man-beggingDear fellow FMLA aficionados:

Can I get your vote?  What if I promised that it would only take 30 seconds out of your day, or less than the time it would take to read one of my rambling blog posts?

Last year, for the 4th consecutive year, our little FMLA blog was named one of the top 100 legal blogs by the ABA Journal. Voting is now open for the best legal blogs of 2015, and we would love to have your support!

If our FMLA Insights blog has been helpful to you in navigating the FMLA (or if you find it practically useless but nevertheless humorous in a cheesy kind of way), we would be forever grateful if you took a moment to nominate us for this year’s Blawg 100. Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked. You will be asked to provide your contact information and a simple statement about why you’re a fan of FMLA Insights.  If you include a memorable (or even corny) line or two about why the blog adds value to your professional life, the ABA Journal might even highlight your quote!

The online form also asks you to identify your favorite blog entry over the past year. What was your favorite? Perhaps it was the post about how employers deal with an employee who uses FMLA leave to shirk overtime duty; our practical insight on how employers should implement the new same-sex spouse regulations; our extensive coverage of an employer’s obligation to provide accommodations to pregnant employees; or our opinion about whether an employer should send FMLA notices by mail, email or carrier pigeon in light of some rather odd recent court decisions.

Perhaps it’s that I am comfortable enough talking about how sperm and the FMLA (somehow) are connected.  Or maybe you simply respect the fact that I offer my FMLA and ADA counseling services for a reasonable and competitive flat monthly fee and then blog about it (damn, two shameless plugs in one blog post!).

Any of these blog posts (and plenty of others!) work for this nomination.  Nominations must be submitted by Sunday, August 16, 2015.

If you have any feedback on our FMLA Insights blog and how we might get your vote in the future, please do not hesitate to contact me: jsn@franczek.com.

Of course, I welcome your nomination. But more importantly, I am humbled by the feedback you provide nearly every day — whether it’s an email, social media shout out, or simply saying hello at a conference, I am humbled by your support of the blog.

I am indeed forever grateful.

Jeff

investigateEven once in awhile an employer has handled an FMLA situation so effectively, you just want to shout out, “You Go Girl!” . . . or let out a fist pump (like you just sank a 70-foot birdie) . . . or initiate a wild chest bump in the hallway with a colleague (after you just landed that new client).

This is one of those cases.

Employers often struggle with handling an internal workplace investigation or issuing discipline where the employee in question has played the good ‘ol FMLA card just as you are about to investigate misconduct or issue discipline.  This story below proves that the FMLA cannot be used as a shield to ward off legitimate discipline.

The Facts

Andrew was a middle school teacher who somehow was involved in an incident with a student in a school hallway.  The student claimed that Andrew grabbed her by the arms, shook her, and pinned her against a wall.  Andrew, of course, had a different story.  After a state-required child protective services investigation, the state cleared him of any charges.  However, per school district policy, the school board conducted its own investigation (at the same time) focusing on whether Andrew had violated any school policy during his interaction with the student.

During the investigation, Andrew took FMLA leave because of reported stress, anxiety and high blood pressure. He returned to work sporadically over the next couple of months, but had panic attacks at work, apparently after being “berated” by the school principal.  While Andrew was on leave, the school ordered him to report to work on one occasion to participate in the ongoing board investigation and on one other day to participate in a disciplinary conference.  In that conference, he was issued a written reprimand for “engaging in physical contact by using a technique that escalated a situation that could have been handled differently.”

Before eventually returning to teach, Andrew submitted a doctor’s note requesting assignment to a different school in the district because returning to the same school could spur “panic attacks and other manifestations of his illness.” Per the request, the school district assigned Andrew to new school and returned him to work (after he had more than exhausted his 12 weeks of FMLA leave).

All good, right?

Wrong.

Andrew sued the district. Whaaat!?!

Andrew claimed the school district interfered with his FMLA leave when it required him to : 1) report to work to participate in the internal investigation; 2) attend appointments with other doctors; and 3) return to a different school that included children with behavioral issues.

The Ruling

The trial court (and appellate court) both smelled a rat, and they quickly dismissed Andrew’s FMLA claims.  You can read the court decision here, but I weave the court’s reasoning into my insights below. Adams v. Anne Arundel County Public Schools

Insights for Employers

This decision provides a few golden nuggets for employers’ FMLA administration.  Let’s discuss:

1.  Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave.  This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Note the court’s words here: “There is no absolute right to restoration to a prior employment decision.”  In other words, carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.  In fact, employers arguably have a duty to conduct a prompt investigation into allegations of this kind.  As the court pointed out, employers (and schools in particular) have an obligation to investigate and address serious allegations of employee misconduct “or else face accusations and lawsuits for not looking promptly into allegations of improper” conduct of its employees.

2.  You can indeed ask an employee during his FMLA leave to report to work to participate in an internal investigation.  Within reason, of course.  Heed the court’s guidance here:

In certain circumstances, required meetings may unlawfully interrupt an employee’s leave.  Here, however, the one-time conference was a legitimate piece of an ongoing investigation into the January 19 incident between Adams and the student.

. . . the record here points to a standard procedure during which due process was accorded to Adams every step along the way.

A common sense, thoughtful approach by the court.  In other words, if an employer follows its standard internal investigation procedures (which means you should have these procedures in place!) and affords a level of due process during the investigation to the employee, a court will endorse your process.  I like it.

In situations like these, however, I recommend that employers not count the investigatory meeting with the employee against his FMLA allotment, since he reported to work on this occasion.

3.  A closer call here is that the school district apparently required the employee to attend three different medical appointments as part of the FMLA’s second opinion process.  Interesting angle. We often find in unionized environments that employers have the right (under the collective bargaining agreement) to send employees off for fitness-for-duty exams separate and apart from the FMLA process.  As the court did here, these provisions generally are upheld.  But let the employer beware — I would advise against multiple “second” opinions unless you are in close contact with your legal counsel.

In the meantime, my hat’s off to the Anne Arundel County School District for a job well done.  You gave the rest of us employers a good model to follow.

CALMFMLA and ADA friends: You’ve known me long enough to appreciate that I don’t engage in a whole lot of shameless self-promotion.  But can you indulge me one time to do so here?

Let me explain.

Over the past few years, employers have increasingly asked me to develop a service in which I provide practical guidance on troublesome FMLA and ADA issues they face for a flat monthly fee.  They’ve grown weary of running up a costly and unpredictable legal bill with their attorneys, and they need an alternative.

Here is your alternative.

Beginning July 2015, I am offering employers CALM — Compliance in Accommodations and Leave Management — which is a flat $750 per month service to assist them with day-to-day FMLA and ADA questions. Under our CALM service, I am delighted to answer whatever FMLA/ADA question you throw at me, but the value of this kind of retainer is to provide employers and third party administrators practical guidance and clear direction on the most complex and difficult leave management and accommodation questions you face, answers to which you won’t find online or even with a ton of research. You and I develop the arrangement in a manner that works best for you – whether it’s a series of short calls, quick email communications, or several calls or emails that require longer, strategic discussions. The arrangement is flexible, allowing you to designate the individual(s) to contact me directly.

A more detailed outline of our CALM service can be accessed here.

Examples of Issues Covered by our CALM Service

Over the past few months, the following is a sampling of the questions I have helped employers address with our CALM service:

  • How to deal with FMLA administration where an employee returns certification after the 15-day deadline or never returns one at all
  • Helping an employer analyze whether a handful of text messages from an employee constituted sufficient notice of the need for FMLA leave
  • Administering FMLA leave in a workforce where employees hours vary from week to week (requiring analysis and application of 825.205(b)(3))
  • Whether a TPA should designate an absence as FMLA leave where an employee sought leave to care for a spouse, but where the only “caring for” function was babysitting the kids (this issue is hardly a slam dunk – it required discussion and analysis of the Gienapp case, which I highlighted in a previous blog entry)
  • Best practices in applying the same-sex spouse FMLA regulations in the four states covered by an injunction issued by a federal court in Texas
  • Providing critical guidance to an employer in responding to DOL inquiries during an audit of FMLA administration
  • Addressing potential light duty accommodations for a pregnant room attendant at a luxury hotel who was placed on restrictions throughout her pregnancy
  • Helping employers draft and revise model correspondence to an employee seeking a workplace accommodation
  • Reviewing a customized FMLA medical certification form and reasonable accommodation questionnaire an employer wanted to implement for its multi-state locations

Why Jeff?

For the past five years, I have maintained this FMLA Insights blog to provide you practical guidance in handling extremely difficult and sensitive FMLA and ADA issues.  I also have built a national practice counseling and defending employers ranging from small family-owned businesses to Fortune 100 companies on some of the most difficult leave management and workplace accommodation issues. I have developed this practice by providing employers practical advice that matches their business objectives. If you know me at all, you know that your questions will be answered directly, with a specific recommended course of action that is reliable, practical and lawful.

It’s worth noting that I will be the attorney helping you address these issues – I am not going to pass you off to another colleague less experienced in the area.

Who is the Ideal CALM client?

That’s the beauty of this service.  It matches your needs with one flat, monthly cost.  It’s predictable, and I am convinced it beats any arrangement you have with your current counsel.

If you need to touch base several times each month on questions for your workforce of 200 employees, I address your needs.  If you are a busy in-house counsel or HR professional who doesn’t specialize on leave or accommodation issues or you simply need timely answers for internal clients to help lighten your workload, I am a mere phone call away.

Why a Flat Fee and Why is this Particular Rate Effective?

You face increasing pressure to lower your legal and HR costs, so you need to engage counsel that can help you solve problems in the most cost-effective manner.  This flat-fee service helps you maintain predictable legal costs in one of the most troublesome areas of employment law.  You don’t have to worry about how much each phone call or email is going to cost — everything is included in a flat, monthly cost.

Why $750?  I find that many of my clients contact me several times each month and for several hours at a time.  This flat fee assures you that you will always get your money’s worth without having to worry about your attorney dinging the bell every time you call.  We will re-evaluate after three months to ensure your leave management and accommodation needs have not changed.

CALM clients also receive reduced costs on FMLA training, audits and state updates in the leave management area.  Our CALM brochure explains more.

How Do We Begin?

Let’s discuss this service further.  Email me at jsn@franczek.com or by phone at (312) 786-6164.

aba_logo_01.jpgWant to read about nearly FMLA case that was either dismissed or allowed to advance toward trial?  Want a snapshot of what employers got right and what they got wrong in the land of FMLA?  Look no further:

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  This year’s report is another excellent summary of 2014 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 highly recommend it as a valuable FMLA reference for HR professionals and employment attorneys. Kudos to attorneys Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee and led the drafting of this report.

presentation1Throughout the year, HR professionals and attorneys ask for my recommendations on the very best conferences to learn more about the FMLA and ADA.  The “best,” of course, is in the eye of the beholder.  In my humble opinion, however, the conferences highlighted below are can’t miss seminars if you want to expand your knowledge of the FMLA and ADA or if you spend much of your professional lives in these areas:

Two Can’t Miss Seminars

NELI’s ADA & FMLA Compliance Update: For nearly 40 years, the National Employment Law Institute (NELI) has been the national leader in training professionals of all kinds in the ADA and FMLA (and in employment law generally).  NELI caters to management side folks – you’re not going to find many plaintiff-side attorneys in the this room, which allows us to cover topics near and dear to us. To be clear, NELI is not going to knock your socks off with a flashy brochure or some frilly web site. Instead, NELI spends its resources on convening the very best two-day seminar on all things ADA and FMLA.

These seminars typically are held in April in Chicago (April 16-17), San Francisco (April 2-3) and Washington, DC (April 30-May 1).  This year’s information can be accessed here.  On day one, you’ll get your fill of David Fram, who is perhaps the most engaging speaker you’ll encounter on the ADA circuit.  A former EEOC trial attorney, David follows every ADA decision issued in the Union and offers his invaluable insight to help you deal with the most sensitive ADA issues.  His excitement about the ADA is contagious, and he offers plenty for everyone – whether you are an HR representative fighting on the front lines or the seasoned litigator looking for a new legal angle to advance.  If Fram’s excitment doesn’t rub off upon leaving NELI, you haven’t paid attention. On day two, NELI turns to the FMLA. If you’re attending NELI in Chicago, you have the misfortune of hearing me present on the latest in the world of FMLA.  (However, I’m appropriately balanced by FMLA fashionista, Ellen McLaughlin, so all is not lost.)

Pushing my own conferences, you say?  Before you start using my name in the same sentence with Tom Brady and deflatable footballs, keep in mind that I attended this annual seminar for over ten years before I was fortunate enough to join the faculty.  After attending the first seminar, I was hooked and wouldn’t miss again.  Neither should you.  Whether you are on the east or west coast, or somewhere in between near the windy city, sign up now.  Information about the seminar can be accessed here and the brochure is downloadable here (pdf).

If you cannot make the conference, NELI provides an excellent binder of materials that I keep by my side and reference throughout the year.  Consider this as a back up if you cannot attend the conference itself. (If you attend, you’ll receive it as part of your admission.)

DMEC’s ADA & FMLA Compliance Conference:  You’re not seeing double. Because you cannot get enough of the FMLA and ADA, you also should make time for the ADA & FMLA Compliance Conference sponsored in April each year by the Disability Management Employer Coalition. DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers.  Any employer should join if they want to improve their integration of disability/absence management.

Over the past few years, DMEC has put together an absolute gem of a compliance conference focusing exclusively on FMLA and ADA.  This conference brings together the finest of FMLA and ADA nerds (which I wear as a badge of honor), and every attendee leaves with practical approaches on properly administering FMLA, fighting FMLA abuse, understanding various FMLA and ADA processes, learning key skills to identify reasonable accommodations in the workplace, and so much more.

At this year’s conference, which will be held April 20-22 just outside Washington, DC, I am delighted to co-present with EEOC Commissioner Victoria Lipnic on the EEOC’s recent pregnancy discrimination guidance and how employers should best manage accommodations for pregnant employees. I’ll also be addressing confusing state leave laws with Megan Holstein of Reed Group, and will be part of a panel of experts (or so they call us) answering your FMLA and ADA questions for free.  [Ahem, how often do you find an attorney offering free advice? Take it while you can!]

Access the conference program here (pdf), and tell me this three-day conference isn’t everything you’ve been searching for in a comprehensive compliance conference!

See you in April.

Other Reliable Resources

What else can I offer you in terms of FMLA and ADA resources?  You mean other than this blog?  <<smirk>>

  • One (more) shameless plug: Access my FMLA webinars that cover topics ranging from FMLA abuse to medical certification to the latest FMLA trends.  All of my webinars (and the Power Points from these presentations) can be accessed here.  [You didn’t think I’d go without endorsing my own products, right?  After all, I do have four young kids I eventually have to put through college!]
  • If you’re interested in a monthly FMLA and ADA update (and even more regular updates online), try Thompson’s FMLA Handbook.  Its monthly newsletters are excellent, and it keeps me up to date on the latest FMLA and ADA court decisions that I should worry about.  Very professional and well done.  It’s worth the expense.

paid sick daysYesterday, President Barack Obama took the most significant steps yet to push for federally mandated paid leave for all American workers.  In addition to signing a presidential memorandum directing federal agencies to advance up to six weeks of paid sick leave to federal employees with a new child, he also called on Congress, states and cities to pass legislation to allow millions of workers to earn up to one week of paid sick time each year.  He also plans to ask Congress for more than $2 billion to encourage states to create paid family and medical leave programs.

So what happened yesterday?

President Signs Presidential Memorandum Providing for Paid Leave and Calls on Congress to Pass Paid Leave Legislation

At the federal level, the President signed a presidential memorandum directing federal agencies to allow federal employees to access at least six weeks of paid leave in “connection with the birth or adoption of a child or for other sick leave eligible uses.”

Obama also called on Congress to pass the Healthy Families Act (endorsed by the Administration since 2009 when it was first introduced), which would require all businesses with 15 or more employees to provide up to seven days, or 56 hours, of paid sick leave to care for themselves or a sick family member, obtain preventive care or deal with domestic violence. Under the Healthy Families Act, employees would earn an hour of paid sick time for every 30 hours they work. (Employers that already provide paid sick leave would not have to change their policies as long as the time earned can be used for the same purposes.)

President Calls on States to Provide Paid Sick Leave and Puts Money Behind It

While Congress considers the Healthy Families Act, the President is nudging states and municipalities to do the same. Just under a decade ago, San Francisco became the first city in the country to provide access to earned sick days. Two years later, the District of Columbia followed, passing a paid sick days law that also included paid “safe” days for victims of domestic violence, sexual assault and stalking. In 2011, Connecticut became the first state to enact a paid sick days law, and it was followed by California and, most recently, Massachusetts.  A number of cities also have recently enacted laws allowing employees to earn and accrue sick leave, including Seattle, Portland, New York City, Newark, San Diego and Oakland.

Many Presidents announce grandiose plans and mandates, only to offer little or no monetary support to get the job done.  This initiative appears to be different. The President promises to propose more than $2 billion in new funds to encourage states to develop paid family and medical leave programs. In addition, the U.S. Department of Labor will use $1 million in existing funds to help states and municipalities conduct feasibility studies to figure out how this can be done.  (Details on how the President would raise the $2 billion to help states will be released in his upcoming budget proposal.)

President Makes His Case Through Social Media

You also don’t find many presidential ideas floated or pushed through social media. In a departure from the past, senior presidential adviser Valerie Jarrett took to LinkedIn earlier this week to rally support behind the President’s call for paid leave. Noting that 40 million private-sector workers don’t have access to any type of paid sick leave, Jarrett said:

At a time when all parents are working in more than 60 percent of households with children (up from just 40 percent in 1965), and 63 percent of women with children under the age of 5 participate in the labor force (compared with 31 percent in the early 1970s), one fact is resoundingly clear: The fundamental structure of our workplaces has simply not kept pace with the changing American family . . . Anyone who has ever faced the challenge of raising or supporting a family, while holding down a job, has faced tough choices along the way, and likely felt stretched between the financial and personal needs of their family.

With the president’s presence on LinkedIn, I guess I should send him a LinkedIn invite. Do you think he’ll connect with a management-side employment attorney?

Impact on Employers

Let’s face it.  With a Republican-controlled Congress, the President’s push for federal legislation on paid sick leave is doomed to fail. Such legislation failed to see the light of day when Democrats controlled Congress, so we have no reason to believe this initiative will gain traction any time soon. In fact, on the very day the President sweetened paid leave for federal workers and called on Congress to require private employers to do the same, the media already was reporting that the Republicans in Congress had rejected the idea and businesses were lining up against it.

Employers, let’s not breathe a sigh of relief that we’ve dodged yet another federally-mandated employment statute or regulation. As we have witnessed over the past few years, due to the inactivity on this issue at the federal level, a growing number of states and local governments will continue to pass their own versions of paid sick leave.  So, be careful what you wish for.  My national clients are (rightfully) bemoaning the administrative nightmare associated with keeping track of every state and municipal leave law — from San Diego, California to Eastport, Maine!  Yet, this state/local activity is precisely what the White House is trying to advance given the lack of Congressional action.  Borrowing a page from the minimum wage playbook, the President is taking the message to the local level, urging states and cities to pass such laws on their own. And he’s putting money behind the effort.

It leads me to ponder: If we’re going to witness a hodgepodge of paid leave laws in ever-increasing numbers across the Union, is this really a better alternative than one federal law (assuming it preempts state law on this issue)?

Let’s discuss.

BasicIllustratorFileLetter—CSForget Cyber Monday…today is my Procrastination Monday!  I explain why below.

I am pleased to announce that our FMLA Insights blog has been selected for the fourth consecutive year as one of the Top 100 Legal Blogs of 2014 by the ABA Journal! In its 8th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name FMLA Insights among only eight labor and employment blogs receiving this honor.

We are honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In naming FMLA Insights as a top blog, the ABA Journal quoted from one of our fabulous nominators:

I work on consulting teams that help large clients with their FMLA and disability administration,” writes Liz Miller, a health and benefits analyst at Mercer in Washington, D.C. She says Chicago lawyer Jeff Nowak’s “consistent updates not only make me look smart on the job; they are also entertaining and fascinating. Reading his posts feels like a form of procrastination because of the instant gratification factor, but they actually help me in my career. If that’s not a win-win, I don’t know what is.

Liz, thanks a ton for your very kind words. And thanks for procrastinating long enough to read my FMLA ramblings!

So, on this Monday, would you procrastinate with Liz and me and vote for FMLA Insights as the very TOP blog of the Top 100? Complete a simple registration form and vote for us here. You’ll find our blog located in the labor and employment section.  Voting takes mere seconds.

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other employment blogs who made the list – they are worth the read: Molly DiBianca’s Delaware Employment Law Blog (who was named to the Blawg 100’s Hall of Fame), Fox Rothchild’s Employment Discrimination Report, Jon Hyman’s Ohio Employer’s Law Blog, Eric Meyer’s The Employer Handbook, Seyfarth Shaw’s California Peculiarities Employment Law Blog, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,

cat typingThe story is for all you hunt and peck typists out there.  But its message is a lesson for all employers when it comes to returning your employee from FMLA leave.

Vanessa worked for Reading Hospital as a credentialing assistant, a position that required her to be typing approximately 60 percent of the time.  After breaking a bone in her hand (unrelated to her job, although it would have made for an interesting twist in this case), Vanessa took a leave of absence.   She returned several weeks later wearing a splint on her hand.  However, because the hospital believed she could not work “full duty” (because of the splint), it forced her back on leave until she could work full duty. Vanessa returned to her physician, who taped up her fingers and returned her to work, in large part because Vanessa told him she could perform the job.

Vanessa again returned to work with a doctor’s note, which stated, “No restrictions in splint.” When the hospital noticed her tape job, however, it again questioned her ability to work without restrictions. The hospital told her that “she needed to perform at the ‘same capacity’ as she did prior to going on leave” with “full use of all her digits in order to be considered full duty.” As a result, Vanessa took additional FMLA leave. She was out for an extended period of time, and upon expiration of 12 weeks of FMLA leave, the hospital filled her position with another employee.

Vanessa’s FMLA interference and retaliation suit followed.

The Ruling

In defending the lawsuit, the hospital argued that Vanessa’s FMLA claims should be dismissed because she could not perform an essential function of her job. In theory, the hospital had a good point — refusing to restore an employee to her position at the conclusion of her leave does not violate the FMLA if the employee remains unable to perform an essential function of her position.

Yet, a federal appellate court refused to dismiss Vanessa’s FMLA claims because she provided enough evidence to indicate that the hospital did not properly follow the FMLA when restoring her to her previous position.

Prior to permitting an employee to return to work, an employer may request that an employee provide [a fitness for duty] certification . . . as Reading required of [Vanessa] here. In it, an employee’s healthcare provider must merely certify that the employee is able to resume work . . . an employer may require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is undisputed that Reading did not provide [Vanessa] a list of essential functions for her to present to [her doctor]. Because Reading did not provide [Vanessa] with such a list, the fitness-for-duty certification was based only on the description of the job that [Vanessa] would have supplied him.

Because the hospital did not provide Vanessa and her doctor a job description or list of essential duties, guess who got to decide what her duties were?  Yep — Vanessa!  So, when Vanessa’s doctor asked her if she felt able to type, and she responded “yes,” Vanessa’s opinion carried the day.  Frightening, indeed! But the employer had no say in the matter because its return to work certification process was not compliant.

As the court noted, Vanessa’s fitness for duty certification clearly stated that she could return to work with “no restrictions.”  If the employer had any concerns about the certification, it should have sought clarification with her health care provider (as long as the employee gives the employer permission to do so, which Vanessa did here).  It did not do so here, choosing instead to overrule her doctor and deny her return her to work.  That creates an FMLA problem, as the court pointed out here.  Budhun v. Reading Hosp. & Medical Cntr. (pdf)

Insights for Employers

A few takeaways here:

1.  Ensure your fitness for duty certification process is compliant.  The FMLA regulations contain very specific rules about how you return an employee to work, what notices you must provide, and the extent to which you can require certain medical information. Some key points to remember in this process: 1) you must notify your employee in the FMLA designation notice that you will require a FFD certification; 2) you should [read: must!] include an accurate job description or list of essential job duties; and 3) upon return of the FFD cert., you can seek clarification of the cert., but you cannot delay the employee’s return to work while you’re seeking clarification. (See my point directly above.)

2.  When you don’t provide the health care provider with essential job functions, you potentially create problems for yourself, as the hospital learned here.  When you fail to do so, the employee’s opinion and explanation of her job duties carry the day. Let’s not go there, so just provide these duties up front.  Enough said.

3.  Update job descriptions/essential job duties before you provide them to the health care provider. As my friend Eric Meyer points out in his post on this case, your descriptions are likely old and filthy (my words, not his), so work with your managers to update them so they reflect actual job functions.  There was some debate in this case over Vanessa’s job duties.  Clear, updated job descriptions avoids this ambiguity.

4.  Don’t insist that an employee return to work fully or 100% healed.  And even more, don’t put it in writing!  The court did not dwell on this point, but employers must move away from the notion that an employee must remain on leave unless they are 100% healed or “without restrictions.”  As I have highlighted in previous posts, the ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers enforce a ”100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process and, therefore, violated the ADA.

5.  I’m not saying that you can’t question the employee’s return or the ability to obtain more medical information.  In fact, in prior posts here and here, I outlined when you have the ability in certain situations to require a separate fitness for duty exam if you have an objectively reasonable basis for the examination independent of the FMLA leave itself. Use my guidance from these other posts to your advantage if you have concerns about an employee’s return to work.

dog-beggingDear fellow FMLA nerds:

Please indulge me for one shameless self-promotion for the year.  Last year, for the third consecutive year, our little FMLA blog was named to the ABA Journal’s 100 best legal blogs of 2013. Voting is now open for the best legal blogs of 2014, and we would love to have your support! The deadline is a bit earlier than usual — it’s August 8, 2014.

If you find value in our FMLA Insights blog, we would be forever grateful if you took a quick minute to nominate us for the Blawg 100. Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked. You will be asked to provide your contact information and a statement as to why you’re a fan of FMLA Insights.  If you include a memorable (or even cheesy) line or two about why the blog adds value to your professional life, the ABA Journal might even highlight your quote!

The online form also asks you to provide your favorite blog entry of 2014.  Perhaps it was the post about the employer who fired a pregnant employee days before she was eligible for FMLA leave (employers, let’s not repeat that mistake); or our leading post on the continued increase in DOL on-site visits in FMLA investigations (and what to do about them); or whether an employee can decline FMLA leave. Or maybe you fancied the humorous posts — like the one where we address whether too many trips to the potty can count as FMLA leave.  Any of them work for this nomination!

If you have any feedback on our FMLA Insights blog and how we might get your vote in the future, please do not hesitate to contact me: jsn@franczek.com.

A sincere THANK YOU for following the blog and for your continuous support.  All of your very kind emails, tweets and calls about the blog mean a ton to me!

Jeff

To do list2.jpgIt’s 2014.  And I’m so cold, I can barely peck at the keyboard to type this post. Nevertheless, it’s time to get back to work in the New Year, which always is an ideal time to review and button up your FMLA practices.  Let’s face it: before we know it, six months will have passed and summer vacation will be luring us away from work. Will you really want to audit your FMLA practices then? Only if you’re me.

So here’s my Top Five “Fix it or Else” List when it comes to leave management in 2014. How many can you cross off your list by March? Come on, I triple dog dare you

  1. Change your FMLA leave year to a rolling year measured “backwards.”  This is low hanging fruit. Employers can define their FMLA 12-month period in one of four ways: a calendar year, a fixed year, a look-forward period (from the time the employee first takes leave), or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.   You may have perfectly good business reasons for using something other than a rolling backwards year and, if you do, you can ignore this suggestion.  For the rest of you, use this opportunity to change your FMLA 12-month period to a rolling year measured backward! This method typically is the best choice for employers, as it avoids stacking 12-week FMLA periods back-to-back (which could occur under any of the three other methods). Keep in mind, though, that employers must provide employees with 60 days’ notice of any change to the FMLA 12-month period, and you arguably have to bargain the change with any union representing your employees.  
  2. Conduct an FMLA audit before you run into trouble. How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant? Now, do it! As you prepare your 2014 budget, include funds for a review (with your favorite employment counsel — here’s one) of all your leave policies, forms and practices.  As we were the first to report, DOL on-site audits are becoming the norm in the FMLA world, and I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices.  A small investment now will save you even more money down the road. Promise.
  3. Target intermittent leave abuse. Day in and day out, I help employers figure out how they can address suspicious intermittent leave situations. Employers often vow to do something about it, but fighting intermittent leave abuse can be tiresome and the results often are not immediate. But you can win at this! Use 2014 to employ targeted use of second/third opinions and re-certification, and use lawful means to engage the employee’s health care provider about the employee’s serious health condition and need for leave.  We provided tips for doing so in last month’s webinar, which still can be accessed.  You also can address all of these tactics in your FMLA audit (see No. 2 above!).
  4. Rein in employees on “indefinite” leaves of absence. Remember Bob?  You recall him — he’s the guy who took FMLA leave nine months ago and has remained off work ever since. In 2014, address the “Bobs” in your workplace — those employees that have remained on leave so long that you may have even forgotten about them. And they continue on leave with no return in sight. At your earliest opportunity, find out: 1) what’s going on with the employee’s leave, 2) what medical condition keeps them off work, 3) whether you can identify a reasonable accommodation to help them return to work and, if they still need more leave, 4) make their physician identify an estimated date upon which they can return to work.  When they cannot identify an estimated date, consider what rights you have to terminate their employment.  As we have discussed before, courts regularly uphold an employer’s decision to terminate employment where the employee’s leave remains indefinite.  Work with your legal counsel to be more aggressive in this area in 2014.
  5. Train your peeps. You ask “Why?”  I say, “Why not?” Respectfully, you’d be foolish not to. Your front-line managers typically are the ones taking the phone calls and conversing with your employees, often at critical times when the employee reveals the need for leave. Whether it’s an off handed remark, or an ill-advised email, your manager’s response to the employee often creates your FMLA liability.  From the front-line supervisor to the top executive, managers must understand their responsibilities to effectively manage an employee with a medical condition. Properly training your managers on their responsibilities under the FMLA should become a regular part of your compliance efforts, as it will significantly reduce the risk of legal liability.

What’s left?  What are you working on in 2014 when it comes to leave management?