department-of-labor-300x300

Welcome to the two people willing to dive into this blog post after reading that riveting headline!

In a highly technical opinion letter issued this week, the Department of Labor clarified how to calculate FMLA leave usage when an employee takes intermittent leave during a holiday week.

Bear with me here, but I find the best way to digest this opinion letter is to apply it to a real-life scenario. Let’s assume our employee, Johnny, took FMLA leave during the same week as Memorial Day. There are two possible scenarios:

In Scenario #1, Johnny is given Memorial Day off as a work holiday, but then he takes FMLA leave for the rest of the workweek (Tuesday through Friday) because of his chronic bad back.

In Scenario #2, Johnny is given Memorial Day off as a work holiday, takes FMLA leave Tuesday for his bad back, but he reports to work on Wednesday for the rest of the week.

Let’s assume Johnny works a standard eight-hour, five-day workday, Monday through Friday, and the employer’s workweek runs Sunday to Saturday.

Answer to Scenario #1

This one is generally straightforward. If Johnny observes the Memorial Day holiday and then takes the entire work week off (i.e., he is absent Tuesday through Friday), the employer should count the entire workweek as one full week of FMLA leave used. The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.

One week of FMLA used. Easy enough.

Answer to Scenario #2

By showing up for work three days of the Memorial Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes the holiday on Monday, takes FMLA leave Tuesday and then reports to work on Wednesday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday as FMLA leave. 29 C.F.R. § 825.200(h).

Fair enough.

But now for the difficult question: Does the employer calculate FMLA use during the Memorial Day workweek using a five-day workweek or a four-day workweek?

Enter the DOL opinion letter.

As an initial matter, it’s critical to understand that the term “workweek,” as defined under the FMLA, is the employee’s normal schedule (hours/days per week) prior to the start of FMLA leave.  As the DOL notes in one of its older opinion letters, the normal schedule “is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition.”

With this backdrop in mind, the DOL confirmed in its latest FMLA love letter that the actual workweek includes the day of the holiday. The Department summed it up this way:

Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee’s leave entitlement, because the employee would have to use a larger amount of FMLA leave than needed. For example, for an employee who normally works a 5-day week and takes one day of FMLA leave, excluding the holiday from the week would result in the employee using 1/4 of a workweek of FMLA leave in a workweek that includes a holiday instead of 1/5 of a workweek of FMLA leave. Calculating the amount of leave used in this way would be an interference with the employee’s FMLA rights. 29 C.F.R. § 825.220(b).

In Johnny’s situation, for instance, the DOL’s opinion letter confirms that the employee should be charged 1/5th (20%) of a workweek because he missed Tuesday — one day — of a five-day workweek.  In other words, when making the FMLA calculation, we do not back out the Memorial Day holiday from the normal workweek.

Though this opinion letter might cause only my heart to stir, it is a pretty big deal, as an incorrect calculation improperly burns through an employee’s FMLA more quickly. Based on the feedback above, when an employer uses a four-day instead of a five-day workweek during the Memorial Day workweek, it miscalculates the percentage of FMLA leave used, and it does so to the employee’s disadvantage.  We are now at risk of an FMLA violation.

Does this all sound familiar to you? Perhaps because we blogged the answer to this issue two years before the DOL issued its opinion letter.

FMLA-poster-May-2023

In the dark of night, those crazy kids over at the U.S. Department of Labor were busy at work publishing new FMLA regulations, FMLA opinion letters, a new FMLA poster.

BREAKING NEWS: The USDOL publishes a new FMLA poster!

Let me beat you to it: Be still my beating heart!

What’s the posting requirement?

As we know, covered employers under the FMLA have a general posting requirement, which requires them to post an FMLA poster in conspicuous locations where employees are employed and where it can be readily seen by employees and applicants for employment.

FMLA-covered employers must post the poster, even if some (or even all) of their employees are not eligible for FMLA leave.

For what it’s worth, covered employers also must provide the information contained in the poster to each employee, for example, by including the poster and/or its contents in employee handbooks or other written guidance to employees, or by distributing a copy of the poster to each new employee upon hiring.

Failure to post may subject an employer to a whopping $204 penalty.

Why did the DOL Publish a New FMLA Poster?

I haven’t a clue, but one [terrible] guess is that they sought to match their new eggplant-colored poster to the eggplant color of their favorite FMLA blog.

At a time when we are begging for some clearer guidance on topics like notice of FMLA leave, intermittent leave, misuse of FMLA leave, and medical certification, we get a new FMLA poster.

Of course, the September 2013 and April 2016 poster editions are still effective to use, but now we add this latest purple shade to the mix. The new version clarifies just as much as the others did back in 2013 and 2016, but it does include a snazzy QR code. For what it’s worth, you can access the latest edition here.

I guess we all can get back to work.

Sigh.

Just over a week ago, Christians around the world commemorated Good Friday. We know the story well: three days later, the tears of Good Friday were wiped away on Easter.

For those of us who have lost a loved one, we can relate to the story of Good Friday: Sadness, despair, hopelessness, darkness. For us, however, the overwhelming grief of our own Good Friday doesn’t end in three days.

It takes much longer.

Months, years.

Sometimes, never.

How Can an Employer Help an Employee Grieving the Loss of a Loved One?

Employers have a critical role to play when an employee suffers a loss. Let’s start with meaningful, paid bereavement leave.

Raise your hand if you have a paid bereavement policy.

That’s not enough hands. If you don’t have a paid bereavement policy, draft it into being now.

Bereavement leave fosters a productive workplace because it gives employees time to grieve and recover from their loss. It also promotes loyalty to your organization because your decision to offer employees paid time off at one of life’s most difficult moments is a sign of your empathy and compassion.

Earlier this year, I discussed the importance of paid bereavement leave with Joyal Mulheron, founder of Evermore, a national nonpartisan nonprofit dedicated to improving the lives of bereaved children and families. In our one-hour confab (posted on YouTube), we discussed how the FMLA might cover bereavement leave (unfortunately, it rarely does) and the communication necessary between employee and employer when an employee is feeling the effects of losing a loved one.

In addition to a paid bereavement policy, there are other meaningful ways to help our employee with a loss. To be clear, we’re not trained counselors, but we care. And our actions should be guided by empathy.

Consider the following:

  1. Providing employees flexibility in returning to work and let the employee know to stay in contact if they need more time.
  2. Offering a period of flexible hours or the ability to work remotely. Return immediately to full-time work may be difficult for the employee, but having options to work remotely for a transition period may very well help them manage a comfortable return to work.
  3. Losing a loved one can be an isolating experience and it may choose to keep things bottled up. Checking in with them to show they matter to you even when road ahead is a difficult one.
  4. Keeping an open dialogue, ensuring they know that you are available if they need anything, whether it’s related to work or personal life. No need to hound them — they just need to know they have a support system at work.
  5. Acknowledge and celebrate their loved one. A bouquet of flowers. A card. Consider asking how you can honor the loss of their loved one. Some of your employees may be less comfortable than others with your signs of support, so so recognize their boundaries in an effort to show you care.
  6. Remember: we’re not trained to be our employee’s therapist. Don’t take on their emotional load, and don’t assume what they should be feeling or that you know how to help fix their situation.  Just listen and let them know you are present for them.  
  7. Consider a sick leave bank to which employees donate some of their paid and sick leave time, and allow employees to draw from the bank for bereavement leave.

In addition to the above, find local organizations who help people overcome loss. For instance, I think of a local organization in my home town, Pillars Community Health, which operates Buddy’s Place, which is a childhood bereavement program offering family-based support to children and teens ages 4-18 and their families who are grieving the death of someone significant in their lives. Organizations like these need our help.

Consider also supporting organizations like Evermore, which exist to support those who have suffered loss and help foster meaningful conversations between employees and employers about the grieving process. Learn more about Evermore here.

Finally, I regret to report that there is no legislation pending in Congress right now making bereavement leave a qualifying reason for FMLA leave. This is low-hanging FMLA fruit, isn’t it? Yet, the reality of paid (or even unpaid) bereavement leave as a protected FMLA reason seems so far out of reach. To do right by their employees, employers should take the lead in supporting such a measure.

I’d love to hear from you – what do you do to help your employees during the grieving process?

ABA logo

Raise a pint of Guinness and let’s celebrate – the ABA’s summary of 2022 FMLA decisions has arrived!

Every spring, 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 2022.

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. I refer to it throughout the year. All the credit goes to Bridget Penick, who helped spearhead the annual summary this year with a few other employment attorneys.

Happy reading!

overtime

Every one of us in the HR/employment world has met this moment. Your employee, Tommy, is a subpar performer who regularly takes time off on Mondays and Fridays and in conjunction with holidays, and is tardy multiple times each week. Today, he hands you a doctor’s note – two lines long – stating simply:

Tommy is under my care. Based on my medical judgment, Tommy cannot work more than 8 hours in a day or 40 hours per week. No overtime advised.

It’s a doctor’s note that causes HR directors everywhere to wince.

So, what’s the impact of this doctor’s note? Can an employee use a “NO OVERTIME” doctor’s note to take FMLA leave whenever he’s assigned overtime? Or can we rely on the ADA, which tells us that we do not need to dispatch an essential function of the job?

According to a newly-issued Department of Labor opinion letter, the employee’s “no overtime” diagnosis is FMLA-protected, and the employee with a chronic serious health condition can use FMLA leave to reduce work hours indefinitely.

Here are the Facts

As the story goes, some poor chap running a local business couldn’t find employees to work the 24-hour coverage needs of his business. Employees at the company were regularly scheduled to work more than eight hours per day but they requested FMLA leave for any time exceeding eight hours per day. Naturally, the employer asked the DOL whether employees could use FMLA leave to limit their work schedule indefinitely due to a chronic serious health condition. Notably, the employer suggested [as would I!] that the ADA might be more appropriate than FMLA leave to address the employees’ inability to work their regularly scheduled shift on an indefinite basis.

DOL: Inability to Work Overtime = FMLA

In its first FMLA-related missive since the year 2020 [where have you been DOL!?!], the DOL states it rather simply: if an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.

Here’s the DOL’s specific admonition:

An employee may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave. [If] an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement. The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.

Ugh.

One more thing about the opinion letter that’s worth pointing out. The DOL again reminded employers to beware of automatically granting all employees only 480 hours of FMLA leave per year (12 weeks x 40 hours), since this calculation doesn’t take into account any of the overtime hours they are working during the workweek. As DOL notes, FMLA provides an employee up to 12 workweeks of leave per year. Therefore, if an employee is scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA leave per 12-month period. For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in the FMLA 12-month period.

Insights for Employers

Before you get all hopeless on me, employers still have some options.

Option 1: Follow the Opinion Letter

Ok, this option is obvious, right? After all, in light of this new opinion letter, it seems apparent that the safest approach is to designate any overtime as FMLA-protected.

And there is good reason to do so. As you may remember from one of my prior posts, a federal court in Connecticut adopted the DOL’s opinion letter about nine years before the DOL even drafted it. In that case, Sam had cluster headaches, and his physician advised against any overtime, as the additional work time would exacerbate his condition. Despite the employer’s thoughtful objections, the court determined that the employee had the right to use FMLA to cover any excess hours scheduled above eight in a day. In its decision, the court acknowledged that the ruling could pave the way for the conversion of full-time positions into part-time jobs. Santiago v. Connecticut Department of Transportation, et al.

I wouldn’t blame you if you simply decided to take cover under the opinion letter and the Santiago case, and designate overtime as FMLA leave going forward. It reduces your risk.

Option 2: Let the ADA Be your Hero

But some of you are willing to take on some more risk.

Here’s your argument: FMLA arguably was never meant to accommodate a permanent change in an employee’s schedule. So, if an employee tells you, “I’ll never be able to perform that job, and I have a doctor’s note here that says it,” the FMLA is not the answer. So, why does the DOL think it’s the answer here?

In issuing this opinion letter, the DOL ignored a number of courts that have supported the employer’s decision to terminate an employee in situations where employees have an hour restriction on their work and where restrictions effectively reduce their positions to part-time roles on a permanent basis, ultimately finding that these termination decisions do not violate the law. 

Here are a few for your reading pleasure:

  • As noted above, it seems to me that the strongest argument undermining the value of the DOL opinion letter is that the FMLA doesn’t apply when an employee needs a permanent change in their schedule. Take, for instance, Porter v. Tri-Health, Inc.  (S.D. Ohio 2018). In Porter, the plaintiff, a sonographer, wanted to excise “on call” hours from her weekly schedule.  However, the court ruled that the employee’s “FMLA leave, although labelled intermittent leave, would actually have been a permanent schedule change, which is not required under the FMLA.” Similarly, see Wiseman v. Vanderbilt Univ. (M.D. Tenn. 2005) (recognizing that, although the FMLA permits a reduced schedule or intermittent leave, it does not provide for a permanent schedule change). [Hat tip: Matt Morris]
  • In Manigan v. Southwest Ohio Regional Transit Authority (6th Cir. 2010), the Sixth Circuit ruled that a bus driver should be able to drive more than eight hours per shift as required by the job description and the work experience of those in the position.  In this case, the employee provided a doctor’s note limiting his work to eight (8) hours in a day.  At first, the company accommodated these restrictions, but later removed the employee from work when he could not work his entire shift.  This personnel move was upheld by the Court, which found that the job clearly required the employee to work longer than eight hours in a day, that the employer could not effectively cover the remainder of the employee’s shift, and that disruptions to the riding public would likely occur.  As a result, the Court found that the employee failed to show that he was qualified to perform the essential functions of his position with or without accommodations.  Similarly, in Green v. Bakemark (6th Cir. 2017), the court held that full-time attendance was an essential function of the job and anything less would fundamentally alter the position, which is not required by the ADA.
  • In EEOC v. AT&T Mobility Services, LLC (E.D. Mich. 2011), a federal court in Michigan determined that an AT&T Store Manager with multiple sclerosis could not perform the essential functions of her job because she could not work “evenings, weekends, holidays and overtime,” which the court found were essential functions of the position. In short, without spending that time at work, the store manager could not properly perform her job, or run the store for which she was responsible.  In rejecting the employee’s ADA claims, the court also found that AT&T participated in a good faith, interactive dialogue with the employee to attempt to accommodate her disability.  When the employee’s physician refused to remove a 40-hour per work restriction, the court found that the employer rightfully terminated the individual’s employment. 
  • In Agee v. Mercedes-Benz (11th Cir. 2016), the Eleventh Circuit dismissed an employee’s ADA claims where her indefinite work restriction of a maximum of 40 hours per week prevented her from maintaining a flexible work schedule and working mandatory overtime, which were essential functions of her position.  Here, the plaintiff had a disability (breast cancer) and, as a result, lifting restrictions. Later, these restrictions remained in place during her pregnancy.  The employee’s physician limited her to no more than 40 hours worked per week “due to her medical limitations.”  The court found this restriction to be “seemingly indefinite.”  Once it learned of the restriction, the employer notified the employee that it could not accommodate a permanent 40-hour workweek restriction. Additionally, the employer informed the employee that she was being placed on unpaid family medical leave, and she needed to go back to her doctors to get her restrictions lifted or she would be terminated. The plaintiff declined to take family medical leave, and the employer later fired her for unexcused absences.

Ok, that was way too much case law. My apologies. Take what looks good and skim through the rest.

But one thing is clear: When it comes to overtime and the FMLA, let the employer beware.

fmla 30 smile (2)
The family that celebrates FMLA together stays together.

Happy 30th birthday, you wonderful old FMLA! 

Break out the band aids and ace bandages! It’s time to celebrate a special birthday for our favorite federal statute.

All weekend, I’ve been singing Harry Styles’ song “As It Was” to the Nowak kids:

You know it’s not the same without medical leave
In this world, it’s just FMLA. . .

And as predictable as my god-awful FMLA songs are, we even broke out the 30th birthday cake last night in honor of the FMLA.

Where Have We Been, Where are We Going?

In all seriousness, as our world comes out of a terrible pandemic, this is a critical time for employers and employees alike.  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, 30 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, read the tea leaves, and once and for all, ensure some level of paid leave for their employees so that their workers can take care of themselves and their families. It’s good for the people they employ, and it’s good for business. 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. [Ryan Golden of HR Dive penned a spectacular article today on the 30-year legacy of FMLA. It’s worth the read!]

Employers, employees, and the Department of Labor: we all have to be partners in this. So, while I have your (modest) attention:

To 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.

Think about the good that FMLA brings. The National Partnership for Women and Families estimates that the FMLA has been used more than 460 million times since it first became law, and 15 million people take some form of FMLA leave every year to attend to their medical needs, to care for a family member, or to welcome a new child into this beautiful new world.

Employers, despite the bad rap we get, we care about providing FMLA leave to our employees because we know it’s necessary at times for them and their families. However, many employees across America use FMLA leave without the benefit of a paycheck because there is no federal mandate for paid leave.

Employers, as we celebrate 30 years of FMLA goodness, it’s time to change the course of history. Consider this for a moment. The United States is one of six countries in the world — and the only wealthy country — without any form of national paid leave. Every year, employers are increasingly offering their employees paid leave to attend to significant family and medical needs of their employees. What are you slow pokes waiting for? Join the growing number of employers who are helping the American workplace align itself with the industrialized world.

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.

But let me go even further if you aren’t yet convinced. As the paid leave champion, Vicki Shabo, notes persuasively, the need for meaningful paid leave has never been greater, as the lack of such a benefit negatively impacts those most in need:

It protects only about 56 percent of the workforce, and workers who are disproportionately excluded are also those most vulnerable to job loss and have the fewest resources to afford unpaid time off. This includes low-wage workers, workers with lower levels of education, Latine workers, single parents, rural workers, people in poverty, and immigrants.

If you still need some evidence that FMLA leave is sorely needed in the lives of everyday Americans, listen to two poignant stories shared by President Clinton last week as he and others honored the FMLA’s 30th birthday (at 15:32 of the video).

‘Nuff said. Employers, let’s get to work.

To Employees:

The five percent of y’all ruin it for the rest of your brothers and sisters.

If you’re really being honest, you know that nearly all employers care about providing you leave from work when you need to attend to personal and medical issues. They are folks like you and me who at their core care about people, and they know the value of FMLA leave. What raises employers’ ire, however, is when you play them. You know who are – those who add on so-called FMLA leave to your regular days off; those who call off three straight Super Bowls in a row and think we don’t notice; those who call off work, then head over to the bar or head out early for that beach vacation.

It happens every day, and it’s why employers grow cynical when you really need FMLA leave. We recognize it’s only a small percentage of you, but your misuse of FMLA really does ruin it for the rest.

‘Nuff said.  You get my point. Use FMLA honestly and with integrity, take care of yourself and your loved ones, and get back to work.

The more accurate photo of the kids when dad gets a little too excited about the FMLA.

To the Department of Labor:

Respectfully, we need your leadership. Thirty years ago, you gave a ton of thought to the FMLA regulations and the same amount of effort to the 2009 regulatory changes, but we otherwise barely hear from you on FMLA.

Opinion letters are nowhere to be seen, and the guidance you infrequently provide on issues like cancer and mental health are thoughtful, but they tell us what we already know.

Two suggestions:

  1. Treat employers as a partner in the FMLA. This week, you put together a really snazzy blog page to honor the FMLA’s 30th birthday. Today, you will hold a ceremony to honor 30 years of FMLA. Among other things, your blog post boasts of all the employees you have saved from alleged termination for using FMLA leave, all the employees allegedly denied leave, and the money you’ve recovered from employers you’ve nailed for alleged FMLA violations. You also highlight several employees who have benefited from having access to FMLA. I guess I would expect this approach from a federal agency. But do you know what’s painfully absent from your FMLA celebration, both on your blog post and in your ceremony today? Employers. You don’t offer one good word about employers. If you’re looking to engage employers as partners in this effort, wouldn’t it make sense to highlight those employers who are going above and beyond to provide employees paid FMLA leave and other benefits to support their employees’ need for time off from work? Or will you keep perpetuating the narrative that FMLA = employees vs. employers. Not one person on that celebratory stage today is from the employer community. That’s a pretty big swing and miss. Come on DOL, you know better.
  2. How ’bout we celebrate the FMLA’s 30th birthday with some meaningful guidance from you on issues that are particularly problematic for employers: for instance, 1) How do we address eligibility of remote workers in the post-pandemic era? 2) Does telehealth = in-person visits forever (which may very well be fine, but tell us)? 3) When recertification undermines an employee’s frequency or duration of FMLA leave, why not tell us in as clear a manner as possible whether and to what extent the employee can be disciplined for the excessive absences? Right now, you offer us no guidance. 4) Similarly, if an employee fails to return certification after 15 days, why not give us precise guidance on what we do? And can we lose this mumbo jumbo about issuing discipline only for the days following Day 15? 5) Could we make the “varying work week” far more meaningful and practical? 6) Why not allow transfer to an equivalent position during any type of intermittent leave, not just for planned medical treatment? It protects the employee’s leave but helps employers better manage their workforce.

‘Nuff said. DOL, get to work!

Let me hear from you — if you could change one FMLA regulation, what would it be?

This lovable little federal law drives me crazy nearly every day, but our employees never needed this entitlement more than today.

And that’s really what matters.

Happy 30th birthday, FMLA.

Sit-on-your-Ass-text

File this in your “Sometimes, People are Really Awful” folder.

The story is a very simple one.

An associate working at a Cleveland law firm – we’ll call her Sue to protect the innocent – returned from maternity leave.

Should have been a relatively happy time, yes? Hugs all around, maybe even some donuts, but at least a kind word and a thoughtful check in with Sue about how parenthood was going, right?

Not this story.

A few days after her return, Sue informed the firm’s brass that she would be resigning to work elsewhere.

In response, she got a swift kick in the behind from a more senior member of the firm, Jon, who texted her the following:

What you did – collecting salary from the firm while sitting on your ass, except to find time to interview for another job – says everything one needs to know about your character. Karma’s a bitch. Rest assured, regarding anyone who inquires, they will hear the truth from me about what a soul-less and morally bankrupt person you are.

What in the holy hell?

My reaction was similar to Kelley Barnett, who shared Sue’s painful story on LinkedIn earlier this week. Kelley stated in part:

There is no universe in which this kind of behavior (in writing or not) should be acceptable. . . Firm culture is defined by (among other things) what is tolerated, not the words and pictures on firm websites and marketing materials. It’s defined by the boots-on-the-ground reality taking place in firm halls, offices and conference rooms.

As Kelley notes, employers – and those who run them – “should not be sovereign entities where deplorable behavior like this goes unchallenged.”

As the story goes, Jon’s firm then doubled down on his text message, trivializing Jon’s vitriol in a statement a short time later, stating, “That single text was sent in the heat of the moment by an employee upset by the belief that the former colleague while on paid leave sought employment with another law firm . . .”

I’m not going to tell you that training managers is going to fix what happened here. It won’t. What happened here is a much larger issue that can’t be “trained” away. This kind of incivility – where an employee seemingly has an unchecked pathway to dehumanize another – has no place in the workplace or anywhere else.

Using Kelley’s words, use this sad story to take a look at yourself. Are you working to promote civility in the workplace? And your managers: Do they perpetuate these problems or attempt to dismantle them?

How you treat an employee upon their return from FMLA leave tells us a lot about who you are.

Don’t be a Jon.

Be kind.

elf money

We’ve reached the end of yet another year. I hope it was wildly successful for your organization.

Are you ready to pay out year-end bonuses?

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

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

In short, Yes.

Under trusty Section 215 of the FMLA regulations, an employer can disqualify an employee from a bonus based on achievement of a specified goal, such as hours worked or perfect attendance, even where the employee has not met the goal due to FMLA leave.  The regulations provide guidance for us here:

. . . if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave.  For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

29 C.F.R. § 825.215(c)(2) (my emphasis and bold). 

Let me put this another way.

When qualifying employees for and/or calculating bonus payments or incentives, employers must treat employees who take FMLA leave the same as those who are on “an equivalent leave status for a reason that does not qualify as FMLA leave.” 

Ok, Jeff, you ask, where do you get your support for this?

Stick with me.

In the preamble explaining the changes to 29 C.F.R. § 825.215(c)(2), the Department of Labor stated:

Equivalent leave status refers, for example, to vacation leave, paid time-off, or sick leave. Leave for a reason that does not qualify as FMLA leave refers, for example, to vacation or sick leave that is not for an FMLA purpose (i.e., the vacation or sick leave is not also FMLA leave). Thus, for example, if an employer policy does not disallow an attendance bonus to an employee who takes vacation leave, the employer cannot deny the bonus to an employee who takes vacation leave for an FMLA purpose (i.e., substitutes paid vacation leave for FMLA leave). However, if an employer’s policy is to disqualify all employees who take leave without pay from such bonuses or awards, the employer may deny the bonus to an employee who takes unpaid FMLA leave. If an employer does not count vacation leave against an attendance bonus but does count unpaid leave against the attendance bonus, the employer may deny the bonus to an employee who takes 12 weeks of FMLA leave, two weeks of which the employee substitutes paid vacation leave, but ten of which the employee takes as unpaid FMLA leave.  73 Fed. Reg. 67985 (Nov. 17, 2008).

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

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

Beware of State and Local Leave Laws

The above takes care of federal FMLA leave. But could state or local paid sick leave laws create an issue for you?

Maybe. Most state leave laws are silent on the question of whether you can deny a bonus to an employee who takes state/local paid sick leave. In these cases, you arguably could apply the federal FMLA standard.

However, many of these laws include anti-retaliation provisions that might be applicable. Take, for instance, my home city of Chicago, whose sick leave ordinance states generally that employers cannot take adverse actions because of the use of protected paid sick leave. Pretty generic, yes? And not likely to impact your approach to the payment of bonuses.

But take the City of Minneapolis’ sick and safe time ordinance. Here, the City states that, “An employer may not take an employee’s legitimate sick and safe time use into account when rating that employee’s attendance record for the purposes of awarding a benefit, such as a . . . bonus. Such actions would constitute unlawful retaliation.”

Criminey.

Before you prorate or deny that bonus, check your friendly local paid leave law, and make a quick phone call to your favorite employment attorney.

Other Holiday Pay Issues

What about other FMLA issues you face around the holidays, such as holiday pay during FMLA leave, calculating FMLA during the holidays, and dealing with an employee who plays hooky during the holidays?  See my other posts on these issues below:

This February, the Family and Medical Leave Act turns 30, and I am throwing a THREE-day party to celebrate!

A party where you and I spend NINE hours together over THREE straight days discussing nothing but the F-M-L-A.

In this interactive online training course, I will help you master the critical components of the FMLA, and dare we say, the content might even get you a wee bit excited about administering the FMLA.

You read that correctly: Get ready to be FMLA-energized!

Using case studies (and perhaps a bit of humor), I will help you master the FMLA from beginning to end!  I also will highlight a TON of case law developments over the past year that impact FMLA eligibility for remote employees, employee notice of leave, medical certification and intermittent leave that you need to know about as you administer FMLA leave.

In this three-day, nine-hour online course, you and your colleagues will learn how to:

  • Determine an employee’s FMLA eligibility, particularly where remote employees are involved
  • Understand the reasons for FMLA leave and what qualifies as a serious health condition
  • Identify a request for FMLA leave
  • Determine when an employee has put you on notice of the need for FMLA leave, and how to send out the appropriate FMLA notices
  • Implement effective and compliant call-in procedures for your employees
  • Properly review and push back on medical certification and recertification
  • Discipline employees when their absences exceed the frequency and duration on their medical certification
  • Effectively manage intermittent FMLA leave
  • Root out FMLA misuse in your workplace
  • Properly maintain employee benefits during leave and return employees to work
  • Administer FMLA leave where COVID-19 related issues are involved
  • Identify all the problem areas with your FMLA policy and learn how to fix them

On Day Three of our course, I will give you the content to create your very own one-hour FMLA training program. You read that correctly: the actual content to design your own FMLA training program to implement in your workplace.

For those who attended my FMLA Master Class earlier this year, think of this new 2023 session as a 2.0 course. We won’t dwell on all the basics as we did last year; rather, we will build on the basics to hit head on the difficult issues you face when administering FMLA leave. I also will incorporate critical case law developments over the past year that impact how you manage employee FMLA leave.

In attending this master class, you will receive:

  • An FMLA workbook (120+ pages) that you can use as your FMLA “bible” long after the course has ended. This workbook provides detailed analysis of virtually every aspect of the FMLA along with the latest case law for your reference as you manage these issues
  • A template FMLA training program to conduct a one-hour training course for your own managers
  • Detailed PowerPoint slides from the Master Class
  • A personalized link to access the Master Class recording after our session

Three days and nine absolutely blissful hours of the F-M-L-A. Are you dancing yet?

Here Are the Details

When: February 7 and 8, 2023 (12:00 to 3:30p.m. central time) and February 9, 2023 (12:00 to 2:00p.m. central time); this course will be presented virtually, so you can attend from the comfort of any place you wish!

Cost: All three days for $425 (Access the registration link here). Email me at jnowak@littler.com to receive a $30 discount code for a limited time.

What will I cover?  Access my detailed three-day agenda here.

Materials: Attendees will receive a copy of my 120+ page FMLA workbook, FMLA training template, a copy of the PowerPoint, and a link unique to you to access the recording of the master class afterward

See you there!

One of the best parts of my job is the chance to talk shop with other employment attorneys who, like me, work in the trenches with employers to help them comply with the FMLA and ADA.

So, when my friend Eric Meyer reached out to me to join him last Friday to share some practical advice to employers in navigating the rough waters of the FMLA and ADA, I was intrigued.  Add to the discussion another friend, Daris Freeman (AVP and counsel at Unum), and I couldn’t pass it up.

Listen to any or all of our zoom discussion here.  In 60 minutes, Eric, Daris and I covered a ton of mileage:

FMLA Hacks

  • The importance of call-in procedures and practical pointers on what your call-in procedures should look like.
  • Don’t make exceptions to the manner in which your employees report their absence, as you may lose the chance to enforce your call-in procedures.
  • Certification as an effective tool to understand need for leave and curb misuse
  • Tackling Intermittent leave

ADA Cheat Codes

  • In a nod to our friend David Fram, how the five words, “How can I help you?” should effectively begin every interactive discussion about a workplace accommodation. 
  • If an accommodation is reasonable on its face and is easy to put in place, just do it!
  • Fixing the roadblocks in the accommodation process – how do you address the manager who naysays any accommodation consideration (and how HR must come to the rescue), the need for creativity in identifying accommodations, and the importance of considering a trial period, especially for remote work
  • Understanding the parameters for obtaining fitness for duty in today’s workplace

Check out our session here. And you have no excuses – it’s free.