Drafting a Parental Leave Policy? Learn from the Estée Lauder Story or You'll Risk Smelling Stinky

By Jeff Nowak on August 6, 2018 Posted in Paid Leave, Pregnancy

Parental leave policies are on the rise.

Maternity. Paternity. Caregiver. You name it. I am drafting more of these policies than ever before.

So, you can imagine my interest when, last year, the EEOC sued skin care/fragrance behemoth Estée Lauder, claiming that its parental leave policies discriminated against men. According to the EEOC at the time, Estée Lauder provided eligible new mothers six weeks of paid parental leave for child bonding (in addition to leave for recovery for childbirth), but only offered new fathers two weeks of paid bonding leave. The Company also apparently provided flexible return-to-work benefits to moms that were not offered to dads.

In unison, new dads across America booed and hissed loudly [of course, while we spritzed on our “Lauder for men” cologne].

A New Era at Estée Lauder

I never have been able to get my hands on that elusive Estée Lauder parental leave policy. So, I have no idea whether its policy effectively discriminated against men (as EEOC claims) with respect to bonding leave and other benefits.

But after reading my good friend Marti Cardi‘s blog post, I now know that Estée Lauder has settled the infamous EEOC lawsuit for a $1.1 million payment to a class of dads and a consent decree that requires the Company to avoid treating dads in a discriminatory manner.

In defense of Estée Lauder, it’s important to note that the Company announced earlier this year that it would significantly sweeten its parental leave benefits for both women and men who regularly work 30 hours per week. According to a Business Insider report (as reported by HR Dive), the Company now offers:

Six to eight weeks to moms for recovery from childbirth
An additional 20 weeks of paid leave for bonding (available to moms and dads)
$10,000 toward adoption expenses
A back-to-work transition program (regardless of gender or sexual orientation)

The company reportedly will also continue to offer $20,000 toward fertility treatments and in-home child care and elder care at reduced rates.

That’s a pretty fabulous parental leave policy, says me, the father four times over.

Insights for Employers

Are you thinking of creating your own parental leave policy? Or sweetening benefits in a leave policy you currently offer your employees? Here are a few nuggets you might consider to ensure your parental leave policies are up to snuff:

You choose Eligibility Requirements, not some Federal agency. Employers have the right to set eligibility for parental leave benefits. You are not obligated to provide these benefits on day one of employment. (Estée Lauder, for example, requires at least three months’ service time, and other employers often require up to 12 months of service). Clearly, you can require some period of service before accrual, as you likely do with other employment benefits.
Moms vs. Dads. You can treat women who give birth better than men. Really, you can. And you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn’t it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery? Me thinks so, too. Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees. (See example 14 in the guidance.)
But let’s not get too crazy about Moms vs. Dads. Although the EEOC makes clear that you can treat mom better to allow her to recover from childbirth, employers cannot treat the sexes differently when it comes to bonding leave. [Ahem, just ask Estée Lauder.] In its pregnancy discrimination guidance, the EEOC makes clear:

“for purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.”

If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), it must provide the same leave to men or risk a gender discrimination claim. The logic behind the EEOC’s position is clear—dads need lovin’ too.

This is the takeaway of the Estée Lauder case. Let me be clear: when it comes to bonding leave, you cannot treat men differently from women. If you currently take this approach, change it now.

Parents getting busy don’t get extra! Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period? Crazier things have happened, and you have every legal right to limit the benefit over a period of time.
Exhausting other paid leave prior to parental leave is legal. Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay. The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions. That said, consider employee morale here and think about allowing employees to hold back a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).
Run FMLA leave concurrently with parental leave. Just do it. You have a legal right to do so. ‘Nuff said. If you don’t do this, you might just start wondering why your employees are away from work more than they’re at work.
Primary vs. secondary caregiver provisions are not for the faint of heart. Ay de mi! The plot thickens! I am convinced oodles of HR professionals attended a SHRM conference a few years back in which some charming presenter encouraged them to draft parental leave policies providing leave for the “primary” vs. “secondary” caregiver in the family. And now, we’ve created a mess. Technically, these provisions are fine, but they surely can be a challenge to administer. So you have an employee sign a document acknowledging that they are the “primary” caregiver so they can get more leave. Whoa – sign me up, along with every other individual you employ. Note: Draft primary vs. secondary care giver at your own risk (and only after you consulted an employment attorney).
If you need a sample paid FMLA policy (covering parental leave and other forms of family and medical leave), I have you covered. Last year, I partnered with non-profit organization Panorama to prepare such a policy, which can be accessed (for free!) here.

Fighting FMLA Abuse in the Summertime: Top 10 Employer Tools to Keep Employees Honest

By Jeff Nowak on July 20, 2018 Posted in Abuse of FMLA leave

It’s 82° and sunny today in Chicago. I’ve got my feet up and I’m feeling the warmth of the summer sun on my face. We live for these days here, since in the blink of an eye, it will be December, 20° and snowing.

When it’s 82/sunny outside and we’re headed toward a weekend, employees find it hard to work.

With the increase in summertime temps comes an increase in FMLA abuse. Heck, we cynics don’t call it the “Friday Monday Leave Act” (FMLA) for nothin’.

Top 10 Tips to Combat FMLA Abuse

Fortunately for employers, there are several tools available to combat FMLA abuse. At least 10, I figure. Likely more. I’ll start with these and encourage you to share other tactics that have worked for you to halt FMLA abuse. Here are 10 that have worked for me and my clients:

Require that Employees complete a written leave request form for all absences. Although an employer cannot deny FMLA leave if the employee provides verbal notice of the need for FMLA leave and they articulate an unusual circumstance as to why they could not follow proper procedures, requiring the employee to put a leave request in writing and return it to Human Resources tends to deter them from gaming the system.
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?

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.
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.
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).
Have Employee Complete a Personal Certification. 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:
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!
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).
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.
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.

The DOL's FMLA Forms Are Expiring! Are Employers Still Required to Comply with the Law?

By Jeff Nowak on May 30, 2018 Posted in Regulatory Activity

The DOL’s model FMLA forms and notices are about to turn into the proverbial pumpkin come midnight this Friday, June 1, 2018.

So, what is an employer to do? Besides panic, of course?

What’s Going on and Why Do These Forms Expire Anyway?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms every three years to the Office of Management and Budget (OMB) for approval, so that OMB can review the DOL’s information requests and ensure the process isn’t too bureaucratic. [Cough….cough…]

OMB last approved the DOL’s slightly tweaked FMLA forms in 2015 for the maximum period of three years. Upon expiration of the forms (in this case, Thursday, May 31), the DOL may continue to use the current forms while it seeks renewal of OMB’s approval.

Can Employers Expect Any Changes in the New Forms? And Should Employers Use the Expired FMLA Forms in the Meantime?

Earlier this week, I connected with Helen Applewhaite, the DOL’s Branch Chief for FMLA (in other words, the federal government’s Grand Poobah of all things FMLA), to get the skinny on the proposed new forms. Helen confirmed several items of importance to employers:

Earlier this year, DOL filed an extension request with OMB to renew the forms without any proposed changes.
In the event that OMB does not finish its review of the proposed forms by the deadline, it will automatically extend the expiration date of the forms on a month-by-month basis.
As OMB extends the deadline on a month-by-month basis (until it completes its review), DOL will do the same and change the date on its forms every 30 days until OMB has had its say. In fact, DOL updated its forms today to now expire on June 30, 2018.

So, use the current forms. They’re good to go, and they almost certainly will go unchanged for another three years.

The DOL’s forms–with the May 31, 2018 expiration date–can be accessed here:

But Jeff, I Can’t Sleep at Night Till I Know The OMB Has Made a Decision. How Can I Find Out When OMB Has Made a Decision?

If that’s the case, I’m sorry. You have my affliction, but I admire you for it. You are welcome to maintain this link in your Internet favorites and keep searching until OMB makes a decision. You will need to search using the control number for the FMLA forms, which is 1235-0003. You will find something that looks like this:

Next Time Your Employee Requests FMLA Leave, Choose Sincerity with a Touch of Empathy

By Jeff Nowak on May 10, 2018 Posted in ADA, DOL Initiatives

When it comes to administering FMLA, I’ll admit — I have grown cynical and hardened. Like a doctor who becomes desensitized to blood and guts, I, too, have become desensitized to an employee’s antics while on FMLA leave.

Taking FMLA leave for a beach vacation, you say? Sounds likely. Caring for your dying mother when, in reality, you need leave to serve a 60-day jail sentence for DUI? Yep, heard that one before.

As an HR professional, leave administrator or as counsel for an employer, you witness some of humanity’s worst behaviors, all in an effort to scam a little medical leave. Despite this madness, I am often reminded that there really is a need for these federal and state leave laws, since there are a whole lot of people dealing with legitimate medical conditions that render them unable to perform their job.

And these people are counting on us HR/leave professionals and legal counsel to help them.

Once every spring, I return to a happy place where FMLA and ADA situations are taken seriously and with sincerity. At DMEC’s annual FMLA/ADA Compliance Conference, oodles of FMLA and ADA nerds convene to discuss leave and accommodation compliance issues. I had the pleasure of joining my friend and Special Counsel at Unum, Ellen McCann, to give an overview of the key FMLA and ADA cases from the past 12 months. Ellen’s performance was riveting; mine, not so much. Nevertheless, here is our PowerPoint if you were unable to join us.

In the immortal words of Cosmo Kramer, this compliance conference scratches me right where I itch! For several days, we put cynicism aside and focused on practical and meaningful ways employers can support their employees when they or their loved ones deal with medical issues that keep the employee away from work — all while keeping business operations humming.

Here are few insights that I took from the conference:

1. The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence.

2. Be empathetic. The words, “How Can I Help You?” can go a long way. When you communicate with an employee, use words that show that you’re on the same side as the employee. You want to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy.

3. All Requests for Leave Should be Treated as a Request for a Reasonable Accommodation. Yes, you read that correctly. Each time an employee requests leave from the job because of a medical condition, the request should be analyzed through the lens of FMLA and ADA. This concept is hardly earth-shattering, and it makes sense. Where an employee needs leave from work because of a serious medical condition, any good employer should use it as an opportunity to engage in the interactive process to determine how we can best address the employee’s situation in an effort to keep them engaged and at work. A leave of absence is only one tool to help us accomplish our goal in maintaining a productive and healthy workforce.

4. Train managers to help you achieve the kind of workplace you’re trying to cultivate. At the conference, FMLA Branch Chief for the Department of Labor, Helen Applewhaite, identified several compliance problems that pop up regularly during DOL investigations.

She noted that front-line managers often fail to recognize when an employee may need a leave of absence protected by the FMLA. Even worse, some make derogatory comments about an employee’s use of FMLA leave. Indeed, many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request. In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

As I warned attendees in my DMEC presentation, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Every once in awhile we need that simple reminder:

Be sincere.

Be empathetic.

FMLA and ADA compliance will follow. Look at it as your Kumbaya moment.

DOL Issues Opinion Letter Allowing Employers to Avoid Payment for Excessive 15-Minute FMLA Breaks; Employers Yawn

By Jeff Nowak on April 16, 2018 Posted in Abuse of FMLA leave, Opinion letters

Last June, the U.S. Department of Labor announced that it would again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act. It was a welcome change as far as the employer community was concerned.

Then we waited.

And waited.

Finally, the day came: April 12, 2018. We might as well have been the proverbial 6-year old kid on Christmas morning as we waited in anticipation.

The DOL’s coming-out party consisted of an answer to this burning question: Do employers have to pay employees when they take eight 15-minute FMLA breaks during a work shift?

You know, because every workplace in America is being ravaged by oodles of employee who need eight breaks a day, right?

If you asked Alanis Morissette to describe the DOL’s first opinion letter in nearly a decade, it’s like finding ten thousand spoons when all you need is a knife. At a time when we need guidance on so many difficult FMLA issues, we didn’t need another spoon.

Employers Don’t Have to Pay an Employee Who Takes a Ton of Breaks

Enough of the Alanis Morissette imagery already. What’s the DOL’s answer to the question above?

Employee rest breaks (up to 20 minutes) generally must be paid because the DOL considers these breaks to exist primarily for the benefit of the employer. In Opinion Letter FLSA 2018-19, however, the DOL addresses a situation in which an employee needs to take a 15-minute break every hour in an 8-hour workday due to a serious health condition (supported by medical certification).

In its opinion, the DOL noted that an employee is not entitled to take an unlimited number of breaks throughout the workday and then expect to be compensated for them. In a situation where an employee requires eight 15-minute breaks per day as a result of the employee’s serious health condition, the DOL determined that the breaks were primarily for the benefit of the employee. Therefore, they are not compensable.

However, the employer still is on the hook for some of these breaks. The DOL reminded employers that these employees must be compensated for the same number of breaks taken by co-workers. For instance, if an employer typically allows two 15-minute paid breaks per day, the employee taking FMLA breaks every hour should be paid for two breaks. The remaining six breaks, of course, would be unpaid.

For your employees who take eight potty breaks a day, there is your answer. A real yawner for employers everywhere.

But for DOL, it’s a start nevertheless.

For more analysis on this opinion letter, check out my colleague Staci Ketay Rotman‘s analysis here.

Your Employee Is Absent More Often Than Indicated on his FMLA Medical Certification. Now What?

By Jeff Nowak on March 29, 2018 Posted in Abuse of FMLA leave, Intermittent Leave

A week doesn’t go by without a client asking me whether they can discipline an employee for exceeding the number of absences allowed on their FMLA medical certification. The fact pattern usually goes something like this:

Johnny is an assemblyman at your 200-employee facility. He assembles johnson rods. He also has a chronic bad back, and it tends to hurt the most on Mondays and Fridays when he often calls off work. The only predictable thing about his otherwise underwhelming performance is that, every August, he provides you — like clockwork — an updated FMLA medical certification supporting leave for his back.

Johnny’s certification calls for 3 flare ups per month for 1 day per flare up. This morning, he called 30 minutes before his shift to report that his back hurts and he won’t be in today. The call-in procedure requires that employees call in at least one hour before their shift, but he claims he was in too much pain to call on time.

This is Johnny’s 4th flare up this month.

Because Johnny has incurred a 4th absence for his back this month (when his medical certification calls for only three in a month), what can we do?

Can we discipline Johnny for this absence?

Can we at least seek recertification?

Let’s discuss.

Can we discipline Johnny for exceeding the frequency indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Johnny’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days. 29 CFR 825.308(c)(2)

Has Johnny’s frequency changed significantly?

In my opinion, no. And in one of those rare moments, the Department of Labor actually would agree with me. [Not that I take any pride in this.]

Keep in mind – the employee’s health care provider owns no crystal ball, so frequency and duration of absences is a product of the HCP’s best estimate based on his/her medical judgment at that time. Although we’d be willing to beg HCPs to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual. Really, when it comes down to it, can any medical professional predict precisely how many flare ups his/her patient will suffer from in one month? My friends, we’re talking best educated guess.

If you have been involved in a DOL FMLA investigation over the past couple of years, you also know quite well that the DOL takes the position that “one” absence over the frequency indicated in the medical certification does not constitute a significant enough change to trigger recertification. In taking this position, the DOL employs the reason I identified above. Bottom line, the agency argues that the certification is just an estimate, and one absence over frequency does not trigger the recert process.

So, does this mean an employee’s absences must be double the number indicated on the certification, as reflected in the migraine example given the regulations above? Not necessarily, but almost always, it means more than one over. In Johnny’s case, I would recertify when Johnny reaches five absences in a month, as this is arguably more of a significant departure from the number indicated on his certification.

But Is There a Pattern of Misuse That The Employer Can Go After Here?

Johnny isn’t out of the woods yet. Notably, he often calls off on Mondays and Fridays, claiming his back has flared up.

This is indeed suspicious. And if this hokey pattern continues 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 Johnny’s physician to confirm for us whether this Monday/Friday pattern is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can get your own sample letters for these situations).

Eight times out of 10, Johnny’s doctor simply will rubber stamp Johnny’s pattern and confirm that these absences are related to his bad back. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Johnny’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Johnny’s Monday/Friday pattern somehow is not consistent with his need for FMLA leave.

In Johnny’s case, though, he knows we’re onto him and keeping tabs on him. And his doctor realizes it, too. Over time, these requests will result in more honest behavior from the employee — and physician.

Can We Discipline Johnny AFTER The Health Care Provider Responds? Here’s My Recommendation…

In these “20-percent” situations, can we discipline Johnny for any absences that exceed the frequency, as now confirmed by his physician?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by DOL to give guidance as to how employers might consider handling these situations. Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation? You issue discipline for any absences that exceed the frequency and duration.

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Johnny’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 now updated medical opinion. 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 Johnny to miss work three times per month at one day each because of his bad back. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for these excess absences. I recommend standing by this approach until the employee provides a contradictory medical opinion. See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.

Next Time You Want to Conduct FMLA Surveillance on Your Employee, Have a Good Reason Why

By Jeff Nowak on March 1, 2018 Posted in Abuse of FMLA leave

Porn and the FMLA. This has all the makings of one big, fat men’s soap opera.

Johnnie Walker was a longtime police officer with the Pocatello Police Department, and he was tasked with investigating Scott and several other members of the police department’s administrative team because these jokers allegedly were accessing porn on their work computers.

We never did learn what came of that porn investigation.

But as the story goes, Scott later became the Pocatello police chief. And like all good soap operas, Chief Scott apparently was still peeved that Johnnie led the investigation into his alleged computer habits.

In other words, it was pay back time.

Shortly after becoming chief, Johnnie took FMLA leave. Chief Scott used it as a quick opportunity to conduct surveillance on Johnnie’s whereabouts during his leave of absence. For good measure, Scott also drafted a memo to Johnnie’s personnel file outlining all the work Johnnie did not complete while on FMLA leave.

The police department never denied Johnnie’s FMLA leave. In fact, it gave him the FMLA leave he requested and then some. And he was not terminated. Still, Johnnie set off for the courthouse and filed both FMLA interference and retaliation claims.

The court had concerns about Chief Scott’s actions too. In allowing Johnnie’s FMLA claims to be heard by a jury, the court was troubled that surveilling an employee without any basis might “chill” an employee from taking FMLA leave:

Walker contends that the Police Department engaged in actions which had the effect of deterring the exercise of FMLA rights. Specifically, when defendants had doubt about the validity of Walker’s medical condition, they did not simply request another medical opinion as contemplated by the regulations. Instead, they tracked Walker, and surveilled his activities on his own property by setting up a police surveillance camera and having new haven cctv security camera installer help him set them up on his neighbor’s fields . . . There is a genuine issue as to whether the Police Department’s invasive surveillance of Walker’s private activities would “chill” his use of FMLA, and whether they were negative consequences of Walker taking FMLA leave. Walker v. City of Pocatello

Insights for Employers

Often enough, clients ask me whether they have the right to conduct surveillance on an employee they suspect is abusing FMLA leave. Courts generally support an employer’s right to do so where there is a clear concern that the employee is abusing FMLA leave, as the court did here in one of my previous posts.

Policies

Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest with their use of leave. Before heading down this path, however, it is critical that surveillance is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements. Where a CBA is involved, surveillance also may need to be bargained with the union. Also, maintain a policy regarding the fraudulent use of FMLA leave. Not currently in your policy? Have your employment attorney update your policy now, as this type of provision is a gem to hang your hat on when you have to defend an FMLA claim involving a (former) employee suspected of misusing FMLA leave.

Are Second opinions Necessary?

Must the employer seek a second opinion before surveilling an employee? Not necessarily, and I think the court overstepped here by insisting that the police department should have done so here. Before pulling the trigger on surveillance, however, it is critical that the employer have an objective basis for believing that an employee is abusing a leave of absence, for instance:

Inconsistent reasons for leave
Significant changes in frequency or duration of the absences, such that leave appears to be suspicious
Reliable information you receive from the employee’s co-workers about his misuse of leave
Suspicious patterns of absences over a short or longer period of time

Have an Objective Basis for Seeking Surveillance

In Johnnie’s situation, it appears as though the police department fell woefully short of establishing an objective basis for seeking surveillance. Because there was no honest belief that Johnnie was misusing his FMLA leave, there was no objective basis for conducting surveillance. Consequently, a court — and therefore, a jury — is left to believe that the surveillance (and the notes to file) are attempts to chill an employee’s use of FMLA leave. As this particular court points out, that may very well be an FMLA violation.

There is No Finer Valentine's Day Gift: the ABA's Summary of 2017 FMLA Court Decisions!

By Jeff Nowak on February 14, 2018 Posted in Court Decisions

My fellow gentlemen:

On this Valentine’s Day, I just saved your behind.

Leave the dozen roses and box of chocolates at the office. And no need to make a reservation at your favorite restaurant for two.

This year, give your significant other the gift that keeps on giving: the American Bar Association’s annual report of every FMLA decision from 2017. If this won’t spice up your Valentine’s evening, I am confident nothing will.

Every February, 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. Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision issued in 2017.

Every. single. one. of. them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to Maria Audero, who spearheads the annual summary.

Happy reading!

On This 25th Birthday of the FMLA, An Open Letter to Employers, Employees and the DOL

By Jeff Nowak on February 5, 2018 Posted in Abuse of FMLA leave, DOL Initiatives, Paid Leave

The Nowak kids invited some friends over for Super Bowl Sunday. But the party really got started when we broke out the FMLA birthday cake!

Happy 25th birthday, FMLA!

As you might imagine, there may not be a more exciting day for me all year. After all, there is only one day ever in which my favorite federal statute celebrates its silver anniversary! Picture me getting my inner Jimmy Stewart on (after Clarence the Angel had just saved him), shouting through the streets of small town Chicago, “Happy birthday you wonderful old FMLA!”

In fact, it’s been a full weekend celebration at the Nowak abode. I’ve been singing Bill Withers to the Nowak kids all weekend: “Lean on Me, F – M – L – A . . . And I’ll be your friend . . . ” [To my dismay, the kids have never been more eager for Monday morning to arrive.] And yes, we even broke out the 25th birthday cake in honor of the FMLA. (See photo at right.)

Where Have We Been, Where are We Going?

In all seriousness, this is a critical moment. Back on February 5, 1993, President Bill Clinton signed the FMLA into law. This groundbreaking law has allowed new parents time off from their job to bond with their children and afforded workers time away to care for gravely ill family members or recover from their own serious health problems — all without fear of losing their jobs.

Yet, 25 years later, there is still much work to be done. We need to do more to protect employers’ interests, but the employer community also must take a big step forward and and offer some meaningful level of paid FMLA leave to our employees. [They should do if for no other reason that the tide is surely turning.] Conversely, employees must understand their role in safeguarding the FMLA by using time away from work with integrity and only for the reasons intended under federal law.

On this special day, I’ve taken the liberty of penning an open letter to all FMLA stakeholders — employers, employees, and the Department of Labor itself. Take it for what it’s worth, but I hope it adds some value to our ongoing discussions.

* * * *

Dear Employers:

Count me among the lucky ones the law has benefited: Several years back, the FMLA afforded me a leave of absence as I held my father’s hand and comforted him in the days before he died of cancer. It also allowed me time to be with my four beautiful children after they were born. Like many employers, my law firm supported my need to be away from work — it didn’t require a federal law to mandate my leave time. And it paid for my time to be with my dad in his last days.

Sure, many employees across America enjoy the protections of the FMLA, but they use it without the benefit of a paycheck because there is no federal mandate for paid leave.

Employers, as we celebrate 25 years of FMLA goodness, it’s time to change the course of history. Follow the lead of employers like an old client of mine, the YWCA of Metropolitan Chicago, and provide a meaningful level of paid FMLA leave to your employees. This past month, the YWCA announced that it would pay for the first six weeks of an employee’s 12 weeks of FMLA leave. YWCA joins a growing number of employers who are helping the American workplace align itself with the industrialized world. Good for you, YWCA, as well as the many other American employers doing the same.

Why do this? There is plenty to be gained by adopting paid FMLA leave — affirming a commitment to work/life balance, improving your recruitment and retention of the best candidates, boosting employee morale. And as I suggested in a prior post, it’s simply the right thing to do.

For those employers open to expanding their minds on this topic, it’s also worth taking a look at the resources offered by the National Partnership for Women and Families, which has set up a unique web page for advancing paid FMLA leave.

Finally, as the Washington Post reports in a rather compelling article:

[The lack of paid leave] is bad for working mothers, who need time to recover from the physical and mental trauma of childbirth. It’s bad for kids, who need extra attention and care in the crucial months after birth. And it’s bad for the economy: Research has shown that paid maternity leave is associated with better job performance and retention among mothers, increased family incomes, and increased economic growth.

There’s never been a better time to offer paid leave:

As of January 2018, employers now earn a tax credit when voluntarily providing paid FMLA leave. The credit will range from 12.5 to 25% of the cost of each hour of paid leave, depending on how much of a worker’s regular earnings the benefit replaces. The federal government will cover 12.5 percent of the benefit’s costs if workers receive half of their regular earnings, increasing up to 25 percent if workers receive their entire regular earnings.
I’ve even drafted a recommended paid FMLA policy for you. Last year, I partnered with non-profit organization Panorama to prepare such a policy, which can be accessed (for free!) here.

* * * *

Dear Employees:

It is not lost on me that the FMLA celebrates its 25th birthday on the day after Super Bowl Sunday — a day that is unrivaled for employees calling in sick and abusing FMLA leave. Indeed, physicians across the country will spend much of their time today writing doctor’s notes and completing medical certification, all in an effort to excuse Johnny for missing work.

This kind of abuse stinks to high heaven, and it’s one of the reasons employers have long grown cynical of your need for FMLA leave. Sure, employers understand the need for time off work after the birth of a child or for severe illnesses that will wipe you out from time to time.

But the stories get old — using FMLA leave because you’ve been out partying too much the night before or to extend your Florida beach vacation. This past year, I even counseled one of my clients through a situation where one of their employees took FMLA leave to cover the very period of time he served time in the county jail for a DUI conviction.

Employers want to feel the love again. But you’ll only earn this love by:

Timely notifying your employer of the need for FMLA leave
Being honest and having the utmost integrity in using FMLA leave only for its intended purpose
Being a true partner with your employer in obtaining (timely and complete) certification to support your need for FMLA leave

‘Nuf said. You get my point. Now, get back to work!

* * * *

Dear Department of Labor:

You crazy little rascal! You’ve kept us on our toes for decades now with a well-intentioned federal statute but some awfully vague and ambiguous regulations that tend to cause us fits.

How ’bout we celebrate the FMLA’s silver birthday with a few meaningful changes to those regulations that are particularly pesky? Let’s start with a few (or many):

As for medical certification, I have several changes to recommend:
- When a certification is provided after the 15-day deadline, it’s late. Simple as that. However, when the employee has no excuse and doesn’t turn in the certification in a timely manner, the FMLA regulations (at 29 CFR 825.313) tell us that we can discipline the employee only for the days following Day 15. That’s kooky talk, and it has no basis in the statute. If the employee turns in a late certification without excuse, the employer should be able to discipline back to Day 1 of the absence, not as of Day 16. [Hat tip to my fellow FMLA nerd, Megan Holstein]
- Allow employers to require that a specialist complete the certification. This worked well in a case I highlighted last year, as it ensures that the appropriate physician who is treating the employee and is most familiar with the medical condition is indeed the professional completing the form.
- When recertification undermines an employee’s frequency or duration of FMLA leave, why not tell us in as clear a manner as possible that the employee can be disciplined for the excessive absences? Right now, you offer us no guidance.
When considering the “in loco parentis” standard, the “child” you are caring for actually should resemble a parent/child relationship. Over the years, you’ve watered down this standard so much that, as long as you’re providing day to day care or financial support it doesn’t matter. And if the child is 18 or older, he/she just needs to meet the “activities of daily living” test and you’re off to the races, regardless of whether that child is a fiancé, a neighbor or the friend at the local tavern. Ok, maybe not that last one, but yeah, kinda. [Hat tip to my FMLA bwudda, Matt Morris]
Allow second opinions even in recertification situations. Do employees misuse leave only at the beginning of the FMLA year? Heck no. Some misuse leave throughout the year. Second opinions throughout the year make perfect sense to ensure the employee continues to utilize FMLA leave for a legitimate reason.
Make the “varying work week” far more meaningful and practical. First, allow it to apply to much broader categories of employees. Second, base the 12-month average not on “hours scheduled” [duh, we have this rule because we don’t know what their schedule is in the first place] but on “hours worked” over 12 months (much better). [Hat tip to my FMLA partner-in crime, Marti Cardi]
Allow transfer to an equivalent position during any type of intermittent leave, not just for planned medical treatment. Time and again my clients complain that the lack of an undue hardship argument under FMLA wreaks havoc on their operations, as they are unable to fill a position until the employee returns from leave.

P.S. Remember about six months ago when you promised you’d again provide us opinion letters to bring more clarity and meaning to the FMLA regulations? Ahem, we’re waiting . . .

* * * *

That’s good enough for now, even if I could go on for days. If you could change one FMLA regulation, what would it be?

In the meantime, I offer best wishes for the happiest of FMLA birthday celebrations in workplaces across America! Send me your celebratory photos!

FMLA FAQ: When Is an Employer Required to Check for FMLA Eligibility? The Answer May Surprise You!

By Jeff Nowak on January 24, 2018 Posted in Eligibility, FMLA FAQs

Every once in awhile, my posts must return to the nuts and bolts of FMLA, and this is one of ‘dem ‘dere posts. After all, I can’t always cover scintillating topics such as Beyonce concerts, bullies who abuse FMLA leave and whether FMLA covers excess trips to the potty.

Yet, the FMLA topic de jour is no less important because I address below an issue critical to FMLA compliance: How often must an employer check an employee’s eligibility for FMLA leave?

Screw it up and you could be looking at significant FMLA liability. Get it correct and you have just saved your boss hundreds of thousands of dollars in legal fees and a possible judgment (for which he/she may never thank you).

As we recently have turned the calendar to a new year, this article is particularly important to my peeps out there who track FMLA leave based on a calendar year. But I cover all the 12-month FMLA periods below:

First, Let’s Start with the Rule

Whenever an employee requests FMLA leave, the employer first must check whether the employee is eligible for FMLA leave. The critical rule is at 29 CFR 825.300(b)(1):

Eligibility notice. When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. . . Employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period . . . All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period. (My emphasis)

What are the takeaways from this Rule?

There are two:

The employer must check eligibility at the first instance of FMLA leave for each different FMLA reason in a 12-month FMLA period.
Once eligibility is established for a particular FMLA reason, eligibility for FMLA leave as to that reason does not change for the remainder of the FMLA year.

I illustrate this rule the only way I know how — through examples.

Rolling year

Let’s assume you use a rolling FMLA year (or look back period). Let’s further assume that your employee, Johnny, requests leave to begin on the following days:

Intermittent leave for migraine headaches as of March 2, 2017
Intermittent leave for chronic bad back as of November 17, 2017
Continuous leave of absence for back surgery (to fix said bad back) on December 13, 2017

When do you check eligibility for these leave requests? First, you check eligibility as of March 2, 2017 (the date leave begins for migraines) because it is the first time in the FMLA year that Johnny needs leave for migraines. Second, you check eligibility again as of November 17, 2017 (the date leave begins for the bad back) because it is the first time in the FMLA year that Johnny needs leave for his bad back.

How long is FMLA Eligibility good for?

Let’s assume Johnny is FMLA-eligible on both of these dates for migraines and the bad back, respectively. In a rolling year, FMLA eligibility for each condition remains in place for the 12-month period beginning with the first day of leave for the condition. So, for migraines, Johnny’s is FMLA eligible through March 1, 2018. Therefore, we would not check eligibility again until he needs leave for migraines the first time on or after March 2, 2018. For his bad back, Johnny’s eligibility is all clear through November 16, 2018. We would not check eligibility for his back until he needs leave again for this condition the first time on or after November 17, 2018.

Does the Need for Continuous vs. Intermittent Leave Change Things?

What about the continuous leave Johnny required for surgery on his bad back in December 2017? Shouldn’t we check eligibility because he’s now seeking a continuous (instead of intermittent) period of leave? In a word, no. Once Johnny became eligible for FMLA leave for his bad back, he maintains eligibility for that same reason for the remainder of the FMLA year. The fact that the need for leave changed from intermittent to continuous doesn’t change the reason for the leave, so eligibility need not be checked until November 2018 or after.

Calendar year or fixed year

Checking eligibility is generally the same when you maintain a 12-month FMLA period based on a calendar year. If you are using a calendar FMLA year, the key difference is that you will check eligibility for the first instance of leave for each different condition on or after January 1 of each year.

Again to illustrate, let’s go back to the example above. For Johnny’s bad back, eligibility was first determined as of November 17, 2017. Because you maintain a calendar year FMLA cycle, you will need to check eligibility again upon the first instance of leave for a bad back on or after January 1, 2018.

If Johnny needs leave on January 1 for his back condition, doesn’t it seem a bit strange that you would need to check eligibility for the same reason a mere six weeks after you last checked eligibility? I hear you loud and clear, but we still must follow the regulations, which unambiguously tell us to check eligibility for the first instance of FMLA leave in a new FMLA year. For those FMLA nerds who really want to dive into this topic, take a look at Davis v. Michigan Bell Telephone, in which the court made clear that an employer must check eligibility in the first instance on or after January 1 when the employer is using a calendar year FMLA cycle.

“Look forward” year

Some employers base the 12-month FMLA period on a “look forward” period measured forward from the date any employee’s first FMLA leave. Testing for eligibility is the same as the “rolling year” above. You check eligibility for the first instance of FMLA leave for a particular reason, at which point they are eligible for that reason for the following 12-month period. Upon the first instance of FMLA leave for this condition in the next FMLA year, eligibility should be checked again.

For what it’s worth, if you need a refresher about which 12-month FMLA period is best to use, and an explanation of all your options, take a look at one of my previous posts on the topic.

Heavy stuff? Naw! This is why employment law is so damn sexy!