Let’s put our heads together on this one. You see, it appears as though far too many employees have bought into the notion that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. Case in point: just last week, a client called me for help after one of her employees simply refused to return medical certification because she didn’t want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.

Your employee is wrong.  Dead wrong.

Let’s start with the FMLA regulations, which make clear that the employee is solely responsible for obtaining medical certification.  If you don’t believe me, here is the language:

It is the employee’s responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee’s family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee’s FMLA request. 29 C.F.R. § 825.305(d)

Going further, the regulations even state explicitly that “any recertification requested by the employer shall be at the employee’s expense unless the employer provides otherwise.” 29 C.F.R. § 825.308(f).

Other DOL publications are just as explicit about the employee’s obligation to pay for his/her own medical certification.  In its Employee Guide to the Family and Medical Leave Act (pdf), the DOL reminds employees that they alone are “responsible for the cost of getting the certification . . . and for making sure that the certification is provided to your employer.”

Notably, this requirement also is outlined by the DOL in DOL Fact Sheet #28G (pdf), the relevant portion of which I’ve highlighted in yellow.

The DOL Guide and Fact Sheet can be extremely helpful to employers in impressing upon employees the obligations they have under the FMLA to cooperate with the medical certification process.

That said, employers, let’s not get too cocky.  The above applies to FMLA medical certification.  If the employer requires the employee to be examined by a physician chosen by the employer, the EEOC cautions that it is the employer’s responsibility to pay all costs associated with the examination. Keep in mind, too, that a number of states also have very specific statutes that require the employer to pay the cost of a medical examination where the exam is required as a condition of employment.  In short, where FMLA is not involved, tread very carefully.  And call your favorite employment attorney before making the decision.

disney-3586124_1280

I just returned from Disney World, a trip that had me chasing my kids (ages 8, 6 and 4) for days on end. So, I’m tired.  And I ache.  My feet ache.  My back aches from my four year old riding on my shoulders. My head aches from thinking about my back.  Even my aches have aches.

Don’t get me wrong — we had a wonderful time.  I’ve fully bought into the magic of Disney, and I’m drinking the Tinkerbell kool aid.

But back to my feet.  And back. What if my pains were sufficient enough (in my own mind) to keep me off work for four consecutive days? Would this be enough to trigger the FMLA?

Before you tell me to jump in a lake, let’s take a closer look at the FMLA regulations.  The DOL has told us:

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. 825.113(d).

Additionally, simply staying at home, drinking fluids, and staying the day in bed are activities which can be initiated without a visit to a health care provider and do not constitute “continuing treatment” necessary to establish a serious health condition.  29 C.F.R. 825.113(c)

Sounds pretty good so far.  This regulatory language seems to support Congress’s own deliberations when it passed the FMLA, as the legislative history makes clear that FMLA should not cover short-term conditions for which treatment and recovery are very brief.

But before you slap me with discipline for my four-day hiatus, be mindful of a thorough 1996 opinion letter from the DOL, which explains that a several-day absence could be covered by the FMLA:

If . . . any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA. For example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying “serious health condition” for purposes of FMLA.

As for my minor aches and pains, I am likely out of luck.  And for good reason, as the FMLA was not meant to cover these minor conditions.  The DOL opinion letter above is instructive, however, so it’s important for us as employers to inquire, where necessary, to ensure we have sufficient facts to determine whether a multi-day absence has triggered the FMLA.  If you forgot how to go about that, consider my guidance from a prior post here, which includes various questions you can ask your employee to determine whether an absence may be covered by the FMLA.

In the meantime, I’ll be singing Supercalifragilisticexpialidocious in the background…

kid on toilet.jpgQ: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day.  As a result, she uses far more than her normal breaks allow.  She has provided documentation that a severe medical condition in her kidneys causes this predicament. Do we have to allow this? And if we do, can we at least count the additional trips to the bathroom as FMLA leave?

A: Before you wonder whether this actually is a serious question, it is! In fact, last month, a court allowed a jury to consider an employee’s claim that her employer retaliated against her in violation of the ADA after she requested to take frequent bathroom breaks.

In this situation, Susie suffered from “interstitial cystitis,” which is an inflammatory bladder condition causing frequent trips to the bathroom — as often as every 20 minutes.  Susie claimed that, while she was in the bathroom, her supervisor would intentionally call her at her desk, and when she wouldn’t answer, he would send another employee into the bathroom looking for her. Upon Susie’s return to her desk, her boss allegedly would “shake his head disapprovingly.” After a short leave of absence, Susie’s desk was moved and her duties reassigned. Days later, she was terminated.

The court declined to flush Susie’s ADA retaliation and reasonable accommodation claims, finding that she could establish that she had a disability and that there was ample evidence for a jury to decide that her request for an accommodation was a deciding factor in her termination.

Susie’s claim got me thinking (in a nerdy FMLA kind of way): could the employer have assessed FMLA leave for these bathroom trips?  It seems the answer is yes, since the FMLA regulations do not limit the size of intermittent FMLA leave, and it appears that the employee could show that these bathroom trips are medically necessary.  This situation is similar to the facts in Collins v. U.S. Playing Card Co., where the court determined that a diabetic employee’s requests for breaks of a few minutes at various points during the work day to get something to eat could qualify as intermittent leave under the FMLA.

I don’t want to encourage employees’ unfettered access to the loo, but in light of these decisions, the employee’s bathroom time in these circumstances arguably would be protected by the FMLA.

Insights for Employers

  1. When counting bathroom time against an employee’s FMLA entitlement, only do so if the frequency and duration extends beyond the employee’s normal lunch and break periods.
  2. Don’t be fooled by the lazy employee. If an employee has notified you of a medical condition causing their unusually frequent or lengthy trips to the bathroom, that’s one thing.  But if not, treat it first as a performance-related issue, and communicate with the employee about your expectations and how they’re missing the mark.  Suzanne Lucas (aka the “Evil HR Lady”) has some great guidance on how to deal with an employee who makes too many trips to the bathroom, including a suggested dialogue with your employee.
  3. But Don’t be Pee Brained! I have a tough time with some of the facts in Susie’s case. Here’s why: 1) What’s illegal about asking an employee to check on another if the former has been away from her work station? 2) I’d be interested to know what a “disapproving” head shake looks like when the boss uses it to communicate his disappointment for using the the bathroom too long.  Is there a definition somewhere?  And how does that differ from “you’re playing your music too loud in your cubicle” head shake, or “your lunch smells” head shake.  All kidding aside, though, this court decision reminds employers of how easy it is to get tripped up by a retaliation claim, especially where a termination decision is temporally related to the request for accommodation. Here, even though the employer claimed it had taken steps to terminate Susie’s employment prior to her request for bathroom breaks, it lacked documentation proving so.  This was particularly difficult for the court, as it noted “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.”  When it comes to an employee’s medical condition, employers must take every request seriously, and it’s best to keep our comments (and mannerisms) to ourselves!

To do list2.jpgIt’s 2014.  And I’m so cold, I can barely peck at the keyboard to type this post. Nevertheless, it’s time to get back to work in the New Year, which always is an ideal time to review and button up your FMLA practices.  Let’s face it: before we know it, six months will have passed and summer vacation will be luring us away from work. Will you really want to audit your FMLA practices then? Only if you’re me.

So here’s my Top Five “Fix it or Else” List when it comes to leave management in 2014. How many can you cross off your list by March? Come on, I triple dog dare you…

  1. Change your FMLA leave year to a rolling year measured “backwards.”  This is low hanging fruit. Employers can define their FMLA 12-month period in one of four ways: a calendar year, a fixed year, a look-forward period (from the time the employee first takes leave), or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.   You may have perfectly good business reasons for using something other than a rolling backwards year and, if you do, you can ignore this suggestion.  For the rest of you, use this opportunity to change your FMLA 12-month period to a rolling year measured backward! This method typically is the best choice for employers, as it avoids stacking 12-week FMLA periods back-to-back (which could occur under any of the three other methods). Keep in mind, though, that employers must provide employees with 60 days’ notice of any change to the FMLA 12-month period, and you arguably have to bargain the change with any union representing your employees.
  2. Conduct an FMLA audit before you run into trouble. How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant? Now, do it! As you prepare your 2014 budget, include funds for a review (with your favorite employment counsel) of all your leave policies, forms and practices.  As we were the first to report, DOL on-site audits are becoming the norm in the FMLA world, and I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices.  A small investment now will save you even more money down the road. Promise.
  3. Target intermittent leave abuse. Day in and day out, I help employers figure out how they can address suspicious intermittent leave situations. Employers often vow to do something about it, but fighting intermittent leave abuse can be tiresome and the results often are not immediate. But you can win at this! Use 2014 to employ targeted use of second/third opinions and re-certification, and use lawful means to engage the employee’s health care provider about the employee’s serious health condition and need for leave.  You also can address all of these tactics in your FMLA audit (see No. 2 above!).
  4. Rein in employees on “indefinite” leaves of absence. Remember Bob?  You recall him — he’s the guy who took FMLA leave nine months ago and has remained off work ever since. In 2014, address the “Bobs” in your workplace — those employees that have remained on leave so long that you may have even forgotten about them. And they continue on leave with no return in sight. At your earliest opportunity, find out: 1) what’s going on with the employee’s leave, 2) what medical condition keeps them off work, 3) whether you can identify a reasonable accommodation to help them return to work and, if they still need more leave, 4) make their physician identify an estimated date upon which they can return to work.  When they cannot identify an estimated date, consider what rights you have to terminate their employment.  As we have discussed before, courts regularly uphold an employer’s decision to terminate employment where the employee’s leave remains indefinite.  Work with your legal counsel to be more aggressive in this area in 2014.
  5. Train your peeps. You ask “Why?”  I say, “Why not?” Respectfully, you’d be foolish not to. Your front-line managers typically are the ones taking the phone calls and conversing with your employees, often at critical times when the employee reveals the need for leave. Whether it’s an off handed remark, or an ill-advised email, your manager’s response to the employee often creates your FMLA liability.  From the front-line supervisor to the top executive, managers must understand their responsibilities to effectively manage an employee with a medical condition. Properly training your managers on their responsibilities under the FMLA should become a regular part of your compliance efforts, as it will significantly reduce the risk of legal liability.

What’s left?  What are you working on in 2014 when it comes to leave management?

festivus.jpgMany years ago, on December 23, Frank Costanza introduced Festivus to us. Whether it was the Airing of Grievances, Feats of Strength, or the aluminum pole, yet another Seinfeld episode had us in stitches.

Although we introduced no similar creative holidays on the blog this year, we still hope we brought a chuckle as we covered an otherwise very serious topic for employers. Another Festivus miracle, indeed!

So, in honor of you — the weary HR professional, the overworked in-house counsel, and the pooped practitioner — I bring you this merry little jingle, sung to the melody of John Lennon’s “Happy Christmas”:

So this is Christmas
And what have you done
Another leave year over
And a new one just begun

And so this is a new leave year
I hope you have fun
With certs and re-certs
Your job’s nearly done

But here comes Jeff and Matthew
To certify their bad back
You better run for cover
Before the rest catch on and attack

A very merry leave year
And oodles of FMLA fun
Let’s hope you don’t need surveillance
To catch them on the run

And so happy leave year
Where physicians have your back
They’ll still charge 20 or 50
To give you chicken scratch

FMLA Abuse is over
If you want it
FMLA abuse is over
Now…

I look forward to covering anything and everything that is FMLA in 2014.  And sharing a few laughs along the way, too.  All my best for a very Merry Christmas, Happy Holidays, and a Happy New Leave Year!

In the meantime, tell me . . . when do the Feats of Strength begin?

webinar2.jpgThanks to those who attended my webinar last week with Matt Morris on “Conquering the FMLA Medical Certification Process: Best Practices for Employers.”

We covered a whole host of topics during the webinar:  How does an employer handle an employee who does not return medical certification?  Or one that is vague and ambiguous?  How should an employer respond to an employee who appears to be abusing FMLA leave (e.g., another employee rats him out, or the employee takes FMLA leave after a denied vacation request)?  How should an employer certify patterns of absenteeism or occasions when the employee’s absences exceed the frequency or duration on the certification?

  1. How should an Employer respond when an employee does not return medical certification?  The regulations tell us that employers can delay or deny leave if an employee does not return medical certification within 15 days.  But should we automatically deny leave?  As I explained in the webinar, communication is key: ideally, you should have a “tickler” in your system reminding you of certification deadlines so that you know when certification is due.  If certification is not returned, the best practice is to call the employee and follow up with a letter informing them of their oversight and giving them a new deadline to return the certification. (Make it a fairly tight one — I typically recommend seven days.) Also give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn’t turn it in on time.  In in the webinar and in this previous blog post, I provided some insight on the kinds of questions you can ask the employee to determine whether they have been diligent in obtaining certification.
  2. What if the employee’s absences exceed the frequency or duration indicated on the medical certification form?  As we discussed during our session, recertification is available if the employee’s absences substantially exceeds the estimate provided in the certification.  As I highlighted in a previous blog post, an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule.  Employers must be careful not to seek recertification when the employee simply ticks past the absence estimate.  The webinar covers this issue in great detail.
  3. When you are clarifying certification, how far can you push the health care provider for information?  As we discussed, the key is to clarify, not challenge.  So, the focus should be questions such as: “We want to understand what you meant by “as needed” and whether the condition affects [employee] from doing her job” OR “”Would you provide a better estimate than “leave as needed” and would you provide detail on why the condition makes it medically necessary for [employee] to miss work”?

Finally, as you may recall during the webinar, I made reference to an FMLA guide published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA. You can access the Guide here (pdf). What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process. HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.

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

2013VOTETHISBLAWG.jpgI am delighted and downright humbled to announce that our FMLA Insights blog has been selected for the third consecutive year as one of the Top 100 Legal Blogs of 2013 by the ABA Journal! In its 7th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name FMLA Insights among only seven labor and employment blogs receiving this honor.

We are touched by the many attorneys, HR professionals and other friends of the blog who nominated our blog for this honor. In its announcement, the ABA Journal published a snippet of one of our nominations, which was submitted by Johanna Ellison of the law firm Fogle Keller Purdy in Lexington, Kentucky:

I enjoy the fact that Jeff [Nowak] uses not just recent court decisions but also recent current events (such as the birth of the next heir to the British throne) to teach FMLA concepts. He’s also a very engaging writer; it’s a bright spot in my day when I receive a link to a new post.

Oh, Johanna, I’m blushing.  

Seriously though, thanks to all of you for your support and for following our little FMLA blog.  

By this point, I know I have asked for too many favors.  But I press my luck in asking one more time. Would you be willing to take a few seconds to vote for FMLA Insights as the very TOP blog of the Top 100? (Seriously, it takes mere seconds to vote.)  Complete a simple registration form and vote for us here.  You’ll find our blog located in the labor and employment section.

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other six employment blogs who made the list – they definitely are worth the read and your vote: Dan Schwartz’s Connecticut Employment Law Blog (who was named to the Blawg 100’s Hall of Fame), Molly DiBianca’s Delaware Employment Law Blog, Eric Meyer’s The Employer Handbook, Jon Hyman’s Ohio Employer’s Law Blog, Donna Ballman’s Screw You Guys, I’m Going Home, and Seyfarth Shaw’s Trading Secrets.

According to a recent CareerBuilder survey, nearly one-third (32 percent) of your employees have called in sick when they’re not actually sick.  Perhaps just as notable, 30 percent of your employees admit that they have reported to work despite actually being sick. The reason? So they can save their sick days for when they’re feeling well.

Instead of telling their supervisors they were feeling under the weather and can’t make into work, employees across America offered the most colorful excuses in 2013.  Here are some of my favorites from the CareerBuilder list:

  • Someone glued my doors and windows shut so I couldn’t leave the house to come to work.
  • A swarm of bees surrounded my vehicle and I couldn’t make it in.
  • The chemical in turkey made me fall asleep and I missed my shift.
  • I received a threatening phone call from the electric company and needed to report it to the FBI.
  • My fake eye was falling out of its socket.
  • I got lost and ended up in another state.
  • [And my personal favorite]: My false teeth flew out the window while driving down the highway.

Interestingly, the survey also highlighted employers’ attempts to combat leave abuse.  About 30 percent of employers have checked in on employees who have called in sick to make sure the excuse was legitimate. Of those employers who actually verified employees’ excuses over the past year:

  • 64 percent required a doctor’s note
  • 48 percent called the employee
  • 19 percent checked the employee’s social media posts
  • 17 percent had another employee call the sick employee, and
  • 15 percent drove past the employee’s house.

Insights for Employers

CareerBuilder forecasts that employees will call in sick far more often from December through February each year.  Many legitimately will be sick.  Others won’t.  So, as we approach the holidays and winter months, keep in mind my ‘ol tried and true tricks for warding off employee FMLA leave abuse:

  1. Is the Employee Requesting Leave That May Be Covered by FMLA?: First, you must determine whether the employee has even notified you of the need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary.  Of course, it’s never that easy. Employees are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; or d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.
  2. Require that Employees complete a written leave request form for all absences: Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system. And it tends to help your administration of employee leave.
  3. Enforce usual and customary call-in procedures:  Not nearly enough employers utilize this tool, even though they should!  Absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer’s call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.
  4. Prepare a list of probative questions you ask of all employees when they call in to report an absence:  As the employer, you have the right to know why your employee cannot report to work. So if you have concerns about their leave request, don’t hesitate to ask more probing questions about why they need leave! During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:
    – The specific reason for the absence [Is it just the sniffles, or is it something more?]
    – What duties of the job they cannot perform
    – Whether they will see a doctor for the injury/illness
    – Whether they have suffered from this condition before and previously taken leave for it and when?
    – When they first learned they would need to be absent
    – The expected return date (or time, if less than a day)
  5. Use medical certification and recertification to your advantage: We are going to discuss this in detail at our upcoming December 5 webinar, so be sure to register here!  Medical certification is one of the best tools to combat FMLA abuse. So, use it! Moreover, if this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option. Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays? Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately.  If you are concerned about a Monday/Friday pattern of absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.
  6. Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your favorite employment counsel [cheap, shameless plug] to ensure that your FMLA policy and procedures are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

In the meantime, my very best wishes for a Happy Thanksgiving!  Gobble, gobble!

Hat tip: Mark Toth, Manpower Employment blawg

How much is enough.jpgOne of the most difficult issues an HR professional or in-house employment counsel faces is how to deal with an employee who cannot return to work after FMLA leave expires. Is additional leave required? What law applies and what are the obligations for an employer in this situation?

Despite the uncertainty of what additional leave the ADA obligates employers to provide, one general rule has always been clear — an employer is never required to provide an employee an indefinite leave of absence.

Never?  After a decision handed down by New York’s highest state court last month, even this general rule has been called into question.

The Facts and Court Ruling

Giuseppe, a bank executive for Intesa Sanpaolo, took leave for a number of medical issues, including major depression.  After he had been on leave for almost five months, Intesa contacted him to inquire whether he intended to return to work or abandon his position. Giuseppe’s attorney responded that Giuseppe:

has not at any time evinced or expressed an intention to ‘abandon his position.’ Rather, he has been sick and unable to work, with an uncertain prognosis and a return to work date that is indeterminate at this time.

Intesa responded by terminating Giuseppe’s employment.

When Giuseppe later brought suit aleging violations of New York state and New York City law, the employer appropriately argued that Giuseppe requested an indefinite leave, which of course is not a reasonable accommodation under any law.  Or is it?

In a blow to employers everywhere, the court held that NYC law shifted the burden of proof from to the employer to show that the accommodation requested by Giuseppe would impose an undue hardship on the bank.  In other words, at least in New York City, there is no accommodation — indefinite leave or otherwise — that is categorically excluded as a reasonable accommodation under the NYC law.  In refusing to dismiss the case, the court erased a bright-line rule that an indefinite leave of absence is not required and replaced it with a more obscure standard that indefinite leave will be required unless the employer can show either: 1) that the employee could not, with reasonable accommodation, satisfy the essential functions of the job; or 2) that the accommodation would result in an undue hardship on the company.  Romanello v. Intesa Sanpaolo (pdf)

Insights for Employers 

Giuseppe’s case should be an eye opener for employers.  At a minimum, it reminds us of our obligation to keep the interactive process alive and to establish undue hardship earlier in the discussion.  Intesa would have been in better shape if it had adhered to a few key principles:

  1. Engage your employee in the interactive process.  Intesa started the conversation off right by engaging the employee about his return to work.  But after learning that Giuseppe’s prognosis was uncertain, it ended the conversation. Not a good move, since there is plenty more to find out and discuss: What limitations does the employee have? What functions can he/can’t he perform? Are there any alternative modifications we can make to his job to help him get back to work? Have we discussed restructuring his position or temporarily relocating the employee to an open position in which he is qualified (until he’s able to return to his original position)?  Also, employers should require that their employee provide a report from their treating physician responding to these inquiries.
  2. 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.  In Intesa’s case, Giuseppe was an executive.  Therefore, it likely would not have been difficult to establish that his continued and “indeterminate” absence was wreaking havoc on the bank’s operations — for example, projects likely were being pushed off, decisions were being made by less capable employees, customer service was adversely affected by the downgrade in service, other managers were required to take on more work.  See my list of “undue hardship” questions to consider in one of my previous posts.  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 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.
  3. Regardless of what state you’re in, you should maintain the same approach.  This case serves as a reminder that, depending on where your business is located, state or local law may exact even more stringent requirements than the ADA. However, your approach should remain the same, regardless of where you are. Communicate with your employee, engage them in the interactive process, and identify hardships early on so you can articulate them to your employee and make a more reasoned decision.

Kris was forced to endure the unthinkable: her daughter had just become the victim of a sexual assault.

In the weeks that followed, Kris alerted her employer of the assault and the care her daughter would require in the time ahead.  Kris suffered too.  As her doctor would later report, she had crying spells, a lack of energy and an inability to focus or concentrate.

To complicate matters further, Kris also had fairly significant performance problems in her job. From an HR standpoint, the timing couldn’t have been worse. Kris had been counseled for months that she could not work unauthorized overtime, and in the months leading up to the assault, she had been repeatedly counseled for her poor time management, and lack of initiative, detail and follow through.

Shortly after the assult, two things occurred that are relevant here: 1) Kris began bringing her daughter to work with her every day; and 2) Kris’ employer had reason to believe she had turned in inaccurate timesheets and concealed unauthorized OT.  As a result, Kris was suspended.

Shall I complicate matters even further?  Two additional facts about Kris’ situation: 1) When Kris brought her daughter to work, her employer rightfully was concerned.  But her boss allegedly told Kris that she had to choose between caring for her daughter or keeping her job; and 2) in conjunction with her formal disciplinary hearing, her employer refused to consider Kris’ written “rebuttal” to the disciplinary charges calling for her termination.

As the story goes, Kris was terminated.  An FMLA lawsuit ensued, and the court found that there was enough evidence based on the above for a jury to find that Kris’ employer interfered with her FMLA rights and retaliated against her exercising those rights.  Nelson v. Clermont Cnty. Veterans Service Cmmn. (pdf)

Insights for Employers

Deep breath.  There are plenty of takeaways here for employers:

  1. Courts continue to loosen the standards of a serious health condition.  I don’t mean to downplay how difficult the ordeal must have been for Kris, but what was her serious health condition requiring FMLA leave?  According to her doctor, it consisted of crying spells and her inability to focus or concentrate.  These symptoms alone were enough for the court here to presume that Kris suffered from a serious health condition entitling her to FMLA leave.  This finding sends a message to employers that courts are focusing far less on the actual definition of a serious health condition and more on the FMLA interference and retaliation claims themselves.  Be warned.
  2. Note to managers, supervisors, owners, HR professionals and anyone else in a position to effect a personnel decision: Stop saying stupid stuff! Did Kris’ boss have the right to be concerned when she showed up to work every day with her daughter in tow? Absolutely. But his reaction created liability for the employer. I’ve detailed all too often stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made follish remarks in conjunction with a termination decision.  Don’t do it, and train your managers ans supervisors to do the same.  This case serves as yet another example of how quickly a court will send a case to a jury as a result of one indiscreet comment.
  3. Due process must exist for all employees. Do you know what juries detest? Employers who don’t allow their employees a chance to be heard.  Here, the employer claimed that it had an “honest belief” that Kris was engaging in timecard fraud. That argument may have held up had the employer actually given the employee a chance to fully defend herself. But because it refused to entertain Kris’ “rebuttal” submission, the court determined that her employer could not rely on the “honest belief” defense. Ouch. Let’s be clear — where termination is at issue, employers have every reason to bend over backwards in allowing the employee to explain her side of the story. Constitutional due process may not apply for all, but employers still should strive for it.  When the employer refused to hear the employee out here, it paid the price. (Keep in mind a previous post where I explain the importance of a complete and exhaustive investigation.)
  4. Be empathetic. I am not suggesting that we allow an employee like Kris to use a tragic personal situation as a shield against any and all discipline (including termination), but in a situation like this one, it’s all the more critical to practice patience, compassion and concern.  I didn’t sense any of the above when reading this court case, and I wonder if the court felt the same in refusing to dismiss these FMLA claims against the employer. An intangible, for sure, but judges are human, too, and these intangibles can impact whether a case is dismissed or not.
  5. Retaliation is a scary predicament for employers. In this case, Kris also complained that the employer “overloaded” her with work upon her return from FMLA leave.  However, the court’s decision contains scant details of what the overload actually consisted of.  Yet, the court noted the overload as a factor in refusing to dismiss the case.  That’s bothersome to me.  If work given to an employee is contained within her job description, courts should not act as a super-personnel department in second guessing the situation. Nevertheless, the court did so here.  The result is that employers must be mindful not to “load up” on any employee returning from FMLA leave.