Halloween 2023 was a tough day in our house.

Every year, the holiday approaches with a great deal of parental anxiety not because we fret over what costume our 9-year-old daughter will select for the day.

Sheesh, that’s the easy part.

The hard part?

Waiting [hopelessly] for an invite from even one kid in her class to go trick-or-treating.

Every year, we follow the same routine. In early October, we start with hope that this year will be different. Hope begins to fade in the latter part of the month, where it becomes clear that an invite just isn’t coming.

Our daughter is extremely shy and, at times, struggles with friendships. She typically focuses her attention on friendships with one or two kids at a time, which tends to narrow the pool of candidates for friendship.

Employing the same tactic we’ve followed each of the previous years, we reached out this past weekend to the parents of a couple of kids she calls “friends” — one boy and three girls. The boy’s mom responded that he had other plans with another boy in class, which is understandable. After all, the genders begin to split in third or fourth grade, only to return when they’re college age.

The parents of the three other girls? We were met with either the usual lame excuses or silence. Frankly, I am not sure which was worse.

I know some of you can relate. There is perhaps no worse a feeling as a parent than to watch your child be rejected by their peers. And when other parents enable their kids to perpetuate the rejection, it’s a pill even more bitter to swallow.

All is not lost, however. When the boy above learned she had no trick-or-treating pals, he invited her to hang out after trick-or-treating for a candy trade.

Though the sting of rejection from the other girls still hurt, kindness won.

What Does This Story Have to Do with Employment Law?

To be clear, I ain’t looking for some pity party. Oh no! I know I join many of you whose daughter is on the outside of the popular girls looking in. In time, we pray our daughter will overcome these social obstacles but, in the meantime, she’s learned another tough lesson on how important it is to enlarge the welcome tent.

But some won’t overcome these obstacles.

A few of them are our employees.

So, a few observations on this feast of all saints:

  • In all that we do, be kind. Always. Be. Kind.
  • In our professions — HR professionals, leave administrators, employment attorneys –it’s easy to become cynical of employees, right? The migraine headache? Fake. The delay in returning certification? Fake. Let us remember: the overwhelming majority of our employees are good people in need of a workplace lifeline from time to time, like my daughter could have used from the girls above. For sure, we have no idea what many of our co-workers are dealing with in their own lives. They come to work with plenty of personal baggage, and each one copes differently with it. Next time they ask for time away from work or an accommodation, let’s lead with respect and support, not ridicule or silence.
  • Finally, let’s not forget: Like parents to our children, we managers of people set the example. When we live by the Golden Rule in the workplace, our subordinates and co-workers see firsthand the respective culture we are trying to build. Use this real-life example as gentle reminder to reconnect with each other.

In a world in desperate need of kindness today, let it begin with me.

Your employee, Johnny, is one of your poor performers. Upon receiving his latest written warning, he requests a leave of absence due to anxiety from working in a hostile work environment.

Tell me you’ve seen this one before.

Apparently, Johnny’s boss was guilty of being too direct. 

The next day, Johnny texts in a note from his physician indicating that he is being treated for “anxiety for work-induced stress” and “would be unable to return to work.” For good measure, Johnny later files a worker’s compensation claim because the anxiety is “work” induced.

Ay de mi.

With a raised eyebrow over Johnny’s latest maneuver, you play by the rules.  Since Johnny has effectively put you on notice of the possible need for FMLA leave, you issue a Notice of Eligibility and a medical certification form, which must be completed by his health care provider. 

Fifteen calendar days come and go, and Johnny fails to return the medical certification. No shocker there. Since you’re willing to give Johnny the benefit of the doubt, you reach out by phone and remind him of the need to submit certification, and you give him another seven days to do so. 

Johnny never responds and fails to return the certification even within the seven-day grace period.

What Can We Do? What are our options to protect your business while being fair to Johnny?

As I outline below, you have a decision to make. Either you lay the groundwork for discipline/termination or you decide to wait it out, choosing instead to designate as much time as possible as FMLA leave.

OPTION #1: Can We Discipline or Perhaps Even Terminate Johnny?

Some of you would like to take a hard line on these things, and you’re looking for a path to discipline or terminate Johnny’s employment.

I can’t blame you. After all, Johnny clearly is a poor performer, and his non-responsiveness is the latest concern.

Let’s start with the FMLA rules.

Johnny’s obligation to return medical certification is clear:

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  29 C.F.R. § 825.305(b)

The regulations tell us that any day following Day 15 can be counted as unexcused absences until the employee provides sufficient certification.  The regulations even provide an example:

…if an employee has 15 days to provide a certification and does not provide the certification for 45 days without sufficient reason for the delay, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period, if the employee takes leave during such period.

If Johnny does not provide certification (remember, it’s 15 days from the day he receives the blank certification from you), the FMLA regulations allow you to deny his FMLA leave until he provides certification.  Keep in mind, as a result of the quirky rule above, discipline cannot be issued for Days 1 through 15. These first 15 days are effectively freebie days and cannot be held against Johnny unless he never returns certification. For Days 16 and after, however, these absences are unexcused and could subject Johnny to termination.

But Before You Hit the Termination Button, Consider This . . .

Give the Employee Some Grace

We’re not out to terminate our employee, right? After all, it’s often not terribly efficient to terminate an employee and onboard a replacement. More importantly, most employee FMLA requests are legit, and HR folks are good people, so you simply are trying to find some common ground . . . and compliance with the law.

Before taking any adverse action based on Johnny’s failure to return medical certification, we should consider communicating with Johnny about returning the form and determine whether he has a good reason why he has not returned the form within the 15-day deadline.

As a best practice in addressing an employee who has not returned certification by Day 15, consider sending a letter to the employee reminding him of his failure to return the form within the allotted time and that you expect to receive the form within “x” number of days.  I typically recommend seven additional days (but not a whole lot more than that). The letter also should explicitly require the employee to explain why he was not able to meet the 15-day deadline and invite the employee to communicate with you if he needs assistance with this process.  (Remember: “How can I help you?” can go a long way…)

If the employee does not return the certification within the grace period, you are now in a much better position to take action. To be clear, you’ve given the employee an initial 15 days, then another seven, and when the employee still fails to respond, I am generally comfortable with discipline or a termination decision. After all, the FMLA regulations tell us that, if the employee never returns the certification, “the leave is not FMLA leave.”  29 C.F.R. 825.313(b). 

OPTION #2: Simply Exhaust the Employee’s FMLA Leave

Some of you are reading this and thinking, “Jeff, we’ll never terminate an employee. We just want to exhaust that FMLA bucket of time.”

Got it.

If your goal is to exhaust an employee’s FMLA allotment rather than issue discipline or terminate employment, then offering plenty of grace time is your game. When the employee provides certification — whenever that is — you simply designate all the absences as FMLA leave.

The biggest issue you face is the employee who doesn’t want FMLA leave to apply to his absence, so he simply refuses to provide certification, knowing that you won’t discipline or terminate him for his failure to do so.

All is not lost.

As you know, you are not required to obtain medical certification to support the need for leave. You simply need sufficient facts to establish that the employee’s leave is protected by FMLA. And thankfully, the FMLA regulations allow employers to use other documentation — such as short-term disability paperwork, medical updates through the worker’s compensation process, and even the employee’s own representations about his medical condition — to designate FMLA leave. 29 CFR 825.306(c).

The last thing you want to do is ignore the absences, choosing not to designate them. In fact, the DOL has made clear that the employer has an obligation to designate FMLA leave whenever an absence is covered by the FMLA, even if the employee (or employer) doesn’t want the FMLA to apply.

Working Overseas

Once your employee steps off U.S. soil, does the employee lose FMLA protection?

It depends.

Consider these two scenarios:

In the first scenario, your employee requests FMLA to sit bedside with his mother, who suffering from terminal cancer. Mom is located in Mexico City, Mexico.

In the second scenario, you assign the employee to work in your Edinburgh, Scotland office (~150 employees), where she reports to your international operations and receives work.

Does FMLA apply to either of these scenarios? I take each one, in turn, below.

First, the Law

Let’s address the legalities up front. In one short paragraph, the FMLA regulations at Section 105(b) state simply that an employee outside the U.S. is not protected by the FMLA:

The FMLA applies only to employees who are employed within any State of the United States, the District of Columbia or any Territory or possession of the United States . . .

. . . Employees who are employed outside these areas are not covered by the FMLA and, accordingly, not counted for purposes of determining employer coverage or employee eligibility.

Seems easy enough: you remain in the United States, you enjoy FMLA. You leave the U.S., kiss the FMLA good bye.

Yet, as with all things in life, it ain’t that easy.

Scenario One: Caring for a Family Member Living Outside the U.S.

This is the easier issue to dispatch. Simply put, as long as the employee still remains employed within the United States, the employee has the right to take FMLA leave to travel abroad and care for a family member (child, spouse, parent). Here, the employee is providing psychological care sitting bedside with his mom.

Scenario Two: The Employee is Assigned to Work Abroad

Easy enough. But what if the employee’s health condition is at issue, and they are working outside the U.S., like Edinburgh, Scotland.

A plain reading of the regulation above tells us that an employee loses FMLA protection when they are employed “outside” the United States.

And I’ve got a case that illustrates this scenario.

This case involves Atef, who worked for his U.S. employer in South Korea for a multi-year period. While stationed there, Atef sought FMLA leave but was denied because he worked outside the United States. As the story goes, he later sued. In rejecting his FMLA claim, the court noted:

. . . there is no reason to think that the phrase “employed within” in section 825.105(b) of the regulations is referring to the place from which the employer made decisions about medical leave. Rather, the ordinary meaning of the term “in” refers to the employee’s physical work location . . . It is true that [Atef] alleges that he has been a California resident since July 2015, but the FMLA is not concerned with residency, just with employment . . .

Elzeftawy v. Pernix Group, Inc., 477 F.Supp.3d 734 (2020)

Because Atef worked outside the U.S. — this time, for a several-year period — he was not protected by the FMLA. An old DOL opinion letter also backs this up (finding that employees on one- or two-year employment contracts working overseas are not protected by FMLA).

To answer the question above about the employee assigned to Edinburgh, Scotland, it seems similar to the Atef situation: she is assigned there, reports there, and receives her work there. Presumably, she’s there on a longer-term basis. As such, she is not eligible for FMLA leave.

Short-Term Assignment in Another Country

Atef’s situation is fairly straightforward. But what about the employee who is assigned to work abroad on a short-term basis and reports at all times back to the United States? Think of an employee who you assign to work abroad for a multi-week period, or even a month or two. They are not reassigned to the foreign location and otherwise report back to the boss in the United States.

This is a tougher call.

Here, I would likely find them to be employed “within” the United States and therefore remain eligible for FMLA leave. Think of it the other way around: wouldn’t it be an absurd result if you sent one of your executives to oversee a project in Japan for four weeks. They report to you, are paid through the U.S. payroll, and are in short-term housing. If they fall ill, would they really be ineligible for FMLA?

I don’t buy it.

Here, I think the case Hodge v. United Airlines, 821 F.Supp.2d 180 (D.D.C. 2011) is insightful. The Hodge court determined that an employee was ineligible for FMLA because he was working outside the U.S. in Hong Kong. Notably, Hong Kong was the work location he was assigned, where his work was directed, and where he reported. This was considered a long-term assignment, and he had no connection back to the States. Nevertheless, the case is useful in showing that an employee arguably becomes ineligible for leave only at the point she is assigned to the foreign location, reports there, receives assignments there, and is considered longer-term.

But What About the ADA?

Having said all this, don’t forget the ADA, which DOES apply to overseas employees. In other words, what the FMLA taketh away, the ADA giveth.

The ADA applies to U.S. employees employed by covered employers in foreign countries, provided the employee is a U.S. citizen and employed by a U.S. company or a foreign company controlled by an employer of American nationality.

So, ADA leave as a reasonable accommodation now comes into play for leave requests.

My head just exploded . . .

PWFA

Today has arrived.

Though several states beat Congress to the punch, as of today, employers are required under the Pregnant Workers Fairness Act (PWFA) to provide reasonable accommodations to employees who are limited from working due to pregnancy and childbirth.

I provide an overview of the PWFA below, but first, please join me for a free webinar to learn more about how to comply with the PWFA. On July 12, 2023 (1:00pm central), my friend, Seth Turner (Chief Strategy Officer at our client, AbsenceSoft), and I will host a downright riveting 60-minute webinar in which we will help you prepare for the PWFA. During our session, we will cover:

  • The specifics of the PWFA – What is this new federal law and what are an employer’s obligations? How does the law differ from the ADA?
  • What steps employers can take to comply, and
  • How to deal with difficult PWFA situations

Register here for this Littler/AbsenceSoft webinar: Webinar Registration – Zoom

What is the PWFA?

Modeled after the Americans with Disabilities Act, the PWFA expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known temporary limitations on their ability to perform essential job functions due to pregnancy, childbirth, or related medical conditions. Like the ADA, employers must engage in an interactive process with the employee to determine a reasonable accommodation, provided it does not impose an undue hardship on the employer.

How Does PWFA Differ from the ADA?

The PWFA adopts the same terms and meaning of “reasonable accommodation” and “undue hardship” as we find in the ADA, including the interactive process that we’ve come to know and love, which will be used to arrive at an effective reasonable accommodation.

However, the PWFA departs from the ADA in a couple respects. Most notably, under the ADA, a qualified individual is one who can perform the essential functions of their position. However, under the PWFA, an employee still is considered “qualified” if she is unable to perform an essential function for a “temporary period” so long as it could be performed “in the near future” and as long as the inability to perform essential function can be “reasonably accommodated.” As a result, PWFA appears to wipe out completely the “qualified” concept, which moves the discussion directly to undue hardship.

As the EEOC notes in its PWFA guidance, employers cannot:  

  • Require an employee to accept an accommodation without a discussion about the accommodation between the employee and employer. This seemingly differs from the ADA, but it’s unclear from this two-page law how an employer would be penalized for failing to engage in the interactive process.
  • Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. This mirrors language from various state pregnancy accommodation laws.

Don’t Forget the New Poster

Employers, be sure to remove your now outdated EEOC “Know Your Rights” posters and replace them with the updated version found here, which speaks to the rights and obligations under the PWFA.

Though EEOC will issue regulations by year’s end, the law takes effect today.

See you at our webinar on July 12!

Happy belated Father’s Day to all the dads and father-figures out there!

On Father’s Day every year, dads in my church are invited to give the Father’s Day homily at Sunday Mass. This past weekend, I volunteered to offer the Father’s Day reflection.

In a little league baseball-themed Father’s Day homily, I focused my reflection on the “rules.” As fathers, setting out the rules for our children seems our natural instinct: to bring order to the house, to lay the foundation for a good life, and perhaps like our fathers before us, to set discipline in order to succeed.

All too often, we let the so-called rules – religious and otherwise – stand in the way of the love between us and our children.

My Father’s Day homily encouraged fathers to stop clinging to those so-called rules that stand in the way of the love between us and our children, and to recommit ourselves to love. Access my reflection here on YouTube: Father’s Day reflection (Jeff Nowak, St. Francis Xavier Catholic Church, June 18, 2023) – YouTube

What Rules Get in the Way of a Healthy Relationship with Your Employees?

It occurs to me that we should apply a similar concept to our employees, particularly when, due to their own or a family member’s serious medical condition, they legitimately need time off from work.

Though the (FMLA) rules are important, we should not let them blind us such that we lose sight of what our employee needs.

What so-called rules do you cling to that get in the way of a healthy relationship with your employees? Do we lead with empathy? Kindness? Care?

There is no question the rules are important. And we should expect employees to give 100% at all they do. But to be an employer of choice playing the long game, let’s lead with kindness, empathy, and dare I say it, some love.

department-of-labor-300x300

Welcome to the two people willing to dive into this blog post after reading that riveting headline!

In a highly technical opinion letter issued this week, the Department of Labor clarified how to calculate FMLA leave usage when an employee takes intermittent leave during a holiday week.

Bear with me here, but I find the best way to digest this opinion letter is to apply it to a real-life scenario. Let’s assume our employee, Johnny, took FMLA leave during the same week as Memorial Day. There are two possible scenarios:

In Scenario #1, Johnny is given Memorial Day off as a work holiday, but then he takes FMLA leave for the rest of the workweek (Tuesday through Friday) because of his chronic bad back.

In Scenario #2, Johnny is given Memorial Day off as a work holiday, takes FMLA leave Tuesday for his bad back, but he reports to work on Wednesday for the rest of the week.

Let’s assume Johnny works a standard eight-hour, five-day workday, Monday through Friday, and the employer’s workweek runs Sunday to Saturday.

Answer to Scenario #1

This one is generally straightforward. If Johnny observes the Memorial Day holiday and then takes the entire work week off (i.e., he is absent Tuesday through Friday), the employer should count the entire workweek as one full week of FMLA leave used. The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.

One week of FMLA used. Easy enough.

Answer to Scenario #2

By showing up for work three days of the Memorial Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes the holiday on Monday, takes FMLA leave Tuesday and then reports to work on Wednesday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday as FMLA leave. 29 C.F.R. § 825.200(h).

Fair enough.

But now for the difficult question: Does the employer calculate FMLA use during the Memorial Day workweek using a five-day workweek or a four-day workweek?

Enter the DOL opinion letter.

As an initial matter, it’s critical to understand that the term “workweek,” as defined under the FMLA, is the employee’s normal schedule (hours/days per week) prior to the start of FMLA leave.  As the DOL notes in one of its older opinion letters, the normal schedule “is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition.”

With this backdrop in mind, the DOL confirmed in its latest FMLA love letter that the actual workweek includes the day of the holiday. The Department summed it up this way:

Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee’s leave entitlement, because the employee would have to use a larger amount of FMLA leave than needed. For example, for an employee who normally works a 5-day week and takes one day of FMLA leave, excluding the holiday from the week would result in the employee using 1/4 of a workweek of FMLA leave in a workweek that includes a holiday instead of 1/5 of a workweek of FMLA leave. Calculating the amount of leave used in this way would be an interference with the employee’s FMLA rights. 29 C.F.R. § 825.220(b).

In Johnny’s situation, for instance, the DOL’s opinion letter confirms that the employee should be charged 1/5th (20%) of a workweek because he missed Tuesday — one day — of a five-day workweek.  In other words, when making the FMLA calculation, we do not back out the Memorial Day holiday from the normal workweek.

Though this opinion letter might cause only my heart to stir, it is a pretty big deal, as an incorrect calculation improperly burns through an employee’s FMLA more quickly. Based on the feedback above, when an employer uses a four-day instead of a five-day workweek during the Memorial Day workweek, it miscalculates the percentage of FMLA leave used, and it does so to the employee’s disadvantage.  We are now at risk of an FMLA violation.

Does this all sound familiar to you? Perhaps because we blogged the answer to this issue two years before the DOL issued its opinion letter.

FMLA-poster-May-2023

In the dark of night, those crazy kids over at the U.S. Department of Labor were busy at work publishing new FMLA regulations, FMLA opinion letters, a new FMLA poster.

BREAKING NEWS: The USDOL publishes a new FMLA poster!

Let me beat you to it: Be still my beating heart!

What’s the posting requirement?

As we know, covered employers under the FMLA have a general posting requirement, which requires them to post an FMLA poster in conspicuous locations where employees are employed and where it can be readily seen by employees and applicants for employment.

FMLA-covered employers must post the poster, even if some (or even all) of their employees are not eligible for FMLA leave.

For what it’s worth, covered employers also must provide the information contained in the poster to each employee, for example, by including the poster and/or its contents in employee handbooks or other written guidance to employees, or by distributing a copy of the poster to each new employee upon hiring.

Failure to post may subject an employer to a whopping $204 penalty.

Why did the DOL Publish a New FMLA Poster?

I haven’t a clue, but one [terrible] guess is that they sought to match their new eggplant-colored poster to the eggplant color of their favorite FMLA blog.

At a time when we are begging for some clearer guidance on topics like notice of FMLA leave, intermittent leave, misuse of FMLA leave, and medical certification, we get a new FMLA poster.

Of course, the September 2013 and April 2016 poster editions are still effective to use, but now we add this latest purple shade to the mix. The new version clarifies just as much as the others did back in 2013 and 2016, but it does include a snazzy QR code. For what it’s worth, you can access the latest edition here.

I guess we all can get back to work.

Sigh.

Just over a week ago, Christians around the world commemorated Good Friday. We know the story well: three days later, the tears of Good Friday were wiped away on Easter.

For those of us who have lost a loved one, we can relate to the story of Good Friday: Sadness, despair, hopelessness, darkness. For us, however, the overwhelming grief of our own Good Friday doesn’t end in three days.

It takes much longer.

Months, years.

Sometimes, never.

How Can an Employer Help an Employee Grieving the Loss of a Loved One?

Employers have a critical role to play when an employee suffers a loss. Let’s start with meaningful, paid bereavement leave.

Raise your hand if you have a paid bereavement policy.

That’s not enough hands. If you don’t have a paid bereavement policy, draft it into being now.

Bereavement leave fosters a productive workplace because it gives employees time to grieve and recover from their loss. It also promotes loyalty to your organization because your decision to offer employees paid time off at one of life’s most difficult moments is a sign of your empathy and compassion.

Earlier this year, I discussed the importance of paid bereavement leave with Joyal Mulheron, founder of Evermore, a national nonpartisan nonprofit dedicated to improving the lives of bereaved children and families. In our one-hour confab (posted on YouTube), we discussed how the FMLA might cover bereavement leave (unfortunately, it rarely does) and the communication necessary between employee and employer when an employee is feeling the effects of losing a loved one.

In addition to a paid bereavement policy, there are other meaningful ways to help our employee with a loss. To be clear, we’re not trained counselors, but we care. And our actions should be guided by empathy.

Consider the following:

  1. Providing employees flexibility in returning to work and let the employee know to stay in contact if they need more time.
  2. Offering a period of flexible hours or the ability to work remotely. Return immediately to full-time work may be difficult for the employee, but having options to work remotely for a transition period may very well help them manage a comfortable return to work.
  3. Losing a loved one can be an isolating experience and it may choose to keep things bottled up. Checking in with them to show they matter to you even when road ahead is a difficult one.
  4. Keeping an open dialogue, ensuring they know that you are available if they need anything, whether it’s related to work or personal life. No need to hound them — they just need to know they have a support system at work.
  5. Acknowledge and celebrate their loved one. A bouquet of flowers. A card. Consider asking how you can honor the loss of their loved one. Some of your employees may be less comfortable than others with your signs of support, so so recognize their boundaries in an effort to show you care.
  6. Remember: we’re not trained to be our employee’s therapist. Don’t take on their emotional load, and don’t assume what they should be feeling or that you know how to help fix their situation.  Just listen and let them know you are present for them.  
  7. Consider a sick leave bank to which employees donate some of their paid and sick leave time, and allow employees to draw from the bank for bereavement leave.

In addition to the above, find local organizations who help people overcome loss. For instance, I think of a local organization in my home town, Pillars Community Health, which operates Buddy’s Place, which is a childhood bereavement program offering family-based support to children and teens ages 4-18 and their families who are grieving the death of someone significant in their lives. Organizations like these need our help.

Consider also supporting organizations like Evermore, which exist to support those who have suffered loss and help foster meaningful conversations between employees and employers about the grieving process. Learn more about Evermore here.

Finally, I regret to report that there is no legislation pending in Congress right now making bereavement leave a qualifying reason for FMLA leave. This is low-hanging FMLA fruit, isn’t it? Yet, the reality of paid (or even unpaid) bereavement leave as a protected FMLA reason seems so far out of reach. To do right by their employees, employers should take the lead in supporting such a measure.

I’d love to hear from you – what do you do to help your employees during the grieving process?

ABA logo

Raise a pint of Guinness and let’s celebrate – the ABA’s summary of 2022 FMLA decisions has arrived!

Every spring, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. 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 issued in 2022.

Every. Single. 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. I refer to it throughout the year. All the credit goes to Bridget Penick, who helped spearhead the annual summary this year with a few other employment attorneys.

Happy reading!

overtime

Every one of us in the HR/employment world has met this moment. Your employee, Tommy, is a subpar performer who regularly takes time off on Mondays and Fridays and in conjunction with holidays, and is tardy multiple times each week. Today, he hands you a doctor’s note – two lines long – stating simply:

Tommy is under my care. Based on my medical judgment, Tommy cannot work more than 8 hours in a day or 40 hours per week. No overtime advised.

It’s a doctor’s note that causes HR directors everywhere to wince.

So, what’s the impact of this doctor’s note? Can an employee use a “NO OVERTIME” doctor’s note to take FMLA leave whenever he’s assigned overtime? Or can we rely on the ADA, which tells us that we do not need to dispatch an essential function of the job?

According to a newly-issued Department of Labor opinion letter, the employee’s “no overtime” diagnosis is FMLA-protected, and the employee with a chronic serious health condition can use FMLA leave to reduce work hours indefinitely.

Here are the Facts

As the story goes, some poor chap running a local business couldn’t find employees to work the 24-hour coverage needs of his business. Employees at the company were regularly scheduled to work more than eight hours per day but they requested FMLA leave for any time exceeding eight hours per day. Naturally, the employer asked the DOL whether employees could use FMLA leave to limit their work schedule indefinitely due to a chronic serious health condition. Notably, the employer suggested [as would I!] that the ADA might be more appropriate than FMLA leave to address the employees’ inability to work their regularly scheduled shift on an indefinite basis.

DOL: Inability to Work Overtime = FMLA

In its first FMLA-related missive since the year 2020 [where have you been DOL!?!], the DOL states it rather simply: if an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.

Here’s the DOL’s specific admonition:

An employee may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave. [If] an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement. The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.

Ugh.

One more thing about the opinion letter that’s worth pointing out. The DOL again reminded employers to beware of automatically granting all employees only 480 hours of FMLA leave per year (12 weeks x 40 hours), since this calculation doesn’t take into account any of the overtime hours they are working during the workweek. As DOL notes, FMLA provides an employee up to 12 workweeks of leave per year. Therefore, if an employee is scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA leave per 12-month period. For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in the FMLA 12-month period.

Insights for Employers

Before you get all hopeless on me, employers still have some options.

Option 1: Follow the Opinion Letter

Ok, this option is obvious, right? After all, in light of this new opinion letter, it seems apparent that the safest approach is to designate any overtime as FMLA-protected.

And there is good reason to do so. As you may remember from one of my prior posts, a federal court in Connecticut adopted the DOL’s opinion letter about nine years before the DOL even drafted it. In that case, Sam had cluster headaches, and his physician advised against any overtime, as the additional work time would exacerbate his condition. Despite the employer’s thoughtful objections, the court determined that the employee had the right to use FMLA to cover any excess hours scheduled above eight in a day. In its decision, the court acknowledged that the ruling could pave the way for the conversion of full-time positions into part-time jobs. Santiago v. Connecticut Department of Transportation, et al.

I wouldn’t blame you if you simply decided to take cover under the opinion letter and the Santiago case, and designate overtime as FMLA leave going forward. It reduces your risk.

Option 2: Let the ADA Be your Hero

But some of you are willing to take on some more risk.

Here’s your argument: FMLA arguably was never meant to accommodate a permanent change in an employee’s schedule. So, if an employee tells you, “I’ll never be able to perform that job, and I have a doctor’s note here that says it,” the FMLA is not the answer. So, why does the DOL think it’s the answer here?

In issuing this opinion letter, the DOL ignored a number of courts that have supported the employer’s decision to terminate an employee in situations where employees have an hour restriction on their work and where restrictions effectively reduce their positions to part-time roles on a permanent basis, ultimately finding that these termination decisions do not violate the law. 

Here are a few for your reading pleasure:

  • As noted above, it seems to me that the strongest argument undermining the value of the DOL opinion letter is that the FMLA doesn’t apply when an employee needs a permanent change in their schedule. Take, for instance, Porter v. Tri-Health, Inc.  (S.D. Ohio 2018). In Porter, the plaintiff, a sonographer, wanted to excise “on call” hours from her weekly schedule.  However, the court ruled that the employee’s “FMLA leave, although labelled intermittent leave, would actually have been a permanent schedule change, which is not required under the FMLA.” Similarly, see Wiseman v. Vanderbilt Univ. (M.D. Tenn. 2005) (recognizing that, although the FMLA permits a reduced schedule or intermittent leave, it does not provide for a permanent schedule change). [Hat tip: Matt Morris]
  • In Manigan v. Southwest Ohio Regional Transit Authority (6th Cir. 2010), the Sixth Circuit ruled that a bus driver should be able to drive more than eight hours per shift as required by the job description and the work experience of those in the position.  In this case, the employee provided a doctor’s note limiting his work to eight (8) hours in a day.  At first, the company accommodated these restrictions, but later removed the employee from work when he could not work his entire shift.  This personnel move was upheld by the Court, which found that the job clearly required the employee to work longer than eight hours in a day, that the employer could not effectively cover the remainder of the employee’s shift, and that disruptions to the riding public would likely occur.  As a result, the Court found that the employee failed to show that he was qualified to perform the essential functions of his position with or without accommodations.  Similarly, in Green v. Bakemark (6th Cir. 2017), the court held that full-time attendance was an essential function of the job and anything less would fundamentally alter the position, which is not required by the ADA.
  • In EEOC v. AT&T Mobility Services, LLC (E.D. Mich. 2011), a federal court in Michigan determined that an AT&T Store Manager with multiple sclerosis could not perform the essential functions of her job because she could not work “evenings, weekends, holidays and overtime,” which the court found were essential functions of the position. In short, without spending that time at work, the store manager could not properly perform her job, or run the store for which she was responsible.  In rejecting the employee’s ADA claims, the court also found that AT&T participated in a good faith, interactive dialogue with the employee to attempt to accommodate her disability.  When the employee’s physician refused to remove a 40-hour per work restriction, the court found that the employer rightfully terminated the individual’s employment. 
  • In Agee v. Mercedes-Benz (11th Cir. 2016), the Eleventh Circuit dismissed an employee’s ADA claims where her indefinite work restriction of a maximum of 40 hours per week prevented her from maintaining a flexible work schedule and working mandatory overtime, which were essential functions of her position.  Here, the plaintiff had a disability (breast cancer) and, as a result, lifting restrictions. Later, these restrictions remained in place during her pregnancy.  The employee’s physician limited her to no more than 40 hours worked per week “due to her medical limitations.”  The court found this restriction to be “seemingly indefinite.”  Once it learned of the restriction, the employer notified the employee that it could not accommodate a permanent 40-hour workweek restriction. Additionally, the employer informed the employee that she was being placed on unpaid family medical leave, and she needed to go back to her doctors to get her restrictions lifted or she would be terminated. The plaintiff declined to take family medical leave, and the employer later fired her for unexcused absences.

Ok, that was way too much case law. My apologies. Take what looks good and skim through the rest.

But one thing is clear: When it comes to overtime and the FMLA, let the employer beware.