John always sat in the same spot in the same pew, positioned about 50 feet from the side entrance of the church.

Deep in prayer, a rosary wrapped around his left hand, John would lift his head and turn toward me as I entered that side door every Friday morning.

With a slight nod of his head and a warm smile, he made me feel welcome.

That’s all it took. A nod and a smile.

For the past six months, John has been noticeably absent from Friday morning Mass. Last week, we received the difficult news, as the priest announced that John had passed away after a battle with cancer. John’s story was made even more powerful when I learned that he served as caregiver for his very ill wife at the same time he was battling terminal cancer himself.

I never spent any meaningful time with John. Still, in what seems a rather broken world right now, John’s simple act of kindness toward me each time I walked by — a nod and a smile — led me to believe I mattered.

John’s kindness was a gentle reminder to reject the knee-jerk cynicism we often employ when responding to a leave or accommodation request.

So, a few observations:

  • In all that we do, be kind. Always. Be. Kind.
  • In our professions — HR professionals, leave administrators, employment attorneys – it’s easy to become cynical of employees, right? The migraine headache? Fake. The delay in returning certification? Fake. Let us remember: the overwhelming majority of our employees are good people in need of a workplace lifeline from time to time. For sure, we have no idea what many of our co-workers are dealing with in their own lives. They come to work with plenty of personal baggage, and each one copes differently with it. Next time they ask for time away from work or an accommodation, like John, let’s lead with respect and kindness, not ridicule or silence.
  • Finally, let’s not forget: Like parents to our children, we managers of people set the example. When we live by the Golden Rule in the workplace, our subordinates and co-workers see firsthand the respective culture we are trying to build. Use this real-life example as gentle reminder to reconnect with each other.

In a world in desperate need of kindness today, let it begin with me.

Yesterday, the US Department of Labor resurrected its Payroll Audit Independent Determination (PAID) program, which encourages employers to own up to potential minimum wage and overtime violations under the Fair Labor Standards Act and resolve them at an early opportunity.

For the first time in history, the DOL is extending this program to potential violations under the Family and Medical Leave Act as well.

As several of my Littler colleagues explain in this thorough analysis, the PAID program is summarized in a couple steps:

  • The Employer conducts a self-audit to identify potential FLSA or FMLA violations.
  • The Employer then works with the DOL Wage & Hour Division to correct these apparent violations and pay back wages (if any) or implement other remedies.

The program is voluntary and aims to promote compliance without litigation. As my Littler colleague David Jordan notes, the PAID program allows employers that discover wage and hour compliance issues to take advantage of the DOL’s supervisory powers and reduced financial risk to get releases from exposure when they remedy the issue.

Enter the FMLA

For the first time ever under this PAID program, DOL has announced that employers may not only self-report FLSA violations, but FMLA violations, too.

Is this supposed to be double the fun?

I doubt it.

But is self-disclosure of potential FMLA violations worth it? Let’s see . . .

Which Employers are Eligible to Self-Report Suspected FMLA Violations?

DOL has outlined the following eligibility criteria for participating in the PAID program to disclose any suspected FMLA violations:

  • The employer is a covered employer under the FMLA.
  • The employees included in the employer’s PAID self-audit are not subject to prevailing wage requirements.
  • Neither the DOL nor a court of law has found an FMLA violation at the employer within the last three years.
  • The employer is not currently a party to any litigation (e.g., private, with DOL or with a state enforcement agency) claiming a violation of the FMLA practices at issue in the proposed PAID self-audit.
  • DOL is not currently investigating the FMLA practices at issue in the proposed PAID self-audit.
  • There are no FMLA or state leave law complaints with the DOL or a state enforcement agency claiming that the leave practices at issue in the proposed PAID self-audit violate the FMLA.
  • The employer has not participated in PAID within the last three years to resolve potential FMLA violations (resulting from the leave practices at issue in the proposed PAID self-audit).

The Process

For employers who wish to self-audit and report their possible FMLA violations, the DOL anticipates that you first will review its “FMLA checklist,” which consists of a rather rudimentary set of topics that will be part of your FMLA self-audit. The program also raises some uncertainties, for instance:

  • When the employer applies to conduct a self-audit, it must self-identify with the DOL. As a result, there is no ability to explore possible participation anonymously before deciding whether to participate.
  • Employers must complete a “certification of compliance” with the FLSA or FMLA, as applicable. It is unclear, however, exactly what the employer will be expected to certify.
  • There is no guarantee an employer will be accepted by the DOL to perform an approved self-audit under the program. It is unclear what action, if any, the DOL might take with respect to an employer that is not accepted into the program.

Insights for Employers

As to the FLSA side of this house, there is no question that the PAID program is an encouraging development for employers, since the potential exposure of class claims and DOL-initiated litigation is real.

When it comes to FMLA, however, this development is a bit of a yawner. Unlike the FLSA, class claims are unheard of under the FMLA. It’s also true that the DOL virtually never pursues litigation against an employer for alleged FMLA violations. Rather, these claims are regularly pursued as single-plaintiff private actions.

Given the modest exposure from an FMLA standpoint (particularly in comparison to FLSA claims), I’m struggling to identify a scenario where I might counsel an employer to fall on their sword to the DOL. Without the fear of class claims or DOL-initiated litigation hanging over my head, I’m far more likely to defend our actions to the DOL and beyond.

Friends, don’t go this alone and don’t assume the DOL PAID program is for you. When faced with an FMLA compliance issue or a DOL FMLA complaint/audit, call your favorite FMLA attorney to strategize next steps before falling on your own sword.

There must be something in the water in EmployerLand, USA.

On multiple occasions lately, employers have confessed frustration to me with the lack of information provided by an employee’s physician in an FMLA medical certification or in support of an ADA accommodation.

But their next line is always troubling: “So, Jeff, I just picked up the phone and called the doctor directly with a few of our questions about the form.”

[Cringe]

Friends, whether it’s an FMLA or ADA situation, employers must follow very specific rules when communicating directly with an employee’s physician about the employee’s medical condition. They start with these:

  • Employers may communicate directly with the physician only with the employee’s express permission.
  • The scope of the information sought must specifically relate to the leave of absence or accommodation requested.

Let’s take a look how this issue arises under both the FMLA and ADA.

FMLA

The FMLA regulations contain a specific process employers must follow before communicating directly with a physician. Where the medical certification does not sufficiently answer the questions posed or the health care provider’s responses tend to raise doubt, employers should immediately communicate with the employee to “cure” the deficiencies and/or shed light on any suspect information provided in the form.  In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies.  Here, you might consider asking questions that probe further into the information you find particularly suspect.

Upon your request, the employee has a choice — either provide sufficient information from the health care provider or give you permission to contact the physician directly.

If the employee decides to “cure” the certification himself, and the cure still does not provide the information necessary to either grant or deny FMLA leave, then the employer has the option to seek a conversation with the employee’s physician. To be clear: you must have the employee’s permission — with a HIPAA compliant release — to contact the employee’s health care provider in these instances.

ADA

The EEOC’s guidance on communicating directly with a physician is far less clear, but employers are expected to obtain the employee’s consent to contact the health care provider when making medical inquiries.

In its Guidance on Disability-Related Inquiries, EEOC cautions that:

  • Any medical inquiry must be job-related and consistent with business necessity.
  • The scope of the inquiry must be limited to what is necessary to determine the employee’s ability to perform essential job functions or to assess the need for a reasonable accommodation.
  • The employee must authorize any direct communication with their healthcare provider.

The conundrum over whether to contact the physician often arises when the employee requests an accommodation, appears unfit for duty, or provides vague/non-responsive information from a physician. In these situations, a couple of key points to keep in mind:

  • As an initial matter, since a physician cannot disclose information about a patient without his/her permission, an employer must obtain a release from the employee that will permit the doctor to answer questions. The release should also be clear as to what information will be requested.
  • Where documentation supporting an accommodation request or fitness for duty is insufficient, EEOC counsels in its Guidance on Medical Inquiries that employers should consider communicating first with the employee’s physician — with the employee’s consent — before making accommodation decisions or sending the employee to an independent medical provider. (See answer to Question 11 in the Guidance).

Please note: I make reference to using a “HIPAA-complaint release” above not because the employer necessarily needs to worry about HIPAA. To be clear, HIPAA does not implicate the medical information exchanged between employer and employee. Within the confines of your confidentiality obligations under FMLA and ADA, employers clearly have the right know why their employee can’t report to work or needs an ADA accommodation. However, the employee’s physician is obligated under HIPAA and prohibited from disclosing protected health information without valid authorization. Therefore, a HIPAA-compliant release is functionally necessary for the employer to obtain this medical information.

What if the Employee Fails to Cooperate?

What if the employee fails to provide responsive medical certification and refuses to allow communication between the employer and physician?

Simply put, the employee suffers the consequences.

Take this court decision from just a couple weeks ago. In Tarquinio v. Johns Hopkins University Applied Physics Lab, the Fourth Circuit Court of Appeals upheld the dismissal of Sally Tarquinio’s ADA lawsuit after she refused to provide documentation in support of her accommodation request and refusal to allow the employer to communicate directly with her physician.

Sally, an engineer with a history of Lyme disease, requested a medical exemption from the lab’s COVID-19 vaccine mandate, citing “Lyme-induced immune dysregulation.” However, she refused to allow the lab to consult her doctors or provide sufficient medical documentation. As a result, the lab denied her exemption and terminated her employment when she remained unvaccinated. The court determined that, because Sally obstructed the lab’s ability to assess her condition, she failed to establish a valid ADA claim.

ADA claims dismissed.

And all is right with the world again . . .

Here’s a story about Dyamond, who will forever impact the manner in which you review FMLA medical certification.

If this teaser doesn’t have you on the edge of your seat, nothing in this little FMLA blog will.

Dyamond’s Story

Dyamond worked at an assisted living facility run by the State of Illinois (DHS), and she became pregnant. It was a difficult first trimester for Dyamond, who was absent several days due to morning sickness associated with her pregnancy. When she missed five workdays in a bit more than a week due to reported morning sickness, DHS provided her FMLA notices and asked her doctor to complete medical certification. One week later, she even left her shift early due to another bout with morning sickness.

Dyamond’s obstetrician completed medical certification, noting that her medical condition was “pregnancy.” As she suffered from lupus, her pregnancy was considered high-risk, and her OB required additional testing periodically throughout her pregnancy. In the FMLA medical certification, the OB noted Dyamond’s need for FMLA leave for the following:

  • To attend biweekly appointments, and weekly appointments in the month leading up to childbirth;
  • Six weeks of recuperation following childbirth (and possibly more in the event of a c-section).

Notably, Dyamond’s OB answered “NO” to the question: “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions.”

Can you guess what was noticeably absent from the certification? Any passing reference to morning sickness.

As the story goes, DHS later denied FMLA for a portion of the day in which Dyamond left work early, finding that her absence went beyond the scope of the FMLA approval, since morning sickness was not certified by her OB.

Makes perfect sense, yes? After all, if morning sickness is not listed in the certification, then it’s not FMLA leave, right?

Not so fast.

Apparently, FMLA Medical Certification is a Girl’s Best Friend?

In an odd twist of legal reasoning, the federal appellate court breathed life into Dyamond’s FMLA claims, ruling that an “employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.” Davis v. Illinois Dept. of Human Services (pdf)

Say what?

No joke. Here, as the court pointed out, DHS knew that Dyamond not only was pregnant, but suffered from bouts of morning sickness that caused her to miss work. As such, the court determined that a reasonable jury could find that, given DHS’ knowledge of Dyamond’s morning sickness, it knew that her OB’s medical certification was incomplete, in which case DHS should have provided Dyamond with an opportunity to supplement it.

I don’t buy it.

To be clear, medical certification is the FMLA’s holy grail. Ok, perhaps less dramatic, it’s our north star. As employers, we rely on this medical document –indeed, we need to rely on it — because it outlines the parameters of leave that is medically necessary. Its sole aim is to take the guesswork out of why and when the employee needs to take FMLA leave, as employers can’t be thrust into the role of playing doctor.

What would the court have us do? Send the certification back to the OB and ask, “Are you positively sure you didn’t miss anything, doc?” Or perhaps, “Hey doc, pretty please, is there anything you want to add?”

Rules are rules, and the employee should be held accountable to the statements the health care provider makes — and does not make — in medical certification. In the immortal words of Cosmo Kramer, “Without rules, there’s chaos!”

The court doubled down on its curious reasoning when it refused to acknowledge that morning sickness is a “flare up” of Dyamond’s pregnancy complications. Oddly, the court explained that the regulations expressly define “morning sickness” as a serious health condition, apparently to indicate that the term stands on its own as a basis for FMLA leave (and need not be specifically noted in the certification). But this statement of fact simply is wrong. The regulations simply offer “morning sickness” as an example of a symptom of early pregnancy. In other words, morning sickness is a “flare up” of pregnancy incapacity, which Dyamond’s OB specifically stated was not present here.

Wow. A legal blunder, I think. But nevertheless, one that now must guide our review of medical certification.

Insights for Employers

It ain’t easy making sense of this one, but I offer a few suggestions for your consideration:

  1. Incorporate this decision into your clarification strategies. Look, I am not saying that morning sickness is not covered by the FMLA. All I am saying is that it should be covered only when it’s supported by medical certification. Clearly, the court expects employers to inquire further if the employee’s symptoms are inconsistent with the contents of the medical certification. Here, the employer was indeed on notice that Dyamond suffered from morning sickness, which would be protected by the FMLA if certified by the health care provider. Dyamond’s case reminds employers that they should follow up with the doc if the employee’s reported or observed need for leave is not expressly covered by the physician’s statements in the certification.
  2. When in doubt, seek recertification. The [easier?] route here is simply to request recertification for absences based on the same condition but that come different in form (e.g., continuous vs. intermittent leave). When the need for intermittent leave due to flare ups of a condition has not been supported by previous medical certification, yet the reason for leave is the same, it makes sense (in providing legal cover) to seek recertification to determine whether the need for this form of leave (e.g., morning sickness) is medical necessary.
  3. Discuss the situation with your employee. What’s the harm in doing so? Something like, “Hey, Dyamond, you were absent on a number of days earlier this month because of morning sickness. Any thoughts on why your physician didn’t include this in the certification?” Perhaps your employee shares some info that allows to follow up, as noted in No. 1 above.

A funny thing happened as a result of the COVID-19 pandemic. Employers everywhere sent their employees home to work, many of whom will work forever more out of their home or remote worksite, never to see the Company headquarters again.

Coming out of the pandemic, some employers have drastically scaled back their brick-and-mortar headquarters. Others have ditched the company HQ, replacing it with a modest store front or even a Post Office Box. [All you Gen Z peeps: if you are wondering what a “Post Office box” is, ask your parents!]

As remote work cements itself into the fabric of the 21st Century workplace, it’s wreaking havoc on how an FMLA-covered employer determines whether its remote employees are eligible for FMLA leave.

Why, you ask?

Consider the definition of an eligible employee. Under the FMLA, an employee is eligible for FMLA leave if they have worked 12 months and 1250 hours prior to FMLA leave. These two, of course, are relatively easy to determine. However, the employee must also work at a worksite with 50 employees who are located within 75 (surface) miles of each other.

Of course, neither Congress nor the DOL contemplated that in year 2020, we’d suffer through a global pandemic that resulted in remote workers everywhere but the local brick-and-mortar office. No doubt, the regulations simply have not kept up with the realities of today’s workplace.

Here’s Your Conundrum

Let’s assume you have an employee, Vanessa, a surgical laser technician for your mobile surgical services company.

Although Vanessa was hired through your Ohio headquarters, she lived and primarily worked in Texas (occasionally her work required her to travel to other states, but not Ohio). To be clear, Vanessa has never stepped foot in the Ohio headquarters. Vanessa’s supervisor also was a remote employee working from Texas, and he reported to a Chicago-based supervisor, who in turn reported to another in Ohio.

Are you tired yet? As a reminder, Vanessa (Texas) —> boss (Texas) —> boss’ boss (Illinois) —> boss’ boss’ boss (Ohio HQ)

Vanessa’s supervisor managed the Texas region, oversaw logistics for the region, paired surgical techs with assignments, and handled Vanessa’s requests for time off.  According to the court’s characterization of the facts, Plaintiff’s supervisor “spoke, text messaged, and emailed with technicians about their cases.”  Though the employer claimed that the supervisor evaluated her performance and had authority to discipline her, Vanessa disputed this fact. 

As to the crux of the issue here, Vanessa sought FMLA to care for her mother after surgery in Mexico.  Not surprisingly, the supervisor told her by text message that she was ineligible for FMLA leave, stating that “there has to be a certain amount (sic) of employees working within 75 miles. None of us qualify down here.” 

As the story goes, her employment ended while she was with her mother in Mexico, and Vanessa sued.

The Court Ruling on Vanessa’s FMLA Claims

To be eligible for FMLA leave, Vanessa has to show that she’s employed at a worksite where 50 employees are located within 75 miles.

Since Vanessa had no fixed worksite, the FMLA regulations tell us that her worksite (for purposes of the 50/75 rule) can be one of three locations: 1) the site to which Vanessa is assigned as her home base; 2) the site from which her work is assigned; or 3) the site to which she reports.

The employer’s Ohio HQ was the only worksite in which the company had 50 employees in a 75-mile area. So, if Vanessa can’t show she somehow feeds into that Ohio HQ, she’s out of luck on her FMLA claims.

In its analysis, the court gave its take on Vanessa’s worksite:

  • Home Base: The court effectively threw up its hands as to whether the Ohio HQ was Vanessa’s home base. Notably, the court used the Worker Adjustment and Retraining Notification Act (“WARN”) as a guide, finding that the employee’s home base “must at a minimum be a location at which the employee is physically present at some point during a typical business trip” and “refers not to the physical base of the employer’s operations . . . but rather to the physical base of the employee.” Since Vanessa never stepped foot in Ohio, she could not credibly argue that Ohio was her home base.
  • Assignment of Work: The site that assigns the work arguably is an important factor. Here, it’s the site where the “source of the day-to-day instructions” is given to the employee . . . “where the people were who were ultimately responsible for creating and receiving the assignment information.” Vanessa and the employer differed on this very point. According to her employer, Vanessa’s supervisor assigned work from his home in Texas, and he directed cases to specific employees within the Texas region. However, Vanessa characterized her supervisor’s assignment of work as “clicking the mouse on his computer at his house and sending the instructions from [the Ohio HQ] to one technician or the other in his region.” Inexplicably, the court found persuasive that the Plaintiff’s supervisor appeared to have been a “mere conduit” between an assignment originating at headquarters in Ohio and Vanessa. [Wow, this seems like a stretch to me.]
  • Reporting Worksite: The court also couldn’t safely determine Vanessa’s reporting worksite. The location to which an employee reports is determined based on the “location of the personnel who were primarily responsible for reviewing . . . reports and other information sent by the employee, in order to record tasks, assess employee performance, develop new sales strategies, and the like.” Oddly, Vanessa’s supervisor did not review reports from her. In fact, she sent reports only to Ohio and never sent anything to her supervisor. There also was no evidence to establish that her supervisor performed any evaluations or had the power to impact her employment status.

The court refused to dismiss Vanessa’s FMLA claims, finding it impossible to determine Vanessa’s worksite, and instead placing the decision in the hands of a jury which, of course, will have an even more difficult time than the judge trying to determine Vanessa’s actual worksite. Read the actual decision here: Landgrave v. Fortec.

Insights for Employers

With this (lack of) guidance in mind, how is an employer to navigate these remote worker waters?

You’ve got a range of options:

  1. Everyone is eligible. Well, kind of. Given the difficulty in applying the 50/75 rule, many employers have simply removed this element as an eligibility requirement, which naturally broadens FMLA eligibility for employees. Simply put, if you have worked 12 months and 1,250 hours, you’ve reached the FMLA promised land.
  2. Keep Climbing till you find a corporate worksite. Some employers, particularly those who use third-party administrators to administer their FMLA leave, keep searching up the chain until they are able to assign the employee to a corporate worksite. For instance, in Vanessa’s case, the employer would look up the corporate chain until it found the Ohio HQ to assign as her worksite. Like Option 1, this, too, will result in many employees like Vanessa being eligible for FMLA leave.
  3. Follow the Landgrave approach, but do a better job. If you don’t want to hand your employee an FMLA freebie, you’ve got some work to do. A critical factor in identifying the employee’s work site is determining the location from which the employee receives assignments and the location to which they report. In Vanessa’s case, it was not clear whether her supervisor actually assigned her meaningful work or reviewed her work. This is instructive. If we hope to tag the supervisor’s location as the employee’s “worksite,” then it’s critical that we show the supervisor is more than a “conduit” (a term coined by the Landgrave court). Rather, we need to show that the supervisor: a) plays a meaningful role in the assignment of work; and b) actually reviews the work.

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.