FMLA FAQ: Can Foster Parents Take an Additional 12 Weeks of FMLA Leave After They Adopt a Child?

Posted in Foster Care and Adoption

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

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

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

Is This Even Foster Care?

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

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

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

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

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

When Can an Employee Take FMLA Leave for Foster Care?

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

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

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

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

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

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

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

 

 

 

 

Employers, Why Don't You Require That Employees Call Two Phone Numbers to Request FMLA Leave?

Posted in Abuse of FMLA leave

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

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

Genius.

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

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

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

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

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

Pregnant Woman Fired by Text Message: "Sorry . . . But It's Not Going to Work Out"

Posted in Pregnancy, Uncategorized

File this in the “Managers really can be idiots” folder.

Kameisha applied for a job at Jersey Mike’s Subs (which by the way, makes an incredible #13 Original Italian sub). At the time she interviewed for a position, Kameisha was four months pregnant. Fearing she would not get the job if she revealed her pregnancy, Kameisha chose not to inform the manager, Marcos, of her exciting personal news during the interview.

As the story goes, she got the job, and after putting in a few days’ work, Kameisha informed Marcos that she was pregnant.  She also made clear that she needed her job to take care of herself and her new baby.  In other words, she was dedicated to the Jersey Mike’s cause.

Marcos responded by text, and here’s what he said:

Hello, I’m sorry to inform you but it’s not going to workout with Jersey Mikes. It’s not a good time for us to have someone who is leaving for maternity leave in several months anyways. You also failed to tell me this during our interview. Good luck to [you].

What in the holy hell?

According to a local news station, Marcos resigned his employment. Although she’s been offered her old job back, Kameisha declined. But after posting the text message on Facebook, she’s made it clear she plans to sue.

Ouch. Would you blame her for doing so?

Insights for Employers

There are plenty of lessons here for employers.

1.  The Interview. The text is awful, god awful. The sentiment behind it even worse. But let me start with the manager’s comment, “You also failed to tell me [of your pregnancy] during our interview.” I hear this from time to time from clients who are peeved after extending an offer to a candidate who shortly thereafter informs my client that she’s pregnant.

Why don’t they just come clean during the interview, my clients want to know.

Well, I tell them, because they’re worried about guys like Marcos. 

I wish this were a world where candidates could disclose their pregnancies during the interview process so that both sides could have a meaningful, supportive conversation about how the pregnancy and time off after childbirth will be accommodated and this joyous occasion celebrated. But this ain’t Utopia. Sadly, there are some managers like Marcos out there who ruin it for the rest of us.

Marcos’ reaction about the interview is a guide for us. The candidate has no obligation to tell us she’s pregnant, nor are we allowed to ask. For good reason. So, don’t hold it against her when she later informs you of her pregnancy. Respond with joy and support. Take it a step further and share how excited you were when you had your first child and what a blessing it was in your life. In the moment, don’t be afraid to be vulnerable, too. Then, work hard to figure out how you will accommodate the maternity leave, not simply because oodles of states now require it, but because you’re a good boss.

As a result, I’m willing to bet more times than not this employee will go to the wall for you to make the best damn #13 Italian original sub your customers have ever tasted.

2.  Employees Should Have a Clear Path to Complain.  My friend, Jon Hyman, who beat me to the punch in blogging about this incident on his fabulous employment blog, argues that more training isn’t necessarily the answer here.  Jon’s point:

If a manager does not know that you can’t fire a woman because she’s pregnant, no amount of training in the world is going to help that manager not discriminate.

Just as important, Jon argues, is that employees should have a clear path to complain about incidents like these. When they don’t, they resort to posting this kind of stuff on Facebook. This makes sense. During employee orientation and regularly thereafter, employers must put front and center its stand against workplace discrimination and harassment, ensure employees know precisely how to report discrimination or harassment internally, and then back this up with a quick and effective response to their report.

3.  Training Still is Important. I agree with Jon that “training won’t fix stupid.” But don’t throw training out the window. Please, please, please train your employees on how to effectively and lawfully respond to an employee informing you of a pregnancy or for a leave of absence for a medical reason. Included in this training, of course, should include as stern a warning possible against any comments of the kind above. Train them on how they interact with employees in precisely these situations (use role play!) so they understand your expectations, despite some of their wayward tendencies. Investing a couple hundred bucks now to conduct effective training will maximize your chances of saving tens of thousands when the real life Jersey Mike’s situation presents itself.

4.  Don’t terminate any employee by sending them a freaking text message! Need I actually explain this? [Waits a moment . . . ] Ok, good, glad you understand. (Hat tip: Stuart Silverman)

BREAKING: Get Your New FMLA Forms from the DOL Here!

Posted in Regulatory Activity, Uncategorized

Those sneaky little rascals! While the rest of us were enjoying our Labor Day holiday, those crazy kids over at the Department of Labor were still working away. Bless their little hearts! This time, they were busy posting new model FMLA notices and medical certification forms.

Expiration: August 31, 2021.

No more month-to-month extensions or lost sleep over when the long-awaited forms would be released. Now, we can rest easy through summer 2021. Relief.

That said, it couldn’t have taken DOL a whole lot of time to draft the updated forms. There’s nothing new, other than the new expiration date. Nevertheless, use these templates moving forward. For easy reference, here are the links to the new FMLA notices and forms:

Notices

Certification forms

The notices/forms also can be accessed from this DOL web page.

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

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

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:

  1. 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.
  2. 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?

  1. 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.
  2. 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.
  3. 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).
  4. 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: 
  5. 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!
  6. 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).
  7. 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.
  8. 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?

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:

  1. Earlier this year, DOL filed an extension request with OMB to renew the forms without any proposed changes.
  2. 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.
  3. 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

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

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?

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.

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