aba_logo_01.jpgWant to read about nearly FMLA case that was either dismissed or allowed to advance toward trial?  Want a snapshot of what employers got right and what they got wrong in the land of FMLA?  Look no further:

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  This year’s report is another excellent summary of 2014 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA reference for HR professionals and employment attorneys. Kudos to attorneys Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee and led the drafting of this report.

expiration dateOn February 28, 2015, the DOL’s recommended FMLA forms expired. And on March 1, the sun still rose in the east.  Life, as we know it, forged on.

It’s anyone’s guess as to when new FMLA forms will be issued, so in the meantime, I’ll hold off on belting out, in true Steve Martin fashion from the movie, “The Jerk“: “The New FMLA Forms Are Here! The New FMLA Forms Are Here!”

Why Do the DOL’s FMLA forms expire anyway?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms every three years to the Office of Management and Budget (OMB) for approval, so that OMB can review the DOL’s information requests and the time employers spend responding to the requests.  OMB approved the DOL’s FMLA forms in early 2012 for the maximum period of three years.  Upon expiration of the forms (in this case, this past Saturday, February 28, 2015), the DOL may continue to use the forms while it seeks renewal of OMB’s approval.

Should Employers Continue to Use the Expired FMLA Forms?

Yes, for two reasons: 1) This past week, OMB extended the FMLA forms’ expiration date by 30 days to March 31, 2015 (so, I guess you could say that the forms are no longer expired, right?); and 2) in my discussions with the agency, the DOL has advised me that the best approach is for employers to continue to use the forms even after the expiration date and until further notice. Of course, this makes a whole lot of (common) sense.

The DOL’s forms–with the March 31, 2015 expiration date–can be accessed here:

Do We Have Any Say in What’s Included in the New FMLA Forms?

From now until March 27, 2015, the public is invited to submit comments about the FMLA forms, including any changes we’d like included in any new FMLA forms that eventually will be issued. Specifics on the comment period can be accessed here, but public comments can be directed to the DOL by U.S. mail or by email at OIRA_submission@omb.eop.gov.

Count the Equal Employment Opportunity Commission among the first to propose changes to the FMLA forms. A few months back, in November 2014, the EEOC sent a missive to the DOL asking that the DOL add: 1) a disclaimer in its model medical certification (for an employee’s serious health condition) instructing health care providers not to collect or provide any genetic information, as this information is prohibited under the Genetic Information Non-Discrimination Act (GINA); and 2) stronger language in WH-380-E (employee medical certification) and WH-380-F (family member medical certification) regarding the employer’s obligation to keep medical genetic information strictly confidential.

Employers should work with their employment counsel to review and amend their FMLA forms to include the suggestions above and to streamline forms to fit your operational needs.

As always, email me if you have questions about the expiration of current forms or are interested in submitting comments to the DOL on behalf of your company or industry.

same sex marriage

The Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  This rule change will impact the manner in which employers administer FMLA leave, so I’ll quickly get down to the details:

Where We Were

The FMLA regulations have guided us since their inception that the term “spouse” was to be defined according to the law of the state in which an employee resides, as opposed to the jurisdiction where the marriage was entered.  This distinction became particularly significant after the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Before Windsor, that section restricted the definition of marriage for purposes of federal law to opposite-sex marriages. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized gay marriage. Windsor effectively extended FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriages, even if they were legally married in another state.

After the Windsor decision, President Obama instructed federal agencies such as the DOL to review all relevant federal statutes to implement the decision and, as expected, the DOL took it as an opportunity to apply Windsor to the FMLA regulations. In June 2014, the DOL adopted a proposed “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. Thus, if two individuals of the same sex get married in a state that recognizes same-sex marriage, they are considered to be married for federal FMLA purposes even if the state in which they live and work does not currently recognize same-sex marriage. For example, if the employee was married in New York, but now resides with his same-sex spouse in Texas, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York, since they were married in New York and that state recognizes the right of same-sex couples to marry.

Where We Are Now

After issuing its proposed rule in 2014, the agency now has announced that, on February 25, 2015, it will issue a new final rule (to take effect March 27, 2015) providing that the definition of “spouse” indeed is determined by the state in which a marriage is entered (i.e., the “state of celebration”). As the DOL points out, a place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”  The DOL notes that, as of February 13, 2015, 32 states and the District of Columbia (as well as 18 countries) extend the right to marry to both same- and opposite-sex partners.

In the age of social media, the DOL secretary, Thomas Perez made the agency’s announcement through its own blog post.  That’s kinda neat, so says this FMLA nerd.

A copy of the DOL’s final rule and comments to the final rule can be accessed here (pdf).  A copy of the DOL’s fact sheet on the final rule can be accessed here.

What Does This Mean for Employers?

All well and good, Jeff.  Of course, I know all of this.  Tell me how this new rule impacts my life.  

Here’s what employers need to know and do:

1.  As an initial matter, determine whether the FMLA applies to you.  If so, you should:

  • Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.
  • Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.
  • Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

2.  Whether or not FMLA applies to you, you should determine whether any state leave law applies to you.  These laws may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

3.  Keep in mind two particular FAQs on This New DOL Rule (which I have taken, in part, from of the DOL Final Rule FAQs):

Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?

A. The Final Rule makes no changes to the manner in which employers may require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy this requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. 29 C.F.R. § 825.122(k)

Here’s the catch, employers: It is the employee’s choice to provide a simple statement or another type of document. And DOL has us in a trick bag as to when we can and should ask for reasonable documentation.  On one hand, the agency tells us in the final rule, “Employers have the option to request documentation of a family relationship but are not required to do so in all instances.” (My emphasis) It also rejected calls for instituting a standard in which employers would be required to show that they requested this documentation in a consistent, non-discriminatory manner.  Yet, on the other hand, the DOL is quick to point out that employers “may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”

Thus, from a practical standpoint, shouldn’t employers institute a consistently-applied, non-discriminatory policy when asking for confirmation that a family relationship exists?  In a word, yes. Otherwise, employers risk a claim that they are treating certain employees in a discriminatory manner, thereby interfering with their FMLA rights. I leave that compliance piece carefully in your hands, but I encourage you to tread carefully.

One thing is clear:  If an employee has already submitted proof of marriage to the employer for another purpose, such as in electing health care benefits for the employee’s spouse, the DOL finds that “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”  So, employers, no second bites at the apple if you already have this information!

Q. Does the Final Rule Change the Manner in Which Employees Take FMLA leave to care for a child to whom they stand in loco parentis?

A.  No.  In June 2010, the DOL recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (You can find more on the in loco parentis rule in DOL Fact Sheet #28B.) In other words, this new rule has no impact on the standards for determining the existence of an in loco parentis relationship.

EEOC-bannerLast week, I had the pleasure of presenting with EEOC Regional Attorney in the Chicago District John Hendrickson on the EEOC’s recently drafted Pregnancy Discrimination Enforcement Guidance and how these guidelines will impact the manner in which employers will be required to provide accommodations to its pregnant employees.  It was a great opportunity to discuss the intersection of the Pregnancy Discrimination Act and the American’s with Disabilities Act.

There were a number of key takeaways from our session for employers :

1.  Engaging the Employee in the Interactive Process is Essential.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  When a pregnant employee reports complications with her pregnancy and provides documented work restrictions, employers must avoid the temptation to automatically place the employee on a leave of absence, or worse, to terminate her employment.  Employers create liability when they jump to these conclusions without first engaging the employee in a discussion about her limitations and what the employer might be able to offer to help the employee remain on the job.

By engaging in the interactive process, the employer (lawfully) forces the employee to identify workplace accommodation while she remains on work restrictions during her pregnancy.  The back and forth communication also allows you an opportunity to determine whether there are alternative options to keep the employee on the job instead of shuffling her off on a leave of absence, a personnel decision that likely will raise EEOC’s scrutiny. To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

2.  Be practical when it comes to light duty.  To be clear, the EEOC’s pregnancy discrimination guidance does not mandate light duty programs for employers who don’t maintain such a program. However, if you offer light duty work to employees with work restrictions, the EEOC takes the position that you must offer light duty work to a pregnant employee with similar work restrictions.

One of our case studies focused on a hypothetical employer who offers a 60-day light duty program to all employees who are unable to perform the essential duties of their position due to disability or pregnancy. At the end of 60 days in our hypo, the pregnant employee still cannot return to work.  Is the employer free to put the employee on leave at that point? Sure, there may be an argument to do so, but might it be more practical to allow a modest extension of light duty beyond 60 days?  As Mr. Hendrickson pointed out, there is no magic answer here, but the interactive process is critical to determine whether alternatives are available.

3.  When It comes to telecommuting, even the EEOC sees value in physical attendance at the office.  Historically, courts have afforded employers a great deal of deference in making the argument that the employee must be physically present at work to perform her job.  Yet, as we have witnessed recently, that tide may be turning.  In EEOC v. Ford Motor Company, a federal appellate court found that “advancing technology has diminished the necessity of in-person contact to facilitate group conversations,” and that the employer’s business judgment that physical presence at the workplace is an essential function is but one of several factors that the court will take into account in determining whether telecommuting must be offered as a reasonable accommodation.  The Ford Motor Co. case has been reconsidered by this same appellate court, and an en banc decision is expected soon.  When it is released, it surely will be the leading case on an employer’s obligation to provide telecommuting as a reasonable accommodation.

In a moment of candor, Mr. Hendrickson recognized the value of having an employee physically present at work to perform their job. Acknowledging his management role vis-a-vis other employees in his own EEOC office, Mr. Hendrickson agreed that there is “an argument to be made” that telecommuting is not the functional equivalent of being present in the office.  For instance, in industries such as advertising, the arts and the law, and in engineering, where there is an element of “imagination and creativity,” and Mr. Hendrickson recognized that an employer could effectively argue that face-to-face communication is critical.  I appreciated Mr. Hendrickson’s sincerity on this point, and I know my clients in the audience did, too.

4.  EEOC is Not Prohibiting Mediation on New Pregnancy Discrimination/Accommodation claims. For those litigators out there, Mr. Hendrickson confirmed that the EEOC is not automatically sending all newly filed pregnancy discrimination and accommodation charges directly to investigation.  To the contrary, like other charges, the EEOC will determine on a case-by-case basis whether mediation will be offered.  (Of course, the EEOC’s criteria for offering mediation often is a bit murky, but at least Mr. Hendrickson confirmed that there is no blanket policy by EEOC in Chicago against mediation in pregnancy discrimination and accommodation cases.)

I also previously reported on the EEOC’s Pregnancy Discrimination Guidance here.

neli.JPG

Throughout the year, HR professionals and attorneys ask for my recommendations on the very best conferences to learn more about the FMLA and ADA.  The “best,” of course, is in the eye of the beholder.  In my humble opinion, however, the conferences highlighted below are can’t miss seminars if you want to expand your knowledge of the FMLA and ADA or if you spend much of your professional lives in these areas:

Two Can’t Miss Seminars

NELI’s ADA & FMLA Compliance Update: For nearly 40 years, the National Employment Law Institute (NELI) has been the national leader in training professionals of all kinds in the ADA and FMLA (and in employment law generally).  NELI caters to management side folks – you’re not going to find many plaintiff-side attorneys in the this room, which allows us to cover topics near and dear to us. To be clear, NELI is not going to knock your socks off with a flashy brochure or some frilly web site. Instead, NELI spends its resources on convening the very best two-day seminar on all things ADA and FMLA.

These seminars typically are held in April in Chicago (April 16-17), San Francisco (April 2-3) and Washington, DC (April 30-May 1).  This year’s information can be accessed here.  On day one, you’ll get your fill of David Fram, who is perhaps the most engaging speaker you’ll encounter on the ADA circuit.  A former EEOC trial attorney, David follows every ADA decision issued in the Union and offers his invaluable insight to help you deal with the most sensitive ADA issues.  His excitement about the ADA is contagious, and he offers plenty for everyone – whether you are an HR representative fighting on the front lines or the seasoned litigator looking for a new legal angle to advance.  If Fram’s excitment doesn’t rub off upon leaving NELI, you haven’t paid attention. On day two, NELI turns to the FMLA. If you’re attending NELI in Chicago, you have the misfortune of hearing me present on the latest in the world of FMLA.  (However, I’m appropriately balanced by FMLA fashionista, Ellen McLaughlin, so all is not lost.)

Pushing my own conferences, you say?  Before you start using my name in the same sentence with Tom Brady and deflatable footballs, keep in mind that I attended this annual seminar for over ten years before I was fortunate enough to join the faculty.  After attending the first seminar, I was hooked and wouldn’t miss again.  Neither should you.  Whether you are on the east or west coast, or somewhere in between near the windy city, sign up now.  Information about the seminar can be accessed here and the brochure is downloadable here (pdf).

If you cannot make the conference, NELI provides an excellent binder of materials that I keep by my side and reference throughout the year.  Consider this as a back up if you cannot attend the conference itself. (If you attend, you’ll receive it as part of your admission.)

DMEC’s ADA & FMLA Compliance Conference:  You’re not seeing double. Because you cannot get enough of the FMLA and ADA, you also should make time for the ADA & FMLA Compliance Conference sponsored in April each year by the Disability Management Employer Coalition. DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers.  Any employer should join if they want to improve their integration of disability/absence management.

Over the past few years, DMEC has put together an absolute gem of a compliance conference focusing exclusively on FMLA and ADA.  This conference brings together the finest of FMLA and ADA nerds (which I wear as a badge of honor), and every attendee leaves with practical approaches on properly administering FMLA, fighting FMLA abuse, understanding various FMLA and ADA processes, learning key skills to identify reasonable accommodations in the workplace, and so much more.

At this year’s conference, which will be held April 20-22 just outside Washington, DC, I am delighted to co-present with EEOC Commissioner Victoria Lipnic on the EEOC’s recent pregnancy discrimination guidance and how employers should best manage accommodations for pregnant employees. I’ll also be addressing confusing state leave laws with Megan Holstein of Reed Group, and will be part of a panel of experts (or so they call us) answering your FMLA and ADA questions for free.  [Ahem, how often do you find an attorney offering free advice? Take it while you can!]

Access the conference program here (pdf), and tell me this three-day conference isn’t everything you’ve been searching for in a comprehensive compliance conference!

See you in April.

Other Reliable Resources

What else can I offer you in terms of FMLA and ADA resources?  You mean other than this blog?  <<smirk>>

  • One (more) shameless plug: Access my FMLA webinars that cover topics ranging from FMLA abuse to medical certification to the latest FMLA trends.  All of my webinars (and the Power Points from these presentations) can be accessed here.  [You didn’t think I’d go without endorsing my own products, right?  After all, I do have four young kids I eventually have to put through college!]
  • If you’re interested in a monthly FMLA and ADA update (and even more regular updates online), try Thompson’s FMLA Handbook.  Its monthly newsletters are excellent, and it keeps me up to date on the latest FMLA and ADA court decisions that I should worry about.  Very professional and well done.  It’s worth the expense.

policyIf this story won’t cause you bring your FMLA policy up to snuff, then I’ve lost all hope.

FMLA’s Basic Premise

An employee is eligible for FMLA leave if he meets three basic criteria:

  1. He has been employed by a covered employer for 12 months;
  2. He has worked 1,250 hours worked during the 12-month period before his requested leave begins; and
  3. He works at a location where his employer employs 50 or more employees within a 75-mile radius of that location.

With this backdrop in mind, here comes Terry, who works for the Kalamazoo County Road Commission. (Yes, there is indeed a place called Kalamazoo, and it’s one of the most beautiful areas in Western Michigan.)

When it comes to taking FMLA leave from his job at the Road Commission, Terry ordinarily would be out of luck.  Although Terry has been working for the Road Commission for over 12 months and has worked more than 1,250 hours within the past year, he misses the third prong in that he cannot count 50 Road Commission employees within a 75-mile radius around him.

Yet, here’s where the Road Commission let him off the hook: the agency maintained an FMLA policy in which”eligibility” to take FMLA leave was satisfied if you met the first two criteria above (12 months and 1,250 hours).  The Road Commission’s FMLA policy made absolutely no reference to the requirement that 50 employees work within 75 miles.   Here’s the eligibility provision, word for word:

Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.

In Terry’s case, he was under final warning from the Road Commission for failing to complete his work assignments.  So, when he took a leave of absence after experiencing chest pain, he was terminated because he still had not completed his work to the employer’s expectations. Later, when Terry filed an FMLA lawsuit, the Road Commission claimed he was not an eligible employee under the FMLA, since he did not work at a location where his employer employs 50 or more employees within a 75-mile radius.

Typically, this would be a winning argument. However, Terry “pointed to evidence — his sworn affidavit — that he sought medical treatment prior to completing his assignment because the unqualified and unambiguous statements in the [Employee Handbook] led him to believe that he was covered under the FMLA.”  Tilley v. Kalamazoo County Road Commission (pdf)  [I find it hard to believe that Terry had such an enlightening moment at the time he read the FMLA policy, in the unlikely chance he even put eyes on the policy. Rather, it likely was a clever fact that his attorney later memorialized in an affidavit. But I digress…]

Court Ruling

Because the Road Commission left out the third prong of what the court considered an “unambiguous and unqualified” FMLA eligibility provision, a “reasonable person in [Terry’s] position could fairly have believed that he was protected by the FMLA.”  As a result, the court allowed Terry to put his FMLA claims on in front of a jury, even though the protections of the FMLA otherwise would have not applied to him.

Insights for Employers

A tough lesson for the Road Commission. And an expensive one. Instead of paying their employment attorney ~$150 for a mere half hour of time to ensure their policy was compliant with the law, the Road Commission now is likely on the hook for $100,000 more in attorney’s fees and costs. If the Road Commission loses at trial, the expenditure will be even higher.

This decision should be a wake up call to the rest of us: let’s not go another week without conducting a legal review of our FMLA policies.  Since 2009, our policy should have been updated a minimum of two times — to account for the 2009 regulatory changes and in 2010 to account for military family leave changes. With additional changes to the definition of “spouse” under the FMLA to be finalized at some point this year, we should use it as an opportunity to get current with the FMLA.

Sure, Joan, you can take a leave of absence, but you’re still going to work while you’re out, right?

Is this problem?  I guess it depends on whether or not you’re Joan. Let me explain.

The Facts

Joan Smith was a manager in the Ethics Department at Genon Energy, a position which required her to investigate alleged ethical violations when they were reported to the Company.  In April 2012, she gave notice that she would need time off for surgery to remove a cyst from her neck. According to Joan, her supervisor then became hostile toward her and, during Joan’s absence from work, required her to perform much of her regular work.

During the two-month FMLA leave of absence, Joan claims that Genon required her to perform 20 to 40 hours of work “updating compliance cases, revising a safety review project and dropping off files at the office.” Based on my rough math, that’s anywhere from 3 to 5 hours worked each week during her FMLA leave.  As the story goes, Joan returned from FMLA leave and resigned one month later. Why? She felt that her supervisor created a hostile work environment upon her return to work.

Joan then sued Genon, claiming that the 20-40 hours worked during her FMLA leave constituted FMLA interference, which she claimed entitled her to a slew of damages. Joan’s lawsuit raised the age-old question many of my clients have raised with me: If I ask my employee to perform any work while they are on FMLA leave, does it constitute FMLA interference?

The court reviewing Joan’s FMLA claims initially answered it this way, as most courts have done:

…reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.

Put another way, there is no right under the FMLA “to be left alone” or be allowed to skirt the employer’s “discrete inquiries.”  But if looks like work, it’s gonna be work, and an employee shouldn’t be doing work while on FMLA leave.

The Court Ruling

I found this opinion helpful largely because it collected many recent FMLA cases dealing with situations where the employee allegedly performed work while on FMLA leave:

  • Reilly v. Revlon and Kesler v. Barris et al: fielding occasional calls about one’s job is a “professional courtesy” that does not interfere with FMLA rights (FMLA claims dismissed)
  • O’Donnell v. Passport Health Communications (pdf): contacting plaintiff was limited to the status of her decision to accept another position within company, the execution of documents related to the decision, and ongoing salary negotiations at the employee’s request (FMLA claims dismissed)
  • Sabourin v. Univ. of Utah: requesting that plaintiff return certain materials to the employer, even in the face of alleged caustic comments about his leave request, insufficient to constitute interference. (FMLA claims dismissed)
  • Sherman v. AI/FOCS, Inc.: plaintiff required to respond to regular phone calls, came into work for 3 to 4 hours on one day to resolve accounting issues, and was chewed out by supervisor for training procedures in the accounting department is evidence of FMLA interference (plaintiff prevailed at trial)
  • Arban v. West Publishing Corp.: checking in with plaintiff on sales leads he was expected to generate during leave also evidence of interference (plaintiff prevailed at trial)

In light of the work Joan apparently had to perform while on leave, the court in this case determined that Joan had presented enough evidence of FMLA interference that a jury would need to decide whether Genon violated the FMLA.  Smith v. Genon Energy (pdf)

Insights for Employers

As we see above, there is no bright line rule about contact between employee and employer during FMLA leave, but you can start to see where the courts tend to line up on this issue.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to wrap up a job the absent employee was working on. Similarly, the employer can contact the employee to check on return dates or possible extension of leave.

As in the O’Donnell case above, it also is acceptable to contact the employee to negotiate terms or conditions of employment to help the employee transition back to work. As long as the contact is necessary or related to preserving the employee’s position or coordinating a return, the contact arguably is justifiable.

But let’s document it.  Employers should make clear – in writing – to employees on FMLA leave that they are not expected to nor should they perform work, other than simple ministerial tasks, such as advising co-workers or management regarding the location of files or to update the status of work assignments that continue on after leave begins.  Nine out of ten times, we’ll have no need for the document; but the one time we actually need it, we’ll sure be glad we created the paper trail.  Right?

paid sick daysYesterday, President Barack Obama took the most significant steps yet to push for federally mandated paid leave for all American workers.  In addition to signing a presidential memorandum directing federal agencies to advance up to six weeks of paid sick leave to federal employees with a new child, he also called on Congress, states and cities to pass legislation to allow millions of workers to earn up to one week of paid sick time each year.  He also plans to ask Congress for more than $2 billion to encourage states to create paid family and medical leave programs.

So what happened yesterday?

President Signs Presidential Memorandum Providing for Paid Leave and Calls on Congress to Pass Paid Leave Legislation

At the federal level, the President signed a presidential memorandum directing federal agencies to allow federal employees to access at least six weeks of paid leave in “connection with the birth or adoption of a child or for other sick leave eligible uses.”

Obama also called on Congress to pass the Healthy Families Act (endorsed by the Administration since 2009 when it was first introduced), which would require all businesses with 15 or more employees to provide up to seven days, or 56 hours, of paid sick leave to care for themselves or a sick family member, obtain preventive care or deal with domestic violence. Under the Healthy Families Act, employees would earn an hour of paid sick time for every 30 hours they work. (Employers that already provide paid sick leave would not have to change their policies as long as the time earned can be used for the same purposes.)

President Calls on States to Provide Paid Sick Leave and Puts Money Behind It

While Congress considers the Healthy Families Act, the President is nudging states and municipalities to do the same. Just under a decade ago, San Francisco became the first city in the country to provide access to earned sick days. Two years later, the District of Columbia followed, passing a paid sick days law that also included paid “safe” days for victims of domestic violence, sexual assault and stalking. In 2011, Connecticut became the first state to enact a paid sick days law, and it was followed by California and, most recently, Massachusetts.  A number of cities also have recently enacted laws allowing employees to earn and accrue sick leave, including Seattle, Portland, New York City, Newark, San Diego and Oakland.

Many Presidents announce grandiose plans and mandates, only to offer little or no monetary support to get the job done.  This initiative appears to be different. The President promises to propose more than $2 billion in new funds to encourage states to develop paid family and medical leave programs. In addition, the U.S. Department of Labor will use $1 million in existing funds to help states and municipalities conduct feasibility studies to figure out how this can be done.  (Details on how the President would raise the $2 billion to help states will be released in his upcoming budget proposal.)

President Makes His Case Through Social Media

You also don’t find many presidential ideas floated or pushed through social media. In a departure from the past, senior presidential adviser Valerie Jarrett took to LinkedIn earlier this week to rally support behind the President’s call for paid leave. Noting that 40 million private-sector workers don’t have access to any type of paid sick leave, Jarrett said:

At a time when all parents are working in more than 60 percent of households with children (up from just 40 percent in 1965), and 63 percent of women with children under the age of 5 participate in the labor force (compared with 31 percent in the early 1970s), one fact is resoundingly clear: The fundamental structure of our workplaces has simply not kept pace with the changing American family . . . Anyone who has ever faced the challenge of raising or supporting a family, while holding down a job, has faced tough choices along the way, and likely felt stretched between the financial and personal needs of their family.

With the president’s presence on LinkedIn, I guess I should send him a LinkedIn invite. Do you think he’ll connect with a management-side employment attorney?

Impact on Employers

Let’s face it.  With a Republican-controlled Congress, the President’s push for federal legislation on paid sick leave is doomed to fail. Such legislation failed to see the light of day when Democrats controlled Congress, so we have no reason to believe this initiative will gain traction any time soon. In fact, on the very day the President sweetened paid leave for federal workers and called on Congress to require private employers to do the same, the media already was reporting that the Republicans in Congress had rejected the idea and businesses were lining up against it.

Employers, let’s not breathe a sigh of relief that we’ve dodged yet another federally-mandated employment statute or regulation. As we have witnessed over the past few years, due to the inactivity on this issue at the federal level, a growing number of states and local governments will continue to pass their own versions of paid sick leave.  So, be careful what you wish for.  My national clients are (rightfully) bemoaning the administrative nightmare associated with keeping track of every state and municipal leave law — from San Diego, California to Eastport, Maine!  Yet, this state/local activity is precisely what the White House is trying to advance given the lack of Congressional action.  Borrowing a page from the minimum wage playbook, the President is taking the message to the local level, urging states and cities to pass such laws on their own. And he’s putting money behind the effort.

It leads me to ponder: If we’re going to witness a hodgepodge of paid leave laws in ever-increasing numbers across the Union, is this really a better alternative than one federal law (assuming it preempts state law on this issue)?

Let’s discuss.

RIF.jpgAdam was a maintenance technician for EZEFLOW, a company which manufactures pipe fittings.  He also was a marine corps veteran who served in both Iraq and Afghanistan.

Upon his discharge from the marines, Adam started his employment with EZEFLOW and quickly began experiencing seizures later determined to be caused by post-traumatic stress disorder (PTSD). Adam provided his employer a note from his doctor requesting that he remain off work for six weeks to deal with his medical condition.

The employer had a dilemma: Adam had only been working for the company for about 10 weeks at the time his doctor called for his leave of absence, which would begin about the time Adam’s probationary period with EZEFLOW would end. The company decided the probationary period took priority, and it terminated Adam instead of providing him any leave.

Hear that knock on the door? That’s the sound of the ADA coming to pay EZEFLOW an unwelcome visit. And the EEOC came along for the ride, too.  Before you could say E-ZE-FLOW, the EEOC filed suit on behalf of Adam, alleging that the company violated the ADA because it terminated him instead of providing Adam the leave he requested.  EEOC v. EZEFLOW (pdf)

Insights for Employers

The Court was not forced to make a decision here, as the case settled quickly after discovery began.  In a consent decree entered by the court, the company agreed to pay Adam $65,000 and commit to extensive ADA training and non-discrimination in the future.

Let’s cut to the chase, as there are plenty of lessons in this short narrative:

1.  We may wonder why the company was so quick to terminate Adam instead of providing him leave, but this scenario is not all that uncommon. On plenty of occasions, clients have called me wondering whether they need to provide a leave of absence or an alternative accommodation to an employee who recently began working. Keep in mind: there is no probationary status under the ADA. Employers, you must treat these employees the same as the 20-year veteran. Employees enjoy the protections of the ADA during their candidacy and on day one of their employment. Even though FMLA does not apply in these situations, the ADA may very well apply, as was the case here.

2.  One of EZEFLOW’s undoings was that it allegedly maintained a policy of providing up to 26 weeks of leave to non-probationary employees.  In concept, I understand what the employer was aiming for, as it sought to provide a certain level of benefits to employees who had passed the probationary threshhold and enjoyed a more certain future with the company.  However, these leave policies must be carefully weighed when a probationary employee seeks the same benefits as an ADA reasonable accommodation.  Because the company did not make an exception to this policy for Adam pursuant to the ADA, it was a risky (and ultimately, costly) move under the ADA.

3.  Remain committed to the ADA’s interactive process.  To be clear, EZEFLOW didn’t have to roll over and automatically give Adam a six week leave of absence.  It had the right to learn the basic facts of Adam’s medical condition, determine how it affected his job, and learn why a leave of absence was necessary and whether the length of such a leave would help him return to work. (Even the EEOC acknowledges in its guidance on reasonable accommodation an employer’s right to obtain this information.)

Talk to your employee!  It is critical that we engage the employee in the interactive process at the earliest possible time and opportunity. Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.

4.  Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations?  If it’s not impacting your operations, that should be a key factor in granting additional leave. However, if it is impacting operations, you want to memorialize this earlier in the process — for example, were projects being pushed off or decisions being made by less capable employees? Was customer service adversely affected or were others required to take on more work?  Click here for my list of “undue hardship” questions to consider.  Once you have conducted this analysis, tell the employee about it.  Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment with or without an accommodation so that you can better assess whether leave can be provided as a reasonable accommodation.  That’s what the employer did in a previous situation I wrote about, and the court endorsed the employer’s actions.

 

bad-mathQ: Several of my employees’ workweeks vary from week to week.  Some might work 30 hours one week and 40 hours the following week. How do I calculate their intermittent FMLA leave in any given week?  

A:  As we know, FMLA leave can be taken over a continuous period of time or intermittently/reduced schedule.  If leave is taken over a continuous period of time, the employee is entitled to 12 workweeks of leave regardless of the number of hours typically worked in the workweek.

However, when an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s FMLA leave entitlement.  When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to. You make this calculation according to the employee’s regular workweek. For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk. Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

But what about the employee whose schedule varies week to week?  Like the question initially posed above, the employee might work 30 hours this week, but 40 hours next week.  The week after, the employee might pick up someone else’s shift and work 48 hours.  In any given week, how should an employer determine how much FMLA leave the employee has used so that it can track the employee’s total FMLA leave allotment?

Let’s look to the FMLA regulations first:

If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. 29 CFR 825.205(b)(3)

This current regulation departs from the former regulation (prior to 2009) in two respects: first, by changing the calculation period from 12 weeks to 12 months (to account for seasonal variation in hours worked); and, second, by changing the phrase “weekly average of hours worked” to “weekly average of the hours scheduled . . . including any hours for which the employee took leave of any type.”

The regulations do not explain the reason for the change in language from “hours worked” to “hours scheduled,” but the preamble to the regs [ahem, only true FMLA nerds care about the preamble] state that the intent of the rule change was to “give a truer picture of the employee’s actual average workweek.” 73 Fed. Reg. 67978 (pdf) From what I can tell, no court has yet interpreted this change in the regulations. Absent any further guidance, it seems to me that the DOL used the word “scheduled” simply to mean that employers should calculate an employee’s leave entitlement based on an average of how many hours the employee would have worked in the past 12 months if the employee reported to work for every hour scheduled, as opposed to an average of how many hours the employee actually worked during the same time period.

Keep in mind one general principle when it comes to a varying work schedule: this “varying workweek” regulation should be used sparingly, since the employer will almost always be able to calculate how many hours an employee is scheduled in any given week. For instance, if an employee is scheduled for 30 hours one week and takes intermittent leave for 10 hours that week, he has used 1/3 of a workweek for FMLA purposes.  If an employee is scheduled for 40 hours the following week and takes intermittent leave for 8 hours that week, he has used 1/5 of a workweek for FMLA purposes.  Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

So, my employer friends, this is a long-winded way of saying that the weekly average method should be reserved for situations where you are unable to determine with any certainty how many hours the employee would have worked.  One example of this limited application might come from the case of Brotherhood of Locomotive Engineers v. Union Pacific Ry. Co., where train engineers’ assigned work schedules varied from week to week depending on trains scheduled to meet customers’ demands and where assignments could be made as little as one hour before the shift started.  In this case, the court found that the employer could average the number of hours to determine the employee’s FMLA leave allotment.

Use this above case as the exception, however. In the far majority of cases, you will be able to calculate your employee’s FMLA leave allotment in any particular week, even though the schedule may vary from week to week.

I can only imagine how many questions this post will generate.  This is why the FMLA is so much fun. [smirk]