What are we craving right now?

The Rule of Law!

Let me tell you, the American Bar Association delivered this past week!

Every spring, the ABA’s Labor and Employment Section Wage and Hour 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 the 12-month period ending October 31, 2024.

Every. Single. One. Of. Them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a key FMLA resource for HR professionals and employment attorneys. I refer to it throughout the year.

All the credit goes to Bridget Penick, Diana Nobile and Bethany Hilbert, who helped spearhead the annual summary this year with a few other employment attorneys.

I’ll be covering a ton of these new FMLA cases at my FMLA & ADA Master Class next week, so come join me. Can’t wait to dive in!

Happy reading!

Week after week, it seems, a new city or state enacts its own paid leave law of some sort.

For employers obligated to comply with the federal FMLA and these local leave laws, it’s death by a thousand paper cuts.

These paid leave laws come in all shapes and sizes. Many of them permit leave for circumstances that may be qualifying FMLA leave reasons as well. Some define qualifying family members more broadly than the FMLA (e.g., grandparents or parents-in-law). Some provide leave for a different set of health conditions, and others provide a leave period longer or shorter than that provided by the FMLA.

How do employers designate FMLA leave when one of these state paid family and medical leave laws also applies to the absence? And secondly, if the employee is already receiving compensation under a state paid leave law, can the employer require the employee taking FMLA to exhaust employer-provided paid leave at the same time?

Earlier this week, the DOL reminded us of the answers to these questions in a newly released opinion letter. Normally, these opinion letters are a quick jaunt through FMLA 101, but in this instance, a return to the basics wasn’t half bad, given the moving parts of the FMLA and state/local paid leave laws.

Insights for Employers

In its opinion letter, DOL clarified two principles when an employee is taking leave covered by both the federal FMLA and state paid family and medical leave:

  • Always designate if FMLA applies! In situations where an employee takes leave under a state/local paid leave program, if the absence ALSO triggers the protections of FMLA, the absence must be designated as FMLA leave. In this instance, all required federal FMLA and state/local notices, as applicable, should be sent to the employee.
  • No double-dipping allowed! As the FMLA regulations make clear, the FMLA is an unpaid leave statute, but the law allows the employee to elect, or an employer to require the employee, to “substitute” employer-provided accrued paid leave (e.g., paid vacation, paid sick leave, etc.) for any part of the unpaid FMLA period. 29 CFR § 825.207(a). But here’s the kicker: if an employee, during leave covered by the FMLA, receives any compensation from a state/local family or medical leave program, the employer cannot force the employee to exhaust any employer-provided accrued paid leave at the same time.

Let me be clear on this point, as it can be confusing. When an employee is drawing from a state paid family or medical leave program, you cannot require that they also exhaust their employer-provided accrued paid leave. That said, you and your employee together can agree that you will “top-off” their benefits up to 100% pay by exhausting their employer-provided accrued paid leave.

Do the regulations require you to memorialize this “agreement” in writing? No. But should you? Oh, heck yeah. Please?

One final note. As my Littler colleagues Ellen McCann, Stephanie Mills-Gallan and Rocio Blanco Garcia point out in our Littler ASAP on this DOL missive, the opinion letter actually gives employers a clearer road map when juggling FMLA and state paid family and medical leave laws. They put it this way:

…the DOL Opinion Letter will help employers navigate the complex issues that arise in determining how employer-provided accrued paid leave integrates with PFML benefits. Many employees want to use accrued paid leave to “top up” partial income replacement to receive 100% of pay. However, many employers find that “tops ups” are administratively burdensome or complicated to calculate. The Opinion Letter provides employers with the ability to decide whether to allow employees on FMLA to use their accruals to top up PFML benefits. However, employers should note that a few state PFML programs allow employees to “top up” benefits even without employer consent so employers should consult with knowledgeable counsel to determine the appropriate approach to take in each state

We will cover this topic, among many others this March at my four-day FMLA & ADA Master Class. Check out the details here and join me for the fun!

Photo credit: Jon Hyman, who has mastered ChatGPT images better than I have.

Let me share a story about Celestia, who requested a few weeks of FMLA leave to care for her sister who was dying from cancer.

Celestia was a finance manager at Midwest Auto Group (known as “MAG”), a car dealership that peddles luxury cars.

What follows, though, is a total used-car salesman move.

The Facts

Celestia’s sister, Sharon, battled non-Hodgkin lymphoma and, upon learning the disease was terminal, Sharon asked Celestia to be her “primary caregiver” in her final days.

In those next few weeks, Celestia cared for her sister in a variety of ways. Notably, she:

  • Paid some of Sharon’s bills and bought groceries and other essential household items.
  • Cooked Sharon’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, and brushed her hair and teeth.
  • Took care of her apartment by cleaning, taking out the trash, and doing laundry.
  • Administered medications and moved her around in bed to prevent bed sores and ensure her comfort.
  • Provided emotional support.

Celestia burned through a number of paid leave days to care for Sharon, but the paid leave ran out. At that point, she asked for FMLA leave to care for sister in what would be her final days.

The employer’s response? MAG’s HR representative told Celestia that FMLA “does not cover leave to take care of siblings,” and after confirming this fact with MAG’s lawyers, she doubled down, allegedly telling Celestia that she “needed to choose between [your] job and [your] sister.”

Though MAG was adamant that FMLA leave was “off the table,” it allowed Celestia a few days of unpaid leave to be with her sister. On the day of her scheduled return to work, however, Celestia informed MAG that she would be late, as another caretaker for her sister was delayed by her own flight into town. Within one hour of Celestia’s text reporting her delay, MAG terminated her employment.

Sharon died two days later.

Can a Sibling Take FMLA Leave to Care for another Sibling?

I’ll give you a minute while you pick your jaw up off the floor.

To be clear, Celestia and Sharon didn’t have a familial relationship explicitly covered by the FMLA. They were siblings, after all, and the last time we checked the statute, a sibling can’t take FMLA leave to care for another sibling.

Nevertheless, FMLA offered one – and only one – potential lifeline. In Celestia’s opinion, she believed that FMLA protected her time away from work because she stood in loco parentis to Sharon – meaning that she put herself in the situation of a lawful parent by assuming (for a few short weeks) the parental obligations over Sharon.

As initial matter, Celestia did not have the law on her side. For decades, courts have quickly shut the door on employees seeking FMLA protection to care for their siblings, such as the following courts, which explicitly rejected FMLA leave for siblings. Here are a few:

  • Smith v. Women’s Healthcare: “[t]he care of a sibling…is not protected under either state or federal law;” therefore, care for a sister is “a matter of [an employer’s] discretion.”
  • Gude v. Rockford Center: “caring for one’s sibling is not a guaranteed right under the FMLA.”
  • Olejarz v. Shaler Twp.: “the provisions of the FMLA make clear that the Act does not extend to leave taken to care for a sibling.”

MAG took it a step further, arguing that Celestia could not serve in loco parentis because neither the parent-child relationship nor the incapacitating disability began before the “child” (here, Sharon) turned eighteen.

FMLA Offers a Path for Siblings

Not so fast, MAG, said the Sixth Circuit Court of Appeals which, by the way, is one of the most employer-friendly federal appellate courts in the country. First, said the court, there is nothing establishing that “in loco parentis” relationships cannot form after the dependent is eighteen or after the onset of disability.

The court dug deep, harkening back to one of its own decisions from 1951:

. . . we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings . . . the ‘child’ in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed.

Ok, first issue resolved: according to this court, you aren’t required to serve in loco parentis to the sibling before they were age 18 in order to serve in this role later in life. I can make that jump.

But Celestia still has to clear the next hurdle – that today, she is serving in the role of Sharon’s parent. How does she show that this in loco parentis relationship so as to reach the FMLA promised land?

According to the court, it must be clear that they have taken on the role “with the intention” of serving as a parent. It’s not sufficient “just provide aid to a loved one who could use the help . . . ‘kindness and generosity’ are not enough.”

The In Loco Parentis Standard

To show an in loco parentis relationship, siblings like Celestia must show that she:

  1. Is in close physical proximity to the adult loco parentis child;
  2. Assumes responsibility to support them;
  3. Exercises control or has rights over them; and
  4. Has a close emotional or familial bond with them, akin to that of an adult child.

As the court noted, this list is not exclusive, no single factor is dispositive, and they should not be weighed like a math problem. But these are the types of factors it looks to in evaluating in loco parentis relationships.

Putting it this way, it doesn’t seem that onerous a standard, does it?

The court did not take a position one way or the other as to whether Celestia was the “parent” to Sharon. Rather, it sent the case back to the trial court to let the lower court to determine if the record reflects a material question of fact as to whether Celestia and Sharon intended to form a relationship in Sharon’s final months that was parental in nature or whether, even construing the facts in Celestia’s favor, the record reflects the generous assistance of a devoted sister who did not intend to assume a parental status

You can access the court decision here: Chapman v. Brentlinger Enterprises.

Insights for Employers

This is a big deal. And it’s a topic (and case) we will cover at length in my FMLA & ADA Master Class that you can register for today!

Reasonable minds can differ about whether the FMLA applies to siblings. For instance, I think the court flat out got this wrong on the law. Notably, the court was quick to point out that it’s not enough to provide aid to a loved one for a short period of time. Yet, isn’t this what happened here? Celestia took leave for a couple of weeks, traveled a long distance to attend to her sister, but then returned home a few weeks later. There hardly seems to be any permanency to this so-called parental relationship, as you would expect in a “parental” relationship. For instance, Celestia did not establish that she would be providing day-to-day care with daily life activities on an indefinite basis, as you would find in a parental relationship. Nor did she establish, for instance, that she would take up residency close to Sharon so that she could help her attend to her needs. To the contrary, Celestia came into town for a short time, knowing that she would return to day-to-day life in a few weeks. To me, this smells more like a true sibling relationship than a parental one. But alas, this is for the trial court to decide.

But friends, let me be clear: There is so much more to life than the law.

Rather than blindly follow the law as MAG did, let’s think about the following best practices when your own Celestia asks for leave to care for her sibling or close family member not explicitly covered by FMLA:

  1. Be Compassionate.  We will not be remembered for how much we grew the bottom line, but by how we made someone feel.  Remember friends, we are in the human relations business. Years ago, I lost my father after a tough battle with cancer. As my dad dealt with his illness, I remember how my law firm treated me — with respect, empathy and kindness — as I cared for him in his final days. Should it have been any different had it been my brother or sister, instead of my father?
  2. No Knee Jerk Reactions. When your employee is seeking FMLA leave to care for a sibling, grandparent, grandchild, or [name your family member], this court decision reminds us that we should have no knee-jerk reactions in assuming that FMLA doesn’t apply. As we see here, FMLA may very well be alive and in play.
  3. Instead, check the in loco parentis relationship. When leave is requested to care for a family member, I recommend a practice in which you provide your employee a questionnaire in which you probe further the familial relationship and the kind of care the employee will provide. Ask your favorite employment attorney if he/she can draft this for you. I have one handy for all my clients. This questionnaire will help determine whether the employee intends to stand in the role of parent, such that FMLA may apply.
  4. Before Hitting the Termination Button, Give the Employee a Chance to Explain. Bad facts make bad law. It seems obvious that this otherwise employer-friendly court was moved by the alleged employer reaction here. Who isn’t? But it’s a lesson to the rest of us. Before making a termination decision, ensure you’ve given your own Celestia a chance to explain why she was late to work on the day of her return, and whether there is room (as there should be) for a little grace and empathy during one of life’s most difficult moments.

‘Nuff said. Now, get back to work!

Imagine spending four consecutive days deepening your knowledge of the Family and Medical Leave Act and the Americans with Disabilities Act and gaining practical insight to manage employee absences and accommodations.

Interested?

For the past few years, I’ve conducted an FMLA master class, switching over last year to an ADA course. This year, I am offering entirely new content in a combined FMLA and ADA master class!

In this new, interactive, four-day (11-hour) course, I will help you master the critical components of the FMLA and ADA to become more comfortable with managing an employee with a medical condition.

Yep, you read that correctly: Get ready to be FMLA- and ADA-mazing!

Think of this as your very own FMLA and ADA amusement park. Really. Over four days, I will use tons of case studies, recent case law, and a bit of humor to help you master the common, yet difficult, FMLA and ADA issues you face every day.

AGENDA

All the topics that I will cover can be accessed in the detailed agenda HERE.

In this master class, you will learn how to:

  • Determine an employee’s FMLA eligibility and what qualifies as a serious health condition
  • Identify when an employee has put you on notice of the need for FMLA leave, and how to send out the appropriate FMLA notices
  • Conduct a review of FMLA medical certification and learn how to push back on vague certification
  • Effectively manage intermittent FMLA leave and discipline employees when their FMLA-related absences exceed approval
  • Recognize when to start the ADA interactive process and work toward “getting to YES” in the accommodation process
  • Determine whether an accommodation is reasonable, what type of accommodation is needed, and how to implement it (we’ll cover, in particular, leave as an accommodation, remote work, accommodations for neurodiverse employees, reassignment, and pregnancy accommodations)
  • Make appropriate medical inquiries where you’re concerned about an employee’s fitness for duty or safety in the workplace
  • Navigate situations where there is an intersection of FMLA, ADA and worker’s compensation issues
  • Implement pregnancy accommodations

TARGET AUDIENCE

This FMLA and ADA Master Class will benefit you no matter your experience level. Are you just breaking into human resources and need a critical foundation on these two laws? This class is for you. Are you a more seasoned HR, FMLA or ADA professional who needs some practical ideas to administer employee leaves and manage reasonable accommodations, assess employee fitness for duty, and handle sensitive employee conduct and performance issues? This class is for you. Are you an in-house attorney who seeks a better understanding of the FMLA and ADA pain points so you can appropriately counsel your internal clients? This class is for you, too.

REGISTRATION INCLUDES

  • A 200-page workbook that you can use as your FMLA and ADA “bible” long after the course has ended. This workbook provides detailed analysis of virtually every aspect of the FMLA and ADA, along with the latest 2024 – 2025 case law for your reference as you manage these issues
  • Detailed PowerPoint slides from the Master Class
  • Can’t attend live or miss one of the days? No problem! You will receive a personalized link to access the Master Class recording afterward so you can watch the course again and again for up to 90 days after the party has ended
  • Receive your very own FMLA/ADA Master Class attendee badge to post in your email signature or social media profile
  • SHRM/HRCI and continuing legal education (CLE) will be offered

CLASS DETAILS AND LINK TO REGISTER

When: March 4-7, 2025 (12:00 to 3:00p.m. central time on March 4, 5 and 6 and 12:00 to 2:00p.m. CT on March 7); this course will be presented virtually, so you can attend from the comfort of any place you wish!

Cost: All four days for $545 (Access the registration link HERE). Use the discount code MASTER10 for 10% off registration. Email me at jnowak@littler.com to receive greater discounts for groups of 10 or more.

What will I cover?  Access my detailed four-day agenda HERE.

Materials: Attendees will receive a copy of my 200-page FMLA & ADA workbook, a copy of the PowerPoint, and a link unique to you to access the recording of the master class afterward.

Four days and 11 absolutely blissful hours of the F-M-L-A and A-D-A. Are you dancing yet?

Every once in awhile, the U.S. Department of Labor rattles its saber, warning employers that it’s readying itself for aggressive enforcement investigations reviewing alleged FMLA violations.

For instance, two years ago, the DOL announced that it would ramp up FMLA audits (as well as wage and hour audits generally) against those employers in the warehouse and logistics industries.

Well, they’re back again.

Based on information provided informally during DOL investigations in which we have been involved, we have earned that the DOL is directing investigators to insist on production of additional information from employers particularly with respect to payroll practices.

This is potentially a big deal.

If you’ve been involved in a DOL investigation over the past year, you’ve noticed a new format for the long-itemized list of information DOL seeks in an FMLA investigation. Take, for example, this laundry list of requests I received from DOL earlier this year in an F-M-L-A investigation:

Anyone know what these wage and hour questions have to do with FMLA?

Yeah, me neither.

Apparently, DOL investigators have been told to collect more information and investigate further, even in FMLA cases.  In these matters, investigators are expected to push for payroll information, even when the FLSA is not implicated in a complaint. The goal? To leave no FMLA or FLSA stone unturned.

To date, we’ve generally been successful in pushing back on these kinds of payroll inquiries. But now? It appears the DOL is ready to take a different approach with employers.

Insights for Employers

BIG. RED. FLAGS. all over the place here. When the DOL comes knocking with an FMLA audit, identify a strategy. Do you have answers to the above questions that you are prepared to defend in an audit? If you don’t have the answers, add this task to your early 2025 to do list.

As you prepare your HR and legal budgets for 2025 and beyond, grab your favorite employment attorney, and make an FMLA self-audit a priority for your workplace in the New Year.  Your self-audit should focus on the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure they are up to date. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?  Remember my article about all the things wrong with your FMLA policy and how to fix them? Take another look and update that policy now!
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff. Take a peek here at my analysis of the new FMLA forms issued by the DOL.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the regulations in calculating FMLA leave?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.  The DOL tends to make fairly broad information requests, so excellent recordkeeping is imperative.
  7. Train your employees! Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures.  Indeed, there are far too many examples of employers who have shelled 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 can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Join me for my annual FMLA/ADA webinar, which comes to you, as always, free of charge.

This year, due to overwhelming demand, we’re covering remote work as an ADA accommodation.

When: Wednesday, December 11, 2024 (12:00 – 1:15 p.m. central time)

Online registration: Click Here to register

As employers increasingly require employees to return to the office, remote work accommodation requests have followed. After having sent many of their employees’ home to work during the pandemic, employers now face an onslaught of remote work requests. During the pandemic, employers wondered whether the pandemic would make remote work a permanent “thing” required by the ADA. Several years out, we are beginning to see how the courts are treating remote work requests – and it’s a mixed bag for employers seeking a return to office.

In this complimentary webinar, my friend, Matt Morris, Vice President at ComPsych, and I will analyze the current remote work landscape, help make sense of where the courts are heading on this issue, highlight relevant studies on the issue, and offer practical suggestions on how employers should approach remote work requests after the pandemic.

Through the use of case studies (and a tiny bit of humor), we will cover:

  • What precisely is the playing field these days when it comes to remote work arrangements? Did the pandemic change the entire remote work analysis?
  • How data about modern working arrangements could (and in some instances, should) affect your remote work accommodation analyses
  • How this data and other anecdotal evidence can bolster the arguments employers make to strengthen their “return-to-office” position and/or refine their expectations for at-home workers
  • Dealing with employees who request remote work because they can’t commute to work Where and when does it end: Can an employee work from home indefinitely?

And, of course, we’ll sing. We’ll definitely sing.

When you register (click here), please pose the most difficult question you want answered in this area, and we’ll do our best to cover it during the webinar.

Quick note:  This program has been submitted to the HR Certification Institute and SHRM for review and credit. Continuing Legal Education credit also will be available to attorneys attending the program.

We look forward to hosting you!

Meet Ray.

Ray is to the FMLA as Patrick Mahomes is to football. Ray is an FMLA pro, having taken FMLA leave a total of 158 times over three years. No joke. F-M-L-A simply rolled off Ray’s tongue, enabling him to take leave on countless occasions.

As the story goes, Ray started his latest FMLA journey with a three-week leave of absence for pneumonia.

Ray worked as a mechanic, regularly operating and repairing the loin-puller machine for his employer, a pork-production company. Ray must have loved that loin-puller machine, since he got really salty upon his return to work when his boss told him he would be assigning Ray to a different machine at the plant.

Accusing his employer of “punishing” him for being absent three weeks for his illness, Ray announced that he would “take a vacation until [the employer] figured it out.” [Whatever that means . . . ] His vacation request was summarily denied, since it was not requested in advance as required by policy.

Ray then used the old stand-by: FMLA leave. His wife allegedly had a cardiovascular
disease that would “flare up” several times each month, requiring Ray to care for her. Upon denial of his vacation leave, Ray immediately told his supervisor he was going “home on FMLA” because his wife was “not feeling very good.”

In the days to follow, Ray’s managers came to the conclusion that Ray’s wife did
not need him at home, and that he invoked FMLA leave to hide his true reason for leaving his shift that day, which was his anger at his reassignment. As a result, the company swiftly terminated his employment.

Do You Smell a Rat?

It’s not a stretch by any reasonable measure to find that Ray’s antics stink to high heaven.

You know what also stinks? A court decision that actually breathed life into Ray’s FMLA claims.

Upon his termination, Ray filed an FMLA lawsuit, alleging that the employer interfered with his right to take FMLA leave and instead terminated his employment. Acknowledging that the evidence suggested that Ray’s initial request for vacation indicated that his wife’s condition was not the true motivation for his leave request [ya think?], the court concluded that the evidence also showed his employer may have interfered with Ray’s FMLA entitlement by refusing to treat his absences as covered by the FMLA.

As a result, the court determined a jury needed to decide whether the employer interfered with Ray’s FMLA leave. [Access the court’s decision here.]

Brutal. Just brutal.

Insights for Employers

These kinds of cases are big fat traps for employers. Every bone in our body tells us Ray was up to no good when he used his FMLA excuse to get out of work that day.

But if we act on this reasonable inference, we sadly face the same serious risk that the employer did. Here, an actual court case warns us what can happen if we too quickly hit the termination button in instances like these.

When faced with an employee like Ray, employers seem to have two choices:

  1. You hit that termination button. It’s the reasonable thing to do, and it makes perfect sense for the reasons identified above.
  2. You hit the pause button, using the opportunity to reach out to the wife’s physician, explain the scenario, and ask for the physician’s input as to whether Ray’s reason for leave was consistent with his need for FMLA on this specific occasion. [This approach is perfectly defensible under Section 308(e) of the FMLA regs.]

Option 1 often proves successful, as the employee typically realizes that he should rightfully be held accountable for his poor judgment, and he moves on with life and finds a new job, hopefully with the resolve to do better. But option 1 comes with the risk that a termination decision based on these facts alone potentially raises an FMLA claim, as evidenced by the court’s decision here.

Option 2 admittedly is more methodical, but it does several things:

  1. At a minimum, it sends the message to the employee and the physician that you are not simply going to roll over and allow Ray to misuse FMLA leave in this kind of suspicious manner.
  2. If you’re lucky and the physician actually agrees with your concern that Ray didn’t have a reasonable basis to take FMLA leave, it arguably lays the foundation for the lawful basis to terminate Ray’s employment.
  3. It likely saves you hundreds of thousands of dollars defending this FMLA claim at trial, which the employer faces now.

In the meantime, I wish I could just give this employer a big bear hug, cause we all have a “Ray” in our workforce and we pull our hair out every time.

Beads of sweat formed on my forehead, and my eyes began tearing up.

It was one month ago, and all it took was five minutes.

I was seated among 35 of my Littler colleagues, all of us participating in a week-long Executive Leadership Program through Northwestern’s Kellogg School of Management.

Halfway through the week, we attended a session, “Managing and Motivating Across Differences” by Northwestern Professor Lauren Rivera. At the beginning of the session, Professor Rivera handed each of us one sheet of paper, which upon first glance included some seemingly simple instructions. It read:

Below is a list of privileges in the workplace, or things many of us might take for granted at work. For the purposes of this exercise, assume that you do not have any privileges and need to acquire them for your organization. Each privilege listed below costs $100 and you have a budget of $500. You must decide which 5 privileges you personally would like to purchase.

Below the instructions was a list of 25 “privileges,” a few of which stood out to me:

  • I’m never the only member of my gender or racial group at a meeting at my organization.
  • I can expect to be paid equitably for my work.
  • I can take a job without having others suspect I got it because of my gender or race.
  • I can expect time off to celebrate major holidays for the religion I practice.
  • I can assume that my workplace will be accessible to me without having to request modifications.

There were 20 additional “privileges” listed among those five. As I scanned the list, however, I realized that none of these applied to me. I’ve never had to worry about even one of these privileges of employment. I simply took them for granted.

You see, I am a straight, white man and father, a person without a disability. And I am Catholic, the most common religious affiliation of those living in the Chicagoland area.

Yet, all it took was one sheet of paper to help me appreciate just how many workplace barriers have been removed for me simply because I’ve always lived in the majority.

In that moment, I was overcome with emotion. And perhaps for the first time ever, it helped me appreciate in a very real way that I need to be a better ally.

We All Need to Be Better Allies, and Employers Have the Ability to Effect Change

We’ve heard much lately of the terms diversity, equity and inclusion (DEI). For too many of us, we sharpen our defenses when we encounter the letters D-E-I.

But it doesn’t have to be this way.

The Northwestern exercise served as a candid reminder to me that not everyone in our Republic starts from the same place, particularly when we take into account characteristics such as race, gender, disability, and religion.

Sadly, the statement above will undoubtedly awaken the DEI-haters, as a few will see it as an attack on them simply because of their skin color, gender, parenthood.

But for those of you will keep and open heart and mind to my own recent epiphany, consider the words of President John F. Kennedy and my own mother, who often quoted the words of Luke 12:48 as I was growing up:

“For of those to whom much is given, much will be required.”

For many of us, we’ve been able to navigate corporate America and our careers with privileges of the workplace that others simply do not enjoy and have never enjoyed.

Put another way, we’ve been given much; now, much is required of us.

Don’t get me wrong. As a kid who grew up with barely two pennies to rub together and a dad as our breadwinner who was in and of jobs his whole life, I was taught at an early age that hard work will open doors for me and help me live a life more secure than my mom and dad ever had. Without question, hard work is imperative. But extolling hard work and embracing DEI principles are not mutually-exclusive concepts.

Indeed, they can’t be if we want to achieve a healthy workplace.

Ok, Jeff, I hear You. But How Does This Apply to Me?

We find ourselves in the final days of Disability Pride Month, and as longtime subscribers of this blog are aware, I nudge employers from time to time to be better when it comes to their ADA obligations. If we are the typical employer, we maintain our standard EEO policy prohibiting discriminatory treatment of individuals with disabilities, among others. Many of us also have reasonable accommodation policies inviting employees to inform us of the need for workplace accommodations.

But for many employers, this is where the ideals and support end.

We can do better in supporting our colleagues with disabilities.

As my Littler colleague and friend, Paul Bateman, reminds us, it starts with basic ideals such as enabling closed captions option in your Zoom account for meetings, asking someone you work with about their preferred communication methods, and engaging in active listening.

A Harvard Business Review article, “4 Ways to Improve Your Company’s Disability-Inclusion Practices,” also is particularly instructive. Authored, in part, by former Accenture General Counsel Chad Jerdee, this HBR article encourages employers to consider adopting the following practices to ensure employees with disabilities enjoy equal opportunities in the workplace:

  1. Identify and change processes that support unconscious bias. The article highlighted how Microsoft found that people with autism weren’t getting hired despite clearly having the required knowledge and intellect. So, the Company changed the standard interview process to an assessment program involving a series of exercises designed to test teamwork and technical skills; it also provided real-time training.
  2. Help all employees understand the challenges that persons with disabilities face and contribute to solutions. Training to help people better understand and empathize with the challenges their colleagues may face and reduce the stigma of being disabled is critical. And then ensure that employees have access to employee resource groups (ERGs), including those focused on empowering persons with disabilities.
  3. Strengthen the hiring pipeline by engaging with community groups.  Employers can build a robust recruitment pipeline in part by engaging with groups that support people with disabilities.
  4. Create a mutually supportive community. Mentoring and coaching initiatives are also vital lifelines. Persons with disabilities who serve in senior positions should strongly consider becoming mentors or champions — both internally and externally.

Another Littler colleague, Julia Diniz Tavares, offers even more tangible “interpersonal actions” here to make yours a more inclusive and accessible work environment.

Disability Pride Month 2024 ends this week. Let’s make it our mission to keep these ideals not only front of mind, but put into practice, long after July 31 is over.

And I pray that the good Lord nudges me to be a better ally every chance I get . . .

The wheels are turning, aren’t they?

This question is another arising out of a webinar I recently conducted with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas (Job Accommodation Network) regarding the Pregnant Workers Fairness Act (PWFA).

A few weeks back, I addressed whether FMLA medical certification could be requested from an employee who seeks leave due to pregnancy limitations.

Now, let’s talk breaks for lactation. And bottles.

In our webinar, the following question was asked:

We have an employee whose baby will not take a bottle. Does the PWFA require accommodations that will enable the mother to leave work to feed her child (e.g., telework close to daycare, schedule modification, breaks, etc.)?

Thousands of you are screaming “PUMP Act! PUMP Act!”

Your chants are not misplaced. But what does the PUMP Act actually tell us?

Last year, the PUMP Act expanded workplace protections for lactating employees by requiring employers to provide all employees who are nursing with reasonable time and private space to express breast milk.  The PUMP Act expands upon a 2010 amendment to the Fair Labor Standards Act (FLSA), which required employers to provide lactating employees who are non-exempt under the FLSA with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  This amended law expands this right to cover all employees covered by the FLSA, both exempt and non-exempt.  

But the PUMP Act doesn’t really neatly cover instances in which the baby will not take a bottle.

Does the PWFA fit here? Anywhere?

Here, too, it’s tough to wedge this issue under the umbrella of the PWFA. After all, the PWFA covers the “known limitations” of an employee, not the employee’s child who won’t take a bottle. Denying the PWFA request in this instance is technically correct.

But let’s be careful about our response to this kind of scenario.

First, there is an optics issue in refusing to work with your employee on the need for a flexible work arrangement to address the bottle-latching issue. Be sure to assess the risk before you say, “No,” and remember, we are in the human relations business. Before you say, “No,” let’s find an alternative.

Second, don’t forget that the final rule provides that a lactation accommodation can include permitting the employee to nurse during work hours where the child “is in close proximity” to the employee—e.g., when the employee is teleworking or when an employee takes a break to travel to a nearby or onsite daycare facility.”

Of course, this addresses breastfeeding, not bottle feeding. But as we see above, it doesn’t take much to turn a lactation request into a PWFA-protected time away from work, particularly where the child is in “close proximity” to your employee. As such, it’s critical for employers to carefully assess these requests. Deny them at your risk!

For decades, employers have applied the usual FMLA rules for an employee who cannot work because of limitations due to pregnancy. When these limitations render a pregnant employee unable to work, the employer has always had the right to obtain medical certification to confirm the limitation and the employee’s need for leave from work.

When the FMLA became law in 1993, there was no such thing as the Pregnant Workers Fairness Act (PWFA), which as of last year requires employers to provide accommodations to individuals limited by pregnancy-related conditions (unless undue hardship exists).

In its final rules implementing the PWFA, the EEOC went to unusual lengths to rein in an employer’s ability to obtain medical documentation when an employee requests a pregnancy accommodation. The agency rejected the ADA’s more expansive approach to supporting documentation, instead allowing medical documentation only if it is reasonable under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation.

Is It Inappropriate to Request FMLA Medical Certification from an Employee Who Seeks Leave Due to Pregnancy Limitations?

In light of the PWFA’s limitations on medical certification, this is an obvious question.

I had the chance to take this question up directly with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas from the Job Accommodation Network in a webinar the three of us conducted in April.

As a reminder, employers should first exhaust all reasonable efforts to keep the employee in their current position or in a temporarily-reassigned position while she still has limitations due to pregnancy. As EEOC makes clear in its final rules, and as reinforced by Ms. Miaskoff, a leave of absence truly is the accommodation of last resort under the PWFA, as the key purpose of this new law is to keep employees on the job.

Step One: Seek FMLA Certification First

Not surprisingly, Ms. Miaskoff agreed that FMLA medical certification would be an acceptable tool to use first if an employee limited by pregnancy is seeking leave from work, or if leave is the only option available.

Easy enough. If an employee needs leave, we first seek FMLA medical certification, which likely will give us more information than we’d otherwise obtain through a streamlined PWFA certification.

Step Two: What Should an Employer Do if the Employee Does Not Return the FMLA Medical Certification?

If the employee returns the FMLA medical certification, all’s well. We make an FMLA and pregnancy accommodation decision based on the FMLA documentation.

But what’s the employer’s response if the employee fails to return the FMLA certification? Ms. Miaskoff’s take on this topic was instructive. She indicated that, at this point, the employer should:

  1. Remind the employee of the right to request a pregnancy accommodation; and
  2. Request that the employee provide basic documentation supporting their need for an accommodation.

Of course, Ms. Miaskoff isn’t offering the EEOC’s “official” position on this issue, but I think she offers some sound advice on this point, doesn’t she? When the employee fails to return medical certification, it seems to make a whole lot of sense to remind the employee that we remain open to discussing an accommodation that would help her perform essential job functions and encourage her to provide documentation supporting the need for an accommodation if she believes one is needed.

What Should This Pregnancy Accommodation Medical Documentation Look Like?

As an initial matter, the EEOC rejected adopting the ADA’s approach to supporting documentation. In other words, employers should not use your ADA medical certification form in a pregnancy accommodation situation.

In the final rule, the EEOC limits “reasonable documentation” to the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) describe the change or adjustment at work needed due to the limitation.. In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask the expected duration of the requested modification.

Confirm. Confirm. Describe. Ideally, on a form no more than one to two pages in length.

Ask your preferred employment attorney for their model form!