Pope Leo XIV | Credit: Vatican Media

Every once in a while, my worlds collide in the most unexpected ways.

As a management-side employment attorney, I spend my days in the weeds of the FMLA and ADA. Certifications. Intermittent leave. The interactive process. Reasonable accommodations. You know, the stuff that gets our collective hearts racing.

Based on my commentary from time to time, readers of this blog also may recall that I care deeply about my Catholic faith.

So imagine my delight, ahem, bordering on disbelief, when I learned that Pope Leo recently took time to meet with the Italian Order of Employment Consultants—professionals who, quite literally, sit on the employer side of the table and help shape the day‑to‑day realities of working people’s lives.

Think about that for a moment.

The Pope.

Meeting not with union leaders or employee advocates, but with employer-side advisors.

What Did the Pope Tell Employers?

In his address, Pope Leo didn’t lecture. He challenged and encouraged these employer advocates.

Papa Leone reminded them that they are not mere technicians of employment law, but stewards of the human person in the workplace, urging them to remain close to the employee and to their families, to promote safety, and to ensure that human dignity remains at the center of the country’s labor system.

Let that thought . . . human dignity at the center . . . sit with you for a moment.

Because if we’re honest, it’s tempting in our modern workplace to place above the individual a host of business realities: productivity metrics, doing more with less,
profitable operations, and at times, our own cynicism.

So when Pope Leo spoke these words to our Italian brothers and sisters, urging them to put human dignity at the heart of their work, he was speaking directly into our employment law world.

Whether employers realize it or not, management decisions are moral decisions. And few areas expose this truth more sharply than how we handle employee leave, accommodation requests, and personal hardship.

Putting Employees First Doesn’t Undermine Profit, It Only Makes You Richer

Employers sometimes treat compassion as a cost center.

It isn’t.

Study after study confirms what many of us have observed anecdotally over decades of practice: employees who feel respected, supported, and trusted are more engaged, more productive, and more loyal.

To be sure, long‑running Gallup studies of employee engagement show that business units with higher engagement levels achieve higher profitability, better retention, and stronger customer outcomes than their peers. Gallup’s chief finding is blunt: managers account for a majority of variance in employee engagement, which directly affects financial performance. Need something more than Gallup? Then, maybe this study by the Harvard Business School on “Purpose Over Profit” might win you over.

Pope Leo recognized this modern pressure point:

Today, in a context where technology and artificial intelligence increasingly manage and condition our activities, it is urgent to ensure that companies are characterized first and foremost as human and fraternal communities.

Pope Leo put it plainly when he reminded employment counselors that work exists for the person, not the other way around. That philosophy doesn’t reject profit, it simply places it in its proper context.

Ironically, employers who focus only on output often end up losing the very productivity they seek to protect.

Most Employees Are Not Gaming the System

Before I offer some practical solutions below in response to Pope Leo’s call, let me knock out the elephant in the room: the overwhelming majority of your employees who need help, take FMLA leave or request ADA accommodations do so for legitimate reasons.

Period.

They are dealing with cancer, depression, anxiety, pregnancy complications, sick parents or children, or injuries that make daily work a genuine challenge. And as we recognize May as Mental Health Awareness Month, we must appreciate that plenty of our employees are dealing with struggles we don’t even notice.

Yet, too often, the default reaction is suspicion.

Pope Leo urged employment consultants to be close to those in difficulty, warning against distance, bureaucracy, and detachment from reality. That warning applies squarely to us. When employers assume bad faith as a starting point, we erode trust.

Insights for Employers

If you’ve made it thus far, you’re surely thinking, “Fine, Jeff. I’m good with this Pope. He seems like a honorable dude. And he’s a Chicagoan, which makes him instantly credible. But let’s get real. What practical steps can I put in place to be this ‘good manager’ you reference above?“

I got your back. Here are five practical steps to put in place today:

  1. Where an Employee Clearly is struggling or needs help, lead with the question: “How can I help you be [or remain] successful here?” This question reframes the conversation immediately. It shifts the focus away from what the employee cannot do and toward what the organization wants—effective performance. Practically, it surfaces the information employers actually need: what tasks are hardest, what triggers the issue, what has worked before, and what success looks like from the employee’s perspective. Often, the answer reveals that the employee isn’t asking to stop working, but to work differently. It also places the employer squarely in good‑faith interactive‑process territory, focused on solutions, not skepticism. And at its very core, it makes clear, “We want to do everything we reasonably can to help you succeed.” That puts the employee first, ahead of profit.
  2. Avoid knee‑jerk denials of assistance in the workplace. The ADA demands individualized assessment for a reason. Comments like “We don’t do that here” or “That’s just part of the job,” or “If I do this for you, I’ll have to do it for everyone” shut the door to continued dialogue. Two employees with the same condition may need entirely different accommodations. Slowing the moment down, asking follow‑up questions, clarifying scope and duration, and reassessing what functions are truly essential are key to the conversation. Employers who develop the discipline to pause before saying no often find that the “impossible request” was never really the request at all.
  3. Use flexibility creatively: Implement trial accommodations and temporary adjustments. Flexibility does not have to mean permanence. One of the most underused tools in the interactive process is the trial accommodation. Trying an adjustment for 30 or 60 days allows both sides to gather real data: Does this work? Does it impact our operations? Does it solve the problem, or simply create a mess? Temporary accommodations can also bridge uncertainty. Conditions flare and recede. Life stabilizes. A short‑term modification may be all that is needed, and it avoids locking the employer into an arrangement that no longer makes sense.
  4. Invest in managers’ capacity for judgment and empathy, and also train them to stop saying dumb things. Front‑line managers are where people‑first values either live or die. Employers who take the individual seriously invest heavily in training managers to listen, ask better questions, document decisions carefully, and separate performance issues from personal frustration. The goal is not to turn managers into therapists, but to give them the skills to respond with judgment rather than reflex, and with empathy rather than defensiveness. Employees are far more likely to stay engaged when their first disclosure is met with competence rather than annoyance or panic.
  5. Document with care, not hostility. Paper trails protect everyone when done right. The best accommodation files show curiosity, dialogue, trial and adjustment. Practically, this means documenting the process, not just the outcome. What alternatives were considered? Why was one preferred over another? Was the accommodation revisited after implementation? When done well, documentation is not adversarial. It reassures employees that they were heard and protects employers by showing that decisions were reasoned, individualized, and grounded in both empathy and business reality.

One Final Point: A Message to My Fellow Management‑Side Employment Attorneys

Finally, a word with my fellow management-side attorneys. With all due respect to employee‑side counsel (and I mean that sincerely), in nearly 30 years of practicing law, I have yet to see a demand letter or employment lawsuit cause an employer to have a genuine change of heart.

That’s not how culture shifts.

Simply put, we management‑side employment attorneys are best positioned to help employers do good.

Why?

Because day in and day out, we sit in the employment law trenches with our employer clients as decisions are made. We advise in real time. We shape judgment calls. We influence tone. We help change managers’ hearts in the workplace.

Of course, we remain fierce advocates for employers. Always have been, always will be. But we also should pride ourselves in encouraging, and at times challenging, employers to identify every reasonable opportunity to help an employee not only keep their job, but succeed.

Back to Pope Leo (and the Bottom Line)

Pope Leo isn’t naive about business. His warning is simple: when employers treat people as means rather than humans, injustice follows. Instead, let’s manage according to the Golden Rule — treat others as you wish to be treated.

When employers lead with humanity, slow down their decisions, train managers carefully, and document thoughtfully, they build workplaces that function better, perform better, and expose them to less risk.

Dignity and profitability are not enemies. Actually, they are the very best teammates.

Every HR pro knows this little workplace miracle.

Just as your office or plant is winding down for Memorial Day—or some other prime-time long weekend—boom: your employee’s chronic condition suddenly flares up like a Roman candle.

What timing.

A total and complete coincidence, right?

Enter Andrew, who worked as a conductor for CSX Railroad and a chap whose story I highlighted at my recent FMLA & ADA Master Class [see recording details below].

Andrew’s FMLA leave (coincidentally) clustered around holidays, and CSX relied in part on that holiday timing and broader aggregate statistics to support its suspicion that something was amiss.

Like so many employers, especially those in the transportation industry, CSX pulls its hair out over the throngs of employees who call out for FMLA around the holidays. So, CSX investigated Andrew and a number of other employees whose FMLA leave clustered around these same holidays to determine if they were playing fast and loose with FMLA time.

But here’s where things went sideways.

In its investigation, CSX chose to exclude from scrutiny those employees with other serious medical conditions — including cancer, terminal illness, and late-term pregnancy. So while Andrew apparently drew the side-eye because his absences hugged the holiday calendar a little too tightly, other employees with different conditions enjoyed a gentler review.

Uh oh.

The Court’s Curious Viewpoint: Holiday Timing and Statistics Alone Don’t Prove Misuse

In rooting out fraudulent FMLA leave, CSX apparently relied in part on the timing of Andrew’s absences — specifically, the fact that they clustered around holidays — and on the larger statistical picture that, in CSX’s view, suggested misuse.

Fair enough, right?

Not for this court.

The court found that holiday timing and aggregate statistics, standing on their own, did not inherently establish FMLA misuse. In other words, just because an employee’s absences seem to line up a little too neatly with desirable days off does not automatically mean the employee is gaming the system.

Your Honor, I respectfully disagree [and I do so rather vehemently].

Because in the real world, employers do not start asking questions about absence patterns because they enjoy administrative hobbies. They ask because patterns matter. And absences that repeatedly and conveniently attach themselves to holidays are not exactly random acts of medical misfortune.

Still, the court was unwilling to let CSX rest on timing and statistics alone.

And Then Came the Comparator Problem

If the holiday-timing issue bruised CSX, the comparator evidence bloodied it.

The court pointed to evidence that CSX may have provided “systematically better treatment” to employees with other serious medical conditions, including cancer, terminal illness, and late-term pregnancy.

That kind of evidence is kryptonite in an FMLA case.

Because once a court sees that one set of medical conditions was treated with greater grace, patience, or investigative restraint than another, the employer’s defense starts to fall apart.

To be clear, the issue is not that cancer, terminal illness, and late-term pregnancy are not serious. Of course they are. And of course employers often react to those conditions with a greater degree of empathy. But the law does not permit employers to divide serious health conditions into neat little buckets of:

  • conditions we respect
  • conditions we doubt
  • conditions we investigate like a crime scene

That’s a problem.

An employer does not get to be tender-hearted for one diagnosis and hard-boiled for another if the result is inconsistent treatment in the administration of FMLA leave.

And that, it seems, is exactly what troubled the court here. Check out the court’s decision here: Brown v. CSX (pdf)

2026 FMLA & ADA Master Class
Did you miss out on Jeff’s March 2026 FMLA & ADA Master Class? No worries! Access the recording at the link below. Think case studies, real-world examples, 2025 – 2026 case law, and yes – plenty of corny humor. By the end, you’ll master the critical components of the FMLA and ADA and become more comfortable with managing an employee with a medical condition. Access the recordings to the first four days of this course and get access to Day Five being held on September 16, 2026: FMLA and ADA Master Class 2026 | Littler

Insights for Employers

There are some lessons here when we’re trying to fight FMLA misuse:

1. Holiday timing absolutely can show a pattern of misuse

Simply put, the court’s suggestion that holiday timing does not inherently show a pattern of misuse defies common sense and the reality of the workplace.

No one is saying that every absence around a holiday is fraudulent. Of course not.

But if absences repeatedly and almost artistically fall around long weekends, denied vacation days, or holidays, employers are not crazy to view that pattern as suspicious. They are paying attention. As they should.

Because patterns matter.

They may not prove FMLA misuse by themselves, but they absolutely can justify closer scrutiny, follow-up questions, recertification, and a real investigation.

Nine out of 10 other courts would have sided with CSX in its right to investigate patterns of suspected FMLA misuse of the kind at issue here. This court simply got this part wrong. So, I say – take the court’s view here at least on this initial issue with a grain of salt.

2. But once you investigate, you must investigate fairly

Here’s the caution flag: employers cannot investigate one kind of condition aggressively while giving another a free pass.

This is where the employer got into trouble.

If you are going to question intermittent leave taken for migraines, anxiety, IBS, chronic back pain, or similar conditions, you need to apply the same basic investigative standards you would apply to other serious medical conditions. Maybe the facts will justify different outcomes. Fine. But the process itself must be even-handed.

Courts notice that.

And juries will, too.

There are many holidays I cherish — Christmas, Fourth of July, even St. Paddy’s Day.

But my favorite day of the year? There is no competition.

The arrival of the American Bar Association’s summary of every FMLA case decided this past year.

Yep, you read that correctly.  Every little scrumptious FMLA decision. 

About mid-February or so, the ABA’s Wage and Hour Committee publishes a comprehensive report of all FMLA decisions handed down by the federal courts in the previous year.  Although our little FMLA blog catches some of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes all FMLA decisions from this past year. This year’s report is as comprehensive as always — it summarizes 2025 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I encourage you to print it off and keep it by your side as a valuable FMLA resource. All the credit goes to Bridget Penick, 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 beginning March 3, so come join me. Use BLOG10 for 10% off! Can’t wait to dive in!

Happy reading!

Your employee, Thelma, has requested FMLA leave to take her mom, Louise, to regular doctor appointments. Though the appointment itself will take one hour, Thelma wants to schedule it in the middle of the workday and for a total of five hours. The travel, she says, takes “quite a bit of time . . . and it’s none of your business.”

Beginning 2026 a little salty, we see?

Naturally, you’re frustrated, since you sense that Thelma purposefully encouraged that appointment for midday, and in any event, there’s no way this doc is two hours each way, since the physician is 15 minutes from work and Louise lives close by.

The medical appointment itself clearly is covered by FMLA. But is travel time associated with the medical appointment covered as well?

In an opinion letter issued this week, the Department of Labor answered the question:

. . . when an eligible employee travels to or from a health care provider for a medical appointment regarding the employee’s [or family member’s] serious health condition, he or she may take FMLA leave not only for the actual appointment, but also the time traveling to or from the appointment.

Not all is lost, my employer friends. In this same opinion letter, the DOL made clear, “by contrast, travel time that is not related to the . . . serious medical condition is not protected by the FMLA.”

What Have the Courts Said on the Issue of Travel?

The DOL guidance is fairly clear. But have the courts agreed? Very few courts have given us guidance as to whether travel time itself qualifies as part of the FMLA leave allotment, but those that have, generally side with the DOL.  

My quick take on the courts’ logic: 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 or on Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Good for Employees

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 argued, however, 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 arguably is protected by the FMLA.

Good for Employers

As the DOL opinion letter notes, Thelma’s five-hour medical appointments may amount to unprotected boondoggles to the extent that the time away is not specifically associated [or intertwined!] with the travel to/from the appointment and the treatment itself. Take, for instance, one of our favorite cases here at the blog, Tayag v. Lahey Clinic Hosp., in which a federal appellate court upheld a denial of FMLA leave and the plaintiff’s termination because a significant portion of a trip to meet with a “faith healer” actually was spent visiting socially with family.  The court held that the employee failed to notify the employer of these activities and in any event, the FMLA “does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation.”

In light of the above, I encourage you to have a conversation with your employee about: 1) scheduling this regular appointment around your operations (e.g., early or late in the day to avoid interrupting the workday); and 2) the travel time. To this end, you have the right to know why it takes two hours each way. It could be legit (a specialist, perhaps, or maybe you find out there are other “caring for” duties Thelma is performing) but if it ain’t two hours each way, we’ve got some pushing back to do.

In the meantime, still thinking about that faith healer. Hmmm. Maybe this is what I need to get my 2026 off right . . .

Another year in the books—hope 2025 was a big win for your team!

For some, and hopefully all of you, you are ready to pay out year-end bonuses as the final pennies are counted for the year. In the meantime, however, you’ve debated with your bean counters whether you can prorate or deny of a bonus to an employee who has taken, let’s say, 10 weeks of FMLA leave this year.

Ten weeks of FMLA leave seems like a lot. And it probably impacted the number of gold-plated widgets your employee made this year. So, can you prorate or even deny a bonus because this employee missed work due to FMLA leave?

In a word, yes.

Here’s the deal: If your bonus is tied to hitting a goal—like perfect attendance, hours worked, or sales—and someone didn’t hit that goal because of FMLA leave, then, no soup for you!

The catch? You have to treat these employees the same as anyone on similar leave that’s NOT FMLA.

Per 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.” 

But Jeff, give me some case law support for this concept!

I got your back! In situations like these, I find helpful the Clemens case, which often is cited on FMLA bonus issues. 

Clemens v. Moody’s Analytics, Inc. (2nd Cir. 2019). Clemens argued that his former employer unlawfully prorated bonus payments owed to him under an incentive program offered by Moody’s. Under this incentive program, Clemens was eligible to receive incentive payments for completing certain work throughout the year. Moody’s prorated payments based on the length of an employee’s leave, regardless of the employee’s reason for leave. In other words, if you missed time — regardless of the reason — you lost bonus money. Since the evidence showed that the employer’s proration was neutrally applied based on the length of the employee’s leave (regardless of the reason for leave), there was no interference with his FMLA rights, and the claims were dismissed.  The Second Circuit affirmed the decision. 

What About State/Local Leave Laws?

We’ve covered the federal FMLA rules—but what about state or local paid sick leave laws? Could they cause problems for your bonus policy?

The answer: maybe. Most state leave laws don’t specifically address whether you can deny a bonus to someone who uses state or local paid sick leave. In those cases, you could probably apply the same standard you use for FMLA.

But be careful! Many of these laws include anti-retaliation provisions that might come into play. For example, my hometown Chicago’s sick leave ordinance says employers can’t take adverse action against employees for using protected paid sick leave. That’s pretty broad and generic, so it’s unlikely to affect how you handle bonuses.

Minneapolis, on the other hand, takes a much harder line. Their sick and safe time ordinance explicitly says employers cannot consider legitimate sick and safe time use when rating attendance for purposes of awarding benefits—like bonuses. Doing so would be considered unlawful retaliation.

Bottom line: Before you prorate or deny a bonus, check your local paid leave laws. And when in doubt, pick up the phone and call 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?  Take a look at my other posts on these issues below:

We’ll cover prorating bonuses for FMLA leave at some length at my 2026 FMLA & ADA Master Class – check out the details HERE!

Merry Christmas and Happy Holidays!

Today is my birthday! Yay for me!

To celebrate, I am inviting you to a five-day FMLA & ADA Party!

This ain’t no joke. Join me for five days (13-hours!) at an interactive master class that will have you singing FMLA and ADA from the mountaintops! 

What’s in Store?

Think case studies, real-world examples, 2025 – 2026 case law, and yes – plenty of corny Jeff/dad humor. By the end, you’ll master the critical components of the FMLA and ADA and become more comfortable with managing an employee with a medical condition.

Due to popular demand, I have added a fifth day to this year’s master class! We will meet over four days during the first week of March 2026, then return in September 2026 for a bonus day, at which time I will highlight the FMLA and ADA developments that have occurred over the previous six months.

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

Agenda

This year’s Master Class will feature entirely new content taken directly from FMLA and ADA court cases over the past year. The class will be evenly split between FMLA and ADA topics, along with issues that overlap both laws.

All the FMLA and ADA topics that I am covering can be accessed in this detailed agenda.

In this master class, we’ll cover at length:

  • FMLA and ADA trends in 2026, and in particular, the Department of Labor’s and EEOC’s priorities and initiatives, including its recent enforcement activity, DOL opinion letters, and what we can expect from these agencies in 2026
  • Determining an employee’s FMLA eligibility, what qualifies as a serious health condition, and how to properly calculate FMLA leave
  • Identifying when an employee has put you on notice of the need for FMLA leave, and how to send out the appropriate FMLA notices
  • Conducting a review of FMLA medical certification and learn how to push back on vague certification
  • Effectively managing intermittent FMLA leave and combatting fraudulent use of FMLA
  • Recognizing when to start the ADA interactive process and work toward “getting to YES” in the accommodation process
  • Determining whether an accommodation is reasonable, what type of accommodation is needed and how to implement it
  • Analyzing specific accommodation issues and what the courts are saying about leave as an ADA accommodation, remote work, accommodations for neurodiverse employees, reassignment, light duty, and pregnancy accommodations)
  • Making appropriate medical inquiries where you’re concerned about an employee’s fitness for duty or safety in the workplace
  • Navigating situations where there is an intersection of FMLA, ADA and worker’s compensation issues

Who Should Attend?

New to HR and need a solid foundation in FMLA and ADA? You’re in the right place. A seasoned pro looking for practical strategies to manage leave, accommodations and tricky performance issues? We’ve got you. In-house counsel wanting to understand the current-day pain points so you can better advise your team? Yep, this is for you too. You attended my Master Class in previous years but you’re looking for an analysis of all the key FMLA and ADA cases over past year and how they impact your day-to-day work? This course is for all of you!

What’s Included in Your Registration?

  • A 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 2025–2026 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 listen to the course again and again for up to SIX months after the party has ended
  • SHRM/HRCI and continuing legal education (CLE) credit will be offered
  • A FMLA and ADA Master Class attendee badge to post in your email signature or social media profile

Need Permission from your Boss to Attend? We drafted the Request Letter for You!

Though the above should convince your boss that this Master Class is the place to be in March 2026, we recognize some need a bit more persuasion. We’ve got you covered! Click HERE to access a model letter convincing your boss to unlock the funds for you to attend this five-day course. Just sign the letter, email it to your manager, and your ticket to FMLA & ADA utopia awaits!

Link to Register with 10% Discount Code!

When: March 3-6, 2026 (12:00 to 3:00p.m. central time on March 3, 4, 5 and 12:00 to 2:00p.m. CT on March 6) and September 16, 2026 (12:00 to 2:00p.m.). This course will be presented virtually, so you can attend from the comfort of any place you wish.

Cost: All five days for $595 (Access the registration link HERE). Use the discount code BLOG10 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 five-day agenda HERE.

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

Five days and 13 absolutely blissful hours of the F-M-L-A and A-D-A. Are you dancing yet?

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

This year’s webinar focuses on how employers can proactively guard against misuse of FMLA and ADA leave.

And there will be singing, plenty of singing.

When: Thursday, December 11, 2025 (12:00 – 1:15 p.m. central time)

Online registration: Click here

The reasons for (suspicious use of) FMLA leave get more creative each year.  Like the guy who said he was helping his wife at home with IVF treatments…but the employer knew his wife wasn’t at home. We’ll tell you about him and how they knew he was fibbing—you’re not gonna believe it. Or the truck driver who injured himself by crashing his company car…only there was no evidence of a crash. We’ll tell you about him, too.  And most importantly, we’ll provide every bit of reassurance that you shouldn’t feel helpless when dealing with suspected FMLA and ADA fraud!
 
In this complimentary 75-minute webinar, my friend Matt Morris and I will provide practical suggestions on how employers can address suspected FMLA and ADA leave misuse in your workplace, focusing on the steps you can take to root out and minimize fraudulent use of these job-protected leaves.
 
Through the use of case studies (and always a bit of humor), we will cover the following during our time together:

  • Identify and understand the most common forms of FMLA fraud
  • Effectively use certification and recertification to respond to a pattern of misuse or suspected FMLA or ADA misuse
  • Manage intermittent FMLA leave—a main culprit of FMLA misuse
  • Conduct effective investigations into potential misuse of FMLA and ADA leave
  • Implement must-have personnel policies to prevent FMLA fraud
  • Learn how to use the “honest belief” tool to protect your organization against misuse of FMLA and ADA leave
  • Navigate whether you can assess attendance points or issue discipline for an absence protected by the ADA

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

When you register (click here), please pose your most pressing FMLA or ADA fraud question (or success story!), 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!

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 . . .