As I celebrate my third anniversary at Littler, I’d like to invite you to an FMLA party.

Seriously.

A party where we spend seven hours together over two straight days discussing nothing but the F-M-L-A.

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

FMLA Master Class

For years, many of you have encouraged me to conduct a comprehensive FMLA course that covers all the bases to help you understand the ins and outs of FMLA leave.  Thanks to Littler for providing the platform, I’m finally coming through for you.

In an interactive, two-day (seven-hour) virtual training course, I will help you master the critical components of the Family and Medical Leave Act, and dare we say, the content might even get you a wee bit excited about administering our favorite federal law!

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

In this FMLA Master Class, you and your colleagues will learn how to:

  • Determine an employee’s FMLA eligibility
  • Identify a request for FMLA leave
  • Understand the reasons for FMLA leave and what qualifies as a serious health condition
  • Determine when an employee has put you on notice of the need for FMLA leave, and how to send out the appropriate FMLA notices
  • Implement effective and compliant call-in procedures for your employees
  • Properly review medical certification and recertification
  • Effectively manage intermittent FMLA leave
  • Root out FMLA misuse in your workplace
  • Properly maintain employee benefits during leave and return employees to work
  • Administer FMLA leave where COVID-19 related issues are involved

Seven absolutely blissful hours of the F-M-L-A. Are you dancing yet?

I’ll use case studies to keep you thinking. I’ll include skits to provide real life examples of what you will encounter when managing FMLA. And I’ll send you off with detailed PowerPoint slides so you have a resource to refer to long after our class ends.

This FMLA Master Class will benefit you no matter your experience level. Are you just breaking into human resources and need a critical foundation on the FMLA?  This class is for you. Are you a more seasoned HR or leave of absence professional who needs some practical ideas to manage intermittent leave, fight FMLA misuse, or apply the FMLA to tricky COVID-related scenarios?  This class is for you. Are you an attorney who seeks a better understanding of the FMLA’s pain points so you can appropriately counsel your clients? This class is for you, too.

Here Are the Details

When: March 8 and 9, 2022 (12:00 to 3:30p.m. central time)

Cost: $295 (Access the registration link here)

What will I cover?  Access our detailed two-day agenda here.

Materials: Attendees will receive a copy of Jeff’s FMLA Guidebook and a copy of the PowerPoint

For those who read all the way to the end of this blog post, congratulations!  Email me at jnowak@littler.com to receive a $30 discount code for a limited time.

See you there!

Hey, thanks for hitting on that clickbait!

Now that you’re here, let me tell you the story of Antonio Brown, soon-to-be former football player for  the Tampa Bay Buccaneers. This past Sunday, Brown engaged in a verbal spat on the sidelines with the Buc’s head coach, Bruce Arians, over whether he should play in the game.

Brown twice refused to go into the game. When he refused the second time, the coach reportedly told him to “get out.”

In a bizarre next couple of minutes, Brown proceeded to rip off his shoulder pads and jersey, tossing them on the bench as he made a beeline for the locker room. On his way, he removed his undershirt and gloves, throwing them into the crowd, then streaked half naked through the end zone and into the locker room.

Click here for Brown’s complete rant.

After the game, Coach Arians informed the media that Brown “was no longer a Buc.”

Wow.

Can The Bucs Lawfully Terminate Brown?

In a world where these kinds of strange outbursts are increasingly common, did the Bucs have the right to terminate Brown’s employment with the club? Or could we look at this a different way — was Brown’s erratic behavior a cry for help?

Was this, in fact, a “cry” for FMLA leave?

For the overwhelming majority of you who are yelling at me, “Oh, gawd, no, Jeff,” I hear you. If you follow football in the NFL, you know that Brown has engaged in erratic and mind-boggling behavior for several years, so this latest outburst arguably doesn’t implicate the FMLA. Of course, the Bucs have a very good argument that Brown was insubordinate and then walked off the job, two fatal errors for any employee.

Case closed.

But wait one minute. At times like these, I am reminded of another case we’ve covered before on this little FMLA blog — the case of Noemi, who worked for a school district in suburban Chicago. During six years of work, Noemi received excellent performance evaluations (kind of like Brown did when he formerly played for the Pittsburgh Steelers?). Shortly thereafter, Noemi’s mental state began to deteriorate—she experienced insomnia, uncontrollable crying, an inability to concentrate and exhaustion. On several occasions, she arrived late to work and left early because she could not control her crying. Noemi then abruptly resigned, walking off her own football field, but later asked to rescind her resignation, a request her supervisor declined.

As the story goes, Noemi filed an FMLA lawsuit, arguing that her behavior put her employer on “indirect” notice of the seriousness of her health condition based on observable changes in her behavior and conduct. The court agreed, and Noemi later prevailed on her FMLA claim at trial.

Might Noemi’s story give the Tampa Bay Bucs pause?

Maybe not, but what if I added one more fact: prior to the game, Brown apparently obtained medical documentation from an independent surgeon confirming that he was dealing with a great deal of pain in his ankle. This medical finding conflicted with the Bucs’ physicians, who earlier cleared Brown to play.

Insights for Employers

There’s plenty to unpack here. Let’s put the conflicting medical notes aside for the moment, as I will cover this at the end of my post, and let’s deal first with Brown’s behavior.

I am far more comfortable with a termination decision where we can show that we have addressed the employee’s increasingly erratic behavior before and offered assistance before hitting the the termination button. Why? Where there are clear abnormalities in an employee’s behavior, it is critical that the employer explore whether it can provide further assistance to the employee – including assessing the need for medical leave and/or an accommodation — before termination.

If the employee refuses this assistance after notice and fair warning (kinda like Brown did), then and only then do we look for the termination button.

So, a couple of things to keep in mind:

  1. FMLA Notice Doesn’t Always Come in Words. There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. Noemi’s case above is a reminder that an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
  2. Let Empathy be your guide. Where there are clear abnormalities in the employee’s behavior, it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show that you’re on the same side as the employee. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy. As a David Fram disciple, I advise my clients that they are best served by first asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.

Based on widespread reports, the Bucs did just this — despite Brown’s worrisome behavior in past, the Bucs offered him help, so his latest outburst can’t really be used as a shield to ward off termination.

But what about those conflicting doctor’s notes? It’s been reported that the spat between Brown and Arians was due to Brown’s insistence that he was in too much pain to play, and that he had his own doctor’s note to back him up. When faced with conflicting medical opinions, an employer generally has one of two options: 1) be darn sure that the medical information it’s relying on is objectively reliable, and the other medical opinion is not; or 2) obtain an additional medical option to act as a “tie-breaker.” The latter is time consuming and will cost money, of course, but it’s effectively a get out of jail free card in the event you need to defend the decision with the EEOC or in court.

Meanwhile, Brown took advantage of all the free publicity by releasing a rap song right after his altercation. Seriously, you can’t make this stuff up. If you’re interested, you can listen to the song here.

Thanks to those who attended my webinar last week with Matt Morris on “Managing Remote Work Requests During (and After) the Pandemic.” You still can access the recording here (a short registration is required), and the presentation PowerPoint slides can be downloaded here (pdf).

To the nearly 6,000 people who registered for the webinar, thank you. Among other things, you were rewarded with photos of Golden Retriever puppies and even a live look at Matt’s work-from-home throne!

During the webinar, we covered:

  • An overview of studies taken during the pandemic regarding work from home.  We highlighted the benefits to employees and employers of remote work but also the challenges when your employees work from home.
  • Why these studies are critical. The findings within the studies — particularly when it comes to the challenges remote work causes — give employers some arguments to establish undue hardship
  • How to approach a remote work accommodation request.   We walked you through the thought process in managing a remote work request — the questions to ask the employee and managers, the considerations for remote work, and how best to implement a remote work arrangement.
  • How important the interactive process is. Using recent case law, we addressed the importance of engaging in an authentic interactive process with our employee who is requesting remote work as an ADA accommodation.
  • Finally, we provided the critical components of a remote work program.  

Want some insight into managing your employee’s remote work request?  Access the recording here!

Thanks again to all who attended.  I wish you a peaceful, healthy and happy holiday season!

Join me for my annual FMLA/ADA webinar, which comes to you, as always, free of charge!

When: Wednesday, December 8, 2021 (12:00 – 1:15 p.m. central time)

Online registration: Click here

Work-from-home requests were on the increase even before the pandemic. After having sent many of their employees home to work during the pandemic, employers now face an onslaught of remote work requests. Employers find themselves paralyzed as they must determine whether and under what terms must they provide remote work arrangements for employees who either cannot or do not want to return to the physical worksite.

In this complimentary webinar, my good friend and ComPsych’s Matt Morris and I will offer practical suggestions on how employers should approach remote work requests during (and after) the pandemic.

Through the use of case studies (and maybe a tiny bit of humor), we will cover:

  • What precisely is the playing field these days when it comes to work-from-home arrangements? Did the pandemic change the entire remote work analysis?
  • Dealing with the everyday: The employee who requests remote work because they are anxious to return to the physical work site
  • Is remote work a viable accommodation for an employee seeking an exemption from a mandatory COVID-19 vaccine?
  • Where and when does it end: Can an employee work from home indefinitely?
  • Can’t I just put my employee on a leave of absence instead of allowing them to work from home?
  • Suggested approach for a remote work policy and agreement

And, of course, we’ll sing. We’ll definitely sing.

When you register (click here), please pose the most difficult question you want answered in this area, 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.

It’s arrived. Finally.

For those of us who have poured over the 490 glorious pages of OSHA’s emergency temporary standard (ETS) requiring employers across America to get their employees vaccinated, our collective heads are spinning this morning.

This is a leave law blog so, of course, I’ll give you everything you need to know about the leave you’re now required to provide your employees so they can obtain a COVID-19 vaccine or test.

Before I do, however, humor me while I gush for a moment about several of my Littler colleagues who have led our vaccination triage team, keeping the rest of us on the cutting edge so that we can effectively advise employers on critical COVID-19 compliance issues. Led by Barry Hartstein, Devjani Mishra, Jim Paretti, Claire Deason, Carly Zuba, and many others, our vaccination working group has compiled some phenomenal resources to keep employers compliant during the pandemic, including the most-recently released extensive analysis of the ETS for your review. Don’t miss out.

Quick Overview of the ETS

Before I dig into the leave issues, here are the general ETS highlights you can read about in the Littler ETS analysis above:

  • The ETS covers any employer with 100 or more employees that is not subject to the federal contractor vaccine requirements or healthcare ETS.
  • Exempted from the ETS are employees who perform 100% remote work, and those who work exclusively outside or work at a worksite where no other individuals are present.
  • Employers are obligated to check each employee’s vaccination status by December 5, 2021, maintain these vax records, and maintain a roster of employees’ vax status.
  • All covered employees must either be fully vaccinated or commence weekly testing by January 4, 2022.
  • Any employee who is not fully vaccinated and reports to a workplace as of January 4, 2022 must submit to a COVID-19 weekly testing protocol.  The employee must take and provide proof of a negative test at least once every seven days.
  • If an unvaccinated employee frequents the office less often than every seven days, the employee must be tested for COVID-19 within seven days prior to returning to the workplace and must provide proof of negative test upon return to the workplace.
  • Employers must ensure that all unvaccinated employees wear a face covering while indoors or when occupying a vehicle with another person for work purposes, with limited exceptions.
  • If an employee cannot wear a face covering because of a disability or a sincerely held religious belief, the employee may be entitled to a reasonable accommodation.

The text of the ETS can be accessed here.

Extremely helpful FAQs from OSHA about the ETS can be accessed here.

Paid Leave Requirements

The ETS contains very specific guidance regarding paid time off to obtain the vaccine and recover from any side effects. Let’s take these requirements one-by-one:

Time Off to Obtain the Vaccine

As an initial matter, the ETS requires employers to support employee vaccination by providing employees reasonable paid time, including up to four hours of paid time, to receive each primary vaccination dose.

Pay differs, however, depending on whether  the employee is obtaining the vaccination during work time or after work hours.

 

During work time: The ETS strongly encourages employers to allow their employees to obtain the vaccine during the workday. Similarly, employers cannot dissuade employees from obtaining the vax during the workday.

If the employees obtains the vaccination during the work day, the employer must pay the employee up to four hours of regular pay for each primary shot.

Keep in mind, four hours of pay is not automatic. To the contrary, the entire period to obtain the shot often will be far less than four hours. In the preamble to the ETS, OSHA assumes that the following will be considered a reasonable period of time to be compensated:

  • Travel time per employee of covered firms of 15 minutes each way per vaccination dose (total of 30 minutes).
  • Pre-shot wait time per employee of covered firms of 5 minutes per vaccination dose (total of 5 minutes).
  • Post-shot wait time per employee of covered firms of 20 minutes per vaccination dose (total of 20 minutes).

Only 55 minutes? This seems a little tight to me, so let’s have some flexibility here. At the time of the vaccination, I’d recommend that you come to an understanding with your employee about the time he/she believes will be necessary to obtain the vaccine, recognizing that four hours is the upper limit.

Might more than four hours be necessary? In its ETS, OSHA noted that, on rare occasion, an employee may need more than four hours to receive a primary vaccination dose, in which case the additional time, as long as it is deemed to be reasonable, would be considered unpaid but protected leave. As such, the employer cannot discipline or terminate the employee if they use a reasonable amount of time to receive their primary vaccination doses. In these situations, the employee has the right to use available paid leave time to cover the additional time needed to receive a vaccination dose that would otherwise be unpaid.

Note: An employer cannot require that an employee use accrued paid leave, such as sick leave or vacation leave, to obtain the vaccine. The employer alone is responsible for providing pay (at the regular rate) for an employee to obtain the vaccine.

Outside of the work day: An employer is not required to pay an employee for obtaining the vaccine outside the work day.  As OSHA makes clear in the ETS:

If an employee chooses to receive the vaccine outside of work hours, OSHA does not require employers to grant paid time to the employee for the time spent receiving the vaccine during non-work hours.

Costs: Employers also are not obligated to reimburse employees for transportation costs (e.g., gas money, train/bus fare, etc.) incurred to receive the vaccination. This could include the costs of travel to an off-site vaccination location (e.g., a pharmacy) or travel from an alternate work location (e.g., telework) to the workplace to receive a vaccination dose.

Time Off for Recovery from Side Effects

The ETS also requires paid time off to recover from any side effects of the vaccine.

How does this work?

First, the employer should look to the employee’s own sick leave bank.  If an employee already has accrued paid sick leave, an employer may require the employee to use the employee’s own paid sick leave when recovering from side effects experienced following a primary vaccination dose.

Couple of caveats here:

  • If an employer does not specify between different types of leave (i.e., employees are granted only one type of leave, such at PTO), the employer may require employees to use that leave when recovering from vaccination side effects.
  • If an employer provides employees with multiple types of leave, such as sick leave and vacation leave, the employer can only require employees to use the sick leave when recovering from vaccination side effects. Employers cannot require employees to use advanced sick leave to cover reasonable time needed to recover from vaccination side effects.
  • An employer also cannot require an employee to accrue negative paid sick leave or borrow against future paid sick leave to recover from vaccination side effects.

Second, if the employee does not have any sick leave available, the employer still must provide reasonable paid time off to recover.

Ok, Jeff, what do you mean by “reasonable paid time off”?  OSHA explains it this way:

Employers may set a cap on the amount of paid sick leave available to employees to recover from any side effects, but the cap must be reasonable…Generally, OSHA presumes that, if an employer makes available up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with this requirement.

Based on the above guidance, it seems apparent that OSHA will expect employers to generally provide up to two sick days per shot where side effects occur and recovery time if needed (using time either through the employee’s own sick bank or, if the well is dry, directly from the employer).

Paid Time Off for testing?

Does an employer also have to foot the bill for testing? And compensate the testing time, too?

The ETS does not require the employer to pay for any costs associated with testing; however, employer payment for testing may be required by other laws, regulations, or collective bargaining agreements.

But what about the time it takes to test? Is this compensable? Hang tight, as DOL noted in a briefing today that it would be publishing additional guidance on the compensability of testing time.  While we await more guidance, beware of state/local laws that may already require you to foot the bill and pay the time for any required medical testing as a work condition.

Need help? The ETS requires that employers implement a written policy for vaccination requirements. If you need assistance with policy drafting, exemption forms, vendor acknowledgement forms, please reach out to us. We can help.

The ink had not even dried on my blog post last week (calling federal paid leave a possibility) when a federal paid leave bill pending in the House was declared dead.

Fast forward to yesterday, when news outlets began reporting that federal paid leave may not be dead after all.

Catching every one of us off guard yesterday afternoon, House Speaker Nancy Pelosi inserted paid leave back into the House version of President Biden’s “Build Back Better” infrastructure package.

The problem for Speaker Pelosi? Her pitch for paid leave faces near certain rejection in the Senate, where one of her democratic colleagues, Sen. Joe Manchin, has joined Republican senators in refusing to provide the votes necessary to pass the bill in the upper chamber.

What Does the Latest House Version Include?

The Pelosi-backed House bill would provide the following paid leave benefits to nearly all American workers:

  • Four weeks of paid leave for reasons generally provided for under the current FMLA: 1) to bond with a newborn or a newly placed child; 2) to provide “caregiving” to oneself or to a family member due to a serious health condition.
  • Broad definition of the definition of “family members,” which now would include extended family such as siblings, grandparents, and the increasingly popular “any other individual who is related by blood or affinity and whose association with the individual is equivalent of a family relationship.”
  • Leave would be available to all employed and self-employed workers, and eligibility would be based on the receipt of extremely modest wages, so as to broaden the class of employees who could take leave.
  • The maximum benefit would be a bit more than $800/week, and would be calculated as follows: 90% pay for those earning less than $290/week; 73% for those earning less than $620/week; and 53% for those earning less than $1192/week.
  • Leave would be required in 4-hour increments and would include a one-week waiting (or elimination) period.
  • An employee-friendly notice period, which would allow employees to report the need for leave within seven days of taking leave.
  • Interestingly, if an employee misrepresented the need for leave or provided fraudulent information in an effort to obtain benefits, the employee would be banned from receiving benefits for 5 years.

Under the current version, the law would take effect in January 2024.

Access the latest version of the bill here (paid leave starts at page 1065).

So close. Yet, seemingly, so far away.

Back in April, President Biden unveiled an aggressive plan to provide federal paid family and medical leave to employees at workplaces across America. Dubbed the “American Families Plan,” the law would provide up to 12 weeks of paid leave to American workers essentially for the same reasons currently covered by the FMLA.

With a $225 billion price tag, it faced an uncertain future.

Fast forward to recent weeks, as the President’s paid leave plan has gained momentum, albeit a slimmer version of what he proposed earlier this year. President Biden’s “Build Back Better” infrastructure package has advanced in the House, while it simmers in the Senate.

In the House, a version of the legislation passed last month out of the House Ways and Means Committee, which would offer 12 weeks of paid leave per year at a cost of $500 billion over 10 years. (100+ House members have joined the chorus.) Meanwhile, 15 Senators, led by New York Senator Kirsten Gillibrand, penned an October 19 letter to the President, House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer urging them to maintain the 12-week leave entitlement in the infrastructure package.

In recent days, however, the tone has turned pessimistic. News outlets have reported that the latest discussions involve cutting 12 weeks of leave to four, lowering the maximum benefit, and potentially focusing only on paid parental leave, which typically is given only after the birth of a child. In remarks he gave yesterday on the proposed infrastructure bill, President Biden made no mention of paid leave, focusing on the infrastructure and job-creation aspects of the bill.

The President’s comments seem to imply paid leave again does not have the votes to pass at the federal level. Even with these latest cuts, federal paid leave again faces an uncertain future.  [Hat tip to my Littler colleagues Mike Lotito and Jim Paretti for keeping me in the loop on the latest in Washington.]

Editorial comment:  We are one of the few industrial countries where some basic form of paid leave is not the law of the land.  Let that sink in: we are one of the few industrial counties without any federal paid leave. Take a glimpse of the chart at right from the New York Times — we’re dark orange, which means federal law affords no paid leave to American workers. The other countries without paid leave? You could count them on one hand.

We’re far better than this.

Friends, many of you already provide generous paid leave programs to your employees. Kudos to you! Sadly, though, you are among the few offering such a benefit to your employees.

There is much to be gained by providing American workers some modest bank of paid FMLA — boosting employee morale, showing a commitment to work/life balance, supporting employees when they need to care for themselves or a loved one, improving your recruitment of the best candidates, just to name a few. More importantly, it’s simply the right thing to do.

Count me among the lucky ones who benefited from employer-provided paid leave: It allowed me to hold my father’s hand and comfort him in the days before he died of cancer. It also ensured I had plenty of time to bond with my four beautiful children after they were born. So many others don’t have this benefit, as there is no law guaranteeing them paid time away from work for serious medical and family needs. Therefore, I stand with people like Vicki Shabo, senior fellow for paid leave policy and strategy at New America’s Better Life Lab, who reminds us:

The country is at a critical inflection point. Paid leave helps keep people attached to jobs, safeguards their income, facilitates caregiving, and aids the economy.

Simply stated, yet so true.

To be clear, this is just a blog post. It’s not meant to be some political statement; indeed, paid leave for all American workers should never become part of a political game. And I look forward to a day when I can laugh with my sons and daughters about the fact that our country foolishly haggled over paid FMLA leave for far too long in its history.

Having said this, I know I’ll get a few “Nowak, you pinko communist” emails because of my ramblings here. Let me make it easy for you: it’s fmlainsightsblog at gmail[dot]com.

That said, I know many of my blog followers have recognized that paid leave has become a basic workplace benefit in 2021, and it’s time has come.

Time to get on board.

Raise your hand if you’re neck deep in COVID-19 vaccine exemption requests. [Yeah, I get it, you’re neck deep, so you can’t raise your hand.]

My friends, this exemption onslaught will only get more intense as we await OSHA’s Emergency Temporary Standard (ETS) that will require employers with over 100 employees to mandate a COVID-19 vaccination for each of its employees.  President Biden unveiled this imminent requirement a few weeks back in his most recent COVID-19 action plan.

These exemption requests are coming at us in two different ways – as an accommodation requests under the Americans with Disabilities Act (“ADA”) or under Title VII of the Civil Rights Act of 1964 (“Title VII”).  The ADA prohibits discrimination and requires employers to make reasonable accommodations to enable qualified individuals with a disability to perform the essential functions of their job.  Title VII prohibits discrimination on the basis of a variety of protected categories, one of which is religion.

If you’re like many employers inundated with these exemption requests, it’s natural to ask the question: If we grant an employee’s vaccine exemption request based on their disability or sincerely-held religious belief, can’t we simply place the employee on an unpaid leave of absence till this pandemic ends? Or even sometime after that?

Not So Fast 

Employers are increasingly selecting this choice of accommodation, finding that unvaccinated employees pose a direct threat to others in the workplace.  As a result, these employers are placing employees on leave, at times on an indefinite basis.

Though potentially effective, these seemingly automatic decisions to place employees on leave are quickly being challenged in the courts.  Earlier this month, for instance, six employees at a national laboratory filed suit against their employer claiming they were forced on an indefinite leave of absence after they sought an exemption from being vaccinated.  The employees claim that they were not offered alternatives to a leave of absence, such as remote work or COVID-19 testing.  Finding that unpaid leave presents a “functional loss of employment,” a federal court judge entered a temporary order halting the practice until the court could more closely examine the employees’ claims.

Insights for Employers

One thing is clear: employer mandates are working.  United Airlines, which recently implemented a mandate, reported late last month that more than 99% of its employees are now vaccinated, which was driven, in part, by its mandate.

At the same time, automatically placing an employee on an unpaid leave of absence as an accommodation for their disability or religious exemption is awfully risky.

Why?

The accommodation request calls us to engage in a meaningful discussion with our employee about whether we can offer an accommodation because of their disability or religious belief.  As a result of this “interactive process,” we must make an individualized assessment as to the possible accommodations that would help the employee perform the essential functions of their job.

In its COVID-19 guidance, the EEOC explained the interactive process this way:

Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer.  This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.

When we automatically place an employee on a leave of absence, have we really made an individualized assessment? Sure, unpaid leave may serve as an accommodation, but it shouldn’t be the first choice unless our communications with the employee lead to the conclusion that leave is the only option.  We must consider alternative accommodations, such as masking requirements, moving a work location to minimize risk of transmission, and even remote work. Heed the EEOC’s admonition, which doesn’t mince words:

If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

The message from the EEOC and early court rulings is clear: when faced with a vaccination exemption request, we should fully engage the employee, identify the direct threat they pose to the workplace and consider accommodations to keep them working.  If these are not workable, then — and only then — is unpaid leave an option.

Everyone one of us has been there.

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy worker’s compensation absence.  For one reason or another, Johnny’s one week leave of absence turns into one month, then six months.

One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny’s nine month leave as FMLA leave.

First, a little pat on the back. We’ve all been there, kid.

What You Should Have Done

As I have discussed before, when an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and Rights & Responsibilities Notice (which usually is accompanied by a blank medical certification form).  Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice.  If you don’t send these notices to your employees, you risk an FMLA violation.

But take some heart in a recent FMLA case, Jeanette Jergens v. Marias Medical Center.  In Jeanette’s situation, she took a leave of absence for alleged anxiety which, interestingly enough, coincided with her employer’s decision to keep Jeanette on an administrative leave of absence while it investigated her alleged workplace misconduct. However, her employer failed to provide Jeanette a Notice of Eligibility. It didn’t send her a medical certification form. And it didn’t send her a designation notice either.

Literally sent her nothing.

Jeanette was terminated a short time later for reasons not related to her leave of absence.  When she filed suit against his former employer, she claimed — among other things — that her employer violated the FMLA because it did not provide her proper or timely FMLA notices.

Employee Must Show Failure to Provide FMLA Notices Harmed Her

The court reviewing Jeanette’s claim took a rather pragmatic approach.  On one hand, the employer technically violated the FMLA when it failed to provide Jeanette proper and timely FMLA notices, but this inaction does not create a standalone FMLA claim.

On the other hand, Jeanette failed to provide any evidence that she actually was harmed by the employer’s failure to provide proper notice. For the court, nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.

Case dismissed.

Insights for Employers

The employer dodged a bullet here.  I share this case not to highlight employer best practices [clearly, the employer’s actions here are not a model for us to follow], but as a reminder that the way to go — indeed, the best practice — is to provide proper and timely FMLA notices.  When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and Notice of Rights and Responsibilities.  When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.

Let’s dig in a bit more though.

Catching The Oversight Soon Enough

If we have missed the deadlines to provide the appropriate FMLA notices, but we have no reason to believe that the employee has suffered any harm because of our oversight, it typically makes sense to retroactively designate FMLA leave. This is particularly true in worker’s compensation situations where you likely will be able to show through documentation that the employee was never released to return to work. In these situations, I’m generally comfortable with a retroactive designation.

Catching The Oversight Much Later

But what if we’re faced with a situation like Johnny’s above, where we are nine months out before we realize our miscue? Do we really revisit the FMLA?

When we are picking up the pieces some nine months after the fact, I am far more focused on whether we have an obligation under the ADA to provide additional leave than any FMLA obligation. As a practical matter, it’s nearly certain that the employee isn’t even eligible for FMLA leave (they’ve not worked 1250 hours in the previous 12 months). My focus at this point is determining whether we can obtain information from the employee’s physician regarding whether the employee will be able to return to work in the immediate future.  If not, I am looking for an exit strategy.

This one is to get the blood flowing for you hard-core FMLA nerds out there, cause it’s quickly going to get in the leave of absence weeds.

With the Labor Day holiday approaching, let’s discuss how an employer should calculate FMLA leave during a holiday week. Before you blurt out, I already know this stuff, Jeff, keep reading, as the Department of Labor recently weighed in on this issue, and I wanted to share what we learned.

Let’s consider two possible scenarios during the Labor Day week for our employee, Johnny:

In Scenario #1, Johnny is given Labor 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 Labor Day off as a work holiday, takes FMLA leave Tuesday, Wednesday, and Thursday for his bad back, but in a rare moment of overachievement, he reports to work on Friday.

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 Labor 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 on Friday of the Labor Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes Labor Day holiday on Monday, takes FMLA leave Tuesday through Thursday and then reports to work on Friday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday through Thursday 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 Labor Day workweek using a five-day workweek or a four-day workweek?

Can you see why this is significant? If the employer maintains the original five-day workweek and does not back out the holiday, then Johnny has used 3/5ths (or 60%) of a workweek of FMLA leave. However, if the employer backs out the holiday and considers it only a four-day workweek, then Johnny has used 3/4ths (or 75%) of a workweek of FMLA leave.

Insights for Employers

We posed this “calculation” issue to the DOL’s leadership, and although they declined to issue a formal opinion letter on the issue, they were kind enough to provide some guidance on this question.

First, 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.”

Second, we apply this normal workweek when calculating how much the FMLA leave the employee has used during the holiday week. In Johnny’s situation, for instance, DOL confirmed that the employee would be charged 3/5ths of a workweek because he missed Tuesday through Thursday of a five-day workweek.  In other words, when making the FMLA calculation, we do not back out the Labor Day holiday from our normal workweek.

Though this may only be a huge deal to those of us in the FMLA trenches, it still 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 Labor 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.

In Johnny’s case, according from the informal guidance we have from DOL, the employer should have exhausted 3/5ths (or 60%) of workweek instead of 3/4ths (or 75%).

Now, you know . . .