images.jpgDear fellow FMLA nerds:

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 5th 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 2016, and I 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.

The online form also asks you to identify your favorite blog entry over the past year. What was your favorite? Perhaps it was the guidance on how you conduct an investigation into suspected FMLA abuse after your employee posts photos of his beach vacation on social media; or maybe the post about whether cosmetic surgery is covered by FMLA (along with my “cheeky” pepper photo); how snow days affect FMLA leave; or perhaps my practical recap of my June 23 webinar with EEOC Commissioner Chai Feldblum on leave as an ADA reasonable accommodation (Part I and Part II).

Any of these blog posts (and plenty of others!) work for this nomination, which can be made here. Nominations must be submitted by this Sunday, August 7, 2016.

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 grateful.

Jeff

ConfusedThere is a hot debate brewing over the tantalizing question, “Does a request for FMLA leave also constitute a request for a reasonable accommodation under the ADA?” The worlds of FMLA and ADA clash!

Surely, this question ranks up there with life’s unanswered questions.  You know, questions like: When does it stop being partly cloudy and start becoming partly sunny? Or why is sandwich meat round when bread is square?

This FMLA/ADA conundrum apparently means a lot to Fredrick Capps. Fred was a mixing technician for Mondelez International, the company which brings us Oreo cookies and other yummy treats.  Fred had a degenerative bone disease that required intermittent leave for flare-ups that affected his ability to walk, sit and stand.  He was certified for intermittent leave, but the Oreo cookie company became skeptical after it learned that Fred had been arrested for driving under the influence on one of the days he called in sick.  A logical concern, of course.

The company fired Fred, and he sued.  He filed a slew of claims, including an allegation that the employer violated the ADA when it did not consider Fred’s leave request as a plea for a reasonable accommodation. The trial court quickly rejected Fred’s ADA claim, finding that a request for FMLA leave is not alternatively a request for a reasonable accommodation under the ADA.  Capps v. Mondelez Global

HR professionals across the country must be breathing a sigh of relief.

But are they?  

As I noted in Bloomberg BNA’s Daily Labor Report earlier this week (pdf accessed here), employee requests for medical leave may or may not double as requests for an ADA reasonable accommodation. But it really is a distinction without a difference, and employers should not get caught up in the legal mumbo jumbo.  In all my time representing employers, an HR Director or in-house counsel has never asked me to help them decide whether a leave request should double as an accommodation request. In the real world, it doesn’t matter!  

From a practical standpoint, when an employee requests leave from the job, the employer should use it as an opportunity to learn the basics about the employee’s medical condition and how it affects his/her ability to do the job. Armed with this information, we can then engage the employee in a more informed dialogue about temporary adjustments we might be able to make to keep the employee on the job. Conversely, if we determine adjustments can’t be made, a leave of absence may very well be the only option.

Let the attorneys argue over whether a request for FMLA leave doubles as a reasonable accommodation. In the meantime, we need not be afraid of the interactive process. In working diligently at creative, workable solutions to help keep employees on the job, employers will maintain the healthiest and most productive workplaces.

Credits: PDF of article reproduced with permission from Daily Labor Report, 137 DLR C-1, (July 18, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

kid doctor

Frank, your night custodian, reports that he suffers from Crohn’s disease, a chronic condition that will cause him to miss work when the condition flares up from time to time, including his absence yesterday. Cleaning floors causes him a great deal of stress, which in turn exacerbates his medical condition, and yesterday was one of those days.

On Frank’s FMLA medical certification, his doctor confirms that he will need to have treatment twice per year for the condition, but he also lists only one occasion within the past year when he treated Frank for the condition.

Can you deny Frank’s FMLA leave because he only has treated one time over the past year?  After all, a chronic serious health condition is one which:

Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider. 29 C.F.R. 825.115(c)(1) (my emphasis).

Frank has not racked up two doctor’s visits, so he’s out of luck, right?

What Are the Most Common Approaches?

In my experience, employers and third party administrators tend to handle Frank’s situation in one of two ways, both of which are defensible:

  1.  The conservative approach: A favorite for most employers and TPAs, the conservative approach gives the employee as much time as possible to attend that second visit with the doc.  So, they typically approve FMLA leave in this instance, so long as the employee has another visit with the health care provider within the 12 months ahead.
  2. The moderate approach: Another approach employers take (albeit a less common one) is to wait and see whether the employee has a second visit within the year before granting or denying the FMLA leave. Potentially an administrative mess, the thought behind this approach is that the employer does not yet want to treat the absence as covered or not covered by the FMLA until the employee does or does not have another visit with the doc.

But Can Employers Take An Aggressive Approach?

Here’s a wild idea. Why not take the regulation at face value and enforce it — to obtain FMLA leave, the employee must have visited with a health care provider twice within the year leading up to the certification. Therefore, if the employee’s doc does not list two treatment dates within the previous 12-month period, and the employee is otherwise unable to provide documentation of two visits, FMLA leave is denied.

In taking this approach, employers can rely on the Department of Labor’s own words in the preamble of the 2009 regulations when it endorsed a change to today’s “two visit” rule:

The Department recognizes employers’ concerns regarding requiring only two treatment visits per year, and their desire for some clearer way to assess the seriousness of a chronic health condition, but is concerned that imposing some greater standard could effectively render ineligible many employees who are entitled to the protections of the law.  On the other hand, the Department does not agree with comments from employee groups that because many chronic conditions are stable and require limited treatment, the twice per year standard is unreasonable since that effectively ignores the requirement for ‘periodic’ visits in the current regulations.  The need for two treatment visits per year is a reasonable indicator that the chronic condition is a serious health condition.  The Department believes the requirement for two visits per year thus strikes a reasonable balance between no minimum frequency at all, as supported by many employee groups, or four or more times per year, as suggested by many employer groups, for employees who use FMLA leave for chronic serious health conditions.  Federal Register Volume 73, No. 222 / Monday, November 17, 2008 at page 67948, column 3 (pdf)(my emphasis)

But Jeff, Can You Find Me a Court Case I Can Cite?

I’ve got your back on this one, too. Employers can rely on Lusk v. Virginia Panel Corp., which established that the window you consider for the two visits is the one year period prior to the time the employee needs FMLA leave for the chronic condition.  In Lusk, the plaintiff, Leslie, had not visited with a physician at all in the year leading up to her request for leave for a mental health condition. She argued that, as we might expect she would, the two-visit requirement could be met by treatment that occurred after she took FMLA leave.

The court didn’t buy Leslie’s argument, finding that the critical time period for determining whether a particular condition qualifies for FMLA purposes is the time at which the FMLA leave is requested. Because she did not accumulate two visits in the year leading up to that request, it was no soup for Leslie.

Consider this another tool you can use to confirm an employee’s chronic condition and combat FMLA misuse.

Hat tip: Jeff Fraser

absent-workersThanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016.

This is the second part of a two-part blog post in which I recap the issues Commissioner Feldblum and I discussed during the webinar.  Yesterday, I provided guidance on how an employer should address an employee’s requests for multiple extensions of continuous leave, which we covered at some length during the webinar.

During the webinar, we also covered how an employer should address an employee’s intermittent and unpredictable absences after FMLA leave has exhausted. I address these issues below.

Intermittent, Unpredictable Leave After FMLA Ends

As I noted for Commissioner Feldblum, one of the most frustrating issues for employers in this area is an employee’s continued sporadic, unpredictable absences (after FMLA has ended) that wreak havoc on an employer’s operations. Employers rightfully complain that an employee’s repeated intermittent absences after FMLA ends effectively transform a full-time position into a part-time position, giving the employee just enough time to gain back FMLA hours only to start the cycle again.

Keep in mind that EEOC takes the position that employers are obligated to provide leave in these situations unless it can show the continued absence constitutes an undue hardship.  (See yesterday’s blog post for more analysis on this point.)

Because intermittent leave is irregular and unpredictable, however, an undue hardship defense will be easier to advance in these situations.  Here, you are more likely to show that these continued intermittent absences adversely impact your operations and the ability to serve your customers/clients.

To illustrate, take John, our hypothetical employee who has been absent for depression and fibromyalgia. After exhausting FMLA leave, he continues to take, on average, one day off per week both for medical and undisclosed reasons. John effectively has turned the full-time position into a part-time endeavor, which allows you to make a case for undue hardship:

  • Temporary employees filling in for John are not as effective in the role and are prone to more errors
  • You are incurring overtime costs for other employees who have to cover for John
  • Lower quality of work from replacement(s) and not completed in a timely manner
  • You are taking on additional costs because John cannot attend to his full-time duties
  • Vendors are complaining about late or incorrect payments because your accounting department can’t keep up
  • Projects are being pushed off during John’s absence
  • Management employees are being pulled away from their work to attend to John’s duties
  • Employee morale results in demonstrably lower productivity

The EEOC’s resource document backs up our ability to establish undue hardship in these situations, as it makes clear that we can consider the following factors in establishing undue hardship:

  • The amount and/or length of leave required (John’s sporadic absences have continued for several months after FMLA had exhausted)
  • The frequency of the leave (John averages one day off each week)
  • Whether there is any flexibility with respect to the days on which leave is taken (his leave is completely unforeseeable)
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable (if John’s absences are not woefully unpredictable, I am not sure what is!)

As I addressed in yesterday’s blog post, employers can obtain information from the employee’s physician regarding the continued need for leave, asking questions to help determine the undue hardship factors identified above.  In intermittent leave situations, it also is critical for the employer to continue to engage in the interactive process with the employee so that it can best determine whether any assistance can be provided to help them improve their attendance and return to work.

In addition to the thorny topic above, we also covered the following topics during the webinar:

Indefinite Leave

Commissioner Feldblum confirmed that “indefinite leave” is not a reasonable accommodation, echoing the resource document’s guidance in this area:

Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so it does not have to be provided as a reasonable accommodation.

100% Healed Policies

All too many employers require that employees be “100% healed” or “without restrictions” before returning to work.  According to EEOC, this approach violates the ADA.  We reminded attendees to re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

Reassignment

Although we did not have much time to cover the topic of reassignment as a reasonable accommodation, the EEOC makes clear — and Commissioner Feldblum reiterated — that employers have an obligation under the ADA to reassign an employee if his disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.

Finally . . . Where Do You Find All These EEOC Documents?

Throughout our session, Commissioner Feldblum and I referred to the new EEOC resource in addition to other guidance provided by EEOC over the years on ADA reasonable accommodation.  Here are the links to these resources:

eeocLast Thursday, I had the pleasure of conducting a webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar materials here. In addition to covering information contained in the EEOC’s new resource document, we also identified some practical approaches in determining whether and how much leave employers are obligated to provide when it comes to the ADA.

Since we covered so much information on leave as a reasonable accommodation, for the first time ever (I think), I am splitting this blog post into two parts:

  1. Today, I will recap our guidance in the webinar on how an employer should address an employee’s requests for multiple extensions of continuous leave (Part I).
  2. Tomorrow, I will recap our guidance on how an employer should address an employee’s intermittent absences and unreliable attendance after FMLA leave has exhausted. I’ll also cover issues such as indefinite leave, 100% healed policies and automatic termination policies (Part II).

Here are my takeaways:

Undue Hardship: Learn it, Live it, Love it

As confirmed in the EEOC’s new resource and by Commissioner Feldblum, if an employee requires leave from work because of a disability, the employer must provide leave as a reasonable accommodation unless the employer can show that the leave of absence creates an undue hardship. EEOC appears to presume that any request for leave — no matter the length — is an effective accommodation. Before we even get to the undue hardship analysis, however, an employee should be required to establish that his request for additional leave is effective in helping him return to work in the near future.  If it’s not effective, then why do through the undue hardship analysis, right?

But let’s put that argument aside for the moment. At this point, it should be clear to us that neither the EEOC nor any court will create a bright line rule identifying how many extensions of leave we are required to provide an employee prior to termination. Therefore, I suggest that employers move away from the focus on the number of extensions they are required to provide. There is no answer. Rather, employers must focus on engaging the employee in a robust interactive process and examining how the employee’s continued absence is creating a hardship on its operations.

Let’s apply this concept to a scenario you likely have faced: As I explained during the webinar, your employee, John, suffers from depression and fibromyalgia. He exhausts FMLA leave, at which point he requests three consecutive extensions of leave lasting about one month each. I pitched to Commissioner Feldblum a process in which the employer would provide the employee up to three extensions of leave, at which point it would either fill his position or terminate employment. Of course, the Commissioner could not endorse a particular method, nor could I ask her to speak on behalf of the EEOC, but she found my recommended process below to be reasonable.

First Extension

Before John’s FMLA leave is exhausted, we send the employee our “Stevie Wonder” letter (see slide 17 of the PPT and my explanation during the webinar to understand the connection) reminding the employee that FMLA leave is ending, that you expect him to return to work, and inviting him to contact you if he needs assistance to return to work or if he cannot return to work. If the employee requests additional leave beyond FMLA, then we have the right to obtain information from his physician about the medical condition and need for additional leave. These questions are spelled out in the EEOC’s resource document and in previous EEOC guidance. As made clear in the EEOC’s resource document, we can require the physician to answer the following questions:

  1. What are the basic facts regarding the impairment? (No diagnosis!)
  2. What are the activities that the impairment limits (and the extent to which)?
  3. How does impairment affect the employee’s ability to perform essential job functions and what job functions?
  4. Can the doctor identify any accommodations that would help the employee perform the essential job functions?
  5. If leave is necessary, what is the expected date upon which the employee can perform essential job functions?

Second Extension

When the employee makes the second request for leave, we use correspondence at this phase to outline how his absence is impacting our operations. Here, we use the undue hardship factors at slides 22 and 23 of my webinar PPT to provide John specifics on how this amounts to a hardship. For instance, can we show:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive client service & increased client dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers
  • Lower morale that results in demonstrably lower productivity (Be careful! Employee morale should never be the sole reason for undue hardship, and EEOC will not buy this excuse standing on its own.)

When do we conduct this undue hardship analysis?  As a general matter, employers typically conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an ADA accommodation. That’s often too late. To her credit, Commissioner Feldblum noted that employers have the flexibility during an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs shortly after FMLA is exhausted. Since the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship doesn’t precisely address the timing of when an employer should assess undue hardship, Commissioner Feldblum’s comments help clarify the issue.

Let me be clear on this critical step, since it’s so important: Assessing and documenting how an employee’s absence creates an undue hardship is critical, so I recommend that you work with your employment counsel to identify a compliant ADA process in which you lawfully consider the undue hardship criteria and apply them to an employee’s specific situation.

Third Extension

Because you have identified the month before how John’s continued absence is impacting your operations, you now are in a good position to communicate that a third extension of his leave constitutes an undue hardship on your operations. Although you must remain flexible to consider changed circumstances and other accommodations John might need to return to work, it is reasonable at this stage to inform John that you will need to fill his position (and/or terminate his employment) if he is unable to return to work after another extension.

At this stage, you may also consider requesting updated information from John’s physician about his ability to return to work.  In this correspondence, you can pose the following questions

  1.  What amount of additional leave needed?
  2.  Why is additional leave necessary?
  3.  Why did the physician’s initial estimate prove inaccurate?

Insights for Employers

So, you might ask, am I endorsing a “three strikes and your out” approach? Not exactly, but pretty darn close. Remember that the interactive process is not rigid — it must remain flexible so you can conduct an individualized assessment of what assistance may be necessary to help the employee return to work. However, if you engage your employee in a meaningful interactive discussion early on in the leave process and you document how the employee’s leave is creating a hardship on your operations, you are in the best position to take action when the employee asks for that third extension request.

But what if employee continues to mess with our operations by missing work intermittently and without notice after FMLA ends?  Or what if the employee’s physician cannot provide an estimate as to when the employee can return to work? Can we establish an automatic termination date? May we require our employee to return to work with no restrictions?  And how does reassignment fit into all of this?

I answer these questions in Part II.

paid sick daysThis past week, paid sick leave legislation that is about to become law in Chicago.  It’s significant because it reflects a growing number of states and cities joining the mandated paid leave bandwagon.

Because the impending law will affect all of your operations located in Chicago, I provide analysis here:

Last week, Chicago became poised to join a growing group of cities and states across the country to mandate paid sick leave for employees when a Chicago City Council committee passed a bill that would provide employees with at least 40 hours per year of paid sick leave. On Wednesday, the entire City Council will vote on the bill. With 38 cosponsors (out of a total of 50 aldermen) and the support of Mayor Rahm Emanuel, the so-called Paid Sick Leave Ordinance is almost certain to become law in short order.

Specifics of the Law

Under the Ordinance (pdf), employers must allow employees to accrue at least one hour of paid sick leave for every 40 hours worked, up to a maximum of 40 hours per year (unless the employer chooses to set a higher limit). The accrual begins from the employee’s first day of work or from the Ordinance’s effective date of July 1, 2017, whichever is later.

Employees must be allowed to use paid sick leave no later than 180 days after starting employment, and may use it in the following circumstances:

  • For illness or injury of the employee or the employee’s family member, including receiving medical care, treatment, diagnosis, or preventive medical care;
  • Where the employee or the employee’s family member is a victim of domestic violence or a sex offense; or
  • When the employee’s place of business is closed due to a public health emergency, or the employee needs to care for a child whose school or place of care is closed due to a public health emergency.

Other Notable Aspects of the Proposed Law

  • Covered Employers: The Ordinance applies to all employers that employ at least one part-time or full-time employee within the city limits and that maintain a business within the city limits or are subject to city licensing requirements. Only construction industry employees who are covered by a collective bargaining agreement are exempted from the Ordinance.
  • Carry Over: Employees must be allowed to carry over half of their accrued, unused paid sick leave to the following accrual year (so, up to 20 hours per year).
  • Carry Over for FMLA: Moreover, employees must be allowed to carry over up to 40 additional hours of accrued paid sick leave to use exclusively for FMLA purposes. Therefore, for employers covered by the FMLA, employees will be permitted to carry over as many as 60 hours (20 + 40) of paid sick leave per year.  (Notably, employers are not required to pay out accrued by unused paid sick leave upon an employee’s termination, unless the applicable collective bargaining agreement provides otherwise.)
  • Effect of collective bargaining agreement: For unionized employers, the Ordinance’s requirements do not take effect until the expiration of the collective bargaining agreement in place at the time the Ordinance goes into effect. After that date, an employer and union may agree to waive the requirements of the Ordinance in the collective bargaining agreement.
  • Notice to Employees: The Ordinance requires that employers give employees notice of their right to paid sick leave in two forms: 1) a notice posted in a conspicuous place at each facility located within the city; and 2) a notice to employees with their first paycheck. These notices will be developed by the City’s Department of Business Affairs and Consumer Protection.
  • No retaliation: Absences taken pursuant to the Ordinance may not be counted under an employer’s absence control policy as an absence that triggers discipline, discharge, demotion, or any other adverse action against the employee.
  • Employees can file suit: Employees may sue for violations of the Ordinance. If a violation is established, employees may be entitled to recover damages equal to three times the full amount of sick leave denied or lost due to the violation, plus interest, as well as attorneys’ fees.

The full City Council is expected to vote on the Ordinance on June 22, and if passed, it immediately will go to Mayor Emanuel for action.  Given that the votes are already lined up in support, this latest paid leave law is nearly certain.

webinarWhen: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)

This is going to be fun!

Earlier this month, the EEOC issued a technical assistance resource on leave as an ADA reasonable accommodation under the ADA. I am delighted that EEOC Commissioner Chai Feldblum will join me for a webinar to take a deep dive into the information provided in the EEOC’s resource and apply the technical assistance to a variety of real-life scenarios.

This complimentary webinar comes at a critical time for employers, as employers need to be informed about the extent to which they should provide a leave of absence to an employee with a medical condition – either before or after the employee’s FMLA leave has expired (or when FMLA doesn’t apply at all). Whether it’s the obligation to provide light duty, how and when employers can obtain medical information about an employee’s need for leave, or how many extensions of leave must they provide, employers often struggle with their obligations to provide leave as an ADA reasonable accommodation.

The webinar will provide employers much-needed technical assistance for staying compliant with the ADA and related laws. Commissioner Feldblum and I will cover a variety of common, yet difficult issues, including:

  • At what point must an employer consider leave as a reasonable accommodation?
  • What information can an employer obtain from an employee’s health care provider to support a request for leave? How often can an employer request this information?
  • How should employers structure their paid leave and related policies to comply with the ADA?
  • Can an employer maintain an “automatic termination” policy that sets a specific end date upon which an employee is terminated when they cannot return to work?
  • At what point is an employer required to reassign an employee to another position as a reasonable accommodation?
  • How many extensions of leave must an employer provide before it can permanently fill an employee’s position or terminate employment?

Maybe I’ll even entice Commissioner Feldblum to sing with me!

CLE/SHRM/HRCI Credit
My law firm is an approved provider of Illinois Minimum Continuing Legal Education (MCLE). This program is approved for 1 hour of MCLE credit. This program also has been submitted to SHRM and the HR Certification Institute for review and approval for accreditation.

EEOC-bannerFor years, employers across America have been clamoring for guidance from the EEOC about how they should manage an employee’s request for extended or intermittent leave from work and how much leave is considered as a reasonable accommodation under the ADA. This week, employers received an answer.

Well, kind of.

Yesterday, the EEOC issued a resource document — entitled Employer-Provided Leave and the Americans with Disabilities Act — that addresses “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency contends “serve as systemic barriers to the employment of workers with disabilities.”

Noting the “troubling trend” in charges of discrimination that allege violations of the ADA (up 6% from last year), the EEOC believes this resource document “explains to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs.”

Although the resource document was developed by EEOC staff and approved by EEOC Chairwoman Jenny Yang, it is not voted on by the entire Commission and technically does not carry the weight of official guidance issued by the agency.  Still, this resource still should guide employer decision-making when considering leave as an ADA reasonable accommodation.

Key Points 

The resource covers six main topics, but here are the key points, based on my initial read:

  • Equal Access to Leave under an Employer’s Paid Leave Policies.  According to the EEOC, if an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing paid leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.  For example, if an employer requires a doctor’s note to support a leave request made by a non-disabled individual, it can require the same for a leave request made by a disabled employee. However, if the employer generally places no conditions on the use of paid leave, it cannot require a disabled employee to jump through hoops to obtain the same paid leave.  One of the examples provided by EEOC is instructive:

An employer provides four days of paid sick leave each year to all employees and does not set any conditions for its use. An employee who has not used any sick leave this year requests to use three days of paid sick leave because of symptoms she is experiencing due to major depression which, she says, has flared up due to several particularly stressful months at work. The employee’s supervisor says that she must provide a note from a psychiatrist if she wants the leave because “otherwise everybody who’s having a little stress at work is going to tell me they are depressed and want time off.” The employer’s sick leave policy does not require any documentation, and requests for sick leave are routinely granted based on an employee’s statement that he or she needs leave. The supervisor’s action violates the ADA because the employee is being subjected to different conditions for use of sick leave than employees without her disability. (Example 1)

  • Unpaid Leave must be considered as a Reasonable Accommodation.  Where an employee’s paid leave has run out, or where the employer maintains no paid leave policy, an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if: 1) the employee requires it; and 2) it does not create an undue hardship for the employer (see my analysis below on how employers establish undue hardship).  Another EEOC example is illustrative:

An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. (Example 5)

  • All Requests for Leave Must be Treated as a Request for a Reasonable Accommodation.  Yes, you read that correctly.  If the EEOC ever was ambiguous on this point before, it’s cleared it up now — each time an employee requests leave from the job because of a medical condition, the request must be analyzed through the lens of FMLA and ADA.  This concept is hardly earth-shattering, and it makes sense. Where an employee needs leave from work because of a serious medical condition, any good employer should use it as an opportunity to engage in the interactive process to determine how we can best address the employee’s situation in an effort to keep them engaged and at work.  A leave of absence is only one tool to help us accomplish our goal in maintaining a productive and healthy workforce.
  • Utilize “Automatic termination” Provisions at Your Own Risk.  In this resource, the EEOC again strongly counsels against policies which call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.), since these policies do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process and to determine whether a reasonable accommodation is necessary.  As I explain more fully below, employers should make a case-by-case assessment of the individual employee’s situation before hitting the termination button.
  • Reassignment to a Vacant Position.  The EEOC uses this resource as a reminder that an employer has an obligation under the ADA to reassign an employee if their disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.
  • Undue Hardship Still a Nebulous Beast to Figure Out.  The EEOC offers guidance and some additional criteria to consider when determining whether a possible accommodation causes an undue hardship (which the employer then does not need to implement), but as we might expect, the resource document does not necessarily provide any enlightenment as to what point requests for intermittent leave or repeated extensions of leave actually pose an undue hardship.  In determining undue hardship, EEOC states that employer may consider the following:
    • the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
    • the frequency of the leave (for example, three days per week, three days per month, every Thursday);
    • whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
    • whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
    • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
    • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

Insights for Employers

This new resource doesn’t necessarily clear up the particularly troublesome issues for employers.  And as my friend, Dan Schwartz, points out, the resource does nothing to address abuse of leave or whether an employer can finally say “enough leave is enough.”  The resource also does not address the fact that a request for leave as an accommodation must be reasonable and effective in helping the employee return to work.  In footnote 5 of the document, EEOC presumes that an employee’s request is reasonable.  Yet, that’s a far cry from the day-to-day reality employers face. Indeed, employers would argue that the majority of leave requests are not reasonable because the period of time (or multiple extensions) requested would not be effective to return the employee to work.

That all said, there are plenty of really good, practical takeaways for employers in this new EEOC resource:

1.  Employers Can Obtain Critical Medical Information from The Employee’s Health Care Provider to Help Us Make Decisions on Leave Requests.  EEOC outlines for employers the information we can obtain from the employee’s health care provider (with the employee’s permission) before making a decision on an employee’s leave request:

  • the specific reason(s) the employee needs leave (for example, surgery and recuperation, adjustment to a new medication regimen, training of a new service animal, or doctor visits or physical therapy);
  • whether the leave will be a block of time (for example, three weeks or four months), or intermittent (for example, one day per week, six days per month, occasional days throughout the year); and
  • when the need for leave will end

Additionally, EEOC 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).

As part of my CALM service, I have drafted model correspondence for employers to use in these situations.  Please email me if you’re interested.

2.  If an Employee Asks for An Extension of ADA Leave, Employers Can Obtain Even MORE Information.  According to EEOC, if an employee requests additional leave that will exceed an employer’s maximum leave policy or is continuous in nature, the employer should again engage in an interactive process, including obtaining from the health care provider:

  • Medical documentation specifying the amount of the additional leave needed;
  • The reasons for the additional leave;
  • Why the initial estimate of a return date proved inaccurate; and
  • Information the employer considers relevant in determining whether the requested extension will result in an undue hardship

3.  Engaging the Employee 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 (particularly when FMLA has already expired), I ask the client for a detailed report of 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.

when-is-enough-plenty-orange.jpg4.  Edit Your “Automatic termination” provisions NOW.  To the EEOC’s credit, the resource confirms that a policy providing for a maximum period of leave is not per se unlawful. For those employers that maintain these kinds of policies, however, I strongly encourage you to include in your leave policies language informing the employee that, if he/she needs additional unpaid leave as a reasonable accommodation because of a serious health condition, the employee should request it as soon as possible so that the employer may consider whether it can grant an extension.

Employers also should edit any correspondence used during the FMLA and other leave processes to incorporate the above language.  Your employment counsel should have these at the ready for you.

5.  Requiring Employees to Return to Work “Without Restrictions” or “100% Healed” is Unlawful.  All too often, I come across my clients’ policies or practices that require an employee to return to work only after they are 100% healed or without restrictions.

Here’s my periodic reminder to employers: STOP!  Enforcing these types of policies or requiring documentation that employees can return to work “without restrictions” takes on a tremendous amount of risk.  Far too much risk, in my opinion.  And as the EEOC clarifies in this resource document, this practice is unlawful.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

6.  Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship.  In that post, I offer a number of criteria you should consider when making this determination.  I encourage you to use these in conjunction with the suggestions offered by EEOC yesterday.

One more thing about undue hardship:  As EEOC previously has acknowledged in a separate guidance, a request for indefinite leave — meaning that an employee cannot say whether or when he/she will be able to return to work at all — will always be considered an undue hardship and, as the EEOC puts it, the request “does not have to be provided as a reasonable accommodation.”

 

FMLA posterThis week, the Department of Labor announced that it soon will issue a new general FMLA Notice that can be used interchangeably with their current FMLA posting.  In issuing this new directive, the agency also unveiled a new guide to help employers navigate and administer the FMLA.

Here’s the scoop:

New DOL Poster

Under the FMLA, an FMLA-covered employer must post a copy of the General FMLA Notice in each location where it has any employees (even if there are no FMLA-eligible employees at that location). According to the FMLA rules, the notice must be posted “prominently where it can be readily seen by employees and applicants for employment.”

The DOL has announced that it will release a new General FMLA Notice for employers to post its workplaces.  According to the DOL, the new poster won’t necessarily include a whole bunch of new information.  Rather, the information in the notice will be reorganized so that it’s more reader friendly.

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice.  She confirmed that employers would be allowed to post either the current poster or the new version.  In other words, employers will not be required to change the current poster.  For those that want to use the new poster, you can access it here.

New Employer FMLA Guide

In 2012, the DOL issued a guide to employees to help them navigate their rights under the FMLA.  Several years later, DOL now has issued a companion guide for employers.  According to the DOL, the Employer’s Guide to the Family and Medical Leave Act (pdf) is designed to “provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.”

DOL Employer guideThe new guide was unveiled by Ms. Applewhaite at an annual FMLA/ADA Compliance conference sponsored by the Disability Management Employer Coalition (DMEC). Generally speaking, the new guide covers FMLA administration from beginning to end, and it follows a typical leave process — from leave request through medical certification and return to work.

As for the Guide itself, my initial take is that it will be a decent resource for the employer community. I also appreciate the fact that the DOL asked me and a couple of other leaders on the employer side in the FMLA space to offer constructive feedback before the guide was released. At the time, I encouraged the agency to tackle in its guide some difficult FMLA administration issues that employers grapple with, feedback of which did not make its way into the DOL’s final draft (nor did I expect it, I suppose!).

While the guide helps explain the FMLA regulations in a user-friendly manner, the Guide primarily is meant to answer common questions about the FMLA, so it leaves unanswered leave issues that continue to frustrate employers in their administration of the FMLA.  However, the Guide is likely to have some benefit to employers when administering the FMLA.  For instance, the Guide:

  1. Follows the FMLA regulations and the course of a typical leave request in a relative orderly manner.
  2. Contains easy to follow flowcharts so that employers can better understand the typical FMLA process, including a cute little “Road Map to the FMLA” [yes, I think I just called the DOL “cute”] that provides an overview of the FMLA process.  You’ll even find some interactive cartoons along the way to further explain the regulations.
  3. Includes “Did You Know?” sections to give employers a heads-up on some of the lesser-known provisions and nuances of the FMLA regulations.
  4. Highlights user-friendly charts and explanation of the medical certification process, including what information is required in certifications.
  5. Provides a helpful overview of military family leave, which often can be a bit overwhelming to employers attempting to navigate this portion of the FMLA.

I welcome feedback on the new guide — what do you like?  Dislike?

New York paid family leave 1Could this be a game-changer when it comes to paid family and sick leave?

Yesterday, New York Governor Andrew Cuomo signed into law what is being dubbed the country’s longest and most comprehensive paid family leave program, which allows employees partially paid leave to care for a family member or a newborn child.

New York follows other states such as California, New Jersey and Rhode Island in providing paid leave in conjunction with unpaid leave entitlements under state and federal law.  All three states administer their programs through their respective disability insurance programs.

So then, what’s significant about New York’s law?  Similar programs in other states have fallen flat because those states have wrestled with how to fund these programs.  Take the State of Washington, for instance.  In 2007, Washington became the second state to pass a paid family leave law that would provide parents with $250 in weekly benefits for up to five weeks in the event of childbirth or adoption. However, the law has never taken shape because the state legislature has not funded it.

Unlike many of these other laws, New York’s version is funded not by the state or employers but by the employees themselves — through a ~$1 per employee weekly payroll deduction that will help fund a paid family leave program.

What’s the Entitlement?

Under the new law, after 26 weeks of employment, employees will be eligible for up to 12 weeks of partially paid family leave, which is defined as any leave:

  • to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition (as defined by the FMLA) of the family member; or
  • to bond with the employee’s child during the first 12 months after the child’s birth, or the first 12 months after the placement of the child for adoption or foster care with the employee; or
  • because of any qualifying exigency ( as defined under the FMLA) arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. Armed Forces.

Paid benefits will phase in over time.  Beginning in 2018, benefits will cover 50 percent of an employee’s average weekly wage with a cap at 50 percent of the statewide average weekly wage.  When fully implemented in 2021, the plan will cover 67 percent of an employee’s average weekly wage with a cap at 67 percent of the statewide average weekly wage.  The leave period also will sweeten from eight to 12 weeks over time.  At the outset in 2018, employees will be entitled to eight weeks of paid leave, increasing to 12 weeks of paid leave by January 1, 2021.

In touting the new law, Governor Cuomo’s office focused its attention on how women and families, in particular, will be aided under the new law:

Paid family leave also has the potential to serve as a great equalizer for women. In many instances, women who leave the workforce to care for a newborn not only forfeit their existing salaries in the short-term, but also suffer diminished future earnings and career trajectories in the long term. Establishing paid family leave marks a pivotal next step in the pursuit of equality and dignity in both the workplace and the home.

Will Other States Follow New York’s Lead?

Multitudes of paid leave legislation have sprouted at the state level across the country. Many of these bills have languished because of strong opposition from the employer community — and rightly so, since these laws generally mandate employers of all sizes to provide paid sick or family leave to their employers.  All without the state’s help.

New York’s new law seems to undercut this argument, since the employees themselves will be funding what is essentially an insurance-style scheme to cover time away from work for family obligations.  Thus, is it natural to assume that resistance to these kinds of laws will diminish over time? Not so fast. They still face opposition from the business community, which argues that employers will end up with higher expenses in overtime and training for employees who will cover for their co-workers on leave. Businesses also are rightly concerned about how much control they’ll have over employees taking leave under these state administered programs.

So, are we back to political gridlock then?