A few weeks back, I celebrated my one-year anniversary at Littler. You know what that means, right?

I’m F-M-L-A eligible, baby!

Now that I am eligible to take job-protected leave [picture the heavens opening up and the sun shining down on my face], I’m salivating over all the so-called “reasons” I could use FMLA leave- perhaps a Mexican beach vacation, an overdue trip to spring training with my buddies, maybe even a little derriere augmentation.

Goodness, the possibilities quite literally are endless!

There are a ton of quirky rules regarding FMLA eligibility, and I cover some of them below so that you have a resource when these issues pop up. But first, humor me while I tell you about my first year at Littler.

Celebrating One Year at Littler

I’ve represented employers in employment law for over 20 years.  For many of these years, I’ve admired Littler and its attorneys who have been a wealth of knowledge and wisdom for me in the FMLA area -people like fellow FMLA nerds Dana Connell and Alexis Knapp.  So, one year ago, several colleagues (Dave Radelet, Chris Johlie, Staci Ketay Rotman, Terry Creamer) and I joined Littler, the world’s largest employment practice representing employers with 1500 employment attorneys in 80+ offices around the world.

What a change! Littler has indeed been a game-changer for me and my clients in many ways, but let me quickly identify two that stand out:

  1. The Leave and Accommodation team: I am part of a core group of 25 other Littler shareholders whose sole mission in life is to conquer FMLA, ADA and state leave law issues on behalf of employers. That core is part of a larger “Leave and Accommodation Practice Group,” which consists of nearly 250 Littler attorneys who ❤ leave and accommodations law as much as I do.  This group is headed up by Michelle Falconer and Casey Kurtz, and it’s a force to be reckoned with, especially with leave gurus Pam Salgado (Washington) and Deidra Nguyen (CA) and Stephanie Mills-Gallan answering every paid leave question I have.
  2. Deep Subject matter knowledge with cutting-edge (yet practical) counsel: No matter what the employment-related issue my clients throw at me, I can call on nationally known practitioners to help solve their problem. This benefit has been by far the most impressive. For instance, if my clients have an employee privacy issue or security breach, I ask Kwabena Appenteng to help; for sensitive wage/hours issues, I ping John Ybarra, Andrew Voss or Jennifer Schilling; for bet-the-company restrictive covenant work, I trust Jim Witz and Darren Mungerson; for benefits issues, I rely on Finn Pressly, who clients adore for his plain English explanation of benefits issues; for service animal accommodation questions, it’s Peter Petesch to the rescue; for tough drug testing or marijuana conundrums, I turn to Nancy Delogu for help; for ever-increasing transgender equity and pay equity audits, I can quickly call on Denise Visconti; for reductions-in-force, I rely on Kat Siegel and Emily Shoda to avoid disparate impact issues; when I need the perfectly-written brief for the win, I ask the “Chaucer” of brief writing, Todd Church; for implicit bias training that will knock clients socks off, I turn to Cindy-Ann Thomas, and when I need a role model on how best to treat clients and colleagues, I go no further than old friend Erin Webber.  I surely could go on and on, but I rest comfortably knowing that I am part of a firm that helps our clients navigate a complex business world with nuanced legal issues. My clients surely like this, too.

I am humbled that many of my FMLA Insights subscribers also are my clients.  I am so very grateful for your support and the chance to work with you.

But Jeff, Let’s Get Back to the FMLA

Enough of this love fest! Several of you asked extremely thoughtful questions about FMLA eligibility in conjunction with my first anniversary at Littler. [No you didn’t, I made this up.]

Let’s retrieve them from the mail bag and answer them below:

Q.  Did Littler ever change your status from temp to full-time employee? And did those temp hours count toward FMLA eligibility?

A. The firm would have been wise to hire me as a temp to kick the tires a bit. They didn’t, and now they’re stuck with me assuming they don’t find out about the spring training trip disguised as FMLA leave.

Never fear, I maintained full-time status since day one. However, even if I were a temp employee, the DOL has made clear that these hours count toward my FMLA eligibility. In fact, I covered this rather quirky concept in a previous blog post.

Q.  Assuming Littler is on a rolling FMLA year [ahem, that would be proprietary info, my friend], when would the firm check your FMLA eligibility for your Mexican beach vacation trip legitimate FMLA leave? 

A.  When it comes to checking eligibility, there are two key rules to follow:

    1. The employer must check eligibility at the first instance of FMLA leave for each different FMLA reason in a 12-month FMLA period.
    2. Once eligibility is established for a particular FMLA reason, eligibility for FMLA leave for that particular reason does not change for the remainder of the FMLA year.

But what if the FMLA leave starts as intermittent leave but then morphs into continuous leave? Or visa versa? Does this change in the way I take leave require Littler to re-check my FMLA eligibility?  In a word, no.  For example, let’s say I have a bad back. Once I became eligible for FMLA leave for my bad back in this FMLA leave (let’s say March 1, 2020), I remain eligible to take leave for my bad back for the remainder of the FMLA year (i.e., March 1, 2021). It doesn’t matter whether I need intermittent or continuous leave in the same FMLA year.

I cover this concept in detail in a previous post.  Check it out here.

Q.  If Littler asked you to practice for a time in one of its international offices, would you still be eligible to take FMLA leave?

A. Ah yes, thanks for the reminder! Have I mentioned that Littler is the largest employment practice in the world representing employers with attorneys licensed in all 50 states, offices in 35 out of the 50 states (as well as D.C. and Puerto Rico) and in approximately 20 countries around the globe?  We literally can assist clients anywhere and everywhere.

I digress. To answer your question, with the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company.  So, a U.S. national loses FMLA protection once that individual steps off U.S. soil and works for one work week in another country. But is the converse true? For instance, are foreign nationals on H-1B work visas eligible for FMLA leave? I’ve answered that one here.

Q.   Jeff, let’s assume you took a medical leave of absence before you reached the one-year mark that otherwise would have qualified as FMLA leave. Could Littler credit that pre-FMLA leave against your FMLA entitlement once you became eligible for FMLA leave?

A.  No. As the regulation makes clear, a leave of absence can only be designated as FMLA leave after the employee meets eligibility requirements.  This situation is covered even more explicitly in the preamble to the FMLA regulations, which I provide here.   In that portion of the preamble, the DOL states:

…any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

Q.  If Littler shipped you out to the great State of Wyoming to practice law, would you still be eligible to take FMLA?

A. Wyoming is indeed one of the few states without a Littler office, so I likely would not be eligible to take FMLA leave unless Littler employed 50 employees within 75 miles of my work location.  In this previous post, I explain why employers must decide whether they will include this 50/75 requirement in their FMLA policy. If they do not, they likely will not be able to argue later that these employees are ineligible for FMLA leave.

Q.  You tell us that you’ve worked for one year. But have you worked the requisite 1,250 hours in the past 12 months to be eligible for FMLA leave? We HR folks care about the technicalities, you know.

A.  Well, bless your little heart, HR professional! Keeping me on my toes, I see, and I like it. For the record, I worked 1,250 hours within the past 12 months.  Because I am an FLSA exempt employee, the FMLA regulations require Littler as my employer to establish that I had not worked the requisite 1,250 hours to deny eligibility for FMLA leave. See Section 110(c)(3) of the regs:

In the event an employer does not maintain an accurate record of hours worked by an employee, including for employees who are exempt from FLSA’s requirement that a record be kept of their hours worked, the employer has the burden of showing that the employee has not worked the requisite hours. An employer must be able to clearly demonstrate, for example, that full-time teachers of an elementary or secondary school system, or institution of higher education, or other educational establishment or institution (who often work outside the classroom or at their homes) did not work 1,250 hours during the previous 12 months in order to claim that the teachers are not eligible for FMLA leave.

Q.  The word on the FMLA circuit is that you’re planning to celebrate your one-year anniversary with a little derriere augmentation? Is this true? And if so, would it be covered by FMLA?

A. Oh, you guys! I mean, I definitely could use a little derriere augmentation, but it just ain’t my style. In any event, we know from a previous post that time off for cosmetic surgery is not covered unless it involves an overnight stay or complications develop. [If nothing else, click on the link above for one of my all-time favorite FMLA Insights blog photos!]

Q.  Jeff, I’m mean, you’re fine and all, but I really don’t care about your first anniversary. I just want to confirm that you’ll continue the blog. What say you?

A. I’m delighted that you care [only about my blog]. I am pleased to report that my FMLA Insights blog will continue and all its archives are available to you. The blog is not affiliated in any way with Littler, but I will remain the sole author. If you’ve not yet subscribed to this blog, you can do so on the right side of this page.

Thanks again for all your support! I ❤ my readers!

Employers are working overtime to determine how to respond to the Coronavirus outbreak, which has quickly turned into an international crisis. Employers rightfully are concerned about the safety of their employees and what they should be doing when one of their employees (or employees’ family members) have traveled through China.

Naturally, a number of my clients have asked me about how they should treat employees returning from China, whether they can force recent travelers to stay away from work, and whether this time away from work would be considered FMLA leave.

First, a quick plug on the absolute KEY resource for employers (besides the CDC web site itself) looking for guidance on how to create a plan for dealing with this outbreak. Bookmark this page: https://www.littler.com/coronavirus. It is a one-stop shop for employers as you’re determining what plans you need to put in place to stay ahead.

In the meantime, I hit these questions head on below:

What Should an Employer Do if It Suspects an Employee Was Exposed to the Coronavirus?

I couldn’t say it any better than my Littler colleagues Alka Ramchandani-Raj and Melissa Peters, who suggest the following approach in this informative alert about action steps for employers:

If an employee has traveled to China in the last 14 days and is exhibiting signs and symptoms of the virus (i.e., feels sick and exhibits symptoms such as fever, cough, or difficulty breathing) the employer should:

    • Advise the employee that they must not come to work until the symptoms disappear and/or a doctor has confirmed that they are not contagious.
    • Advise the employee to seek medical care right away.
    • Contact a medical and security service company so it can connect the employer with the right medical professionals to assist the employee.
    • Avoid contact with others.

If an employee becomes ill and/or the employer suspects the employee has been exposed to someone with the virus, there are several things that an employer can do:

    • Instruct the employee to work from home for up to 14 days to ensure the employee does not show symptoms of the virus.
    • Instruct the employee to obtain a fitness-for-duty/return-to-work notice from their physician.
    • Provide leave to employees until the incubation period is exhausted or they return with a fitness-for-duty notice.  These leaves of absence should be administered consistent with the employer’s normal leave of absence policies, and may be paid or unpaid.

If the employee has contracted the condition:

    • Contact the CDC and local health department immediately.
    • Contact a hazmat company to clean and disinfect the workplace.
    • Inform other employees of potential signs and symptoms and offer to allow employees to expense their medical test.
    • File any workers’ compensation claims necessary if the condition was contracted at work or in relation to a work-related activity (business travel).
    • Offer the employee the ability to work from home, or place the employee on administrative leave as necessary.  As noted above, the leave should be administered pursuant to normal company policies, and may be paid or unpaid.

Should an Employer Designate FMLA Leave When an Employee is Forced Off Work?

The FMLA provides job-protected leave for specific medical and family reasons. Specifically, employers must provide leave if the employee is incapacitated from working because of their own serious health condition or when they need to care for a family member with a serious health condition.

Clearly, employees with the coronavirus and employees with a child, spouse, or parent infected by the coronavirus are entitled to FMLA leave (if otherwise FMLA-eligible).

But what if the employee demonstrates no symptoms? As an initial matter, employers may be inclined to ask employees suspected of coronavirus exposure to work from home or take a leave of absence, and follow up with the appropriate FMLA notices and certification to be completed. No concerns here with this approach, as my colleagues explain more fully above.

If the employee demonstrates no symptoms of coronavirus, however, the employer should not count any of this leave against the employee’s FMLA allotment, as there is no evidence (yet) of a serious health condition rendering the employee unable to work. Ideally, these employees should work from home with your permission, as they likely are healthy enough to continue working.  Employees working from home should be instructed to “self-monitor” for symptoms of the virus, which include fever, coughing, shortness of breath or difficulty breathing. If symptoms develop, the employee should immediately inform the company and should not return to work prior to completing a return to work or fitness for duty evaluation with their physician.

In the meantime, keep these action items in mind when dealing real time with the current outbreak.

Jingle Bells is now a faint memory. Three weeks into 2020, we’ve made and already broken our New Year’s resolutions.

Is it a new decade, or is it not?

Who knows and who cares, right?

Whether or not you’ve broken that New Year’s resolution, the turn of the calendar is the perfect opportunity to update your key personnel policies. At the top of your list should be an in-depth review of your FMLA policy. I outline below a road map to audit your current FMLA policy.

Here are the ten (or so) problems we commonly find when reviewing employers’ FMLA policies, along with our recommended fixes:

  1. Expanding leave entitlement by redefining threshold eligibility.  You’re likely familiar with that pesky eligibility requirement that requires your employees to work at a location where there is 50 employees within a 75-mile radius.  Perhaps due to oversight or harmless historical laziness, you have removed this critical eligibility requirement from your FMLA policy. It’s entirely possible that this is due to a conscious decision on your part to provide FMLA leave to all your employees no matter where they work. If this is not what you intended, however, you should ensure that this 50/75 requirement is included in your policy. When you don’t include this provision, you may not be able to claim the employee is ineligible later. Just ask this Kalamazoo, Michigan employer.
  2. Improper identification and description of your FMLA leave year.  An eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. But what happens when an employer fails to disclose the 12-month period in its FMLA policy? The employer is obligated to use the 12-month period that provides the most beneficial outcome for the employee.  To avoid this injustice, be sure to clearly identify and describe your 12-month period within your policy. If you are interested in my suggestion as to which FMLA leave year to choose, take a look at a previous post.
  3. Inaccurate or non-compliant rules about required or permissive substitution of paid time off and/or disability benefits during leave.  As an initial matter, if you are exhausting an employee’s accrued paid leave concurrently with FMLA leave, be sure to include this requirement clearly in your policy. Additionally, if the employee is receiving STD or worker’s compensation benefits, neither the employee nor the employer may require the substitution of paid leave. Despite this requirement, some FMLA policies still provide for substitution of paid leave during periods of STD or WC benefits.  Edit this provision accordingly to comply with the law.
  4. Failing to describe employees’ notice obligations (or failing to accurately capture difference between foreseeable and unforeseeable situations). There are oodles of you out there who still advise employees to “call as soon as possible” when requesting FMLA leave. Why on earth would you use such wishy-washy language? It’s of no help to you, as it effectively allows the employee to define when they are going to phone in an absence. This approach ends up frustrating you, since the employee calls whenever it’s best for them and there is little recourse for you. Ensure your policy clearly defines notice expectations for foreseeable and unforeseeable leave. As to foreseeable absences, you generally can require 30 days’ notice. As to unforeseeable leave, strongly consider establishing a set time before an employee’s shift begins (e.g., two hours before the shift starts) to report their absence. This approach helps you better plan your staffing, and it reduces employee misuse of FMLA leave. Consider this recommendation the proverbial low-hanging fruit.
  5. Outdated information about military family leave entitlements. Remember the National Defense Authorization Act of 2010, which amended the FMLA with respect to a few obscure reasons for  military family leave? [Yeah, I barely remember it myself.] At that time, parameters for the “rest and recuperation” and parental care obligations were adjusted as “qualifying exigencies,” along with a few other rules. Despite my recommendations some seven years ago, some of you still have not updated your FMLA policy. It’s never to late to change — go ahead and do it now!
  6. Explanation of what happens if employee fails to pay benefit premiums during leave. The FMLA regulations have very specific rules for canceling an employee’s group health benefits while they are on FMLA leave. (29 CFR 825.212) As the regulations make clear, an employer’s obligations to maintain health insurance coverage ends if an employee’s premium payment is more than 30 days late. Before dropping coverage, however, the employer must provide written notice to the employee that the payment has not been received and that coverage will end in 15 days if the premium is not paid.  Why not include this expectation within your FMLA policy so employees are  well aware of this payment requirement?
  7. Overstating fitness for duty requirements. Do you apply your fitness-for-duty certification requirements consistently? You should. Do you require a fitness-for-duty certification when an employee is returning from intermittent leave? You shouldn’t, unless reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.  Take a look and make sure you aren’t stating something different in your policy.
  8. Failing to attach DOL’s FMLA Poster or include all of its detail in the policy. The Department of Labor long has taken the position that the entire contents of the  DOL’s “rights and responsibilities” poster must be included within your employee handbook.  To comply, we recommend that this poster be included within an appendix or the back of your employee handbook.
  9. No state law addendums where required (e.g., California, New Jersey, New York, Connecticut, D.C.) that explain differences between employee rights and responsibilities under the main (federal law) policy and applicable state law. Where different leave laws apply to your employees, be sure to include within your personnel policies or handbook these state and local laws so that employees are fully aware of their rights and responsibilities.  In some states, these policies must be located within your handbook or personnel policies.
  10. Leaving out descriptions of employer’s recertification and second/third opinion rights. See above. You want your employees to know that they may be subject to recertification and second opinions. So, simply put, include these provisions in the handbook so there are no surprises later. ‘Nuf said.

But wait, there’s three more! [I’m an attorney. Do you actually think I could limit myself to identifying only 10 problems?]

 1. Characterizing FMLA leave as “job-protected” without noting the employer-friendly qualifications. Many policies inform employees that they will be returned to the same or equivalent position at the end of their FMLA leave.  Case closed, right?  Wrong! Be sure to include in your policy the exceptions to the general rule that they will be restored to work, such as layoffs, shift eliminations, fraudulently obtaining leave, and occasions when the employee is unable to perform essential job functions. (29 CFR 825.216)

2. Leaving out a statement that FMLA fraud is prohibited.  Courts are increasingly relying on provisions within your policy prohibiting FMLA abuse when dismissing FMLA claims, so shouldn’t this be reason enough to add this admonishment in your policy?  Yes, it is.

I’ll even make this easier on you — here’s the precise language to use:

An employee who fraudulently obtains Family and Medical Leave from [the Company] is not protected by the FMLA’s job restoration or maintenance of health benefits provisions. In addition, [the Company] will take all available appropriate disciplinary action against such employee due to such fraud.

Similarly, if you want to prohibit an employee from working a second job, it is critical that you maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. (29 CFR 825.216)

3. Lack of “Key Employee” provision – or, at least, disappearance from eligibility notice.  Ok, maybe I am getting slightly overzealous here, since few of you care about the “key employee” exception, and rightfully so. If you think there is even a sliver of a chance you would employ this exception in the future, be sure to include the provision within your policy and your eligibility notice.

I’m pooped.  Clearly, “being less verbose” was not one of my New Year’s resolutions.

Hat tip: Special thanks to my Littler colleagues, Casey Kurtz and Michelle Barrett Falconer, who offered these recommendations in one of their fabulous presentations last year!

Thanks to those who attended my webinar last week with Matt Morris on “Stop the Madness! Effective Ways to Protect Your Organization Against FMLA Abuse.” A link to access the recording can be found here, and the presentation PowerPoint slides can be downloaded here.

To the nearly 7,000 people who registered for the webinar, thank you.  To those who missed it, you still have time to access the recording.  In particular, we covered:

  • Managing Intermittent FMLA Leave.  Here, we outlined practical steps you can take early on to fight FMLA abuse (e.g., recognizing the need for FMLA leave, importance of call-in policies and how to address late call-ins, meeting with the employee to set expectations when FMLA is approved) and after FMLA leave has begun to ward off FMLA misuse (personal certification, the effective use of recertification, identifying patterns of suspected FMLA leave misuse  and communicating with the physician about the suspected misue).
  • Requiring the Employee to Perform Essential Job Functions when ADA Leave is Requested.  When your employee is not eligible for FMLA leave or has exhausted FMLA leave but continues to be absent, we offered suggestions on how we still can hold employees accountable for not showing up to work.
  • Taking Action where the FMLA abuser is caught red-handed.  Found photos of your employee’s water-skiing vacation posted to Facebook at the very time they should be home in bed recuperating on FMLA leave? No problem! We outlined the steps for an effective investigation of your employee’s conduct so you can take appropriate disciplinary action and avoid getting sued.
  • Finally, we offered tips to avoid liability for foolish things managers say and do when they suspect FMLA leave abuse.

And in what has become a custom, we ended our webinar with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye FMLA Misusers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I woke up at 4:30 with a scratched cornea 

It was better than last week, I swore I had a hernia

Oh what excuse I could concoct to avoid my overtime

Oh, tidings of FMLA . . . and ADA . . .Oh, tidings of FMLA

* * *

I need a stupid doctor’s note to take ADA medical leave

That Won’t Be a Problem, I save one in my sleeve

I think I’ll make a tee time because my boss is so naive 

Oh, tidings of FMLA . . . and ADA . . .Oh, tidings of FMLA

* * *

Law of Wonder, Law of Light

Law that will help me get out of work tonight

But if I’m not careful, come tomorrow, 

I will need a new worksite!

* * *

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

Happy Holidays!

When: Wednesday, December 11, 2019 (12:00 – 1:15 p.m. central time)

Online registration:  Click here

The Family and Medical Leave Act is generally considered to be an employee-friendly law, and employers have often felt helpless to do anything but approve leave requests under FMLA and similar laws.

But we shouldn’t feel helpless!

In this complimentary webinar, ComPsych’s Matt Morris and I will provide practical suggestions on how you can address suspected FMLA misuse in your workplace, focusing on the steps you can take (as opposed to the steps you can’t take) to root out and minimize FMLA abuse.

Through the use of case studies (and perhaps a bit of humor), you will learn how to:

  • Identify and understand the most common forms of FMLA abuse
  • Effectively use certification and recertification to respond to a pattern of misuse or suspect FMLA abuse
  • Document FMLA effectively to curb FMLA abuse
  • Manage intermittent FMLA leave—a main culprit of FMLA abuse
  • Conduct effective investigations into potential abuse
  • Implement must-have personnel policies to prevent FMLA abuse
  • Learn how to use the “honest belief” tool to protect your organization against misuse of FMLA and ADA leave

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

Register here.  I look forward to hosting you on December 11.

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. 

I spend a decent part of my day reviewing FMLA forms, certification and correspondence. Exhilarating, for sure. 

When it comes to FMLA notices, do you care hear about one of my big pet peeves?  [You: Not really interested, Jeff, but we have the feeling you’re going to tell us anyway.]

It’s an issue that the far majority of employers and third-party administrators seem to violate all day, every day.

What Do I See?

In FMLA designation notices, or in correspondence approving FMLA leave, employers and TPAs invariably state something to the effect of “This leave is approved through [a specific date].”

I come across approvals of all kinds — some approve FMLA leave for one month, others up to six months out. The worst approve FMLA leave for ONE. FULL. YEAR. Or more.

¡Ay de mi!

Why Do Employers Do This?

Where do these lengthy approval periods come from? Was there some SHRM conference y’all attended where someone floated this grand idea to approve FMLA leave for months and years at a time?

The rationale for this practice seems rather simple: the approved FMLA period merely tracks the “duration” of the serious health condition as certified by the health care provider. Simple as that.

So, Why Is This a Problem?

  1. It’s not illegal but this approach technically is incorrect. The regulations say nothing about approving FMLA leave for a specific period of time.  If the employer grants FMLA leave after review of medical certification, the model DOL designation notice indicates simply that leave has been “approved,” but it does not require that employers identify an actual time period for approval, particularly where FMLA leave will be unknown in the future.
  2. It’s misleading and confusing to employees. Let’s say you approve intermittent FMLA leave for migraine headaches for one year because that’s how long the physician certified they would last.  One week into this one-year so-called approval, the frequency of the employee’s absences for migraines increases significantly. Is the employee still “approved” at that point? The employee thinks so; after all, the designation notice told him as much. At a minimum, it’s awkward to tell the employee at this point that their FMLA leave may not be approved after all, and you’ll need to recertify the absence. Why put yourself in this position in the first place?
  3. It may even embolden employees, who believe (in the migraine scenario above) that you can’t question their approval for one year, since it’s already stated as such on the designation notice.  They’re entrenched and ready for the fight. Why invite it in the first place?

The answer for me is rather simple – don’t lock yourself in by including an “approval” date in your designation notice or correspondence. Approve FMLA leave to date, and surely designate those absences in the future covered by FMLA where it’s appropriate to do so. But don’t let it be an open-ended approval for any period of time. It just ain’t worth it.

Can an employer discipline an employee for exceeding the frequency of expected absences indicated on an FMLA medical certification?

I’m actually going to answer this question tomorrow during a free webinar sponsored by the Disability Management Employer Coalition (DMEC), where we will cover key FMLA and ADA cases from 2019.  I hope you can attend. [Use the code 19COMPLIANCE4]

In the webinar, I will share the story of Tori, an executive assistant for an alarm monitoring company, who suffered from reactive arthritis. Because of this condition, she needed to be absent from her job for treatment and flare ups. Her doctor signed off on certification indicating she would need FMLA leave up to two days per month for flare ups and four hours, twice per month, for treatment.

Like many employers, Tori’s employer had an attendance point system in which employees were assessed points for unexcused absences.  At 10 attendance points in a 12-month period, an employee is terminated.

Tori’s pattern of absenteeism over a 12 month period might be familiar to many employers:

  • On six dates over a three-month period, Tori’s FMLA absences exceeded the amount certified by her doctor;
  • She missed several scheduled days because “her knee gave out”;
  • She failed to provide timely notice of the need for FMLA leave on multiple occasions without excuse; and
  • She was absent for a series of non-FMLA related absences

When Tori exceeded the absences indicated on her certification form, her employer asked her doctor to recertify these additional absences.  In the section of the recertification form addressing the frequency and duration Tori required for her flare-ups, her doctor wrote simply: “Refer to prior FMLA form.” As a result, Tori’s employer did not increase Tori’s monthly FMLA allotment of approved FMLA absences.  Notably, it also assessed attendance points for those absences that exceeded the frequency noted on the initial certification.

These absences later were used to terminate her employment.

That’s an FMLA violation, claimed Tori, in a later-filed FMLA lawsuit.

The Court Ruling

Not so fast, Tori, said the court. For this court, the equation was rather simple.  If an employee’s absences “exceed what was estimated in the certification,” the employer has the right to “notify the employee and give them a reasonable opportunity to cure the deficiency.”

When Tori’s physician recertified Tori “for the same frequency and duration of leave as his earlier certification,” the court determined that the employer “lawfully denied [Tori’s] FMLA leave for absences exceeding the amount certified (and later recertified) by her physician.”

The employer had the right to use those unexcused absences as part of the attendance point total. FMLA claim dismissed. Evans v. Cooperative Response Center (pdf)

Insights for Employers

Boom! 

For years, I have been counseling employers precisely along these lines. When an employee’s absences significantly exceed the frequency identified in the certification, the employer should recertify (usually along with a letter explaining the pattern). If the physician does not change the frequency despite the clear opportunity to do so, the employer arguably has the right to issue discipline for the excessive absences.

Now, I have a court case to support my counsel, as the above case gives us the authority we need to discipline employees in these situations.

As I’ve blathered on in previous posts, if Section 308 of the FMLA regulations (which allows you to recertify for excessive absences and contact the doctor regarding Tori’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion when the doctor is given the opportunity to change the frequency the second time around. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.

In this second go around, the doctor now has confirmed that he stands by his position that we can expect Tori to miss work two days per month because of her arthritis. It seems to me eminently reasonable — and now defensible in an FMLA lawsuit — to discipline an employee like Tori for the excess absences.

Hat tip to my colleague, Dana Connell, for pointing this case out to me.  Dana, you’re one of my favorite, fellow FMLA nerds!

Contrary to popular opinion, the biggest news lately out of the U.S. Department of Labor is not the fact that the agency just this week announced a final rule that would make over one million American workers newly eligible for overtime pay.

Oh, no way!

Why worry about minimum wage and overtime issues when the big news is forms? FMLA forms, that is.

Brand. New. FMLA. Forms.

In early August, the DOL published proposed new FMLA notices and medical certification forms, and asked the public to offer its feedback on these new forms by October 4, 2019. That deadline is one week from today.

This news is so big it’s taken me over seven weeks to tell you about it.  [Ummm, sorry.]

According to the DOL, these new forms effectively do the following:

  • Require fewer questions requiring written responses; replaced by statements that can be verified by simply checking a box
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • Provide more information on the notification forms to better communicate specific information about leave conditions to employees
  • Layout and style changes to reduce blank space and improve readability

What do I think of the new forms? Why don’t I answer this question with a memory you might relate to.

Let me take you back for a moment to our childhood. You remember those days, right? The days long before iPhones and Fortnite, when we’d spent the whole doggone day playing outdoors with our neighborhood friends. After a long day outside and having accrued 40,000 steps on our imaginary fit bit, mom would yell down the block to us, “Dinner’s ready.” Reluctantly, we’d traipse back home. As we got closer to the front door, though, our hunger took over and we were ready for dinner. But in that moment, we’d pray that mom wasn’t making the same thing we ate last night — hamburger helper.

As we entered the house, the smell gave it away. Nope, it wasn’t hamburger helper, but its close cousin — tuna helper. In the end, the look was slightly different, but with all due respect to Betty Crocker, it still had the same ‘ol processed taste just like the night before.

I view the proposed FMLA forms the same way. In a nutshell, they are a very modest transition from hamburger helper to tuna helper: tweaked around the edges, but still effectively the same meal.

Now that you have that delicious thought in your heads, let me share my thoughts really quick before that October 4 deadline passes (if you even care to read further):

What’s GOOD about the forms?

  • Font size is larger, which helps a guy who recently had to start wearing reading glasses!
  • There definitely are more boxes for ease of use, and streamlining can be good. The proposed forms include fewer questions that require a written response. Instead, these questions are replaced with statements that require the health care provider simply to check a box if the health care provider believes the statement applies. But the use of boxes is fraught with problems. See “Challenges” section below for my take on the new boxes.
  • Coverage of current and future treatment: As Abby O’Connell, senior counsel at Sun Life Financial, pointed out in this recent SHRM article, the new forms appear to do a better job at requiring that the physician provide substantive information about future treatment, which often is left out of the current forms.  Abby put it this way:

Under the current forms, the health care provider is not encouraged to explain future inpatient status or future treatment.  Contemplation of future treatment is critical, since employees are required to report leave at least 30 days in advance when the need for leave is foreseeable.  The revised forms also capture information to support leaves taken for chronic conditions and permanent or long-term conditions, while the existing forms do not.

  • Have I mentioned that font size is larger?

What are the CHALLENGES with the forms?

  • What the boxes giveth, they taketh away. On first thought, what’s not to like about boxes? They’re nice and square, and on a most basic level, they simplify things.  But here are my two beefs with the DOL’s boxes:
    • The main portion of the proposed medical certification form consists of a series of boxes associated with a “serious health condition” or pregnancy that the health care provider simply needs to “check.” This particular section leads the physician to conclude that he/she is obligated to check one of the boxes so as to confirm that the employee or family does indeed have a serious health condition.  In other words, simply checking a box causes the doctor to make a legal conclusion rather than provide actual medical facts to allow the employer to make the ultimate determination as to whether the absence is covered by the FMLA.
    • If the physician simply checks a box associated with one of the serious health conditions presented, it is possible that the actual medical facts supporting the need for leave are never addressed in the form. As a result, the employer doesn’t know what the heck is going on with the employee and, so long as a box is checked, the employer may not be able to question the condition through the clarification process or otherwise.
  • At times, the medical certification form can be a bit confusing, asking the physician to confirm whether the employee “was” or “will be” incapacitated for a period of time. These requests will invariably lead to inconsistent and confusing responses from the health care provider.
  • Requiring that the employee’s name be written at the top of every page of the medical certification. Where are we? The 3rd grade?  Let’s save everyone the extra work and cut that requirement out.

Changes that make you simply shrug your shoulders, right? I’ll save my excitement for the DOL’s impending request for information asking for input on what regulations we’d like to change.

In the meantime, enjoy an extra helping of hamburger helper.

Earlier this year, the Department of Labor made clear in an opinion letter that neither an employee nor an employer may decline FMLA leave where an eligible employee is absent for an FMLA-qualifying reason.  As the DOL noted in this March 2019 opinion letter, this is particularly true even where the employee would prefer that the employer delay the designation of FMLA leave.

This week, the DOL doubled-down on that opinion letter.

Notably, the DOL’s earlier missive to the masses failed to address how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows the employee to use paid leave first and then use FMLA leave at a later time only after paid leave is exhausted.

In a September 10, 2019 opinion letter, the DOL seemingly cleared up this issue.  Echoing its earlier opinion letter, the DOL declared that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement.

The bargaining agreements in question provided paid leave for family and medical reasons that arguably would constitute FMLA leave, but it required (or at least allowed them) to use paid leave before taking FMLA leave.   The DOL, however, would have none of this:

As noted in [the March 2019 opinion letter], once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave . . . this is the case, for instance, even if the employer is obligated to provide job protections and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.

The DOL’s latest opinion letter again is unequivocal: Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

Insights for Employers

Granted, this opinion letter applies to unionized work environments and likely has a far greater impact on public-sector employers, which often allow their employees to use accrued paid leave before utilizing FMLA.  Nevertheless, the DOL makes clear several principles:

  1. Once the employer has enough information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave even where a collective bargaining agreement states otherwise.  Got it?  Ok, I won’t beat this dead horse any further . . .
  2. Employers surely can provide for more generous leave policies, but those policies still must comply with the FMLA.  And as we see here, additional paid or unpaid leave must follow FMLA leave.

Still, there is some question as to whether an employee actually is harmed when they are allowed to use paid leave first and FMLA leave afterward.  When you really think about it, what is the DOL really looking to accomplish here?

If I gave you a million tries, you’d never guess that the next Department of Labor FMLA opinion letter would answer the question [wait for it . . .]: Is an employee’s attendance at a child’s IEP meeting covered by the FMLA?

The Answer? Yes. Most definitely, yes.

In an opinion letter issued yesterday, the DOL concluded that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed.

The Facts

Interestingly, the request for an opinion letter came from a set of parents whose two children have serious health conditions.  The employer for one of the parents approved intermittent FMLA leave to transport their children to and from medical appointments, but refused a request to take intermittent FMLA leave to attend school meetings.

As background, their children currently receive “pediatrician-prescribed occupational, speech, and physical therapy provided by their school district.”  Additionally, on four occasions throughout the school year, their school holds IEP meetings to “review their educational and medical needs, well-being, and progress.”  These IEP meetings include participation by a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district, all of whom provide services to the child under the child’s IEP.  The child’s teachers and school administrators also attend. [In case you’re wondering, an IEP outlines the program of special education instruction, support and services a child with a disability will receive as part of their education program. Each program is designed to meet a child’s exact needs.]

When one of the parents was denied FMLA leave to attend these IEP meetings, the parents together took the law into their own hands — and drafted a request for an opinion letter from the DOL regarding the issue.

DOL Opinion

Based on these facts, the DOL determined that the employee’s attendance at the IEP meetings constitutes “care for a family member … with a serious health condition.” Here’s the DOL’s rationale:

Care for a family member includes both physical and psychological care.  As noted above, “to care for” a family member with a serious health condition
includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b)

In finding that IEP meetings are covered by the FMLA, the DOL leaned heavily on: 1) a 2012 federal court case, Wegelin v. Reading Hosp. & Med. Ctr., and 2) an FMLA opinion letter the agency issued in 1998, to support its conclusion.

  1.  The Wegelin case: The DOL cited a few cases in support of its opinion, but only the Wegelin case seems to me to be somewhat analygous to an IEP situation. Here, the plaintiff was an employee whose child had autism and required around-the-clock care. During the workday, plaintiff placed her child in daycare. Due to factors beyond her control, she was forced to change childcare providers and took time off work to meet with potential daycare providers who would care for her child during the day. The court found that “arrangements for changes in care” (as stated in the FMLA regulations) made clear that her meetings with child care providers were covered:

Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available . . . she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.

2. 1998 FMLA Opinion Letter: Although short on factual detail, this rather dated 1998  opinion letter (FMLA-94) found that FMLA applied where an employee requested to take time off to attend “Care Conferences” related to her mother’s health condition because her attendance at these conferences was “clearly essential to the employee’s ability to provide appropriate physical or psychological care” to her mother.

Similarly, the DOL was persuaded that the parent attends IEP meetings to help make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy; to discuss their children’s well-being and progress with the providers of such services; and to ensure that the school environment is suitable to their medical, social, and academic needs.

Insights for Employers

This opinion letter requires employers to properly handle IEP meeting requests as leave requests likely covered by the FMLA.  Keep in mind the following:

  1. Employers should treat a request for FMLA leave to attend an IEP meeting consistent with how they handle all other intermittent FMLA leave requests. That said, the employee is required to provide notice for a foreseeable leave of absence and provide appropriate certification to support the leave request.  In most instances, this should not be a last-minute leave request.
  2. At times, it can be tough to determine whether this is an actual IEP meeting, or if it’s just a regular school visit. For instance, disciplinary meetings at the school would not fall under the guidance provided in this opinion letter. As such, employers should closely review the need for attendance specifically at school meetings so that there is some connection to the child’s IEP or issues that implicate the Individuals with Disabilities Education Act (IDEA).
  3. That said, what 504 Plan meetings? If IEPs are covered, are 504 Plans covered, too?  Me thinks the DOL may have simply overlooked this issue. At a minimum, they decided to take a very narrow view of school meetings. Clearly, there are similarities and overlap in IEPs and 504 Plans, as they both provide accommodations in the learning environment for those with disabilities.  Take a look at the analysis from my friends Jon Hyman and Suzanne Lucas on this issue.
  4. Can the employer require proof of appointment for IEP meetings?  At a minimum, employers should insist that the medical certification contain specific language supporting the need for the employee to attend IEP meetings for the child. The leave request otherwise should be handled similar to an employee who requires doctor’s appointments.  Unless there is objective evidence that the employee is lying about attendance at the IEP meetings, employers should tread carefully in requesting documentation to support attendance at every IEP meeting.
  5. Train your managers about this new obligation so that these requests are not being outright rejected in the context of FMLA leave.  I mean, really. The manager’s knee jerk reaction to this request likely will be that such meetings are not covered by FMLA. They need to understand how this updated guidance affects these particular leave requests.