Sit-on-your-Ass-text

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

The story is a very simple one.

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

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

Not this story.

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

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

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

What in the holy hell?

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

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

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

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

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

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

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

Don’t be a Jon.

Be kind.

elf money

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

Are you ready to pay out year-end bonuses?

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

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

In short, Yes.

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

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

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

Let me put this another way.

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

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

Stick with me.

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

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

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

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

Beware of State and Local Leave Laws

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

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

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

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

Criminey.

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

Other Holiday Pay Issues

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

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

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

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

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

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

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

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

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

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

In attending this master class, you will receive:

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

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

Here Are the Details

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

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

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

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

See you there!

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

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

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

FMLA Hacks

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

ADA Cheat Codes

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

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

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

When: Wednesday, December 14, 2022 (12:00 – 1:15 p.m. central time)

Online registration: Click here

Employers increasingly face situations where they are concerned about an employee’s mental health or physical ability to perform to perform the job. Stress and anxiety, erratic behavior, an aging workforce, and the prevalence of substance abuse all raise fitness for duty issues in today’s workplace. Naturally, employers want to take every reasonable step to ensure their employees can safely perform their job to ensure the overall health of their workforce.

In this complimentary 75-minute webinar, my good friend Matt Morris, Vice President at FMLASource, and I will tackle the most common and difficult fitness for duty scenarios that employers face and provide practical suggestions on how employers can address these situations. Through the use of case studies, Matt and I will cover the following:

  • When an employee is acting erratically or appears physically to be unable to perform the job, can an employer obtain a fitness for duty?
  • When does an FMLA or ADA fitness for duty apply and what is the difference?
  • What is the difference between a fitness for duty and independent medical examination?
  • Can an employer use its “own” physician to conduct a fitness for duty?
  • When the employee’s physician submits a vague or incomplete medical documentation, how should an employer respond?
  • What should an employer do when the medical opinion of the employee’s physician differs from the employer’s physician?
  • What kind of communication can the employer have with a physician to assess an employee’s fitness for duty?
  • Can an employer force an employee on a leave of absence while it obtains a fitness for duty examination?

And of course, there will be cheesy humor and maybe even some singing.

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

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

We look forward to hosting you!

This ain’t no trick, FMLA friends!

Save the date for not just one, but two FMLA events on the horizon.

My Annual FMLA webinar will be held Wednesday, December 14

For 10+ years, I have held an annual webinar covering current FMLA and ADA issues impacting employers.  Time for another round!

On Wednesday, December 14 (12pm central time), I will be joined by my good friend, Matt Morris, to discuss FMLA and ADA fitness for duty issues.  Matt and I will cover the circumstances in which employers may obtain a fitness for duty or independent medical exams to ensure an employee is safely able to work.

Look for a post in the upcoming week to register for this complimentary December webinar.

I am Conducting Another FMLA Master Class in February 2023!

This February, the FMLA turns 30.  And it’s time to celebrate!  On February 7-9, 2023, I will hold a three-day FMLA extravaganza in which I will build on the concepts from my FMLA master class from earlier this year.  We’ll update some of the FMLA building blocks from that session while ramping it up a notch to help you develop your FMLA prowess!

You read that right: three whole days of nothing but the F-M-L-A!  We’ll cover everything from tricky FMLA eligibility and notice issues to vague medical certification forms to pesky intermittent FMLA scenarios.  Even more, I will include a “train-the-trainer” module with content to create and master your own one-hour FMLA training course for your managers.

Check back here in early December for details to register for this February 2023 FMLA Master Class.  In the meantime, get your FMLA dancing shoes ready AND email me with any particular topics you want me to cover in this year’s master class!

Yeah, I get it. He’s taller than me. Significantly taller.

Ever since my son, Luke, was a wee lad, we dreamed of going on a major league baseball road trip together.

Baseball runs through our veins, so after years of dreaming, 2022 was our year.  Since the beginning of this year, we’ve been plotting, planning and scheduling the trip of a lifetime.

Just a few weeks ago, Luke and I made our way from Chicago to the east coast to catch major league baseball games at six different stadiums – Pittsburgh, Baltimore, Philadelphia, Boston, New York (Mets and Yankees).  Then, we finished with a visit at the Baseball Hall of Fame in Cooperstown, NY.  In between, we walked the Freedom Trail, visited the 9-11 Memorial and Museum, and took a swing past the Statue of Liberty.

As you might imagine, this nine-day jaunt was indeed a trip of a lifetime, some of the best quality time ever with my boy. We had conversations we’ve never had before, he introduced me to music by this dude named Harry Styles and a band called AJR, and then he tolerated my 80s greatest hits. Many laughs, and memories of a lifetime.

Luke chronicled our trip on his You Tube page with daily posts about each park, so please click through and check it out here.

How would we rank the stadiums on our list? We’re not in complete agreement, but I’d put the order generally like this (click through to hear Luke’s take on each park):

1a. PNC Park (a beauty of a park, can’t beat that gorgeous skyline towering above the Clemente Bridge)

1b. Fenway Park

3.  Camden Yards*

4.  Citi Field (where we saw Max Scherzer fan Aaron Judge three times!)

5.  Citizens Bank Park

6. Yankee Stadium (where we saw an Aaron Judge walk-off HR in the bottom of the 9th!)

*  Luke would put Citi ahead of Camden, but I am not going to quibble, as Citi was far better than I had anticipated.

This is Sweet and All, Jeff, But What Does this Baseball Road Trip Have to do with the FMLA?

Glad you asked.

As you well know, all roads in life lead back to baseball . . . and the FMLA.  So naturally, I had time to reflect during our travels about what an MLB baseball road trip might teach us about the FMLA.

One of the small delights of the trip is that I truly was able to break away from work during the trip.  Colleagues and clients were fabulous: those who received my out-of-office message made clear they didn’t want to hear from me until my return, and my colleagues graciously hit the pause button on the FMLA and ADA questions while I was away.  So very grateful for the time away.

It got me thinking: Does an employee have the right to be left alone during FMLA?

I am reminded of Joan Smith.

You remember Joan, right?

Joan was a manager in the Ethics Department at an energy company, and she requested FMLA leave for surgery to remove a cyst from her neck. As Joan reported, her supervisor then became really nasty, and during Joan’s FMLA leave, required her to perform much of her regular work.

During the two-month leave, Joan claimed that the Company required her to perform 20 to 40 hours of work “updating compliance cases, revising a safety review project and dropping off files at the office.” Based on my rough math, that’s anywhere from 3 to 5 hours worked each week during her FMLA leave.

She quit her job and later sued, claiming that the 20-40 hours she was required to work interfered with her FMLA leave, which she claimed entitled her to a slew of damages.

The court thought this was a ton of work, too, and the judge answered it this way, as most courts have done:

…reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.

Put another way, there is no right under the FMLA “to be left alone” or be allowed to skirt the employer’s “discrete inquiries.” But if looks like work, it’s gunna be work, and an employee shouldn’t be doing substantive work while on FMLA leave.

The Collection of Recent Cases

As you might imagine, there is a growing body of FMLA cases dealing with situations where the employee allegedly performed work while on FMLA leave.  Here are a few to keep in mind:

  • Reilly v. Revlon and Kesler v. Barris et al: fielding occasional calls about one’s job is a “professional courtesy” that does not interfere with FMLA rights (FMLA claims dismissed)
  • Persson v. Bos. Univ.: no FMLA interference where the plaintiff’s coworker reached out to her to locate a work-related e-mail during her FMLA leave, and all calls stopped after the employee asked that she not receive any more calls [yikes, sounds like a really fun employee…] (FMLA claims dismissed)
  • Spivey v. Elixir Door & Metals Co.: This one is a first. Plaintiff’s supervisor visited him in the hospital, at which time he claimed he was getting pressure from company management to meet deadlines and stated that Plaintiff’s return to work early would be considered when discussing bonuses. Spivey returned to the office to assist with end of the month deadlines and then resumed taking FMLA leave shortly thereafter. The court found that the several requests to work and the threat regarding a bonus could be viewed as coercion not to take leave. (FMLA claims go to trial)
  • Arban v. West Publishing Corp.: checking in with plaintiff on sales leads he was expected to generate during leave also evidence of interference (plaintiff prevailed at trial)
  • King v. McIntosh: Plaintiff was an attorney, and her boss required her to draft exit memos for all her pending cases while she was on leave to care for her sick father, and then complained about her leave of absence. (FMLA claims go to trial)

So, back to Joan. In light of the work Joan apparently was required to perform while on leave, the court determined that Joan had presented enough evidence of FMLA interference that a jury would need to decide whether her employer violated the FMLA.

Insights for Employers

One of the highlights of the trip was spending time at the Yankees game with my friend and one of my favorite employment law bloggers, Dan Schwartz, despite his extremely poor taste in hats.

As we see above, there is no bright line rule about contact between employee and employer during FMLA leave, but you can start to see where the courts tend to line up on this issue.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as also evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to pass along institutional knowledge. Similarly, the employer can contact the employee to check on return dates or possible extension of leave.

And of course, it’s also acceptable to contact the employee to negotiate terms or conditions of employment to help the employee transition back to work. As long as the contact is necessary or related to preserving the employee’s position or coordinating a return, the contact arguably is justifiable.

But you can see where to draw the line here, right?   As you make out the patterns from the cases above:

  • Answering occasional and discreet emails or calls to pass along institutional knowledge = GOOD
  • Writing memos, generating sales leads, being guilted into putting in a little work = BAD

I leave you with two rules to live by:

  • Rule #1: When employees are on FMLA leave, leave ’em the heck alone!  Just like you did on my baseball road trip.
  • Rule #2: When you have the chance to spend quality time with your kid, you do it every time.  Every. Single. Time.

In the aftermath of the Supreme Court’s Dobbs decision, the FMLA questions are coming fast and furious: Can an employee take FMLA leave to obtain and recover from an abortion? What if the abortion is elective? And now that abortion will be illegal in at least some states, is travel to another state to obtain an abortion covered by FMLA?

Oddly enough, the Department of Labor has never provided meaningful guidance on these specific questions. Nevertheless, it seems apparent that the FMLA covers abortion and travel to obtain an abortion.

Let me explain.

Is abortion covered by the FMLA?

There are several reasons why obtaining and recovering from an abortion would be covered by the FMLA:

  1. You seemingly need not go further than Section 120(a)(4) of the FMLA regulations, which very clearly tells us that the FMLA applies in situations where the expectant mother has an “incapacity due to pregnancy.”  When these two elements are present: a) an incapacity, and b) the incapacity is due to pregnancy, we have FMLA leave.  Section 120 even states further: “The expectant mother is entitled to leave for incapacity due to pregnancy . . . even if the absence does not last for more than three consecutive calendar days.”
  2. It seems to me that the passage above makes clear that FMLA protects time off to obtain and recover from an abortion, but one could also rely on the traditional definitions of serious health condition in finding FMLA applies to an abortion.  For instance, if the individual has an overnight stay in the hospital due to the abortion, it’s covered by FMLA. If the individual undergoes “continuing treatment” because of the abortion, it’s covered by FMLA.  When administering these leave requests, it’s critical that you obtain medical certification from the employee’s healthcare provider and maintain the confidentiality of the employee’s medical information.
  3. The legislative history indicates that miscarriage is considered a “serious health condition” under the FMLA, so it tends to lend support for the notion that other abortive procedures would be covered. H. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993).   The House and Senate Committee Reports listed the (non-exhaustive) types of illnesses and conditions that would likely qualify as serious health conditions:

Examples . . . include but are not limited to . . . ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth. S. Rep. No. 103-8, at 40 (1991); S. Rep. No. 103-3, at 29 (1993).

With this regulatory language and legislative history in mind, it leads to the conclusion that an absence from work to obtain and recover from an abortion is covered by the FMLA.

Reminder: I have not touched upon state law here, but it’s quite possible, in fact likely, that various state leave laws would afford an employee protection in these instances, so be sure to check whether state law also would apply here.

Does it make a difference if the abortion is elective or medically necessary/recommended (such as in the case where the mother’s life is in danger)?

I had a chance to discuss this at some length with one of my fellow FMLA die hards and my good friend, Matt Morris, Vice President at ComPsych, and we agree: If the health care provider certifies a serious medical condition, we arguably must approve the leave. It does not matter whether the procedure is elective or not.

Is Travel to Obtain an Abortion Covered by the FMLA?

Very few courts have given us guidance as to whether travel time itself qualifies as part of the FMLA leave allotment.  My quick take: If it’s clear that the treatment involved will occur on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

One case I find persuasive on this issue is Michaels v. City of McPherson, a federal trial court case from a few years ago. In Michaels, the employee’s step-daughter was required to travel out-of-town for medical treatment. The employee requested leave for two days, planning to help his wife drive, and then attend the exam with his daughter. The employer denied the request, requiring that the employee work instead of traveling with his daughter.

In defending against the FMLA suit, the employer argued that leave from work was merely a convenience, and not a medical necessity. The employee, however, argued that leave was medically necessary in order to travel to the out-of-town medical appointment. The court declined to dismiss the case, finding that travel to another state for treatment very well could be covered by FMLA.

Here, travel was so intertwined with the treatment itself (which independently was covered by FMLA) that it also likely was protected by the FMLA. Seems to be a persuasive case in the “travel for abortion” context, too.

__________________________

A final word: I’d be remiss if I didn’t acknowledge that this blog post was difficult to draft. You see, I am pro-life and deeply Catholic, and I also am a firm believer in what the late Cardinal Joseph Bernardin championed as the “Seamless Garment,” a principle that calls us to a consistent ethic of life — the notion that being “pro-life” involves not only fighting against abortion, but also against the death penalty, war, social injustice, anti-immigrant sentiment, racism and sexism, and a host of other social issues that can also result in the suffering and mistreatment, and even death, of human beings, whether directly or indirectly.

I also am a firm believer in stare decisis, the doctrine that courts will adhere to precedent in making their decisions. I am gravely concerned that the Dobbs decision turns stare decisis on its head, thereby undermining the critical importance of predictable outcomes in the law. Without stare decisis, the law swings like a pendulum depending on the politician in power.

So, as you might tell, I am a conflicted mess.  Nevertheless, the conflict doesn’t blind me to the law here — FMLA arguably covers the situations identified above. I just wish the DOL might use this as an opportunity to provide clarity so we won’t have to continue guessing.

Can an employer violate the FMLA even though it never denies an employee’s request for FMLA leave?

Ask Salvatore Ziccarelli, who we’ll call Sal for short. Sal worked for the Sheriff as a corrections officer in my backyard, Cook County, Illinois.

Over the course of 27 years working for the Sheriff, Sal developed a number of health conditions, including work-related post-traumatic stress disorder. Sal took quite a bit of FMLA leave over time, and as of September 2016, he already had used more than two-thirds of the 12 weeks he was allotted for FMLA. So, when he lined up to take FMLA leave yet again, the benefits manager overseeing FMLA benefits allegedly told Sal this time around:

You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.

Ouch.

As the story goes, Sal retired days later, and he did what former employees are oft inclined to do — he sued his former employer.

His claim?  Even though he was never denied FMLA leave, he alleged that the County interfered with his FMLA rights, which is a violation of the law.

The Ruling

The County made the best argument an employer could under the circumstances: it didn’t interfere with Sal’s FMLA rights because his FMLA request was not actually denied. He simply elected to retire.

Not so fast, Sheriff John Brown, said the court.

The court noted that the FMLA specifically states in the statute itself that it is illegal for an employer “to interfere with, restrain, or deny” the exercise of FMLA rights.  So, it found that it is unlawful either to “interfere with” or to “restrain,” or to “deny.” Notably, if a plaintiff had to show a denial of FMLA leave in every case, there would be no point to the words “interfere with” or “restrain.”  The court’s own words sum up the issue well:

Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.

In other words, the employee need not establish that the FMLA leave request actually was denied.  Words or actions meant to restrain an employee from taking FMLA leave now or in the future is enough to support an FMLA claim.  Ultimately, a jury would need to weigh whether the manager’s words so interfered with his remaining FMLA leave time available by threatening to discipline him for using his remaining FMLA leave.  You can read the decision here: Ziccarelli v. Cook County (pdf)

Insights for Employers

To be fair, we’re only hearing Sal’s side of the story on this one. Cook County has denied that the benefits manager ever made the statement attributed to her.  But in the meantime, let’s identify the lesson here:

Employers, Your Managers Are Killing You. And there is one, simply reason why this is happening: You are not training your managers on their responsibilities under the FMLA. Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave, including any whiff of comments that an employee would be disciplined for using FMLA leave in the future. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

Secondly, what should an employer do in this situation, other than making clear to managers that they must never ever never utter the kind of comments alleged here? My friend, Robin Shea, offers a good suggestion – send the employee a short letter outlining your discussion and inviting follow-up if the employee wants to use FMLA leave in the future.  This kind of communication shows that you take seriously your obligation to administer leave and it undermines any argument by Sal that you were coercing him not to use FMLA leave in future.

Training and authentic communication with your employees — two basic tools to drastically improve your FMLA compliance.

The client calls are a regular part of my everyday, increasingly so during the COVID-19 pandemic.

Stress. Anxiety. Depression.

The causes are as numerous as the stars in the sky.

Simply put, a growing number of our employees are dealing with serious mental health issues that render them unable to come to work. It’s our new reality, and as employers, we need to know how to manage and support our employee during these difficult times.

Yesterday, the U.S. Department of Labor issued guidance reminding us that the FMLA covers situations when an employee’s mental health condition inhibits them from working.

The DOL provides several examples of FMLA-triggering situations in its new Fact Sheet # 28O and FAQ:

  • Flare ups of a mental health condition. For instance, Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift.
  • Appointments with a physician to manage an anxiety condition.
  • Attending a family counseling session for a spouse who is in an inpatient treatment program for substance abuse
  • Caring for an adult child who was recently released from several days of inpatient treatment for a mental health condition.  For example, Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities as a result of the condition.
  • Caring for a servicemember.  Gordon’s spouse began to have symptoms of PTSD three years after she was honorably discharged from military service overseas. Gordon uses FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a Veteran’s Administration hospital and to assist her with day-to-day needs while she is incapacitated.

Insights for Employers

This isn’t brain science. And DOL’s guidance certainly isn’t earth-shattering. But as we recognize May as Mental Health Awareness Month, it reminds us where our priorities should be.

When our employees are suffering through difficult personal times, this is when they need to count on us the most. I’ve shared this before, but there are a few important principles to keep in mind when managing an employee with a mental health condition.

  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 leave due to a mental health condition. 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. FMLA Notice Doesn’t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. To be clear, an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
  3. Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior, it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee and that you are there to help. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. As a David Fram disciple, I advise my clients that they are best served by first asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.
  4. Be Patient with Medical Certification and Overall Responsiveness.  The FMLA teaches us that an employee is obligated to return medical certification within 15 days of receiving it from you. But what if their mental health gets in the way of a timely certification. If you have reason to believe the delay is due to their condition, again let empathy be your guide. Not saying that anything goes, but a few extra days to return the certification might be one of the simple things you can do to show you care.
  5. Train managers to help you achieve the kind of workplace you’re trying to cultivate. Front-line managers often fail to recognize when an employee may need a leave of absence protected by the FMLA, especially where mental health issues are present. 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.

Every once in awhile we need that simple reminder:

Be sincere.

Be empathetic.

FMLA and ADA compliance will follow.