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 precisely knew 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.

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.

Every one of you employs at least one of these employees — you know, the one who:

  • requests medical leave because of, let’s say, his uromysitisis poisoning (clearly, an FMLA-qualifying condition); but
  • wants to use his accrued paid leave instead of tapping into FMLA?

He might even get indignant, insisting that the law allows him to choose either FMLA leave or ordinary sick leave to cover an absence clearly covered by the FMLA.

How do you respond to this employee?

I have long thought the answer to be a rather simple one: when an absence qualifies as FMLA leave, the employer should designate the leave as FMLA leave.  After all, the regulations tell us that, “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” 29 C.F.R. 825.301(a)  There is nothing in this regulation to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.

But I’ve not had much to point to beyond the regulations to support my position.

That changed yesterday. Never thought I’d say this, but the DOL got my back!

In a straightforward, practical opinion letter, the U.S. Department of Labor addressed yesterday whether an employee could delay FMLA leave and instead utilize accrued paid leave when the absence clearly would qualify as FMLA leave. The DOL’s answer was swift and unequivocal:

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave.  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. (My emphasis)

If that wasn’t clear enough, the DOL doubled down just a few sentences later:

The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation . . . [If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

Insights for Employers

How does this opinion letter impact employers?

  1. It brings clarity. Those of us who operate in the leave law world may greet this opinion letter with a yawn. However, the employer community has long considered this issue to be a gray area in FMLA administration.  Now they have an answer: an employee doesn’t get to choose whether or not an absence is covered by the FMLA. Now, when any absence qualifies as FMLA leave, the DOL has made clear that it must be designated as FMLA leave.
  2.  It’s Particularly Helpful to Unionized Employers and Public Sector Employers. This opinion letter may end up impacting these employers the most. It’s not uncommon for collective bargaining provisions or public sector personnel policies to allow employees first to use paid leave, followed by FMLA leave. This opinion letter gives these employers the leverage they need to negotiate CBA provisions and establish policies designating FMLA leave at the earliest opportunity whenever FMLA applies.  Thank you, DOL!
  3. Despite the Clarity for the Rest of Us, the Opinion Letter Creates Quite a Trick Bag for Employers in the 9th Circuit.  Let me explain. Several years ago, in Escriba v. Foster Poultry Farms, the 9th Circuit Court of Appeals decided that an employee actually can decline FMLA leave and use paid leave instead, even though the underlying reason for leave would have been FMLA-qualifying leave. Since this decision was issued in 2014, employers in the 9th Circuit have been left scratching their collective heads about whether and how they should designate FMLA leave when an employee declines it.  In issuing this opinion letter, however, the DOL pulls no punches in noting its disagreement with the Escriba decision (see footnote 3 of the opinion letter). Since the decision in 2014, DOL leadership has publicly questioned whether the Escriba decision should be followed. Yesterday, it voiced that displeasure in writing, noting that it “disagreed” with the 9th Circuit’s take that an employee is able to decline FMLA leave. I will continue to counsel my 9th Circuit employer clients the same way I always have: designate the leave under the FMLA!
  4. Employers Can Still Be Generous with Their Paid and Unpaid Leave Programs.  This opinion letter doesn’t mean you need to be stingy with the paid and unpaid leave programs you provide employees. In fact, the regulations explicitly tell us, “Nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.” 29 CFR 825.701(a) So, there is nothing stopping you from providing additional leave when FMLA leave ends. As this opinion letter points out, however, you simply can’t designate the additional leave as FMLA leave once an employee has exhausted 12 weeks of FMLA leave.

If you’re really geeked out on this issue, feel free to review the coverage of this opinion letter on Law360 (subscription required).

I can’t imagine anything more exciting than having joined Littler earlier this year.  [Click here to read about that virtual love fest.]

But I have found a close second: the arrival of the American Bar Association’s summary of every FMLA case decided in 2018!

Yep, you read that correctly.  Every little scrumptious FMLA decision. 

About mid-February or so, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  [Those little ABA rascals kept it from me this year till March, but I finally found it today.] Although our little FMLA blog catches some of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes all FMLA decisions from this past year. This year’s report is as comprehensive as always — it summarizes 2018 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I encourage you to print it off and keep it by your side as a valuable FMLA resource.

I am bursting at my FMLA seams, and I’ve been dying to share the news with my blog readers.

A few weeks ago, six colleagues and I decided to leave our Chicago-based boutique firm and venture toward the labor and employment powerhouse: Littler Mendelson P.C. Littler is the world’s largest employment practice representing employers, and I am joining with dear friends and phenomenal attorneys, Dave Radelet, Chris Johlie, Staci Ketay Rotman, Terry Creamer and Leah Farmer.

I knew I reached FMLA nirvana when I attended my very first meeting at Littler: a 7am Saturday morning confab that was part of a Littler shareholders’ annual retreat. Packed into the conference room were about 25 other Littler shareholders whose sole mission in life is to conquer FMLA, ADA and state leave law issues on behalf of employers.

At 7am on a Saturday morning, there ain’t nothing that gives me goose bumps.

But at this 7am call to order of 25 FMLA nerds? Goosebumps. Full on goosebumps. Next thing they’ll tell me is that we bake FMLA cupcakes together on Fridays as a team-building exercise.  [Ahem, Littler: I prefer pistachio, please.]

And that’s just the core group, mind you. In joining Littler, I’m now a member of the “Leave and Accommodation Practice Group,” which consists of nearly 250 Littler attorneys who ❤ leave and accommodations law almost as much as I do.  This group is headed up by Michelle Falconer and Casey Kurtz, and it’s a force to be reckoned with.

At that memorable 7am meeting, one of my new leave law colleagues, Ellen Storch, forecasted what my Littler experience would be like. “Before I joined Littler, it’s as if I practiced in black and white. With everything Littler offers to practice law, I feel like I now practice in technicolor.” Well said, Ellen. Well said.

For years, I’ve admired Littler attorneys who have been a wealth of knowledge and wisdom for me in the FMLA area — people like Dana Connell, Erin Webber and Alexis Knapp. Now, I get to practice law with these friends, and our clients reap the benefits.

Enough of the Sappy Stuff, Jeff! Are There FMLA Lessons to Learned Here?

My dear readers: as you scroll through this post, I can tell you’re worried about me. Indeed, I sense exactly what’s on your mind: Jeff, you’re exposed. Because you’ve not worked for Littler for 12 months and 1,250 hours, you can’t take any FMLA leave for at least one whole year. Are you absolutely positive you want to do this?

I want to put your mind at ease right out of the gate. So, I’ve compiled the following FAQs based off the questions I’ve received from you over the past few weeks. These Q&As might just apply to a few of your own employees, too.

Q.  Are You a Temp Employee at Littler? Or are You a Regular, Full-time Attorney and Do Your Hours Count Toward FMLA Eligibility?  We ask because we’re concerned that any firm would want to hire on a full-time basis a guy who spends so much of his time infatuated with the FMLA?

A. I know — I totally pulled one over on Littler, as I’ve wanted to slowly let them in on my FMLA obsession. Who ever would want a guy so enamored with leave and accommodation law? A bit creepy, perhaps?

Never fear, I am a shareholder, and I’ve been told I am a full-fledged regular employee of the firm.  Even if I were a temp employee, the DOL has made clear that these hours count toward my FMLA eligibility. In fact, I covered this rather quirky concept in a previous blog post.

Q.  If Littler asked you to practice for a time in one of its international offices, would you still be covered by the FMLA?

A. Ah yes, thanks for the reminder! Have I mentioned that Littler is the largest employment practice in the world representing employers with attorneys licensed in all 50 states, offices in 35 out of the 50 states (as well as D.C. and Puerto Rico) and in approximately 20 countries around the globe?  We literally can assist clients anywhere and everywhere.

But I digress. To answer your question, with the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company.  So, a U.S. national loses FMLA protection once that individual steps off U.S. soil and works for one work week in another country. But is the converse true? For instance, are foreign nationals on H-1B work visas eligible for FMLA leave? I’ve answered that one here.

Q.  The word on the FMLA circuit is that you’re planning to celebrate your move to Littler with a little derriere augmentation? Is this true? And if so, would it be covered by FMLA?

A. Oh, you guys! I mean, I definitely could use a little derriere augmentation, but it just ain’t my style. In any event, we know from a previous post that time off for cosmetic surgery is not covered unless it involves an overnight stay or complications develop. [If nothing else, click on the link above for one of my all-time favorite FMLA Insights blog photos!]

Q.  Jeff, congrats on the move. But the only thing I really care about is whether your FMLA Insights blog will continue now that you’re at Littler. Yes or no, and don’t give me an attorney answer like, “Well, it depends . . .”?

A. This is the single most common question I’ve faced since my move to Littler. It warms the cockles of my heart to know how much you care [only about my blog].

I am pleased to report that, after a brief hiatus to modernize the look, my FMLA Insights blog will continue and all its archives are available to you. The blog will not be affiliated with Littler, but I will remain the sole author. If you’ve not yet subscribed to my blog, please do so on the right side of this page.

Fair warning: In the time ahead, I will incorporate even more ADA principles in my posts to expand our collective horizons a bit.  Never fear — FMLA is my first love, and I ain’t about to start cheating on her now.

Q.  At your annual FMLA webinar, you typically sing FMLA songs. Now that you’ve moved to a worldwide law firm, does this mean no more singing? For the record, I am hoping so, as the a Capella bit is slightly off-putting, don’t you think?

A. Does a bear poop in the woods? You better believe I am singing! And because I am now at Littler, it’s going to be better than ever.

Btw, I am taking song requests now.

 

All kidding aside, I am so grateful for all of the words of support I’ve received from clients and my loyal FMLA Insights subscribers as I’ve transitioned to Littler over the past few weeks.  You can now reach me at:

E-mail: jnowak@littler.com

Phone: (312) 795-3295

I am elated to show my clients the technicolor world that is Littler. Let’s get down to business!

Thanks to those who attended my webinar last week with Matt Morris on “Six Ways Your Managers Are Causing FMLA & ADA Leave Lawsuits, and How to Train Them to Stop.” A link to the recording can be accessed here (just requires providing some basic info about you) and the presentation PowerPoint can be downloaded here.

To those who attended, thank you.  To those who missed it, you still have time to access the recording.  As promised, Matt and I provided a road map of all the necessary issues to address in an FMLA training session, including case studies you can use with your managers.

In this session, we provided you material to train your managers in six key compliance areas:

  • The Space Case: The manager who should have known the employee put the manager on notice of the need for FMLA leave, but failed to do anything about it.  In most training sessions, you will spend most of your time here, since you want your managers to be able to recognize when an employee may need a leave of absence for a medical condition and what they should do with this information.
  • The Lazybones:  The manager who knew the employee needed a medical leave of absence, but failed to direct the employee’s request to the proper channels.  As a result, the employer fell out of compliance and risked FMLA liability.
  • The Head Stuck in the Book:  The manager who fails to recognize patterns of FMLA abuse, such as Monday/Friday absences, absences in conjunction with holidays, and when managers learn of information indicating that the employee is misusing FMLA leave.
  • The Oversharer:  The manager who responds inappropriately to an FMLA leave request, such as telling the employee “it’s not a good time to take leave,” or making a snide comment about an employee’s leave of absence in an email.
  • The Badgerer: The manager who requires an employee to perform substantive work while on FMLA leave or keeps bugging an employee when they should not be working while on FMLA leave.
  • The Troublemaker: The manager who tainted the termination decision by injecting his discriminatory tendencies into the decision-making.

Of course, we ended with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye Bumbling Managers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I hired a volatile manager, his name was Ross 

He’s always on a power trip, people call him “The Boss”

He tends to fire those with da gout or chronic IBS

Oh tidings of FMLA . . . FMLA . . . Oh tidings of FMLA

* * *

Ross told his secretary “It’s a bad time for medical leave”

Then he gave her a parting gift, a book called “No More Hysterectomy”

I’m worried what next slur he’ll use at our 3pm meeting

Oh tidings of FMLA . . . FMLA . . . Oh tidings of FMLA

* * *

This law is a wonder, this law is chore

It makes me scared to hire employees anymore

But if I don’t train (or fire) Ross, come tomorrow

I will find the DOL at my front door!

* * *

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

Happy Holidays!

It’s the end of the year, which means bonus time.

Or perhaps instead you want to offer a pay incentive to employees to improve attendance or production?  Take, for instance, a point-based attendance bonus policy in which employees are assessed points for every tardiness or absence (even for FMLA or ADA-covered leave), which, in turn, disqualifies an employee from receiving the incentive.

In these situations, can an employer disqualify an employee from the bonus or incentive?

In short, Yes.

The FMLA regulations provide in relevant part:

. . . 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).  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.” So, bottom line, if you deny bonuses and incentives to those on other, similar forms of leave — such as absences related to jury duty leave, military leave to ADA leave — you can deny the same bonus to the employee who took FMLA leave.

But what about unconditional pay increases automatically given to employees? That’s a different story. When increases such as a cost of living increase are provided to all employees without any condition attached, an employee who has taken FMLA leave is entitled to the same increase.

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?  See my other posts on these issues below:

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

Online registration: Click Here

Over the past year alone, employers have been forced to defend FMLA and ADA lawsuits due simply to an inappropriate comment from a manager after an employee requests time off or an accommodation in the workplace.

A snide comment about an employee in an email . . . Discussing an employee’s medical condition with others in a meeting . . . Telling an employee that the Company “can’t afford” for him to take time off.  Despite an employer’s best policies (and intentions), all it takes is a new or untrained manager to cause an FMLA or ADA-related lawsuit.

In what has become my annual FMLA mega webinar, I will be joined again by my friend, Matt Morris, VP of FMLASource, for “Six Ways Your Managers are Causing FMLA & ADA Lawsuits, and How to Train Them to Stop.” This webinar will be held on December 12 at 12 noon CST.

Our complimentary webinar will use a case-study format to show how your managers undermine otherwise compliant corporate policies and HR practices. More importantly, we then will give you the content to create your very own FMLA and ADA training program. Yep, you read that correctly. We will give you the content to create your own training program.

And we’re doing it for free.  [We’re not very smart business people, are we?]

In this session, Matt and I will focus on:

  • How managers are increasingly undermining an employer’s defense of an FMLA and ADA lawsuit, and how to identify the risk factors
  • Where to look for the most common pitfalls in how managers handle FMLA and ADA leave – through in-depth discussion of scenarios and related cases
  • Constructive methods you can use to train managers in the process of both FMLA and ADA leaves. Did I mentioned that we will provide much of the actual content you should use in your FMLA and ADA training sessions? Ahem, yes, we will.

And I just may sing you a song before it’s over.

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. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

Not sure where you stand on this, but I’m always game for a good employer smack down on FMLA abuse.

This smack down comes courtesy of the City of Chicago.

You know, the City of Big Shoulders, the Second City (to no one), the Windy City [little known fact: the nickname “Windy City” comes not from the cold winds that blow off Lake Michigan but from the City’s “windy” politicians. No joke.].

I digress.

Picture a 911 call center deep in the City of Chicago. Pretty busy, yes? And like many other call centers, this 911 call center has plenty of employees who take FMLA leave.

In fact, two years ago, nearly 50 percent of the center’s call takers were on some type of absence tied to the FMLA.

Imagine if on any given workday, 50 percent of your work force was absent on FMLA leave.

Could you run a business? Let that sink in for a second.

Fast forward to today, when the call center’s executive director reported this past week that the call center has reduced FMLA use by 4,000 hours, reduced absenteeism by over 900 shifts and lowered overtime costs by nearly $1 million.

Ahem, nearly $1 million in reduced overtime costs.  

How did the City of Chicago do it? According to the call center’s top dog, the City has used several critical tools to reduce FMLA abuse:

  • Conducted FMLA training for all managers so they understand their role in the FMLA process and how to interact with employees requesting leave
  • Empowered managers to ask their employees questions about their leave “without fear”
  • Initiated meetings with employees when they recognized a pattern of absenteeism, such as Friday/Monday call offs, or call offs in conjunction with a holiday or sporting event
  • Those who have abused FMLA leave have been shown the door. Lawfully. Shown. The. Door.

Insights for Employers

The City’s outstanding work to reduce FMLA abuse is a call to action for the rest of us. In previous posts, I have droned on ad nauseam about all the tools available to crack down on FMLA abuse.  Some of my favorite blog posts on this topic are here and here.

But let me hone in on how you can specifically follow the City of Chicago’s lead to reduce FMLA abuse in your own workplace:

  1. Train your managers so they are empowered to help you address misuse of FMLA leave. Employers often are reluctant to engage their managers about the FMLA or to include them in the FMLA process. This is understandable, as managers can create liability by what they say or do. However, they are your gatekeepers, and if properly trained, they can be incredibly effective as FMLA abuse busters, since they are your eyes and ears among your rank and file.
  2. Ask questions “without fear.”  When your employees call off work, they should be required at a minimum to explain the reason for their absence and when they expect to return to work. If they offer even a hint of a medical condition as the reason for their absence, the properly trained manager (or properly trained leave administrator) should ask follow-up questions to determine whether the absence may be covered by FMLA. What are those questions? See Tip #2 in my previous post.
  3. Meet with the employee to set expectations as to reporting their absences. Several of my clients do this, and I am a big fan. Here, after FMLA has been approved, the employer (whether the manager or HR rep) meets with the employee to remind him/her about call-in requirements, what information they are expected to provide when they call in, and the consequences for failing to follow the call-in policy or providing medical information when requested by the employer.
  4. Meet again with the employee where you observe patterns of suspected abuse. When a leave request or use of leave seems fishy, don’t ignore it. Be candid with your employee about it and ask questions about the circumstances so you can, in turn, determine whether you have a right to be concerned.  Chicago’s call center executive put it this way:

Once we see a trend, we sit down with the employee and let them know we’re seeing a trend. Is there something behind that? We like to look at our employees holistically — not just the time they’re at work. Maybe there’s something that causes that trend. And where we see clear cases of abuses, we are recommending them to be fired and put on the do-not-hire list.

Hats off to the City of Chicago for clamping down on FMLA abuse and providing some practical steps the rest of us can put in place to do the same!

Q: We have an employee who recently had a child placed with her for foster care. (It is her niece.) She wants to take eight weeks of FMLA leave to bond with the foster child, but wants to know if she can take an additional eight weeks of FMLA leave when she adopts the child. She anticipates that the adoption likely will occur sometime next year.

A. My head is spinning, as there are a couple of potential issues here.  First, is this an actual foster “placement,” since it’s an aunt and niece relationship?  Second, when can an employee take FMLA leave for foster care?  And finally, can an employee obtain more than 12 weeks of FMLA leave if they are fostering first and then adopting a child?

So many issues. I answer them, in turn, below.

Is This Even Foster Care?

The reference to a “niece” in the question above has me wondering whether a foster care relationship even exists. Simply because an aunt or family member takes in another family member does not mean we have a foster care situation.  Under the FMLA, foster care is defined as:

  1. 24‑hour care for children in substitution for, and away from, their parents or guardian; and
  2. The placement into foster care involves state action, voluntary or involuntary removal of the child from the parents or guardian, and an agreement between the State and foster family that the foster family will take care of the child. 29 CFR 825.122(g)

So, foster care = 24-hour care plus involvement of the State.

That’s not to say that foster care must be a permanent arrangement. In fact, there is a good chance it won’t involve a long-term arrangement; yet, it still enjoys the protection of the FMLA.  The Department of Labor said as much in one of its earliest opinion letters:

Neither the statute nor implementing regulations imposes a minimum period of time or permanency in connection with a foster care placement for FMLA leave purposes. So long as the placement is the result of a foster care agreement between the foster parents and the state, leave to care for the newly placed foster child would be considered FMLA leave

When Can an Employee Take FMLA Leave for Foster Care?

Clearly, an eligible employee can take FMLA leave to bond with their foster child upon placement.

Keep in mind, though, that the employee also can take FMLA leave before the actual placement if an absence from work is required for the placement for foster care to proceed. As the regulations note, the employee “may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption.” 29 CFR 825.121(a)(1)

Is the Employee Entitled to 12 Weeks for Foster Care Placement and Another 12 weeks Should They Adopt the Child?

In short, no. The FMLA regulations clearly state that an employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for the “placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child” (emphasis added). 29 CFR 825.200(a)

Another DOL opinion letter notes that this regulation is based on legislative history, which emphasizes that FMLA leave is available to care for a “child newly placed with the employee for adoption or foster care.” Senate Report No. 103-3, p.24.

Both the regulation and legislative history indicate that only the initial date of placement with a family triggers the right to leave. Therefore, the niece in this instance would be “newly placed” at the time of the foster care placement rather than when any subsequent adoption occurs.

No two bites at the apple on this one. The employee must complete 12 weeks of FMLA leave within the first 12 months of placement for foster care, and that’s all she’s entitled to.

 

 

 

 

I conducted FMLA training this week for a client making fairly significant changes to the manner it administers FMLA leave. They not only are educating managers about their role and responsibilities under the FMLA, but empowering them to play a key role in reducing FMLA abuse.

My client also is making one key change (among others) as part of their FMLA intake process: it’s requiring employees to make two calls whenever they want to request FMLA leave — one call to their direct supervisor prior to their shift, and an additional call to their leave management department to report the need for FMLA leave.

Genius.

It got me thinking: why don’t all – or at least far more – employers implement this type of dual reporting policy? After all, this approach is perfectly legal and makes complete sense if you have the resources to pull it off.  If an employee calls off work, they already are required to call their supervisor so that the shift can be covered. However, if they also want the FMLA to apply to this absence, they are required to call a second number.  This second call can be required to another employer intake line or a third-party administrator handling calls on the employer’s behalf.

If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused. Clients who have followed this approach often find that a two call approach reduces FMLA abuse. It also is great protection against FMLA litigation, since a number of courts have upheld this approach in the past couple years alone:

  • Barnes v. Spirit Aerosystems, Inc. (10th Cir. 2013).  FMLA claim dismissed because the employee failed to follow the employer’s dual reporting call-in procedures.  Although he called the employer’s attendance line, he failed to request FMLA leave from the Company’s Benefits Center.  This resulted in an unexcused absence instead of an absence categorized as FMLA leave.
  • Perry v. Am. Red Cross Blood Servs. (6th Cir. 2016).  Upholding dismissal of FMLA claim where the plaintiff did not call into the employer and the third party administrator.
  • Norton v. LTCH, (6th Cir. 2015). The company’s policies required that employees on intermittent leave call an FMLA Leave Contact Center before each qualifying absence in addition to a normal call-in procedure.  Because the plaintiff failed to make two calls, it doomed his FMLA claim.
  • Szostek v. Drexel University, (3rd Cir. 2015).  The employer required that employees notify both the employer and its third-party FMLA administrator of absences for which employees sought FMLA protection.  Plaintiff notified the employer, but not the TPA, of such FMLA-related absences; therefore, they were not protected by the FMLA.

Nuff said. Find yourself an employment attorney and implement this process change now.

That is, unless you are particularly fond of FMLA abuse.