kid on toilet.jpgQ: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day.  As a result, she uses far more than her normal breaks allow.  She has provided documentation that a severe medical condition in her kidneys causes this predicament. Do we have to allow this? And if we do, can we at least count the additional trips to the bathroom as FMLA leave?

A: Before you wonder whether this actually is a serious question, it is! In fact, last month, a court allowed a jury to consider an employee’s claim that her employer retaliated against her in violation of the ADA after she requested to take frequent bathroom breaks.

In this situation, Bonnie suffered from “interstitial cystitis,” which is an inflammatory bladder condition causing frequent trips to the bathroom — as often as every 20 minutes.  Bonnie claimed that, while she was in the bathroom, her supervisor would intentionally call her at her desk, and when she wouldn’t answer, he would send another employee into the bathroom looking for her. Upon Bonnie’s return to her desk, her boss allegedly would “shake his head disapprovingly.” After a short leave of absence, Bonnie’s desk was moved and her duties reassigned. Days later, she was terminated.

The court declined to flush Bonnie’s ADA retaliation and reasonable accommodation claims, finding that she could establish that she had a disability and that there was ample evidence for a jury to decide that her request for an accommodation was a deciding factor in her termination. Akerson v. Pritzker (pdf) 

Bonnie’s claim got me thinking (in a nerdy FMLA kind of way): could the employer have assessed FMLA leave for these bathroom trips?  It seems the answer is yes, since the FMLA regulations do not limit the size of intermittent FMLA leave, and it appears that the employee could show that these bathroom trips are medically necessary.  This situation is similar to the facts in Collins v. U.S. Playing Card Co., where the court determined that a diabetic employee’s requests for breaks of a few minutes at various points during the work day to get something to eat could qualify as intermittent leave under the FMLA.

I don’t want to encourage employees’ unfettered access to the loo, but in light of the Akerson and Collins decisions, the employee’s bathroom time in these circumstances arguably would be protected by the FMLA.  

Insights for Employers

  1. When counting bathroom time against an employee’s FMLA entitlement, only do so if the frequency and duration extends beyond the employee’s normal lunch and break periods.
  2. Don’t be fooled by the lazy employee. If an employee has notified you of a medical condition causing their unusually frequent or lengthy trips to the bathroom, that’s one thing.  But if not, treat it first as a performance-related issue, and communicate with the employee about your expectations and how they’re missing the mark.  Suzanne Lucas (aka the “Evil HR Lady”) has some great guidance on how to deal with an employee who makes too many trips to the bathroom, including a suggested dialogue with your employee.
  3. But Don’t be Pee Brained! I have a tough time with some of the facts in Bonnie’s case. Here’s why: 1) What’s illegal about asking an employee to check on another if the former has been away from her work station? 2) I’d be interested to know what a “disapproving” head shake looks like when the boss uses it to communicate his disappointment for using the the bathroom too long.  Is there a definition somewhere?  And how does that differ from “you’re playing your music too loud in your cubicle” head shake, or “your lunch smells” head shake.  All kidding aside, though, this court decision reminds employers of how easy it is to get tripped up by a retaliation claim, especially where a termination decision is temporally related to the request for accommodation. Here, even though the employer claimed it had taken steps to terminate Bonnie’s employment prior to her request for bathroom breaks, it lacked documentation proving so.  This was particularly difficult for the court, as it noted “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.”  When it comes to an employee’s medical condition, employers must take every request seriously, and it’s best to keep our comments (and mannerisms) to ourselves!  

confused-baby.jpgOver the past month, as we recognized the 20th Anniversary of the Family and Medical Leave Act, advocates for employees and employers have been clamoring for changes to the Act.  

On one hand, employee advocates are calling for a broad expansion of the FMLA that would allow for paid leave or broader coverage (e.g., lowering the threshhold so more employers are required to provide FMLA leave and extending the Act to part-time employees).

On the other hand, the employer community has called upon Congress and the Department of Labor to fix the ills of the FMLA.  Count me among them. In a column I wrote for the Chicago Tribune this past weekend, I encouraged federal lawmakers to repair a broken FMLA before they tackle the issue of mandated paid leave. 

My Tribune column naturally was limited because of space.  If I had more room, as I do here, I’d share with lawmakers and the Department of Labor changes I believe are necessary to improve the FMLA so that it works for employees and employers for the next 20 years.

From my experience assisting employers administer the FMLA, I find that the FMLA and its regulations are (most) flawed in three fundamental areas: the definition of a serious health condition, the use of intermittent leave and the medical certification process.  Here’s what I’d encourage Congress and the DOL to change:

Clearly Define Serious Health Condition

During its deliberations before passing the FMLA, Congress made clear that the term “serious health condition” was not intended to cover “short-term conditions for which treatment and recovery are very brief,” “minor illnesses which last only a few days,” or “surgical procedures which typically do not involve hospitalization and require only a brief recovery period.”  Rightfully so, these medical conditions should be covered by typical sick leave or PTO policies.  

So, why has “serious health condition” become so watered down?  Let’s use a good example.  In a 1995 opinion letter, the DOL found that a common cold or flu, absent complications, would not satisfy the definition of a serious health condition.  WH Opinion Letter FMLA-S7 (Apr. 7, 1995). However, just a year later, DOL pulled back on this interpretation, stating that the 1995 opinion “expresses an incorrect view, being inconsistent with the Department’s established interpretation of qualifying serious health conditions under the FMLA regulations.”  WH Opinion Letter FMLA-86 (Dec. 12, 1996).   In its opinion letter, the DOL stated that minor illnesses would be considered serious health conditions if they otherwise meet the incapacity and continuing treatment prongs of the FMLA.  In doing so, the DOL arguably rendered meaningless the regulation relating to the common cold and flu.  Put another way, minor illnesses that should have never been covered by FMLA are now covered by the Act.  That has to change.

To ensure that employees are provided FMLA leave consistent with what Congress intended, the following changes should be considered:

  • Give meaning to the FMLA regulation regarding common colds and the flu, recognizing a strong presumption that these kinds of conditions are not covered by the Act.  The DOL should take a hard look at what’s “minor” and make sure those conditions stay in that category.  This is what ordinary sick leave or PTO policies are good for.
  • Continuing treatment should be defined as two visits to a health care provider within 30 days of the onset of incapacity.  As it stands now, an employee can go to the doctor once, get an antibiotic, and qualify for FMLA.  Remove the mumbo jumbo in the rules and make it clear — if the medical condition is serious enough to qualify for FMLA, the employee should have two visits to the doctor.  We require two visits in one year for a chronic condition, so why not two visits in 30 days for a condition that renders the employee incapacitated for several days.  This change would alleviate the need to determine whether the employee is under a “regimen of continuing treatment,” which is entirely (and rightfully) confusing to HR professionals.
  • Increase the number of days of incapacity.  Common colds and flu can last several days, thereby potentially triggering the FMLA.  The period of incapacity should be a full calendar week.

Use of Intermittent Leave

Ask HR professionals or in-house attorneys to put together a Top Three pet peeve list, and they will tell you the bane of their existence is administering FMLA leave, particularly where intermittent leave is involved.  Why?  Because intermittent leave comes in dribs and drabs, all of which naturally lend themselves to a whole lot of abuse.  In a 2007 survey, “FMLA and its Impact on Organizations,” SHRM found that 66% of HR folks reported challenges with intermittent leave abuse and over 40% felt they had to approve a request they believe was not legitimate.  

How do we clean up intermittent leave?  I know all of you have plenty of suggestions (and I welcome them), but here are a few of mine:

  • Allow more flexibility in seeking recertification.  Too many certifications supporting intermittent leave list the duration of the condition as “indefinite” or “lifetime.”  In these situations, an employer can recertify only every six months.  Unless the employer receives reliable infor­mation that the circumstances have changed significantly, the employee can go quite a bit of time without recertification. Medical certification in these instances should be valid for a much shorter period to time — perhaps 60 or 90 days.
  • Require the use of FMLA leave in half-day or full-day increments.  In its latest regulatory changes, the DOL confirmed that unforeseeable FMLA leave can be taken in teeeeeeny-tiiiiiiiny increments.  What does this mean for employers?  That we will continue to be nickeled and dimed to death.  I am shocked at the amount of time my clients spend logging small increments of FMLA time and following up on these leave requests. Requiring longer increments will greatly help employers track and manage leave, and I think it will cause employees to be more judicious about their use of FMLA.  
  • Endorse policies that require submission of doctors’ notes for absences.  Under the FMLA, employers arguably cannot require an employee to submit a doctor’s note for an absence already covered by valid medical certification.  In fact, employers have been dinged for engaging in such a practice (listen to our podcast on this topic here).  But why?  If the employer has reason to doubt an absence, or simply wants confirmation that the employee was incapable of working, the DOL should support an employer’s right to seek confirmation from the employee’s doctor.  Simple as that!
  • Employers need a better solution for employees who are on indefinite, unpredictable absences from work.  An employee who has rhinitis ten times per month for one-half day each?  One who has a chronic bad back fifteen times per month for 1-2 days per flare up?  Another who has IBS and his schedule is entirely unpredictable?  These present a most difficult conundrum, as the need for leave may or may not be legitimate.  Where do we draw the line?  We may never be able to arrive at a solution that makes everyone happy, but at a minimum, employers must be given the option to deal with these situations to better accommodate their operations, such as temporarily reassigning the employee or placing them on a block leave of absence. 

Medical Certification

This list could just as easily be a continuation of the intermittent leave section above, but here are a few more suggestions where medical certification is concerned:

  • Require more specific information in the “medical facts” section of the certification form, including the requirement that the health care provider report a diagnosis.
  • Allow employers to obtain more information supporting the notion that a medical condition actually incapacitated an employee from working on a particular occasion. Again, employers often are stuck with whatever the certification on file indicates, yet they have no confidence that, for example, a migraine headache on a particular day renders the employee unable to perform the job.  
  • Similarly, employers are skeptical when there appears to be no objective clinical basis for deter­mining that the employee has a serious health conditions that incapacitates them from working.  Instead, the doctor relies on an employee’s subjective complaints.  The DOL should insist that medical certification provide evidence of objective clinical evidence of a serious health condition.
  • When the employee fails to submit certification or fails to cure a poorly composed certification, there should be a stronger presumption that the employer can deny leave. Too many employers are gun shy about denying leave in these instances.  They also are confused as to the latitude they must give employees to cure an insufficient certification. The DOL should provide stronger language supporting employers’ rights in this area.
  • The second and third opinion process should carry more weight, and employers should be able to rely on them for absences in the past and the future.  The DOL covers this process in a paragraph or two in the regulations.  However, as employers increasingly use this costly second and third opinion process, these processes should be given greater weight as to absences that occur in the future.  As it stands now, it’s entirely unclear whether these opinions apply in the future.  A handful of court cases say that employers should be able to rely on them.  DOL should endorse the same approach.

Dang, I’m pooped.  Chew on these for awhile, then tell me what you would change about the FMLA and its regulations so that it would work better for both employees and employers.  I’ll post all feedback below in the comment section.

dali-clock-150x150.jpgIn a recent post, I discussed an employer’s obligation to designate leave under the Family and Medical Leave Act even though the employee did not want it to be classified as FMLA leave. 

The post generated considerable feedback and some follow-up questions.  I wanted to highlight one of those questions.  One of our blog followers (see right hand column of our blog to sign up to receive our blog posts!) posed the following:  We have a policy that requires employees to use paid leave at the same time as FMLA leave.  However, paid leave can be taken only in one-half day or full day increments.  If an employee needs two hours of FMLA leave (e.g., to receive medical treatment), can an employer require that the employee use paid leave and FMLA leave in increments provided for under the employer’s policy?  In other words, can the employer require the employee to use one-half day of paid leave and one-half day of FMLA leave?

This question raises a rarely discussed FMLA principle, but the short answer to the question likely is, “Yes.”  If the employer’s paid leave policy requires paid leave to be used in certain increments (e.g., half or full days), and the employee wants to use paid leave, then FMLA leave will be exhausted in the same increment of time as required by the paid leave policy.  The Department of Labor explains this principle in the following example, as outlined in its FAQs to the FMLA (pdf):

Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days.  Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.

The Employer Has Options

In light of the DOL guidance above, let’s return to the question posed by our blog subscriber.  Because the employer requires paid leave to be used in one-half day or full day increments, it has the following options (presuming that the employee wants to use paid leave in conjunction with FMLA leave):

  1. The employer can require the employee to take paid leave and FMLA leave in increments required by the paid leave policy.  Therefore, if the employee requires two hours of FMLA leave to attend a medical appointment, and the employer requires paid leave to be used in one-half day increments, the employee exhausts one-half day of paid leave and one-half day of FMLA leave).  Note to employers: employees cannot be charged FMLA leave for time in which they are working.  So, in an example of an eight-hour work day, you cannot require that an employee take one-half day of FMLA leave but insist that the employee return to work immediately after the two-hour medical appointment.  
  2. The employer can make an exception to the paid leave policy and allow the employee to take paid leave and FMLA leave in a smaller increment of time.  Thus, if the employee needs two hours of FMLA leave to attend a medical appointment, the employer can account for two hours of paid leave and two hours of FMLA leave.
  3. Now, put the two points above aside.  If the employee wants to take unpaid FMLA leave for the two-hour medical appointment, the employer must allow the employee to take two hours of leave.  Here, the employer may charge only two hours of FMLA leave against the employee’s allotment.

Is This Rule Short Lived?

Now that I have explained the current rules with respect to accounting for paid leave and FMLA leave, the DOL is proposing that these rules change!  In its recent Notice of Proposed Rulemaking, the DOL has proposed that “an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.” Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.  If adopted, employees only would be charged FMLA leave for the period in which they need leave (e.g., two hours of FMLA leave for a two-hour medical appointment).  The Society for Human Resource Management (SHRM) has commented on the proposed rule change (pdf) that are worth a read.  The DOL is unlikely to issue a final rule until later this year.

I would be interested in the employer community’s feedback on this current regulation.  Does the current rule help your business?  Would a reversion (as DOL proposes) create operational problems?  I welcome your comments.

Monday, February 6, 2012 is a bittersweet day for employers across New York and elsewhere.  Just hours earlier, their employees watched the New York Giants beat the New England Patriots in Super Bowl XLVI.  For these employers, however, many of their employees won’t be at work Monday morning.  The reason?  In a 2008 survey conducted by The Workforce Institute at Kronos Incorporated, 1.5 million people will call in sick to work and an additional 4.4 million will call in late.  Outplacement firm Challenger, Gray & Christmas has put worker lost productivity from the Super Bowl at more than $820 million. 

“There will be lots of workers partying all night,” John Challenger told Bloomberg BNA (subscription required), “either celebrating the team’s win or crying in their beer—not ready for work on Monday morning.”

Employers in and out of New York and New England will have to be prepared for the apparent onslaught of call offs the day after the Super Bowl.  Many of these employees certainly will use the FMLA as an excuse to recover from the night before.  So, what can an employer do to obtain more information from the employee in these situations to avoid FMLA abuse?  I remind employers of the same suggestions I offered in this post one year ago:

1.  Determine first whether the employee is seeking leave that might be covered by the FMLA. Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary.

Unfortunately, it’s not always that easy. Employees typically are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

2.  Prepare a list of probative questions you ask of all employees when they call in to report an absence. The employer has the right to know why the employee cannot report to work. During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:

  • The specific reason for the absence
  • What duties of the job they cannot perform
  • Whether they will see a doctor for the injury/illness
  • Whether they have suffered from this condition before and previously taken leave for it. If so, when?
  • When they first learned they would need to be absent
  • The expected return date (or time, if less than a day)

3.  If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form?  Has medical certification expired?  If your answer is “yes” to any of these questions, seek recertification immediately.  Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

For more thoughts on combating suspected FMLA abuse, click here.

For the rest of us (who are Chicago Bear fans, of course), better luck (and a lot of it!) next year. 

wrong-addition.jpgQ. We employ an FLSA-exempt employee who has been certified for intermittent FMLA leave for migraine headaches.  He averages two to three intermittent absences per month.  Normally, I would calculate the employee’s total FMLA allotment as 480 FMLA hours (12 weeks x 40 hrs/wk), but he claims he should be entitled to 600 FMLA hours because he averages 50 hours worked per week.  Is he correct?  Help!?! 

A.  One of the (many) headaches of managing intermittent FMLA leave is keeping track of leave in increments smaller than one work week.  For non-exempt employees, employers often calculate leave entitlement as 480 hours per FMLA year (i.e., 12 weeks x 40 hrs/wk).  However, the FMLA regulations urge caution when making these calculations.  

When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to.  You make this calculation according to the employee’s regular workweek.  For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk.  Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

Fluctuating work week: If an employee’s schedule varies from week to week that an employer cannot determine with any certainty how many hours the employee would otherwise have worked, the employer should average of the hours scheduled over the 12 months prior to the beginning of the leave period (including the hours for which the employee took any type of leave) to calculate the employee’s leave entitlement.

However, for an FLSA-exempt employee, employers typically have not recorded any work hours for the employee.  Thus, determing the actual intermittent FMLA allotment is particularly difficult, since it is not unusual for exempt employees to work more than 40 hours in a work week.  In these instances, the burden is on the employer to disprove the employee’s record of the number of hours he or she worked. 

Insights for Employers

How can an employer meet this burden?  For starters, we strongly recommend that employers utilize a standard leave of absence form that employees complete in conjunction with any absence.  On the form, employers should require their exempt employees to specify the number of hours they have worked over the preceding 12-month period. 

If you have concerns about the hours represented by the employee, discuss this with your employee.  Perhaps you can cite to attendance patterns or time records to show that their calculation is not accurate.  At a minimum, it encourages an open dialogue at the beginning of the FMLA leave so that it minimizes any surprises (or claims of unfair treatment) further down the line. 

One additional note:  If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA leave and before the notice of need for FMLA leave), the employer can use the hours worked under the new schedule to make the leave entitlement calculation.

Baseball batter.jpgIn this opening weekend of major league baseball, hope springs eternal for every baseball fan.  In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year. 

[First, feel free to play the National Anthem if you so desire…]

From the Leadoff Hitter to the end of the lineup, here are my FMLA All Stars: 

Continue Reading Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

Super Bowl.jpegThis morning, the sound of the morning alarm was harsh reality for scores of employees throughout Wisconsin.  After celebrating a Packers Super Bowl victory late into the night (a bitter pill for this Bears fan to swallow!), they have no interest in dragging themselves out of bed and heading into work.  For employers, you need not be located in Wisconsin to suffer the effects of the Super Bowl.  Case in point — I was talking with an HR professional (located outside of WI.) last week who was not looking forward to the day after Super Bowl Sunday, when she spends much of her day processing leave of absence requests — nearly all of which come from employees who called off right before the Monday morning shift started.

Some of the employees have fairly legitimate reasons for their absences (“My son, Johnnie, ate Aunt Erma’s chili last night and he can’t keep anything down this morning); others phone in ambiguous reasons such as, “I am taking FMLA again today,” or “Remember that thing I was dealing with three weeks ago … well, it’s acting up again.”

For HR professionals, the employer response to these phone calls is one of the most difficult they face: Do I count this as an ordinary sick day? Do I ask for more information? Can I ask for more information? What precise “thing” is “acting up” again?  Does this information trigger FMLA leave?

What can an employer do to obtain more information from the employee in these situations?

Continue Reading Suffering from Super Bowl-Induced FMLA Leave?