Employers are working overtime to determine how to respond to the Coronavirus outbreak, which has quickly turned into an international crisis. Employers rightfully are concerned about the safety of their employees and what they should be doing when one of their employees (or employees’ family members) have traveled through China.

Naturally, a number of my clients have asked me about how they should treat employees returning from China, whether they can force recent travelers to stay away from work, and whether this time away from work would be considered FMLA leave.

I hit these questions head on below:

What Should an Employer Do if It Suspects an Employee Was Exposed to the Coronavirus?

I couldn’t say it any better than my Littler colleagues Alka Ramchandani-Raj and Melissa Peters, who suggest the following approach in this informative alert about action steps for employers:

If an employee has traveled to China in the last 14 days and is exhibiting signs and symptoms of the virus (i.e., feels sick and exhibits symptoms such as fever, cough, or difficulty breathing) the employer should:

  • Advise the employee that they must not come to work until the symptoms disappear and/or a doctor has confirmed that they are not contagious.
  • Advise the employee to seek medical care right away.
  • Contact a medical and security service company so it can connect the employer with the right medical professionals to assist the employee.
  • Avoid contact with others.

If an employee becomes ill and/or the employer suspects the employee has been exposed to someone with the virus, there are several things that an employer can do:

  • Instruct the employee to work from home for up to 14 days to ensure the employee does not show symptoms of the virus.
  • Instruct the employee to obtain a fitness-for-duty/return-to-work notice from their physician.
  • Provide leave to employees until the incubation period is exhausted or they return with a fitness-for-duty notice.  These leaves of absence should be administered consistent with the employer’s normal leave of absence policies, and may be paid or unpaid.

If the employee has contracted the condition:

  • Contact the CDC and local health department immediately.
  • Contact a hazmat company to clean and disinfect the workplace.
  • Inform other employees of potential signs and symptoms and offer to allow employees to expense their medical test.
  • File any workers’ compensation claims necessary if the condition was contracted at work or in relation to a work-related activity (business travel).
  • Offer the employee the ability to work from home, or place the employee on administrative leave as necessary.  As noted above, the leave should be administered pursuant to normal company policies, and may be paid or unpaid.

Should an Employer Designate FMLA Leave When an Employee is Forced Off Work?

The FMLA provides job-protected leave for specific medical and family reasons. Specifically, employers must provide leave if the employee is incapacitated from working because of their own serious health condition or when they need to care for a family member with a serious health condition.

Clearly, employees with the coronavirus and employees with a child, spouse, or parent infected by the coronavirus are entitled to FMLA leave (if otherwise FMLA-eligible).

But what if the employee demonstrates no symptoms? As an initial matter, employers may be inclined to ask employees suspected of coronavirus exposure to work from home or take a leave of absence, and follow up with the appropriate FMLA notices and certification to be completed. No concerns here with this approach, as my colleagues explain more fully above.

If the employee demonstrates no symptoms of coronavirus, however, the employer should not count any of this leave against the employee’s FMLA allotment, as there is no evidence (yet) of a serious health condition rendering the employee unable to work. Ideally, these employees should work from home with your permission, as they likely are healthy enough to continue working.  Employees working from home should be instructed to “self-monitor” for symptoms of the virus, which include fever, coughing, shortness of breath or difficulty breathing. If symptoms develop, the employee should immediately inform the company and should not return to work prior to completing a return to work or fitness for duty evaluation with their physician.

In the meantime, keep these action items in mind when dealing real time with the current outbreak.

Jingle Bells is now a faint memory. Three weeks into 2020, we’ve made and already broken our New Year’s resolutions.

Is it a new decade, or is it not?

Who knows and who cares, right?

Whether or not you’ve broken that New Year’s resolution, the turn of the calendar is the perfect opportunity to update your key personnel policies. At the top of your list should be an in-depth review of your FMLA policy. I outline below a road map to audit your current FMLA policy.

Here are the ten (or so) problems we commonly find when reviewing employers’ FMLA policies, along with our recommended fixes:

  1. Expanding leave entitlement by redefining threshold eligibility.  You’re likely familiar with that pesky eligibility requirement that requires your employees to work at a location where there is 50 employees within a 75-mile radius.  Perhaps due to oversight or harmless historical laziness, you have removed this critical eligibility requirement from your FMLA policy. It’s entirely possible that this is due to a conscious decision on your part to provide FMLA leave to all your employees no matter where they work. If this is not what you intended, however, you should ensure that this 50/75 requirement is included in your policy. When you don’t include this provision, you may not be able to claim the employee is ineligible later. Just ask this Kalamazoo, Michigan employer.
  2. Improper identification and description of your FMLA leave year.  An eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. But what happens when an employer fails to disclose the 12-month period in its FMLA policy? The employer is obligated to use the 12-month period that provides the most beneficial outcome for the employee.  To avoid this injustice, be sure to clearly identify and describe your 12-month period within your policy. If you are interested in my suggestion as to which FMLA leave year to choose, take a look at a previous post.
  3. Inaccurate or non-compliant rules about required or permissive substitution of paid time off and/or disability benefits during leave.  As an initial matter, if you are exhausting an employee’s accrued paid leave concurrently with FMLA leave, be sure to include this requirement clearly in your policy. Additionally, if the employee is receiving STD or worker’s compensation benefits, neither the employee nor the employer may require the substitution of paid leave. Despite this requirement, some FMLA policies still provide for substitution of paid leave during periods of STD or WC benefits.  Edit this provision accordingly to comply with the law.
  4. Failing to describe employees’ notice obligations (or failing to accurately capture difference between foreseeable and unforeseeable situations). There are oodles of you out there who still advise employees to “call as soon as possible” when requesting FMLA leave. Why on earth would you use such wishy-washy language? It’s of no help to you, as it effectively allows the employee to define when they are going to phone in an absence. This approach ends up frustrating you, since the employee calls whenever it’s best for them and there is little recourse for you. Ensure your policy clearly defines notice expectations for foreseeable and unforeseeable leave. As to foreseeable absences, you generally can require 30 days’ notice. As to unforeseeable leave, strongly consider establishing a set time before an employee’s shift begins (e.g., two hours before the shift starts) to report their absence. This approach helps you better plan your staffing, and it reduces employee misuse of FMLA leave. Consider this recommendation the proverbial low-hanging fruit.
  5. Outdated information about military family leave entitlements. Remember the National Defense Authorization Act of 2010, which amended the FMLA with respect to a few obscure reasons for  military family leave? [Yeah, I barely remember it myself.] At that time, parameters for the “rest and recuperation” and parental care obligations were adjusted as “qualifying exigencies,” along with a few other rules. Despite my recommendations some seven years ago, some of you still have not updated your FMLA policy. It’s never to late to change — go ahead and do it now!
  6. Explanation of what happens if employee fails to pay benefit premiums during leave. The FMLA regulations have very specific rules for canceling an employee’s group health benefits while they are on FMLA leave. (29 CFR 825.212) As the regulations make clear, an employer’s obligations to maintain health insurance coverage ends if an employee’s premium payment is more than 30 days late. Before dropping coverage, however, the employer must provide written notice to the employee that the payment has not been received and that coverage will end in 15 days if the premium is not paid.  Why not include this expectation within your FMLA policy so employees are  well aware of this payment requirement?
  7. Overstating fitness for duty requirements. Do you apply your fitness-for-duty certification requirements consistently? You should. Do you require a fitness-for-duty certification when an employee is returning from intermittent leave? You shouldn’t, unless reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.  Take a look and make sure you aren’t stating something different in your policy.
  8. Failing to attach DOL’s FMLA Poster or include all of its detail in the policy. The Department of Labor long has taken the position that the entire contents of the  DOL’s “rights and responsibilities” poster must be included within your employee handbook.  To comply, we recommend that this poster be included within an appendix or the back of your employee handbook.
  9. No state law addendums where required (e.g., California, New Jersey, New York, Connecticut, D.C.) that explain differences between employee rights and responsibilities under the main (federal law) policy and applicable state law. Where different leave laws apply to your employees, be sure to include within your personnel policies or handbook these state and local laws so that employees are fully aware of their rights and responsibilities.  In some states, these policies must be located within your handbook or personnel policies.
  10. Leaving out descriptions of employer’s recertification and second/third opinion rights. See above. You want your employees to know that they may be subject to recertification and second opinions. So, simply put, include these provisions in the handbook so there are no surprises later. ‘Nuf said.

But wait, there’s three more! [I’m an attorney. Do you actually think I could limit myself to identifying only 10 problems?]

 1. Characterizing FMLA leave as “job-protected” without noting the employer-friendly qualifications. Many policies inform employees that they will be returned to the same or equivalent position at the end of their FMLA leave.  Case closed, right?  Wrong! Be sure to include in your policy the exceptions to the general rule that they will be restored to work, such as layoffs, shift eliminations, fraudulently obtaining leave, and occasions when the employee is unable to perform essential job functions. (29 CFR 825.216)

2. Leaving out a statement that FMLA fraud is prohibited.  Courts are increasingly relying on provisions within your policy prohibiting FMLA abuse when dismissing FMLA claims, so shouldn’t this be reason enough to add this admonishment in your policy?  Yes, it is.

I’ll even make this easier on you — here’s the precise language to use:

An employee who fraudulently obtains Family and Medical Leave from [the Company] is not protected by the FMLA’s job restoration or maintenance of health benefits provisions. In addition, [the Company] will take all available appropriate disciplinary action against such employee due to such fraud.

Similarly, if you want to prohibit an employee from working a second job, it is critical that you maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. (29 CFR 825.216)

3. Lack of “Key Employee” provision – or, at least, disappearance from eligibility notice.  Ok, maybe I am getting slightly overzealous here, since few of you care about the “key employee” exception, and rightfully so. If you think there is even a sliver of a chance you would employ this exception in the future, be sure to include the provision within your policy and your eligibility notice.

I’m pooped.  Clearly, “being less verbose” was not one of my New Year’s resolutions.

Hat tip: Special thanks to my Littler colleagues, Casey Kurtz and Michelle Barrett Falconer, who offered these recommendations in one of their fabulous presentations last year!

Thanks to those who attended my webinar last week with Matt Morris on “Stop the Madness! Effective Ways to Protect Your Organization Against FMLA Abuse.” A link to access the recording can be found here, and the presentation PowerPoint slides can be downloaded here.

To the nearly 7,000 people who registered for the webinar, thank you.  To those who missed it, you still have time to access the recording.  In particular, we covered:

  • Managing Intermittent FMLA Leave.  Here, we outlined practical steps you can take early on to fight FMLA abuse (e.g., recognizing the need for FMLA leave, importance of call-in policies and how to address late call-ins, meeting with the employee to set expectations when FMLA is approved) and after FMLA leave has begun to ward off FMLA misuse (personal certification, the effective use of recertification, identifying patterns of suspected FMLA leave misuse  and communicating with the physician about the suspected misue).
  • Requiring the Employee to Perform Essential Job Functions when ADA Leave is Requested.  When your employee is not eligible for FMLA leave or has exhausted FMLA leave but continues to be absent, we offered suggestions on how we still can hold employees accountable for not showing up to work.
  • Taking Action where the FMLA abuser is caught red-handed.  Found photos of your employee’s water-skiing vacation posted to Facebook at the very time they should be home in bed recuperating on FMLA leave? No problem! We outlined the steps for an effective investigation of your employee’s conduct so you can take appropriate disciplinary action and avoid getting sued.
  • Finally, we offered tips to avoid liability for foolish things managers say and do when they suspect FMLA leave abuse.

And in what has become a custom, we ended our webinar 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 FMLA Misusers” 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 woke up at 4:30 with a scratched cornea 

It was better than last week, I swore I had a hernia

Oh what excuse I could concoct to avoid my overtime

Oh, tidings of FMLA . . . and ADA . . .Oh, tidings of FMLA

* * *

I need a stupid doctor’s note to take ADA medical leave

That Won’t Be a Problem, I save one in my sleeve

I think I’ll make a tee time because my boss is so naive 

Oh, tidings of FMLA . . . and ADA . . .Oh, tidings of FMLA

* * *

Law of Wonder, Law of Light

Law that will help me get out of work tonight

But if I’m not careful, come tomorrow, 

I will need a new worksite!

* * *

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

Happy Holidays!

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.