For decades, employers have applied the usual FMLA rules for an employee who cannot work because of limitations due to pregnancy. When these limitations render a pregnant employee unable to work, the employer has always had the right to obtain medical certification to confirm the limitation and the employee’s need for leave from work.

When the FMLA became law in 1993, there was no such thing as the Pregnant Workers Fairness Act (PWFA), which as of last year requires employers to provide accommodations to individuals limited by pregnancy-related conditions (unless undue hardship exists).

In its final rules implementing the PWFA, the EEOC went to unusual lengths to rein in an employer’s ability to obtain medical documentation when an employee requests a pregnancy accommodation. The agency rejected the ADA’s more expansive approach to supporting documentation, instead allowing medical documentation only if it is reasonable under the circumstances to determine if the employee has a qualifying condition and needs an adjustment or change at work due to the limitation.

Is It Inappropriate to Request FMLA Medical Certification from an Employee Who Seeks Leave Due to Pregnancy Limitations?

In light of the PWFA’s limitations on medical certification, this is an obvious question.

I had the chance to take this question up directly with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas from the Job Accommodation Network in a webinar the three of us conducted in April.

As a reminder, employers should first exhaust all reasonable efforts to keep the employee in their current position or in a temporarily-reassigned position while she still has limitations due to pregnancy. As EEOC makes clear in its final rules, and as reinforced by Ms. Miaskoff, a leave of absence truly is the accommodation of last resort under the PWFA, as the key purpose of this new law is to keep employees on the job.

Step One: Seek FMLA Certification First

Not surprisingly, Ms. Miaskoff agreed that FMLA medical certification would be an acceptable tool to use first if an employee limited by pregnancy is seeking leave from work, or if leave is the only option available.

Easy enough. If an employee needs leave, we first seek FMLA medical certification, which likely will give us more information than we’d otherwise obtain through a streamlined PWFA certification.

Step Two: What Should an Employer Do if the Employee Does Not Return the FMLA Medical Certification?

If the employee returns the FMLA medical certification, all’s well. We make an FMLA and pregnancy accommodation decision based on the FMLA documentation.

But what’s the employer’s response if the employee fails to return the FMLA certification? Ms. Miaskoff’s take on this topic was instructive. She indicated that, at this point, the employer should:

  1. Remind the employee of the right to request a pregnancy accommodation; and
  2. Request that the employee provide basic documentation supporting their need for an accommodation.

Of course, Ms. Miaskoff isn’t offering the EEOC’s “official” position on this issue, but I think she offers some sound advice on this point, doesn’t she? When the employee fails to return medical certification, it seems to make a whole lot of sense to remind the employee that we remain open to discussing an accommodation that would help her perform essential job functions and encourage her to provide documentation supporting the need for an accommodation if she believes one is needed.

What Should This Pregnancy Accommodation Medical Documentation Look Like?

As an initial matter, the EEOC rejected adopting the ADA’s approach to supporting documentation. In other words, employers should not use your ADA medical certification form in a pregnancy accommodation situation.

In the final rule, the EEOC limits “reasonable documentation” to the minimum documentation that is sufficient to: (1) confirm the physical or mental condition; (2) confirm the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (together with (1) “a limitation”); and (3) describe the change or adjustment at work needed due to the limitation.. In the interpretive guidance accompanying the final rule, the EEOC notes that employers may ask the expected duration of the requested modification.

Confirm. Confirm. Describe. Ideally, on a form no more than one to two pages in length.

Ask your preferred employment attorney for their model form!

Love is in the air! Cupid’s arrow came in the form of something special this year – the ABA’s summary of 2023 FMLA decisions!

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 2023.

Every. Single. One. Of. Them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a key FMLA resource for HR professionals and employment attorneys. I refer to it throughout the year.

All the credit goes to Bridget Penick, Diana Nobile and Sara Faulman, who helped spearhead the annual summary this year with a few other employment attorneys.

Happy reading!

This morning, the day after the Super Bowl, 16.1 million of your employees will call in “sick.”

Over 6 million of these employees will face discipline for their call-in, according to UKG, which provides workforce management and human resource management services.

I didn’t need this survey to remind me that employers face an employee shortage the day after the Super Bowl. Many of my clients bemoan the arrival of football’s annual spectacle, knowing that the excitement of the day leads to the dreaded hangover of Super Bowl Monday.

Heck, one school district in Kentucky has even closed its doors today, recognizing the productivity challenge associated with the day after of watching hours of football, Usher, Taylor Swift sightings, and entertaining commercials.

Still, the stats from UKG’s survey are pretty fascinating:

  • 14% of U.S. employees — about 22.5 million employees — plan to miss at least some work on Monday following the big game. This includes 1 in 5 managers.
  • For those scheduled to work Super Bowl Sunday itself, about 3.2 million U.S. employees plan to call in sick or just not show up to work so they can watch the game.
  • More than a quarter of all U.S. employees (28%) — roughly 45.1 million employees — say they’ll be less productive than usual at work on Monday after the Super Bowl this year.
  • Over a third of U.S. employees (37%) believe the day after the Super Bowl should be a national holiday. These Kentucky kids clearly are onto something.

Employers, Don’t Sit on your Hands!

Stay vigilant, my friends. How can you minimize the chances of getting sacked by FMLA leave misuse after Super Bowl Sunday?

1. Confront the Employee if There is a Pattern of Call-Offs. A couple clients over the years have studied the frequency with which their employees call off work on the day or and the day after the Super Bowl. What they found was a group of employees who call in year after year on the day of or the day after the Super Bowl. Coincidence? We think not, and these employers rightfully discussed the matter with the employees. Where you see these patterns of suspicious misuse, don’t just sit on your hands. Set up a meeting with the employee immediately upon their return to work this week, inquire further about the reason for their absence, and confront them with the pattern. Press them to explain how the pattern (of calling off several Super Bowls in a row) is consistent with how their medical condition flares up and with their need for FMLA leave.

If you remain suspicious after the discussion, follow up with the employee’s physician. Don’t forget that employers have the right to reach out the employee’s physician where patterns of suspected misuse occur. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. 

2. Discuss with the Employee Your Expectations During Leave. This one is quickly becoming my favorite go-to tactic. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. Even tell them that you watch for patterns of misuse, like call-ins around the Super Bowl, so they are aware that you take this stuff serious and aren’t simply going to roll over. Summarize these expectations in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.

3. Certify … and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.  Keep your employees honest — require them to certify their absence and seek recertification at the earliest opportunity.   Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.

4. Use the “Cure” Process to your Advantage When Following Up on Certification.  Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider’s responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form.  In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies.  Here, you might consider asking questions that probe further into the information you find particularly suspect. Also, seek clarification whenever the employee has failed to cure and the certification remains incomplete or insufficient.  Additionally, consider using a physician or a nurse to contact the employee’s health care provider on the employer’s behalf (but remember: you must have the employee’s permission to contact the employee’s health care provider).

5. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy, process and forms are up to date, that you are employing the best strategies to combat FMLA misuse and that your FMLA administration is a well-oiled machine.

Do you, by chance, offer your employees “Paw-ternity” leave?

More seriously, how about NICU leave?

With the ever-increasing reality that the federal government will offer no lifeline to streamline the ever-growing list of states mandating employee paid leave, employers have decided to take the lead, leading to a new wave of creative leave benefits to attract and retain talent.

Employers are on a quest to perfectly meld employee physical and mental health as well as financial wellness to offer benefits that lead to an emotionally, socially, and financially healthy workforce. This makes sense, since a recent report indicated that a whopping 60% of employees said that mental health benefits will factor into selecting their next job.

Mental Health Leave Benefits Are Here to Stay [Not to Mention, They Are Freaking Necessary]

Leave to care for one’s own mental health is increasingly gaining momentum in the American workplace. In its 2024 “Leave of Absence and Workplace Accommodation Forecast,” AbsenceSoft, a leading cloud-based platform built to manage and track FMLA, STD, and LTD leaves as well as ADA accommodations, surveyed HR professionals who cited “managing mental health” as the most common reason cited for leave from work.

Think about that.

Mental health tops pregnancy, illness or injury, and caregiver leave as the most-commonly requested need for leave. Don’t believe me? See AbsenceSoft’s survey results below:

Get your copy of AbsenceSoft’s survey HERE.

Parental Leave is Yesterday’s News; Others Take It Up a Notch with NICU Leave

For the mom-founded and women-led infant formula manufacturer, Bobbie, ordinary parental leave wasn’t enough, though they could have stopped there and been a wild success, at least by American business standards. After all, in addition to 16 weeks of paid parental leave, the Company offers another 36 weeks of unpaid leave if they wish to take it. And then, when you need to transition back, the Company pays for this time, too.

But Bobbie didn’t stop there.

If an employee’s child is admitted to the NICU at or shortly after birth, the employee is entitled to up to 16 additional weeks of paid leave. Did you suffer a miscarriage or stillbirth? Bobbie offers 15 days off in these life-altering instances as well.

What’s even more amazing is that Bobbie offers its entire parental leave benefit policy online for all of us to see. Get your copy here, then go make some changes within your own workplace.

Bereavement Leave is a Must

Thanks to bereavement leave champions like Joyal Mulheron and advocacy organizations such as Evermore, we are finally seeing a breakthrough in paid leave benefits for bereavement. It’s a long time coming for what should seem like a basic employee right in every workplace. Anecdotally speaking, paid bereavement leave and meaningful additional time off work to deal with the loss of a family member or close friend has picked up a tremendous amount of momentum in the past five years.

The key next step? A federal bereavement leave law. Though a host of new states have enacted (unpaid) bereavement leave laws, a change in federal law seemingly is the only way to etch this benefit in stone once and for all.

Is Paw-Ternity or Fur-Ternity Leave Really a Thing?

In a webinar I conducted last fall with my friend Angel Bennett, Assistant Vice President, Leave and ADA Solutions at Unum, we both agreed “fur-ternity” leave made our hearts happy.

But this kind of leave is nothing to growl at. In an era where Generation Z is making its work-personal life balance needs known, leave to bond with our furry friends has increasingly made its way onto the paid leave benefits charts, notable enough for this Generation X, Golden Retriever lover to take note.

theSkimm Provides a Public Database of Paid Leave Family and Leave Benefits

In 2022, theSkimm, a media company, unveiled as part of the Company’s #ShowUsYourLeave initiative a database of the policies of 480+ companies, including American Express, Etsy, General Motors, Goldman Sachs, Pfizer, Zoom and more, all of whom are making their parental and paid leave policies open to the public. The resource is a free excel spreadsheet that allows the public to search and compare these leave benefits across industries.

If you need even more paid leave benefit ideas, access theSkimm database here.

Paid Leave Benefits Actually Makes Employers More Money

If your employees’ emotional, social, and financial well-being is not enough, providing paid leave benefits is worth it simply because it actually makes employers more money.

As Lori Welty, SVP, Product Compliance for FINEOS, notes in her 2024 benefits forecast, “companies that implemented paid leave yielded 4.6% greater revenue and 6.8% greater profit for each full-time employee.” The reality is this: not providing these critical paid leave benefits, as Lori notes, causes a huge leakage in profits.

If this ain’t enough to motivate you, perhaps you need to take a sabbatical, yet another benefit trend.

Hat tip to Orli Cotel, a highly-experienced and thoughtful paid leave champion, who offered her thoughts with me on paid leave benefits trends.

After years of hosting FMLA parties, I invite you now to an ADA party!

Seriously.

A party where we spend nine hours together over three straight days discussing nothing but the A-D-A.

Are you excited yet!?! Let me explain more.

For years, many of you have attended my FMLA webinars and master class. In your feedback, your most common refrain (aside from “Ditch the singing!”): “When are you hosting an ADA master class?”

You asked for it, and we have delivered!

ADA Master Class

In this interactive, three-day (nine-hour) training course, I will help you master the critical components of the Americans with Disabilities Act and become more comfortable with managing an employee with a medical condition. Dare we say, the course might even get you a wee bit excited about implementing ADA accommodations in the workplace.

You read that correctly: Get ready to be ADA-energized!

In this ADA Master Class, I will use case studies and a bit of humor to help you master the ADA from beginning to end! Ditching the legalese, I also will highlight a TON of case law developments that impact how you implement reasonable accommodations, enforce attendance policies and issue discipline, make medical inquiries of your employees, ask interview questions without stepping in it, and ensure your employee’s fitness for duty.

Access the detailed agenda HERE.

In this three-day, nine-hour course, you and your colleagues will learn how to:

  • Analyze the point at which an employee’s medical condition rises to the level of a disability
  • Recognize when to start the interactive process and what this process requires
  • Determine whether an accommodation is reasonable, and what type of accommodation is needed
  • Make appropriate medical inquiries where you’re concerned about an employee’s fitness for duty or safety in the workplace
  • Implement Jeff’s (un) patented three-step process for managing leave as a reasonable accommodation
  • Effectively manage remote work as an accommodation
  • Navigate light duty programs for your employees
  • Properly implement accommodations for neurodiverse employees
  • Better understand the intersection of ADA, FMLA and worker’s compensation issues
  • Implement pregnancy accommodations
  • Safely manage the hiring process to comply with the ADA

Nine absolutely blissful hours of the A-D-A. 

Are you dancing yet?

I’ll use case studies to keep you thinking. I’ll highlight several new cases from 2023 that will help you administer accommodations. And I’ll send you off with an ADA workbook and detailed PowerPoint slides so you have resources to access long after our class ends.

This ADA Master Class will benefit you no matter your experience level. Are you just breaking into human resources and need a critical foundation on the ADA?  This class is for you. Are you a more seasoned HR or accommodations professional who needs some practical ideas to manage the interactive process and reviewing accommodation requests or apply the ADA to tricky scenarios?  This class is for you. Are you an attorney who seeks a better understanding of the ADA’s pain points so you can appropriately counsel your clients? This class is for you, too.

Here Are the Details

When: March 5 and 6, 2024 (12:00 to 3:30p.m. central time) and March 7, 2024 (12:00 to 2:00p.m. central time); this course will be presented virtually, so you can attend from the comfort of any place you wish!

Cost: $495 (Access the registration link HERE) For a limited time, use the code BLOG50 to take $50 off this price. Reach out to me at the email below for large group rates.

What will I cover?  Access the detailed three-day agenda HERE.

Credits: SHRM/HRCI and continuing legal education (CLE) will be offered (nine hours of it!)

Materials: Attendees will receive a copy of my ADA Guidebook and a copy of the PowerPoint.

Got any questions? Email me at jnowak@littler.com. See you there!

Join me for my annual webinar in which I cover the key issues of the day. Unless you prefer to pay me, this webinar comes to you free of charge.

When: Wednesday, December 13, 2023 (12:00 – 1:15 p.m. central time)

Online registration: Click here

This year, we’re talkin’ pregnancy accommodations.

Managing employee accommodation requests is among the most difficult jobs for any HR professional and in-house counsel. The job is even more challenging now, as the recently enacted Pregnant Workers Fairness Act (PWFA) requires employers to provide reasonable accommodations due to an employee’s limitations associated with pregnancy, childbirth, or related medical conditions.

In this complimentary 75-minute webinar, my good friend, Matt Morris, Vice President at FMLASource, and I will tackle the most common and difficult pregnancy accommodation scenarios that employers face and provide practical suggestions on how employers can address these situations.

Through the use of case studies, Matt and I will answer the following:

  • Isn’t the PWFA just another version of the ADA? How are they different?
  • How broad is the PWFA? Does it cover in vitro fertilization and related conditions and treatments outside of pregnancy?
  • How do I communicate with an employee when they request a pregnancy accommodation?
  • When can we place an employee on a leave of absence instead of providing an on-the-job accommodation?
  • When can an employer seek medical documentation to support the need for an accommodation?
  • For how long is a pregnancy accommodation reasonable and required?
  • Does the PWFA require employers to maintain a light duty policy exclusively for pregnant employees?

And of course, there will be plenty of cheesy humor. And we’re writing our annual holiday song right now!

When you register (click here), please pose your most pressing pregnancy accommodation question, and we’ll do our best to cover it during the webinar.

Quick note:  This program has been submitted to the HR Certification Institute and SHRM for review and credit. Continuing Legal Education credit also will be available to attorneys attending the program.

We look forward to hosting you!

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!