It’s arrived. Finally.

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

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

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

Quick Overview of the ETS

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

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

The text of the ETS can be accessed here.

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

Paid Leave Requirements

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

Time Off to Obtain the Vaccine

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

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


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

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

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

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

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

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

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

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

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

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

Time Off for Recovery from Side Effects

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

How does this work?

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

Couple of caveats here:

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

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

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

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

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

Paid Time Off for testing?

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

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

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

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

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

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

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

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

What Does the Latest House Version Include?

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

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

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

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

So close. Yet, seemingly, so far away.

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

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

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

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

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

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

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

We’re far better than this.

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

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

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

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

Simply stated, yet so true.

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

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

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

Time to get on board.

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

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

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

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

Not So Fast 

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

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

Insights for Employers

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

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


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

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

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

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

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

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

Everyone one of us has been there.

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

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

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

What You Should Have Done

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

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

Literally sent her nothing.

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

Employee Must Show Failure to Provide FMLA Notices Harmed Her

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

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

Case dismissed.

Insights for Employers

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

Let’s dig in a bit more though.

Catching The Oversight Soon Enough

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

Catching The Oversight Much Later

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

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

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

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

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

In Scenario #1, Johnny is given Labor Day off as a work holiday, but then he takes FMLA leave for the rest of the workweek (Tuesday through Friday) because of his chronic bad back.

In Scenario #2, Johnny is given Labor Day off as a work holiday, takes FMLA leave Tuesday, Wednesday, and Thursday for his bad back, but in a rare moment of overachievement, he reports to work on Friday.

Let’s assume Johnny works a standard eight-hour, five-day workday, Monday through Friday, and the employer’s workweek runs Sunday to Saturday.

Answer to Scenario #1

This one is generally straightforward. If Johnny observes the Labor Day holiday and then takes the entire work week off (i.e., he is absent Tuesday through Friday), the employer should count the entire workweek as one full week of FMLA leave used. The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.

One week of FMLA used. Easy enough.

Answer to Scenario #2

By showing up for work on Friday of the Labor Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes Labor Day holiday on Monday, takes FMLA leave Tuesday through Thursday and then reports to work on Friday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday through Thursday as FMLA leave. 29 C.F.R. § 825.200(h).

Fair enough.

But now for the difficult question: Does the employer calculate FMLA use during the Labor Day workweek using a five-day workweek or a four-day workweek?

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

Insights for Employers

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

First, it’s critical to understand that the term “workweek,” as defined under the FMLA, is the employee’s normal schedule (hours/days per week) prior to the start of FMLA leave.  As the DOL notes in one of its older opinion letters, the normal schedule “is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition.”

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

Though this may only be a huge deal to those of us in the FMLA trenches, it still is a pretty big deal, as an incorrect calculation improperly burns through an employee’s FMLA more quickly. Based on the feedback above, when an employer uses a four-day instead of a five-day workweek during the Labor Day workweek, it miscalculates the percentage of FMLA leave used, and it does so to the employee’s disadvantage.  We are now at risk of an FMLA violation.

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

Now, you know . . .

Matt was a correction officer for the Camden County Board of Chosen Freeholders, which as an aside, sounds like something straight out of Harry Potter and the Sorcerer’s Stone.

Before I digress further, Matt served as one of the caretakers for his mom, who suffered from dementia and required daily care. Matt sought FMLA leave, and he obtained medical certification from his mom’s doctor supporting his absence once per month for up to five days.

Fair enough. The problem, though, is that Matt took leave on January 6, and then again on January 14 and 28, exceeding his frequency by two episodes.  In response, his supervisor recommended that Matt be disciplined for excessive absences, which later led to his suspension.

Hmmmm, not good. 

In its defense, the employer reported that it requested recertification and that it disciplined Matt only after he failed to provide recertification. But it requested recertification verbally, which of course, Matt denied when he later sued his employer for FMLA violations.

The Ruling

The court summed up the two key issues in Matt’s FMLA lawsuit quite well:

If the employer properly asked Matt to recertify and he failed to do so in the provided time [that is, within 15 days], then his absences at issue are not FMLA-approved absences and the protections that the FMLA affords do not apply. See 29 C.F.R. § 825.313(c) . Likewise, if the employer never properly asked Matt to recertify, then his absences would be protected under the FMLA and it would not be able to discipline him for taking these protected absences.

When Matt denied that the employer verbally requested recertification, the court grew skeptical. Because the employer and employee disagreed on this critical issue, the court refused to dismiss Matt’s FMLA claims, sending the case to trial. Calio v. Camden County Board of Chosen Freeholders (pdf)


Insights for Employers

Several lessons for employers here:

  1. Clearly, Matt exceeded the frequency of absences in his initial certification by a significant number, which the employer properly recognized as a trigger for recertification. Great work, so far. No question, when an employee is absent three times when he should have been absent only once, this is cause for recertification.
  2. The initial problem, however, is that the employer requested recertification verbally. What happens when you verbally request recertification? Almost 100% of the time, your employee denies that you ever requested it. Although the FMLA regulations technically allow you to request recertification verbally, why would you ever leave this to chance? Every time, all the time, make a written request for recertification so that you have a clear paper trail proving the request.  As the court noted above, if the employer could have established that it requested recertification and that Matt failed to comply, the case was theirs for the taking. The employer failed to put the request in writing, so it will now spend another hundred grand paying a guy like me to proceed to a jury trial, where uncertainty reigns supreme.
  3. As this court decision makes clear, when an employee exceeds the frequency of absences on his certification, you cannot automatically discipline the employee. You must first seek recertification to establish whether the absences are protected by the FMLA. Only after requesting recertification and giving the the employee and physician a chance to recertify can you then take action. Friends of this blog may recall that, in a previous post, I highlighted an employer who did it the right way . . . and won.

Recertify first, then discipline if the recertification doesn’t support the absences.

Only then are you in the clear.

Ed was an autoworker who dealt with apparent bouts of depression for which he sought intermittent FMLA leave. But he also had fistfuls of unexcused absences, so much so that he stood on the precipice of termination — one attendance point away, to be exact.

Like many good employers, Ed’s employer required him to call into an attendance hotline to report his unforeseeable absences. FMLA leave also was administered by Sedgwick, a third-party administrator, so there were some extra steps in the approval process.

As a prophylactic measure, Ed submitted medical certification before any absence for his flare ups, as employees are wont to do. Easy there tiger, you actually haven’t had an absence yet, Sedgwick told Ed, conditionally approving him for FMLA leave but reminding him that he needed to follow the usual approval for calling off his absences.  [Nicely done, Sedgwick! Btw, I suspect Sedgwick didn’t actually use the term “Easy there tiger,” but if it did, that would have been absolutely precious!]

On three separate occasions over a short period of time, Ed called the attendance line right before his shifts started.  Each time, Ed cryptically requested time off in the following ways:

  • On the first occasion, Ed stated, “I’m having a flare-up. I don’t feel good at all.”
  • On the second occasion, he reported, “Um, I’ve been sick the last few days.”
  • Then, on the final occasion, he commented, “Um, I’m having a flare-up right now, and I don’t feel good at all.

The employer recorded the call-ins (with the employee’s knowledge), so it had a record of precisely what Ed said.


Naturally, the employer did not consider any of the above to constitute notice of the need for FMLA leave, so it designated them as unexcused absences, leading to his immediate termination. When the union declined to file a grievance over the termination, Ed filed an FMLA lawsuit.

The Court Bounces Ed’s FMLA Claims

The trial court wasn’t buying what Ed was dishing out.  Noting that an employee must request leave and give the employer notice that he is requesting leave for a serious health condition that renders him unable to perform his position’s duties, the judge found that Ed hadn’t cleared this hurdle.  The court put it this way:

Just like the term “sick”—which is specifically cited by the applicable regulation as being insufficient to provide an employer notice that a leave request is based on an FMLA qualifying condition, there is no evidence showing that the term “flare-up” is tied to any particular disease or medical condition, and can apply to most chronic ailments. In common parlance it would not be unusual, for instance, for a person to say he is having a “flare-up” of seasonal allergies or acid reflux, conditions unlikely to meet the FMLA’s definition of a “serious medical condition.

This is particularly true where the employee already has been approved for leave.  Following approval, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.  (29 CFR 825.303b)

Ed did neither.  FMLA claims dismissed. (Read the decision, Render v. FCA, here.)

Insights for Employers

What’s the quick takeaway here?  Using a term like “flare-up,” which is not tied to any particular medical condition, fails to put an employer on notice of the need for FMLA leave. In this case, the denial of FMLA clearly is defensible.

But this doesn’t mean these situations are not without risk. If Ed had reported that he was having flare ups “due to his depression,” or that he “needed to take FMLA” because of his medical condition, this might very well be a different kind of case. These nuances can make or break your FMLA case.

So, a few suggestions:

  1. Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf.  If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused.  Here, the employer required a call to a dedicated attendance line, where the person on the other end presumably was well trained to recognize a request for FMLA leave. This is what you want.
  2. Revise your FMLA policies.  Include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you might also want to include expectations for completing a leave of absence request form, which I also recommend.) My “model” policy provision looks something like this:

When you contact Human Resources to report your need for leave, you must provide at least the following information:

►  The specific reason for your absence, with sufficient information to allow us to determine whether the FMLA may apply to your request;

►  When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

►  A telephone number where you may be reached for further information

  1.  Set a deadline for the employee to report an absence. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”
  2. Require that your employees tell you why they couldn’t follow your policy. At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.
  3. Train any and all managers remotely involved in the FMLA process.  Whoever is picking up the call on the attendance line or receiving the call as part of your call-in procedures must be well-trained to recognize the words and behavior that triggers the employer’s obligation to inquire further to determine whether an absence is covered by FMLA leave. As noted above, if Ed had provided just a little more flavor as to why he needed FMLA leave, it would have been critical for a manager to recognize the request as a possible need for FMLA leave, and to take appropriate steps to confirm whether FMLA indeed covered the absence.

The FMLA was enacted in 1993, way back when fax machines had just begun ruling the world and we were only learning how to send an email to a friend. When the law was passed, FMLA didn’t contemplate a remote workforce, let alone one that would be hastily relegated to their homes during a global pandemic three decades later.

For well over a year, many of your employees have been working from home. Some report to a manager at the headquarters or worksite. Plenty of your remote employees, however, report to an individual who also is working remotely. And that employee is reporting to, well, you get the picture . . .

Let’s assume you have an outstanding employee, Terry, who works at your Texas-based company. He also suffers from a debilitating medical condition. Terry realizes life is far too short, so he plans to work for you full-time over the next year out of his RV. He is spending summer 2021 in sunny Florida, the fall in Massachusetts to watch the leaves turn, and then the winter with his extended family in New Jersey, beginning after Thanksgiving.

Assuming Terry needs medical leave at any point during this journey, is he eligible for FMLA leave?

What about state leave laws? Do they apply, too?

First up, FMLA

Remember, to be eligible for FMLA leave, an employee must work at a worksite where 50 employees work within a 75-mile radius. That’s fine if Terry is working out of the company HQ in Texas. But what happens when he hits the road in his RV?

The FMLA regulations give us an initial framework here:

An employee’s personal residence is not a worksite in the case of . . . employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

As an important aside, has anyone ever heard remote work being called “flexiplace”? Yeah, me neither.

In any event, for purposes of FMLA, Terry’s eligibility is determined not by the location of his RV, whether in Florida, Massachusetts or New Jersey. Rather, in a telecommuting arrangement from his RV, his worksite is the office to which he reports and from which assignments are made.

Assessing Terry’s eligibility is fairly straightforward if he reports to and receives assignments from the Company’s Texas HQ, which accounts for 65 employees. That’s easy – he is included in the Texas HQ count, and he would be eligible for FMLA leave if he otherwise has worked for the Company for 12 months and 1250 hours in the previous 12 months.

The FMLA puzzle gets fuzzy, however, if Terry’s boss is working remotely from his own home in Oklahoma (or heck, even in a different RV roaming the countryside). Is Terry still reporting to and receiving assignments from Texas? Clear as mud, right? As to this conundrum, neither the Department of Labor nor the courts have given us any guidance on how we apply the regulations in this remote work scenario.

There are good arguments on both sides of the issue, but it seems to me that “office” to which Terry reports remains in Texas, even if the assignments might be coming from the boss in Oklahoma. The spirit of the regulations suggest that we’re still looking to Texas as the work location because of the reference to the “office” in the regulations.

What About State Leave Laws?  What Laws Apply and When?

My head hurts, and I haven’t yet addressed which state leave laws apply to Terry during his jaunt across the country.  Thankfully, one of my Littler colleagues, Amber Spataro, did the heavy lifting for me.

Terry and his RV actually are Amber’s concoction, though a typical scenario that could play itself out in real life.  In analysis she provided recently in a “Dear Littler” letter, Amber analyzed the state leave law issues this way:

Terry also may be covered by state leave laws, should a covered event occur. For example, Massachusetts has a Paid Family Medical Leave Act (PFML). Unlike FMLA, to be eligible to receive paid leave under PFML, a worker only must have earned at least $5,400 in the previous 12 months. PFML eligibility is not dependent on how long an individual has worked for a current employer – it applies to all W-2 employees working in Massachusetts (which Terry may be for the part of the year that he is working in Massachusetts). If Terry falls ill after earning more than $5,400 as a Massachusetts employee, he may be covered, and you may be required to withhold pay from his paycheck to fund this benefit. Similarly, New Jersey’s Family Leave Act (NJFLA) applies to employers of 30 or more employees anywhere in the world and employees working in New Jersey who have been employed by the employer for at least one year and have worked at least 1,000 hours in the past 12 months. NJFLA allows up to 12 weeks off for an employee to, among other things, bond with a new child or care for a covered family member, but does not apply to one’s own disability or injury. Therefore, if Terry falls ill while in Massachusetts and uses his 12 weeks of FMLA leave and Massachusetts PFML for his own illness, when he arrives in New Jersey in November, he may have up to 12 weeks of time off still available to him under the NJFLA if his mother falls ill and he needs to care for her. He also may be eligible for New Jersey Family Leave insurance benefits through the state, and you may need to fund such benefits as well.

Whoa, Amber, my head is spinning!

Insights for Employers

When it comes to a remote employee’s eligibility for FMLA or state leave law, you must ensure you have policies and procedures in place to stay compliant with the law. While many employers have a remote work or telework policy already in place, these arrangements have (until now) applied only sporadically and on a smaller scale. Importantly, remote work programs of the past likely neglected to address the fundamental differences between mandatory telework (at the employer’s direction) and voluntary telework (at the employee’s request).

Additionally, it’s also critical that you require employees to notify you whenever they will be working from a different jurisdiction, as you will need to track whether they are entitled to a statutory leave of absence under the laws of the state/city in which they are performing work.

Here are a few resources to keep in mind as you are working through these issues:

  • Put Remote work policies and agreements in place.  Our Littler Remote Work Toolkit for Employers contains a Guide, Model Policy and Model Agreement for companies to use when implementing remote work and telework programs in the pandemic and post-pandemic era.  Contact me for more details.
  • This issue ain’t going away. The results of our Littler annual survey make clear: employees want remote and hybrid work, and it’s not going away.  As such, it’s critical that employers consider a structure for remote work moving forward. Among other things, these decisions will implicate leave of absence issues.
  • International remote workers. What laws apply when a wandering worker wishes to telework from abroad for personal reasons? Get our take here.

One last thing: If you’re dealing with remote employees issues, you clearly are dealing with payroll tax questions. Most states require an individual to pay state income tax if they are living in the state for more than 183 days (roughly half the year). But there are exceptions to the general rule you need to know about. For a great explanation of the payroll tax issues involved with remote employees, click here for my colleague Will Weissman’s take on the issues you should be thinking about.

Christmas in July might just exist after all!

Give yourself and your loved ones the gift of three riveting — and, more importantly, free — webinars throughout the month of July that will tackle all things FMLA, ADA and paid family and medical leave.

You want some practical strategy for fighting FMLA misuse?  I’ve got your back!  You need to get a handle on the proliferation of paid Family and Medical Leave laws and how they affect your business? Two of my Littler colleagues have you covered!  You’re curious about possible ADA accommodations you may need to provide employees as they return to the office? Don’t miss a DMEC webinar later this month!

Webinar #1: Best Practices for Managing Intermittent FMLA Leave

Managing intermittent FMLA leave is a pain point for HR teams – one that trips up even the most experienced HR professional. On Wednesday, July 21 (2pm ET), I will join Angela Ripper and Michelle Davidson from Unum to provide practical suggestions on how you can effectively manage intermittent FMLA leave in your workplace, focusing on the steps you can take to root out and minimize FMLA misuse.

In this SHRM-sponsored webinar, we will outline how to effectively use certification and recertification to manage intermittent leave and respond to FMLA misuse, document FMLA effectively to curb FMLA misuse, and implement must-have personnel policies to manage intermittent leave and prevent FMLA misuse.

We’ll laugh. We’ll cry. We likely won’t sing (that’s what my annual webinar in December is for), but we’ll definitely have fun.

Register here.

Webinar #2: An In-depth Look at Paid Family and Medical Leave Programs

As more statutory paid leave programs pass and the program designs vary, you can no longer be a true expert in leave without understanding the statutory paid family and medical leave programs. The leave landscape has changed and paid leave is no longer a rare phenomenon but is rather becoming part of every leave conversation.

And there is no one better to help you wade through these issues than two of my fabulous Littler colleagues, Ellen McCann and Deidra Nguyen.

One hour before our above webinar on July 21 (1pm ET), Ellen and Deidra will detail the history of these PFML programs, how the laws work, the details behind each of the programs, what obligations remain with employers even if the state or an insurance company is administering the program and how they integrate with other paid and unpaid leave laws.

A must attend! Register here.

Webinar #3: Return to the Workplace and ADA Considerations

Employers everywhere were impacted by the pandemic, most notably by the massive shift from in-office work environments to a work-from-home model. As offices begin to reopen, it’s critical that employers have a plan in place for employees returning to the office, especially where ADA accommodations may be required.

On July 27 (12pm ET), join my friend, Jennifer Limon from AbsenceSoft, and executives from Panera Bread and Gonzaga University (go Zags!), who will share their return-to-workplace plans and best practices for a successful return, and what employers should consider when developing a plan for returning employees to the office.

Register here. [Free to members of the Disability Management Employer Coalition.]

If this stuff won’t light an FMLA and ADA fire in your belly, nothin’ will, my friends.  See you there!