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.

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

Remember when I told you a few months ago that employers can and should consider requiring that employees make two calls to request FMLA leave? For instance, you might require one call to the supervisor to report the absence, and a second call to Human Resources (or your third party administrator) to request FMLA leave.

All good, right?

Weeeeeeell, let me share a cautionary tale for those who have implemented or are contemplating this two-call requirement, cause one little ‘ol federal court just threw us a curve ball.

The Facts

LaShondra was employed at a local Burger King restaurant, and during her Saturday shift, she told her boss that her mom was in a “life-or-death situation that required surgery,” and that she needed “a week off” to be with her. In response, her supervisor told her to “take all the time” she needed.

She stayed in touch with her boss about her continued absence for a few days, but then was spotty in her communications on several other days the following week. It was not until the following Wednesday that LaShondra asked her supervisor for FMLA leave. In the meantime, however, she had a no-call, no show that same Wednesday and, although the reasons for her termination the following week were unclear, the no-call, no-show surely was a key factor.

Under BK’s FMLA policy, which was outlined in its employee handbook, employees like LaShondra were obligated to contact both their supervisor and human resources to request FMLA leave. In this instance, LaShondra called her supervisor, but did not call HR to request FMLA leave as required in the policy. In defending against LaShondra’s eventual FMLA claims, BK naturally pointed to LaShondra’s failure to comply with both components of the notice requirements of the FMLA policy. Although LaShondra may have alerted her supervisor, she failed to follow the second part of the notice requirement — contacting human resources to request FMLA leave.

How Did This One Turn Out?

Over the past few years, employers have scored victory after victory where they have implemented a two-phone call notice requirement and the employee has, in turn, not followed the procedure.  As I noted in my previous post on this topic, numerous federal appellate courts have upheld the employer’s right to maintain this rigorous notice obligation.

Not this court.

After analyzing the notice provisions of the FMLA regulations (and preamble!) in painstaking detail, the court rejected BK’s argument that LaShondra’s failure to notify human resources precluded her from taking FMLA leave. Specifically, the court held that an employer can maintain a “two call-in” requirement only if this approach applies across the board for all leave requests.  In other words, this court determined that an employer cannot deny FMLA leave based on an FMLA notice requirement that includes more procedural hurdles than what the employer requires for other types of leave.  Moore v. GPS Hospitality Partners (pdf)

Sadly, the Court didn’t stop there, as it found there were unusual circumstances that prohibited LaShondra from following the call-in requirements anyway. Notably, the court found it unreasonable for LaShondra to have read and understood the obligations contained in the FMLA policy since, after all, she had only been given access to the new employee handbook (with the 2.5 page FMLA policy contained therein) two months earlier and she “didn’t have time” to review the policy.  Curiously, the court also appeared concerned that the employee did not receive an actual hard copy of the handbook, though it was readily accessible to LaShondra in an online format.

Insights for Employers

I had a visceral reaction to this decision after I read it, and my knee-jerk reaction was to wad it up and throw it in the garbage can.

Let me explain.

As an initial matter, the court failed to recognize that the FMLA, by its very own bureaucratic terms, demands that employers and employees alike assume a host of somewhat challenging and time-consuming obligations that simply aren’t required in an ordinary sick leave situation. Indeed, the 2009 regulatory changes made clear that these amendments hoisted several additional responsibilities on employees that do not apply in an typical sick leave situation. So, it’s a bunch of hogwash to fault an employer for implementing a process that is modestly different for FMLA leave than other forms of leave.  Moreover, from a practical standpoint, it’s quite common for employers to have several different processes for requesting sick leave vs. PTO vs. vacation vs. STD leave vs. military leave vs. FMLA leave. So, which of these processes should an employer select so as to remain complaint with this court decision? Following this decision leads potentially to absurd results, though we need to give it due consideration (see recommendations below).

Then, there’s the issue of the employee handbook. Ahem, really?  Even though the employee had online access to the employee handbook and two months to acquaint herself with a 2.5 page FMLA policy (which, by the way, would be among the shortest FMLA policies I’ve seen), the court bought her testimony that she “didn’t have time” to review the handbook and FMLA policy prior to the occasion in which she needed it to care for her mother. How long should an employee have to acquaint themselves with a handbook before the employer can start enforcing its provisions? 6 months? 12 months? Perhaps longer if the employee can show they “didn’t have time” to review it? Where is the personal accountability here? Further, can you imagine the lawless workplaces we’d encounter if employers were handcuffed from enforcing reasonable provisions in an employee handbook? This kind of judicial officiating doesn’t operate in reality.

Oh, and I haven’t even yet gotten to the point where I remind you that several other appellate courts have found this two-call policy perfectly appropriate (and which presumably also dealt with differing procedural requirements for FMLA leave).  How much weight do we give this Burger King decision given the weight of these several other, persuasive decisions?

Perhaps not much. But let’s be careful.  This decision reminds us of a few important principles:

  1. Whenever possible, align paid leave procedures with your FMLA procedures. There is much here to suggest that this case could be limited in persuasive value because of its distinguishable facts, but let’s use it for what it’s worth — we’re in a more defensible position when our procedures for requesting leave of any kind align. [I say this with my teeth clenched . . . ]
  2. Managers must have an understanding of their role in the FMLA process.  Although I did not focus much on the managers’ response to LaShondra’s eventual request for FMLA leave, the reaction is not going to win any best practice awards. In fact, their reaction to her request for leave was pretty horrible and made it fairly clear to me that they didn’t have a clue about their responsibilities under the FMLA.  FMLA training is critical. Don’t push it off.
  3. Managers must be able to recognize when an employee’s request is potentially for an FMLA-qualifying reason and to take steps to ensure that neither the supervisor nor the staff interferes with an employee taking leave protected by the law.
  4. On that same note, one of the quirky facts about this case was the FMLA policy’s requirement that a manager, when informed of the need for FMLA leave, was obligated to advise the employee to go to Human Resources to make the FMLA request. Get this kind of stuff out of your FMLA policy! Don’t put responsibility on the manager to respond in this way, cause once they screw it up, you’re on the hook for the breakdown.  (And in the plaintiff’s deposition in her FMLA case, do you really think the employee is going to agree that the manager actually told her to report the absence to HR? Nope.)  Keep the responsibility always on the employee to report the need for FMLA leave. That doesn’t mean that managers are off the hook — they must be trained on how to properly handle an FMLA request (see No. 2 above!), which should include counseling the employee to report the absence per the employer’s absence policy, but the policy should not bind the manager to respond in a certain manner. As we see here, the court took issue with the fact that the FMLA policy required the manager to act in such a manner, but he didn’t do so. This artificial, procedural hurdle created yet another problem for this employer.
  5. This decision gives heartburn to employers that use third-party administrators, as there are very few TPAs that handle ALL the leave administration for an employer. (Another reason why this decision makes no practical sense.) Employers should consider whether leave requests generally should flow through a common location, such as a TPA or Human Resources.

It’s been just over 10 years since the Department of Labor last introduced wholesale changes to the FMLA regulations.

Remember those happy days back in 2009, when we were introduced to new FMLA notice requirements (for all), clarity over employee eligibility and holidays, emphasis on call-in procedures, favorable bonus language and waivers of FMLA rights?  Oh, and those cute, new FMLA notices and medical certification forms?  Oh goodness, those were fun days!

After a decade in which we witnessed both the introduction and end of Administrator’s Interpretations, a return to opinion letters and a spike in on-site visits from our favorite federal agency, could the DOL be forecasting new changes to the FMLA regulations?

What’s Happening?

The post went largely unnoticed, but the Office of Management and Budget just this week published a notice announcing that the DOL as part of its semi-annual regulatory agenda would be making a “request for information” to:

. . . solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.

Why Does This Seem Like a Big Deal?

It’s a rare occasion for the DOL to solicit feedback on potential changes to the FMLA regulations. Taking the announcement at face value, it certainly appears to suggest that the DOL is interested in revisiting the regulations to determine the ongoing pain points for employers and employees and how regulatory changes could enhance FMLA administration.

To be clear, there is much to enhance. Employers are searching for predictability and certainty in DOL guidance so they can best manage their workplaces.  Whether it’s the scope of information an employer can obtain on a certification, the parameters of recertification and second opinions, or how employers can ensure intermittent leave is being used in the manner for which it was intended, there is plenty to clarify in these regulations!

What is the Likelihood of Wholesale Changes to the FMLA Regulations?

If I am a bettin’ man, which I am not, I don’t expect wholesale changes to the regulations.  Earlier this month, Helen Applewhaite, the DOL’s Branch Chief for FMLA, told attendees at the Disability Management Employer Coalition FMLA/ADA Employer Compliance Conference that the DOL is in the process of reviewing the model medical certification form with an eye toward making the model forms easier to use, which might include reducing demand on physicians in completing forms and ensuring that medical certification provide employers reliable information to more easily determine whether a medical condition is a serious health condition and the parameters around that condition.

I didn’t get the sense from Applewhaite’s presentation that the regulations necessarily would be revisited, but the above notice clearly seems to indicate that something more than just forms could very well be in play.

Stay tuned. This might just be the beginning of a fun ride.

Andy, the Director of Human Resources at one of my clients, called me last week. He was pretty distraught.

One of his employees, we’ll call him Tom, has been battling lung cancer, and he recently learned that the cancer has advanced to stage four.  It’s clear that his days are numbered.

Tom has been a diligent, hard-working employee for several years as part of the employer’s facilities team, and in this role, he is responsible for setting up and breaking down events held by the employer.  Based on Andy’s observations, Tom can no longer perform the essential functions of his job.

In fact, it’s obvious Tom will never be able to perform them.

I quickly sensed that Andy and I were heading toward that part of the conversation when my client invariably asks the question: Do we have an obligation to accommodate Tom’s inability to perform the job and for how long, given that he has a terminal illness?

As if he knew precisely what was swirling in my head, Andy quickly cut off my thought.  And he was blunt with me:

“Jeff, we don’t want to terminate Tom. And we don’t want to put him on leave because he wants to be productive and work. I will make work up for him to do until he feels he can’t work anymore.

But then Andy shared a legitimate concern:

In doing this for him, though, I don’t want to be required to provide light duty or “make-up” work for just any employee who can’t perform their job. If I do this for Tom, will the law require me to do the same for other employees in the future?

Benevolent Employers Are Not Penalized under the Law

Put Andy’s question another way, does his good deed set a precedent for every accommodation request made by his employees in the future?

Thankfully, it does not. Courts have consistently declined to hold to a higher standard a “benevolent” employer that goes above and beyond the call of duty.  A good example is Myers v. Hose, in which a city bus driver was ultimately terminated because he was unable to perform his job duties due to significant restrictions. In support of his ADA claim, the former employee argued that the fact that other employees were provided accommodations when he was not is evidence of discrimination.

Not so fast, said the court. In rejecting this ADA claim, the court clearly did not want to punish a good deed:

. . . the fact that certain accommodations may have been offered . . . to some employees as a matter of good faith does not mean that they must be extended to Myers.  Such a regime would discourage employers from treating disabled employees in a spirit that exceeds the mandates of federal law. If an employer undertook extraordinary treatment in one case, the same level of accommodation would be legally required of it in all subsequent cases; in other words, a good deed would effectively ratchet up liability, and thus not go unpunished.

Taking it further, the court cautioned that “discouraging discretionary accommodations would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.” (In any event, these claims should be dismissed for the additional reason that the plaintiff cannot show that any non-disabled person was treated better than he was treated.)

Additional Insights for Employers

Andy breathed easier after I shared this perspective, and it gave him the flexibility he needed to care for his terminally-ill employee.

What else should employers keep in mind in these situations?

1.  Be Creative.  Are there other accommodations that should be considered for an employee in these situations?  Think about:

  • Modifying job duties
  • Offering flexible working hours, such as starting late and ending early, and giving extra breaks
  • Altering workplace facilities or equipment
  • Providing parking or transportation assistance
  • Permitting time off for medical appointments
  • Changing performance targets to consider the effect of any sick leave or treatment side effects, such as fatigue
  • Changing where the employee works — for example, moving the employee to a ground floor office if he cannot handle climbing stairs
  • Providing computer equipment, such as voice-activated software, if the employee can’t type

2.  Be Compassionate.  We will not be remembered for how much we know or for our great victories, but by how we made someone feel.  Ten years ago this weekend, I lost my father after a tough battle with cancer. As my dad dealt with his illness, I remember with gratitude how his boss treated him in his final days — he allowed my dad to work when he could make it, gave him leave when he needed it, and interacted with him with compassion and empathy. Just as important, I remember how my law firm treated me — with respect, empathy and kindness — as I cared for him in his final days.

Some employers can’t afford to provide make-up work or hold a position open for long. To those who can, the human touch can make a difference. And it’s perfectly legal.