Backs across America must collectively be giving out, as my clients’ questions about medical certification from chiropractors are on the increase.

So, I’ll hit this one head on: Is a chiropractor considered a health care provider under the FMLA? And are there any special rules that apply to them? Yes and yes.

Are Chiropractors “health care providers”?

Chiropractors are considered health care providers but only to the extent that their work with the patient involves “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.” 29 C.F.R. § 825.125(b)(1)

That’s a mouthful.

Let’s break it down. Where medical certification is provided through a chiropractor, two factors must be present: 1) the chiropractor must actually have taken an x-ray of the back; and 2) the x-ray and treatment from the chiropractor must relate to subluxation (i.e., misalignment) of the spine.

If these factors are present, the chiropractor is considered a “health care provider,” and therefore the treatment and any time off due to incapacity (because of the misalignment of the spine) is covered by the FMLA. The time off work could be continuous or intermittent.

How have the Courts Interpreted Situations involving Chiropractors?

There are very few cases dealing with chiropractors, but a few recent cases give you a flavor of what courts have required where chiropractors are concerned:

  • No x-ray = No FMLA Leave!  In Olsen v. Ohio Edison Co., the employee requested FMLA leave to treat with a chiropractor, but the chiropractor didn’t take any x-rays at the time he completed medical certification. Because the chiropractor hadn’t yet taken any x-rays, the court determined that the chiropractor was not acting as a health care provider as defined by the FMLA regs, and it dismissed the FMLA claims.
  • Davison v. Roadway Express: The court found that the employee could be entitled to FMLA leave where he was able to show that the chiropractor took an x-ray, treated him for subluxation and that he needed leave on a continuous basis and for flare ups due to his back condition.

Insights for Employers

In determining whether you are required to grant FMLA leave in situations involving chiropractic care, you should confirm through medical certification:

1. Whether an x-ray of the back was taken
2. Whether the chiropractor has found and is treating for subluxation of the spine
3. Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave

Anything short of this is not protected by FMLA.

Chidren-Kissing-Funny-ImageThe U.S. Department of Labor announced today that it will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act.  The DOL has even established a new webpage to submit requests for opinion letters and to review old opinion letters.

Sweet Baby Jesus!  I’m like a kid on Christmas morning.  Oh DOL, I could plant a big, wet kiss on you right now! And that says a lot, since it’s not often I want to kiss you.

In announcing the agency’s decision, Secretary Acosta put it plain and simple:

Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes . . . The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.

As you may recall, the Obama Administration did away with opinion letters, replacing them with a mysterious, bureaucratic process in which it infrequently published “Administrator Interpretations,” which frankly, consisted of more political mumbo jumbo on mundane, tangential topics than practical guidance for employers.  Though opinion letters were limited in nature, they addressed real life situations and provided some reasonable guidance on which employers could rely in addressing day-to-day FMLA and other employment law issues.

Oh goodness, what will I choose as my first love letter to DOL?  Perhaps I’ll ask how long is a second opinion good for?  Or whether employers ask for a second medical certification where it’s clear the employee is treating with a specialist? Or maybe at what point can we terminate an employee when the employee fails to return timely medical certification? And surely this one: When recertification undermines an employee’s (mis)use of FMLA, how far back can you deny FMLA leave?  Or maybe one of my deep thoughts: Why doesn’t the DOL recognize undue hardship under FMLA?

The possibilities are endless!  Which one should I choose first?

This guy is open for business if you want to request an FMLA opinion letter from the DOL.  Catch me while I’m giddy — I might offer you a two-for-one deal.

Reports of my capture by a Sri Lankan sloth bear in the dry forests of Sri Lanka are greatly exaggerated.

I am alive and well.

Sorry for the long delay since my last post. You see, spring is my busy season — when I am not practicing law, I spend seemingly every waking minute coaching my sons’ little league and travel baseball teams.

In little league baseball, there are oodles of lighthearted moments. But there is crying, too. Lots of it. For the time being, I have resisted the urge to channel my inner Tom Hanks and shout, “There’s no crying in baseball!” [which, btw, is one of the best movie lines of all time].

On the other hand, is crying allowed at work?  When an employee cries at work — I mean, a really good, little league kind of cry — is this sufficient to alert the employer of the need for FMLA leave?

Let me share the story of Noemi, who answers our question.

Facts

Noemi was a secretary for a school district who claimed her coworkers made derogatory remarks about Hispanic students and their families. The last straw, according to Noemi, was when an associate principal allegedly told Noemi that “those people” (referring to a Hispanic family) never pay their bills. As a result, Noemi became extremely distraught and began crying regularly and uncontrollably at work.

Around this time, Noemi also told: 1) her supervisor that she was “overwhelmed, afraid, and unsure if she could continue working” and 2) a school counselor and a Latino outreach family coordinator, while crying uncontrollably, that she did not know whether she could continue working for the district. In response, the school principal insisted that Noemi either continue working or resign.

Days later, Noemi met with the principal in tears and explained that she was confused and overwhelmed, had not slept or eaten in weeks, and was losing weight.

The Principal’s alleged response?  She told Noemi that she had to decide whether to resign. Thereafter, Noemi agreed to resign “due to medical reasons.” Just a few days later, Noemi asked to rescind her resignation.  However, her replacement had already been chosen, so there was no open position for her.

The Court’s Ruling

In addition to claiming a hostile work environment, Noemi alleged that the school violated the FMLA when it failed to provide her notice that she had the right to take FMLA leave.  Of course, the school district disagreed, arguing that the employee’s crying spells could not have been enough to put the district on notice that she needed FMLA leave.

Noting that that the FMLA notice requirement for employees is “not demanding,” the court found that the employee herself may not even be aware she is suffering from a serious health condition.  In these cases:

. . . clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition. In those cases, observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may themselves provide an employer with adequate notice of a serious medical condition and obviate the need for an express request for medical leave.

Here, the court determined that Noemi’s crying fits and overall demeanor suggested, at least at the outset of the case, that the FMLA could be in play. Valdivia v. Sch. Dist. 214 (pdf)

Insights for Employers

Me thinks the employer lost the chance to dismiss the case not simply because of the crying.  Sure, the crying was important, but there was more involved here.  While Noemi cried on multiple occasions:

  • She reported to her boss that she was overwhelmed, afraid, and unsure if she could continue working
  • She told her boss she wasn’t sure she could work for the district
  • She reported to her boss again that she was confused and overwhelmed, had not slept or eaten in weeks, and was losing weight
  • She was resigning “due to medical reasons”

The “notice” here is not just the crying.  It’s the crying plus these other comments which suggest she needs help. If all she did was cry, as strange as that might have been, it would have been difficult for Noemi to establish that she put the employer on notice of the need for FMLA leave. However, she didn’t stop there. She also made clear that she was “confused and overwhelmed, had not slept or eaten in weeks, and was losing weight.” Finally, at the point of resignation, she even told the employer that she was resigning for medical reasons.  Yikes.

Because the FMLA regulations make clear that an employee need not specifically cite the Family and Medical Leave Act in order to benefit from the Act’s protections, courts like this one often will find that the employee’s behavior itself is enough to put the employer on notice of the need for FMLA leave.

How should an employer respond in this situation? Where there are “clear abnormalities” in the employee’s behavior (particularly when the employee tells you they are resigning for medical reasons), it is critical that the employer explore whether it can provide further assistance to the employee before hitting the termination button.

Instead of forcing the employee to choose between employment and resignation, an employer is best served simply asking, “How can I help you? These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need.

If they refuse this assistance after notice and fair warning, then and only then do we look for the termination button.

My siblings, Kevin and Laura, and me. Aren't they just adorable?
My siblings, Kevin and Laura, and me. Aren’t they just adorable?

I love my brother dearly. I love my sister just as much.

And whenever we near the end of life’s journey (a long time from now, of course), I’ll be there to care for them. And they, for me, despite the many piledrivers I inflicted upon my younger brother when we both were wee lads and pretended to be WWF wrestling stars.

I will have to care for them, however, without the protection of the FMLA.  After all, the law makes clear that I can take job-protected leave from work only to care for my parents, spouse and children. It says nothing about siblings, which means they aren’t covered.

Given the clarity of the FMLA, why then are clients increasingly asking me whether their employees can take FMLA leave to care for a sibling?

Is the DOL To Blame?

Me thinks the groundswell of inquiries on this topic has something to do with the Department of Labor. In 2015, the DOL issued a fact sheet explaining that an employee would be entitled to FMLA leave to care for a child under the same circumstances as a biological or legal parent so long as the employee has assumed parental responsibilities for a child.  The DOL explained as follows:

In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child. . . Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.  (My emphasis on the term “siblings,” not the DOL’s.)

The DOL didn’t stop there. The agency also issued FAQs which, among other things, answered the question: “I am a caregiver for my brother who is not able to take care of himself. Can I take FMLA leave for his care?:” The DOL curiously responded as follows:

Maybe. FMLA leave to care for a relative is generally limited to caring for a spouse, son, daughter, or parent. An eligible employee standing in loco parentis to a sibling who is under 18, or who is 18 years of age or older and incapable of self-care because of a mental or physical disability, may take leave to care for the sibling, if the sibling has an FMLA-qualifying serious health condition.

Sibling advocacy groups have been quick to use these simple one-liners above as their golden ticket for employees to take FMLA leave to care for their sibling(s). I don’t blame them; I would, too.

But let’s tap the brake for a moment.

Courts Don’t Agree with the DOL . . . So Far

As an initial matter, courts have quickly shut the door on employees seeking FMLA protection to care for their siblings:

  • Smith v. Women’s Healthcare: “[t]he care of a sibling…is not protected under either state or federal law;” therefore, care for a sister is “a matter of [an employer’s] discretion.”
  • Gude v. Rockford Center: “caring for one’s sibling is not a guaranteed right under the FMLA.”
  • Olejarz v. Shaler Twp.: “the provisions of the FMLA make clear that the Act does not extend to leave taken to care for a sibling.”

Therefore, the courts still clearly need to be convinced that the FMLA somehow affords leave rights to employees to care for their siblings.  They don’t appear at all ready to enlarge the FMLA to cover brothers and sisters.

But Isn’t There Still a Opening for Siblings Under the FMLA?

A really tiny opening. Think eye of a needle.

Given that the specific language in the FMLA simply does not include siblings, the only sliver of hope for the employee is to shoehorn themselves into the category of “parent” (as alluded to by DOL above) by establishing that they stand in loco parentis to the adult sibling they are asking to care for.

First, the employee must show that the sibling is disabled under the ADA and incapable of self care, and that the employee will be providing physical or psychological care to the sibling. In many cases, this may not be too high a hurdle.

That’s the easy part.

Second, the employee must show that they will or intend to have day-to-day responsibility and to financially support the sibling in the same way a parent would provide for a child.  This is a big deal and tough to establish. (Btw, I don’t buy into this whole DOL position that the employee need only provide daily care or financial support. This position is ripe for a legal challenge.)

Some common scenarios come to mind:

  • When your employee, Susie, tells you she’s going to California to care for her brother who is seriously ill, she hardly establishes in loco parentis when she tells you she’ll “be back in one week” or even that she’ll “return when he’s feeling better.” This not in loco parentis. Rather, is Susie moving to California permanently, or conversely, is the brother moving in with your employee? Now, we’re getting warmer.
  • When your employee, Johnny, tells you he has a “power of attorney” over her sibling, this doesn’t establish, in itself, in loco parentis. So what if they have power of attorney? This hardly shows that they are providing day-to-day care or financially supporting the sibling.

Despite the employee-friendly language in an FAQ on the DOL website, FMLA leave for siblings should be a rare event indeed. When your employee seeks FMLA leave to care for a sibling, it’s critical that they first meet the stringent criteria above. Don’t settle for anything less.

Hat tip: To Amanda Bast, our legal intern, who assisted me with some of the research above.

stupid boss commentThere may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut.

The latest edition involves Debby and her boss, Jason.

I can’t tell precisely what Debby did for her employer, Wells Fargo, but it’s safe to say she interacted with a number of Wells Fargo’s clients and had a sales quota. That’s enough background for this story because it is undisputed that clients began complaining extensively about Debby, and she fell miserably short of her sales goal. Nearly half way through the sales year, Debby had only met about 11% of her entire sales goal.

That’s not good.

As these stories go, shortly after being told that she was “off track” in nearly every work category, Debby took medical leave for five weeks due to a medical procedure performed on her neck. The time off did not rejuvenate Debby. Upon her return, her performance further deteriorated to the point that termination was the only option. Wells Fargo had all the ammo it needed — more client complaints, poor sales numbers and that fact that Debby simply wasn’t trying anymore.

Unfortunately for Wells Fargo, however, Debby’s boss snatched defeat from the hands of victory. In an email recommending Debbie’s termination, he outlined her performance issues but inexplicably added that Debbie’s termination “was justified because ‘Debby submits a request for medical leave.'”

Groan.

Last month, a court refused to dismiss Debby’s FMLA claims, finding that the boss’ email is evidence that she may have been terminated because she took FMLA leave. Stewart v. Wells Fargo (pdf)

Insights for Employers

Let’s not dwell on these facts any longer. Let’s move straight to the lessons learned, shall we?

1.  Employers, Your Front Line Managers Are Killing You.  For me, the most powerful line in this court case wasn’t the boss’ foolish email. Rather, it was his acknowledgment in his deposition that he was “not really familiar with FMLA leave” because he was “on the front line.”

Precisely.

Employers, your front line managers like the one here are ticking time bombs. Sure, they generally are very good people, and they mean well. But you also put them on the front lines with no FMLA training whatsoever. So, why are you surprised when your managers send emails like the one above?

Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

2.  Remember that similarly situated employees can sink your FMLA case. The court refused to dismiss Debby’s case for the additional reason that other employees also missed their sales goals and were not terminated like Debby. Before you hit the termination button, it is critical that you compare the employee at issue to those she will be compared to. Are others missing their sales mark or otherwise under-performing? How do you differentiate them? Call your employment counsel and strategize before you make the decision.

doctor's note with borderAn employee’s 12 weeks of FMLA leave has exhausted, and over the past several weeks, he’s provided you a series of vague doctor’s notes typically containing nothing more than a one-liner extending his medical leave of absence until his next appointment.

Sound familiar? Makes you want to scream, right?

What if I told you that, instead of screaming, you could lawfully terminate this employee?

Interested? Read on.

Facts

Joyce served as an Economic Support Specialist for Milwaukee County, Wisconsin. She was on a team responsible for providing public assistance to county’s citizens.  Her work included processing applications for benefits and answering phone calls. Not a terribly specialized position, and I’ll explain why that’s important below.

For several years, Joyce dealt with severe back pain and took FMLA leave from time to time as a result. In summer 2010, she began continuous FMLA leave, which exhausted on October 18.  On that day, Joyce asked for additional leave, and the County provided her another three weeks to return to work, or November 8.

Joyce did not return on November 8. She did, however, submit two doctor’s notes supporting her need for even more leave. One was dated November 3 and stated simply: “medical leave of absence until 11/17/10.” The second was dated November 12 and said only “medical leave of absence until 12/17/10.”

The notes – or even Joyce herself – said nothing more.

One week later, the County informed Joyce that it was contemplating terminating her employment, but before doing so, it invited her to a meeting to discuss her situation. It also invited her to bring “any documentation she wished to submit for consideration.” Joyce attended the meeting and again made clear she could not return to work.

The County terminated her employment about one week later. Joyce then found herself an attorney who apparently thinks vague doctor’s notes win ADA cases, and she sued.

The Ruling

The court dismissed Joyce’s case faster than it took her doctor to write a one-liner on that prescription pad doctor’s note.  Finding that attendance was an essential function of Joyce’s job, the court reaffirmed the basic principle that Joyce’s employer could expect her to report to work. Therefore, she could not enjoy the protection of the ADA [or, in this case, the Rehab Act, which is the public sector equivalent of the ADA].

In dismissing her claims, the court summed it up this way:

[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment.  Whitaker v. Wisconsin Dept. of Health Services (pdf)

Insights for Employers

Sweet justice! What a golden nugget for all the HR and leave professionals and in-house counsel out there who feel helpless when dealing with an employee whose “ADA leave” seemingly has no end.

So, what’s the practical effect of this decision?

1. Employers can be more aggressive when they receive vague doctor’s notes.  The best part of this court’s decision was not the smack down of this would-be disability discrimination claim (thought that was rather nice). Rather, the court laid out what it expected to find (at a minimum) in a doctor’s note supporting additional ADA leave:

  • Whether the employee is receiving treatment
  • The likely effectiveness of the treatment
  • The medical likelihood that leave would enable her to return to work regularly

This is useful guidance, and it will help us address critical questions when we’re trying to determine whether our employee will be able to return to work anytime soon.  But we need not stop here. In EEOC’s resource document on leave as a reasonable accommodation, the agency makes clear that employers may specifically ask the health care provider to respond to questions drafted by the employer and designed to enable the employer to understand: 1) the need for leave; 2) the amount and type of leave required; and 3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

If EEOC is inviting us to do this, and we now have an insightful court decision outlining additional information you can insist upon, why aren’t you implementing this in your own accommodation process? Call your employment counsel today [ahem, I know a guy…] to prepare correspondence and forms to use on these occasions.

2.  We still have to communicate with our employees.  Let’s be clear: this employer prevailed here not because the employee turned in two pathetic doctor’s notes. It ultimately won because it gave Joyce yet another chance to explain herself after she submitted the doctor’s notes.  Engaging employees like Joyce in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave, I ask the employer about all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues. The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

3.  When employees submit crappy doctor’s notes, you need not consider undue hardship.  Normally, I would encourage you also to assess the hardship that the employee’s absence has on your operations before you hit the termination button. However, this court case is a reminder that, when an employee submits vague, meaningless doctor’s notes that don’t provide the key information above, the employee is not a “qualified” individual protected by the ADA.

If you had to assess the hardship Joyce’s extended absence is creating, it might be difficult, since she holds a clerical position, the duties of which could be filled by a temp or assumed by other employees. Yet, we don’t even get to this undue hardship analysis because the vague doctor’s notes save us.

H/t to Kate McGovern Tornone for highlighting this case!

If you have any interest in vastly improving your FMLA and ADA mojo, here are three can’t miss resources you need to make part of your professional reading and education each spring:

aba_logo_01.jpg1.  Review the ABA’s Report of 2016 FMLA Cases.  Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Could you imagine anything more scintillating?  Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision from 2016. Seriously, every one of them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to Jim Paul and Maria Audero, who spearhead the annual summary.

2.  Attend 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’s two-day ADA and FMLA Compliance Update is an event you should not miss.  Really, I cannot say enough about NELI — they are the best of the best in hosting employment-related seminars for employers and management side attorneys.

neli.JPGThe ADA & FMLA Compliance seminars are held in April in San Francisco (April 6-7), Washington, DC (April 13-14) and Chicago (April 20-21).  This year’s seminar information can be accessed on NELI’s website here or in its seminar brochure (pdf). Not to scare you away, but I will be presenting on the ADA at the Washington, DC session.  More importantly, I will be performing on stage with David Fram, who (in my humble opinion) is the single best presenter on ADA issues in the history of the universe. Don’t believe me? Come find out. You won’t be disappointed.

NELI attendees also receive a binder of the very best substantive materials in the ADA and FMLA areas. There is no resource I keep closer to my side throughout the year.

3.  Head on Over to DMEC’s ADA & FMLA Compliance Conference:  You can’t do one without the other. Each year, the Disability Management Employer Coalition sponsors three days of FMLA and ADA goodness!  You leave there eating, drinking and sleeping these two very special laws, and let me tell you — that thought is enough to give me goosebumps.

DMECDMEC has put together another gem of a compliance conference this spring.  At this year’s conference, which will be held May 1-3 in Minneapolis, I am delighted to co-present with my good friend, Marti Cardi, Vice President, Product Compliance at Matrix Absence Management.  Marti and I will in one hour highlight the key FMLA cases over the previous year and offer our insight on how they will impact employers.

See you in April. And May.

FarleyI recently had an interesting call with a DOL investigator, and I wanted to share it with you.

First, let me set the background. I represent a large national employer with multi-state locations, including several on the east coast. One of these east coast locations employed Johnny [name changed to protect the guilty], a serial FMLA abuser. Johnny never passed up an opportunity to use a Monday or Friday for FMLA leave.

This FMLA whiz kid also knew precisely when he needed to call in before his shift to avoid penalty — his employer’s policy required him to report any absence due to illness at least two hours before his shift.  Johnny regularly followed this policy to report his intermittent conditions involving anxiety and depression.

But even the best FMLA abusers slip up.  And Johnny did.

Every once in awhile, for any reason or no reason at all, Johnny failed to call off two hours before his shift started. Sometimes, he would use the letters F-M-L-A to explain his absence; on other occasions, he would cobble together some vague explanation for his health condition.

But here’s the problem – he failed to follow the employer’s call-in policy. In these situations, my client would rely heavily on the changes made to the 2009 FMLA regulations, which now require employees to follow the call-in policy or suffer the consequences:

(c) Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances . . . If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

29 CFR 825.303(c).

Because Johnny offered no unusual circumstance for his failure to call in his absence two hours before his shift started, the employer counted these as unexcused absences. Makes perfect sense to me. Moreover, when Johnny was issued discipline for these unexcused absences, he again offered no unusual circumstance as to why he failed to call in two hours before his shift.

Here’s Where the DOL Comes In

Rather than explaining to the employer why he failed to follow the call-in policy, he ran to the DOL and complained instead.  And then the DOL called me.

Even though Johnny failed to comply with the employer’s call-in policy, the DOL took the position that his absences were nevertheless FMLA protected simply because he invoked the FMLA when he finally did make contact with the Company.

Why is this so? The DOL investigator explained that the DOL reads into the cited regulation above a requirement that the employer must affirmatively ask the employee why he could not follow the employer’s call-in procedures. Yet, this so-called obligation can be found nowhere in the FMLA regulations. To the contrary, in its changes to the 2009 regulations, the DOL wholly endorsed the employer’s ability to manage its workforce through call-in procedures where unforeseeable leave is at issue, commenting that call-in procedures “are a routine part of many workplaces and are critical to an employer’s ability to manage its work force . . . [and] adherence to such policies is even more critical when the need for [FMLA] leave is unforeseen. “ 73 Fed. Reg. 68009 (Nov. 17, 2008).

As the DOL itself pointed out in the above preamble to its regulatory changes, an employer must be allowed to enforce usual and customary call-in procedures (absent an extremely rare circumstance) so that it can properly run its operations.

Insights for Employers

The DOL ultimately decided to stand down on the issue. But in this age of the helicopter parent, an era when everyone gets a participation trophy, I guess I shouldn’t be surprised that the DOL takes the position that the employer has a duty to find out why little Johnny couldn’t follow a long-established call-in policy every time he calls in late. Instead of requiring personal responsibility on the employee’s part, the DOL has opted to heap another regulatory burden on the employer.

Perhaps this simply is a new reality for employers.  If that’s the case, what are the best practices moving forward?  Several critical compliance pointers come to mind:

  1. Where an employee seeks leave that may be covered by the FMLA but has failed to follow call-in procedures, the employer should engage the employee in a discussion about the reason why he or she could not follow these procedures.
  2. In my situation, the DOL investigator took the position that we should have included in our FMLA policy a provision warning employees that they would be required to provide a reason why they failed to follow the call-in policy.  As a result of this apparently new (paternalistic) DOL requirement, employers should consider adding language to their FMLA policies warning employees (who fail to follow the call-in policy) that they are expected to provide an unusual circumstance as to why they could not follow the call-in policy.
  3. Establish and Enforce call-in procedures! Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  This is an excellent tool to combat FMLA misuse.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at best opportunity possible.
screaming

This is a story about Scott. He has a medical condition affecting his genito-urinary system. In the words of my two-year old, Maggie, this condition sounds yucky.

Like other employees with a genito-urinary disorder, Scott didn’t want his medical condition broadcast.

To. Anyone.

In requesting FMLA leave for his condition, Scott submitted medical certification containing “sensitive and detailed” information about the ailment.   Thereafter, Scott claimed:

  • A manager blabbed about Scott’s medical condition at a meeting involving eight other employees (Scott apparently was not present); and
  • Coworkers approached him, asking about the condition and making jokes and obscene gestures about his condition in front of him.

Really?  The naive kid in me wonders, “Does this really happen in today’s workplace?”

Notably, Scott wasn’t complaining that the employer denied him FMLA leave. Rather, Scott argued that his employer violated the FMLA when his managers disclosed his medical condition to those without a need-to-know and when his coworkers ridiculed him for it.

To the court, the issue was a straightforward one. Under the FMLA, confidentiality of medical information is an employee right, and the allegation here is that the employer violated that right. Therefore, even if the employer granted to Scott all the FMLA leave he was entitled, the court found it possible that the employer still “materially affected” Scott’s working conditions when it allegedly breached confidentiality and other employees mocked Scott for his condition.  Holtrey v. Collier County Bd. of Commissioners

Insights for Employers

What are the takeaways from this sad case? Let me count the ways:

  1. Need I remind you? Employers, please train your managers about their obligations under the FMLA! Prohibiting disclosure of sensitive medical information must be covered in that FMLA 101 course you should convene every year. When you don’t train, you end up with lawsuits like this one.
  2. While you’re at it, don’t forget anti-harassment training, too.  When you apparently have employees joking about another employee’s medical condition and making obscene gestures in front of him (whaaat!?!), you have a problem.
  3. Under what circumstances can medical information be shared with others? In its ADA guidance, the EEOC warns that this information can be shared only for extremely limited purposes:
    •  to supervisors and managers where they need medical information in order to provide a reasonable accommodation
    •  to first aid and safety personnel if an employee would need emergency treatment
    •  to individuals investigating compliance with the ADA and with similar state and local laws
    •  pursuant to worker’s compensation laws (e.g., to a state worker’s compensation office in order to evaluate a claim) or for insurance purposes.
  4. Me thinks the employer missed a critical legal argument here — that the FMLA affords no private right of action only for a violation of confidentiality. I don’t want to get my readers bogged down in the legal morass here, but it’s hardly clear that the FMLA allows an employee to sue for this alleged violation. So, we’ll save this argument for another, more appropriate case.
paid parental leave

Netflix. Google. Proctor & Gamble. Accenture. IKEA. Greensboro, North Carolina. What do these have in common?

They are employers.

And they offer their employees paid parental leave.

As I reflect upon the year 2016 (picture me meditating in my hyperbaric FMLA chamber I retreat to every evening), I’ve been poked and prodded about one question seemingly more than any other these past 12 months: “Jeff, how many of your other clients are offering paid parental leave?”  Of course, the second question closely follows (in a hushed voice):  “Ummmm . . . can you help us draft a parental leave policy?”

I’m no gumshoe, but the evidence is mounting. By the hundreds, even thousands, American employers in 2016 have added paid parental leave to their overall benefits package. I can tell this is true simply by the number of questions my clients pose about parental leave.  (See above.)  To be clear, there is plenty to be gained by adopting a parental leave policy — boosting employee morale, showing a commitment to work/life balance, improving your recruitment of the best candidates. More importantly, maybe it’s simply the right thing to do. But this is just a blog post. It’s not meant to be some lengthy political statement, though I admit that I look forward to a day when I can laugh with my sons and daughters about the fact that our country actually haggled over paid parental leave at one point in its history.

Put politics aside for the moment (in all candor, there are arguments to be made on either side), the reality is that parental leave is picking up steam, and if I might humbly add my two cents to my dear employers: Don’t be left behind.  

I now dispose of any additional political rants, and simply offer a few nuggets you might consider (by no means exhaustive) to ensure your parental leave policies are up to snuff:

  • You choose Eligibility Requirements, not some Federal agency. Employers have the right to set eligibility for parental leave benefits. You don’t need to provide these benefits on day one of employment. You can require some period of service before accrual, as you likely do with other employment benefits.
  • Moms vs. Dads. You can treat women who give birth better than men. Really, you can. And you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn’t it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery? Me thinks so. Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees.  (See example 14 in the guidance.)
  • But let’s not get too crazy about Moms vs. Dads. Although the EEOC makes clear that you can treat mom better than dad when it comes to recovery from childbirth, employers cannot treat the sexes differently when it comes to bonding leave.  In its pregnancy discrimination guidance, the EEOC makes clear: “for purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.” If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), it must provide the same leave to men or risk a gender discrimination claim. The logic behind the EEOC’s position is clear—dads need lovin’ too.
  • “Busy” parents don’t get extra! Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period?  Crazier things have happened, and you have every legal right to limit the benefit over a period of time.
  • Exhausting other paid leave prior to parental leave is legal. Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay.  The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions.  That said, consider employee morale here and think about allowing employees to “hold back” a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).
  • Run FMLA leave concurrently with parental leave. Just do it. You have a legal right to do so. ‘Nuff said.
  • Primary caregiver provisions, anyone?  Ay de mi — the plot thickens! Some policies I’ve drafted include additional leave for the “primary” caregiver in the family. These provisions are fine, too, but I strongly encourage you to work with employment counsel to ensure you’re covering all the angles. [If you need an employment attorney, ahem, I know one.]

No disrespect to the above considerations, but there is one rule that trumps all the others.  Make parental leave more than mere lip service. After you draft the parental leave policy, and your attorneys give it the final blessing, your employees need to know parental leave is a benefit they actually can take and still move up within your organization. Senior leaders should set the example to ensure that employees feel comfortable taking leave and understand that doing so will not affect their careers.

Otherwise, this goodness above is all for naught.

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Final editorial comment: If you need assistance with creating a support system for your employees and their families as they welcome new children into their family, I encourage you to consider LeaveLogic, a company that empowers employers to navigate and plan the best leave options for their employees. Founded by Anna Steffeney, LeaveLogic has helped employers ranging from small family-owned operations to Fortune 500 companies find creative and thoughtful solutions all in the name of work/life balance.