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

By Jeff Nowak on Posted in ADA, DOL Initiatives

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

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

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

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

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

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

Here are few insights that I took from the conference:

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

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

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

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

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

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

Every once in awhile we need that simple reminder:

Be sincere.

Be empathetic.

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

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

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

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

Then we waited.

And waited.

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

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

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

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

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

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

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

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

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

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

But for DOL, it’s a start nevertheless.

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

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

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

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

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

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

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

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

Can we discipline Johnny for this absence?

Can we at least seek recertification?

Let’s discuss.

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

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

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

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

Has Johnny’s frequency changed significantly?

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

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

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

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

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

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

This is indeed suspicious. And if this hokey pattern continues over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask Johnny’s physician to confirm for us whether this Monday/Friday pattern is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can get your own sample letters for these situations).

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

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

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

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

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

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

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Johnny’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s now updated medical opinion. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Johnny to miss work three times per month at one day each because of his bad back. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for these excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

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

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

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

By Jeff Nowak on Posted in Abuse of FMLA leave

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

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

We never did learn what came of that porn investigation.

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

In other words, it was pay back time.

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

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

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

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

Insights for Employers

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

Policies

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

Are Second opinions Necessary?

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

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

Have an Objective Basis for Seeking Surveillance

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

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

By Jeff Nowak on Posted in Court Decisions

My fellow gentlemen:

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

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

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

Every February, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision issued in 2017.

Every. single. one. of. them.

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

Happy reading!

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

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

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

Happy 25th birthday, FMLA! 

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

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

Where Have We Been, Where are We Going?

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

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

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

*  *  *  *

Dear Employers:

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

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

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

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

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

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

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

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

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

*  *  *  *

Dear Employees:

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

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

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

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

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

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

*  *  *  *

Dear Department of Labor:

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

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

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

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

*  *  *  *

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

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

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

By Jeff Nowak on Posted in Eligibility, FMLA FAQs

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

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

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

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

First, Let’s Start with the Rule

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

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

What are the takeaways from this Rule?

There are two:

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

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

Rolling year

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

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

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

How long is FMLA Eligibility good for?

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

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

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

Calendar year or fixed year

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

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

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

“Look forward” year

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

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

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

Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition: A Recap of our Webinar

By Jeff Nowak on Posted in ADA, Intermittent Leave, Notice, Webinars

Thanks to those who attended my webinar last week with Matt Morris on “Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition.”  A link to the recording can be found here, and the presentation can be downloaded here.

To those who attended, thank you.  To those who missed it, you still have time to access the recording.  Matt and I covered a number of issues under both the FMLA and ADA when it comes to managing an employee dealing with a mental health condition.  In particular, we covered:

  • Managing your employee when their mental condition condition is affecting their performance.  Here, we outlined how an employer engages in a two-part conversation to address the issue — first, it’s a performance-based conversation, which allows you to highlight expectations and identify where the employee has fallen short of expectations; and second, it’s the interactive process, in which you engage in the employee in a conversation about what you can do as the employer to help the employee perform their job.  Through the use of characters such as Steve Carell, Pope Francis and Mr. Rogers himself, we offered you practical insight on how you structure these difficult conversations with your employees.
  • Whether an employer can force an employee on leave of absence when their mental health condition clearly is affecting their job but the employee refuses to accept it.
  • How much additional leave (if any) an employer must provide an employee dealing with a mental health condition when they have exhausted FMLA leave.  We analyzed the steps employers should take to obtain information, determine the employee’s ability to return to work and assess the hardship on your operations in deciding whether to grant additional leave or terminate employment.
  • Similarly, how to manage your employee when they are taking unscheduled intermittent leave and it’s affecting your staffing and operations.  Here, we provided practical tips to address these situations before they spiral out of control.
  • Finally, we provided guidance on when you should seek a fitness for duty for your employee and other tips on obtaining medical documentation where an employee’s mental health condition is at issue.

And has become a custom, we ended with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye FMLA Abusers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I woke up at 4:30 with a scratched cornea 

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

Oh what excuse I could concoct to avoid my overtime

Oh, tidings of FMLA . . . FMLA . . .Oh, tidings of FMLA

* * *

My doctor’s note made clear I could take off whenever I’d like

That didn’t please my boss, who told me, “Buddy, Go take a Hike!”

I think I’ll find a lawyer, isn’t that the American Way?

Oh, tidings of FMLA . . . FMLA . . .Oh, tidings of FMLA

* * *

Law of Wonder, Law of Light

Law that will help me get out of work tonight

But if I’m not careful, come tomorrow, I’ll need a new worksite

* * *

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

Happy Holidays!

FMLA FAQ: If an Employee Racks Up Both FMLA and Unexcused Absences, Can He Be Terminated?

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

Here’s a puzzle for you.  How would you handle it?

Mary Beth is a nurse for a local hospital and has been diagnosed with cancer and asthma.  Over the course of about one year:

1. She is certified for FMLA leave for her cancer and asthma;

2. She incurs a total of 13 intermittent absences in a 12-month period;

3. A handful of these absences relate to her cancer and asthma; and

4. Plenty more absences are for various other reasons, including foot pain, a stress fracture in her foot, sore throat, dizziness, common cold, stomach cramps, an upset GI,  and diarrhea.

Sheesh! Some of this stuff is TMI.

In any event, under the hospital’s policies, an employee is subject to termination when they accrue seven absences in a rolling 12-month period.  When Mary Beth reached this grand milestone (and then some), the hospital terminated her employment.

But what about the FMLA absences? Can Mary Beth lawfully be terminated for the non-FMLA absences even though others are FMLA-related?

Many of my clients are paralyzed by this situation. Among other things, they are concerned that: 1) the employee cannot be terminated because it comes during a time period when the employee is using FMLA leave; or 2) the employee will claim after-the-fact that they reported an FMLA-reason for some or all of the absences and that they should not have been considered for the termination.

The Ruling

In Mary Beth’s situation, she was properly terminated, and the court said so.  The court summed up its reasoning quite simply:

Plaintiff was entitled to take leave for [cancer and asthma] under the FMLA, as she had done in 2012 for a brief time period. However, by plaintiff’s own admission, most of her absences between April 2013 and April 2014 were unrelated to her asthma and were unrelated to her bladder cancer . . . FMLA qualified absences aside, plaintiff still missed ten days of work for miscellaneous reasons—three absences more than allowed by defendants prior to termination.

A just result. As the court pointed out, by Mary Beth’s own admission, most of her absences during the time period identified by the employer were unrelated to her asthma and bladder cancer, so they could not have been protected by the FMLA. Bertig v. Julia Ribaudo Healthcare Group (pdf)

Insights for Employers

The Court’s decision to dismiss Mary Beth’s FMLA claims was made easy because the employer did a fabulous job documenting all of Mary Beth’s absences. If employers want the same level of success, two steps are critical:

  1. Document each absence: The Hospital documented each absence and the reasons for the absence on an “Absence or Tardy” report (see copy on the right).  In this report, the employee’s supervisor documented the reason for each absence/tardy along with additional details about the absence.  These reports later are golden when the employer is considering termination, as we now have an actual document explaining why an employee was absent on a particular occasion.  It takes some work, of course, but it’s highly effective. Let’s face it: Some of you “log” all your call-ins for in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which sufficient information about the absence and a review by an HR or a leave administrator so that the employer follows up with the employee on potential FMLA-related absences.
  2. Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.
  3. Don’t forget progressive discipline and the interactive process. As Mary Beth accrues unexcused absences, are you talking to her about your attendance expectations and how she is falling short? Are you also using it as an opportunity to ask her if there is anything you can do to help her meet your expectations? Unfortunately, some of my clients call me well down the road in this process, and I learn that they have not had sufficient dialogue with the employee to set expectations and offer assistance. Engaging in progressive discipline and showing that you did all you could to help the employee succeed leading up to termination adds yet another strong layer to guard against an FMLA or ADA claim.

How Do Employers Calculate FMLA Leave Around the Holidays?

By Jeff Nowak on Posted in Uncategorized

It’s that time of year — my kids are already making changes to the fourth draft of their Christmas wish list, holiday music has been playing on my local radio station for four weeks now, and I’m just about ready to claim the couch where I will spend most of Thanksgiving week in my PJs watching football and eating leftover turkey!

Another sign of the holiday season? An uptick in client calls asking me to confirm how they calculate FMLA leave during the holiday season.

I’m sure your employees never take FMLA leave during the holidays, right?  But if in the unlikely chance they do [cough, cough], here is a quick compliance reminder about how you account for FMLA leave as we head into Thanksgiving, Christmas, winter break and the New Year:

Calculating FMLA Leave During A Holiday Week

Let’s use Thanksgiving Day as an example.  If the employee gets Thanksgiving Day off as an employer holiday and then takes the entire rest of work week off for an FMLA reason, the employer should count the entire workweek as one full week of FMLA leave used. The same reasoning would apply if the holiday occurred on any other day of the workweek and the employee was otherwise absent for the remaining work days that week.

However, if the employee works any part of the workweek (e.g., he works Monday then is gone the rest of Thanksgiving week on FMLA leave), the employer cannot count the holiday as FMLA leave.  Here, the employer can only count Tuesday, Wednesday and Friday.  29 C.F.R. § 825.200(h).

Calculating FMLA Leave During a Plant Shut Down or School Break

What if the employer shuts down operations for the entire week of Thanksgiving or at the end of the year or if a school/university closes down for winter break?  Here, the regulations are clear:

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g. , a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. [My emphasis]

In these situations, you cannot count the time against the employee’s FMLA allotment, even if it is obvious the employee would not have been able to perform the duties of the job during this break.

Calculating FMLA Leave Where the Employee Works Part of a Holiday Week

Just to confirm calculating intermittent FMLA leave during a holiday week: Let’s go back to our employee who works Monday of Thanksgiving week and is absent the rest of the week.  There are only four workdays in this particular workweek, and he’s missed Tuesday, Wednesday and Friday.  So, he has used 3/4ths of a workweek of FMLA leave.

Contrast this with a non-holiday week: If there was no holiday this particular week, and he worked only Monday, he would have used 4/5ths of workweek of FMLA leave.

Still Can’t Get Enough of this Scintillating Topic?

We talk even more about FMLA calculations during a holiday week on a old podcast “Bah, Humbug! What Do I Do When My Employees Are Home for the Holidays?”

Happy Thanksgiving!

LexBlog