This week, I had the pleasure of presenting with Department of Labor and EEOC officials on key developments out of Washington with respect to leave management and accommodations. Our presentation was part of the annual conference of the Disability Management Employer Coalition. If you’re an employer and not a member of DMEC, you’re doing yourself a disservice. Find out more about the organization here.
What’s on DOL’s Mind in 2015 and 2016?
Helen Applewhaite, the DOL’s Branch Chief for FMLA, presented on DOL enforcement initiates in the FMLA arena, and I offered comments from the peanut gallery on the practical impact on employers in light of these initiatives. Here are the takeaways:
1. DOL’s Focus on Systemic Compliance Issues is Top Priority. The DOL is focusing its attention on systemic FMLA problems. What this means is that DOL is broadening its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.
EEOC has made a killing off investigating systemic issues, often leading to costly and burdensome investigations and litigation. For the foreseeable future, we can expect the same from DOL — broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions. Why? Because this is already happening. Over the past couple of years, the DOL’s information requests have covered a several- year period, and the agency typically requests data on all leave requests, grants and denials over that period, among a host of other subject areas. In a previous post, I included samples of information requests my clients have received in the past, like this burdensome one from the DOL. Yep, they’re ugly.
What’s an Employer to do? Friends, we must conduct self-audits of our FMLA processes and recordkeeping. Now. This means we must ensure that our FMLA policies, forms and correspondence are up to snuff, and that our FMLA processes are compliant. In a previous post, I included specific recommendations on what our self-audit should look like. [Shameless plug alert: I offer these self-audits through our CALM service.]
2. Avoid these Common Errors. Applewhaite identified several compliance problems that pop up regularly during DOL investigations:
- Employers’ inability to recognize the need for FMLA leave and then disciplining employees for an absence that should be covered by FMLA
- Failing to meet notice deadlines established by the FMLA
- Failing to properly administer medical certification, including requests for recertification more frequently than permitted
The first bullet point is particularly troublesome, as I find that many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request. In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.
As I’ve warned employers before, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.
3. New Same-Sex Spouse Rule: Yawn! Applewhaite briefly discussed the DOL’s recent regulatory change which edited the definition of spouse to include same-sex marriage. As I told my DMEC friends, this regulatory change should not create any administrative concerns for us. Simply put, we administer leave for a same-sex spouse in the same manner we administer leave for a heterosexual spouse. Case closed.
For more information on the DOL’s same-sex spouse regulation changes, see my post here.
And the EEOC…
Pierce Blue, Attorney and Special Assistant to EEOC Commissioner Chai Feldblum, and I spent some time analyzing the implications of the Young v. UPS case, which expanded the potential for pregnant employees to secure workplace accommodations.
The EEOC has modestly edited its pregnancy discrimination guidance in light of the Young decision, but there is otherwise not much new news to share on the pregnancy accommodation front, as the lower courts generally have not yet applied the Young balancing test to real life situations.
That said, an early read on courts which have followed the Young reasoning suggests that employees may be given some latitude in advancing their case when alleging that the employer did not provide a requested accommodation during their pregnancy. In one such case, Bray v. Town of Wake Forest, an employee defeated an early motion to dismiss her sex discrimination claim after her employer refused to assign her light duty work during her pregnancy. The plaintiff, Erin Bray, was a Wake Forest police officer, and she provided a doctor’s note during her pregnancy limiting her to light duty positions. Shortly thereafter, Erin was terminated because she could not perform the essential functions of her position as a police officer.
The court refused to dismiss Erin’s sex discrimination claim, finding that, on two occasions, male police officers were allowed to perform light duty, apparently because they were injured on the job. In finding two other accommodations sufficient to survive a motion to dismiss, the court took a rather liberal reading of the Young case, but in any event, it indicates that even the slightest difference in how accommodations are distributed may very well breathe life into a gender discrimination claim. Remember the key question raised by the Young court: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?”
Apparently, in Bray’s case, “so many” may simply equal two. If so, employers better watch out.