I came across an interesting FMLA case this past week, and the facts are simple enough that it kept my attention. [In the age of Twitter and Facebook, anything beyond a 30-second sound byte and you might as well give me a blanket for a long-winter’s nap.  Right?] However, the lesson from the case should be enough to grab the immediate attention of any in-house counsel or HR professional.

Patrick Hurley was president of a security company, and he also suffered from depression and anxiety. Despite treatment over several years, his condition had not improved.  Based on his doctor’s advice, Hurley asked his CEO for a leave of absence.  At first, Hurley simply told the CEO that he had been advised by his medical health professional to take some vacation.  In a follow-up conversation, however, Hurley bluntly told his CEO that he had been diagnosed with depression and that he needed time off to deal with it.

The CEO’s response?  “Hurley…we’ve ‘had a great run together,’ but it is ‘time to part ways.'” Immediately thereafter, Hurley was terminated.  The FMLA suit quickly followed, and Hurley prevailed at a jury trial on his FMLA interference and retaliation claims.  Hurley v. Kent of Naples

In their blog, Marti Cardi and Megan Holstein of Reed Group highlight the Hurley case, and they do a great job of assessing the cost to an employer where the manager (like here) does not recognize (or refuses to recognize) a leave request covered by the Family and Medical Leave Act.

Their estimate of the damages Hurley’s employer will have to pay out: a cool $1.26 million. This amount includes back pay, front pay, liquidated damages (a form of “punitive damages”), attorneys fees and interest.

What the Lesson Here?

Employers, let me be blunt: we need to do a much better job of training our managers because they simply are not identifying when a request for a leave of absence might be protected by the FMLA.  Court cases like the one above prove that we need to do better.  And as Reed Group aptly points out above, employers are hemorrhaging money as a result.

Interestingly, over the past week alone, I’ve worked with a Fortune 500 company and a large local government employer that face the same dilemma: their managers on the front lines are not recognizing when an employee’s absence could be covered by the FMLA, and their managers are not communicating this information to those responsible for leave management.  Their ignorance, in turn, is creating tremendous risk for the employer.

It is critical that your managers identify an employee’s need for FMLA leave because, at a minimum: 1) they are responsible for communicating to Human Resources or a leave administrator that the employee may need FMLA leave; and 2) they are your eyes and ears at an early stage in the game where FMLA abuse might be an issue.

Do yourself a huge favor as you prepare your budgets this year: include a line item for manager FMLA/ADA training.  The training should: 1) educate your managers on the FMLA and what the law protects; 2) include indicators of a serious health condition; 3) arm your managers with (perfectly legal) questions they can ask an employee who is requesting leave that may be covered by FMLA; 4) provide the skills and leave management techniques necessary to properly manage an employee with a medical condition.

If you spend the $2K now to train your managers, you’ll likely save $1.2 million and also significantly reduce the chance I’ll be writing about the FMLA judgment against you on my blog.

Not that anyone reads my malarkey anyway…

fmla.jpgYesterday, the U.S. Department of Labor issued an Administrator’s Interpretation (AI) to clarify the factors an employer must consider when an employee requests leave to care for an adult child.  

As we know, an otherwise eligible employee is entitled to FMLA leave to care for a child with a serious health condition. Under the regulations, “child” is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.  Thus, two factors must be present before an employee can take FMLA leave to care for his/her adult son or daughter: the child must be incapable of self-care and have a disability as defined by the Americans with Disabilities Act.

In short, the Administrator’s Interpretation seeks to clarify three issues: 1) the age of the child at the onset of the disability; 2) the impact of the ADA Amendments Act of 2008 on the interpretation of ‘disability’ under the FMLA; and 3) the availability of FMLA leave for parents to care for an adult child who becomes disabled during military service.

My overall read of the AI?  It does not declare anything new or otherwise signal a change in direction by the DOL in how it approaches the adult child provisions of the FMLA.  In fact, one DOL official told me that the AI is meant to clarify and confirm the DOL’s long-held position on caring for an adult child and provide guidance in this area to DOL field staff.  Despite the relative straightforward nature of the AI, there are a few nuggets in the AI of which employers should take note:

Age of the Disabled Child

In its AI, the DOL noted some confusion over whether it is relevant if the adult child’s disability occurred before or after the son or daughter turns the age of 18.  Not surprisingly, the DOL confirmed that the age of the child at the onset of the disability is irrelevant to the determination.  Put simply, the FMLA covers an adult child who suffers from a disability that originated prior to age 18 as well as one that did not commence until adulthood.

Impact of the ADAAA 

In the FMLA regulations, the DOL long has adopted the ADA’s definition of disability for purposes of defining a son or daughter over age 18 under the FMLA.  As expected, the DOL endorsed the changes to the definition of “disability” under the ADAAA and warned that these changes clearly will impact an employee’s ability to take FMLA leave to care for an adult child. Notably, the DOL reminded readers that the EEOC’s position that the definition of disability should “be construed in favor of broad coverage” and “should not demand extensive analysis” is persuasive in the FMLA context as well.  

What’s the impact of the ADAAA on FMLA leave to care for an adult child?  The DOL unambiguously tells us in the AI:

The ADAAA’s expanded definition of the term ‘disability’ will enable more parents to take FMLA-protected leave to care for their adult sons or daughters with disabilities . . . “

Requiring the Employer to be Clairvoyant?

Employers should take note of one particular example offered in the AI.  As I have noted in various FMLA presentations I’ve given over the past year, the employer’s determination to designate FMLA leave usually occurs within the first couple of days or weeks of the need for leave.  In many instances, however, employers do not have enough information yet to make the FMLA determination because it does not have any confirmation that the adult child actually is disabled.  Take, for instance, a horrific automobile accident that leaves an adult child in serious condition.  Despite the child’s current condition, the doctor opines that the child is expected to make a complete recovery.  Does this condition constitute one that rises to the level of a disability?  All too often, employers are not in a position to know.  In this context, the DOL offers some guidance in its AI:

An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

This example is relatively straightforward because the DOL tells us (in the middle of the paragraph above) that the daughter will be substantially limited in walking for six months. Under the watered down version of the ADAAA, this duration likely supports the notion that the child is disabled.  However, employers don’t often have a prognosis of the kind delivered above.  In fact, employers very rarely receive a prognostication from a health care provider like the kind offered above.  My continued fear is that employers will be required to read the tea leaves in determining whether the adult child is disabled.

Impact on Military Leave

Finally, the DOL confirmed in its AI that parents of adult children who have been wounded or sustained an injury or illness in military service may be allowed to take more leave than the 26 workweeks provided for under the FMLA.  Noting that the servicemember’s injury or illness may last beyond the 12-month period covered by the military caregiver leave entitlement, the DOL affirmed that the family member is entitled to take additional FMLA leave in subsequent FMLA leave years due to the child’s serious health condition, so long as the adult child is unable to care for him or herself due to a disability.

Insights for Employers

Anything earth shattering in this AI?  No.  But it’s good to see the DOL spring to life lately when it comes to the FMLA: in the past several months, it now has issued this AI on a thorny FMLA topic and published an Employee Guide to the FMLA, which we’ve found helpful to employees and employers alike.  Perhaps we’ll get some final regulations soon on those proposed last year?  I’m not holding my breath!

For those of you playing along at home, here are links to the Administrative Guidance issued by the DOL yesterday:

  1. Administrative Guidance
  2. Fact sheet
  3. Q and As on the Administrative Guidance

Feel free to call me out for shamelessly piling on veteran broadcaster Brent Musburger.  But by now, you know that issues arising under the Family and Medical Leave Act are part of the American fabric as much as baseball and apple pie, right? Well, at least on this blog it is.

For those of you living under a rock for the past 48 hours, let me set the stage before I get to the question posed in the title above. Musburger served as the play-by-play announcer for the BCS National title game between Alabama and Notre Dame earlier this week. After two quick touchdowns put Alabama up 14-0, ESPN began scrambling for a new story line in what was setting up to be a blow out.  So, the camera panned (several times) to Katherine Webb, the girlfriend of Alabama Quarterback A.J. McCarron.  She also happens to be a former Miss Alabama.  Musburger fawned over the attractive Webb on national TV, calling her “a lovely lady” and “beautiful,” and then engaged his broadcasting partner and former college QB, Kirk Herbstreit, further in the following banter:

Musburger: “You quarterbacks, you get all the good-looking women . . . what a beautiful woman.”

Herbstreit: “Wow!”

Musburger: “Whoa!”

Herbstreit: “AJ’s doing some things right down in Tuscaloosa.”

Musburger: “If you’re a youngster in Alabama, start getting the football out and throw it around the backyard with pop.”

Access the actual video clip here.  Musburger was not the only one in America to notice Webb.  In the past 48 hours, her twitter followers have jumped from 2,000 to over 200,000.

The criticisms of Musburger’s comments have been fast and furious.  Musburger has been more than embarrassed, culminating in this apology he and ESPN issued to Webb and viewers.

Stress-induced leave of absence

Day in and day out, oodles of employees claim that an embarrassing situation at work or a difficult boss causes them to suffer work-induced stress that requires a leave of absence from the job.  So, Musburger’s situation got me thinking (since all things in life indeed come back to the FMLA): If Musburger claims he has suffered job-related stress as a result of the backlash he’s received inside and outside of ESPN, can he seek FMLA leave?

In a word, yes (a reason why I will always have work as an employment attorney).  Unfortunately for employers, there are handfuls of cases from various states across the country where courts have found that stress caused by the workplace can be a basis for taking leave from work so long as the stress rises to the level of a serious health condition that renders them unable to perform their job.

Take, for example, Meadows v. Texar Federal Credit Union.  There, the plaintiff, a former operations manager at the credit union, was placed on a performance improvement plan (PIP) because of performance problems.  Thereafter, Meadows’ manager met with her on several occasions to inform her that her performance was not improving and that she would be terminated in 30 days if her performance did not improve.  Rather than taking her performance up a notch, Meadows sought FMLA leave for stress caused by the demands at her job.  While on leave, she engaged in activities of everyday life: shopping, taking trips, attending ball games and social functions, traveling with her son to a basketball camp out of town and to an out of town birthday party, watching television, and shuttling her children to and from school and sports practices. However, her health care provider confirmed that she could not work.

In a blow for employers, the court refused to dismiss her FMLA claim, finding that the evidence showed that the plaintiff was:

depressed, stressed out, nervous, and upset.  She had become this way because of what she believed to be unjust criticism of her job performance by [her supervisors] and because she felt [her supervisors] had threatened to fire her.

As a result, the court determined that a jury would need to decide whether the plaintiff suffered from a serious health condition under the FMLA that required her to take leave from her job.

Ouch.

Insights for Employers

Note to ESPN: Be afraid. Be very afraid.

Note to all other employers: When faced with a situation like the one in the Meadows case, before you panic, use the tools given to you by the FMLA: 1) insist upon complete and sufficient medical certification (so you have a clear picture of the employee’s medical condition and their need to be off); 2) seek clarification from the employee’s health care provider if the employee is not providing a sufficient and complete certification; 3) if you have reason to doubt the certification, seek a second and third opinion; 4) seek recertification every 30 days while the employee is on leave to maximize your understanding of the continued need for leave; and 5) maintain regular communication with your employee so you remain up to date on their status and can better gauge their ability to return to work.

If that fails, it’s time to call your friendly neighborhood employment attorney, and best wishes on the wild ride ahead.

Photo credit: USA Today

This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve.  Due to seniority or the employee’s last-minute request for time off, her leave request is denied.  However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can’t work due to a flare up of her chronic bad back.

Plenty of employers just mark these days off as FMLA leave.  But they often do so with a whole lot of regret and with a wish they could do something more to push back on what they believe is a suspicious leave request.

But employers can push back, and here’s how…

Unfortunately, the FMLA regulations give employers little guidance when dealing with a leave request like the kind above.  However, the regulations relative silence on this issue opens the door to lawful maneuvers by employers to get to the truth.  Let me explain the ways:

1.  Enforce your rights at the medical certification stage.  If this is an initial medical certification of a serious health condition, I would consider including a cover letter addressed to the employee (to be shown, in turn, to the health care provider) noting that the employee’s request for FMLA leave covers precisely the same days for which the employee just recently sought vacation leave.  As a result, you explain to the employee that you are (rightfully) concerned whether leave on these particular days actually are consistent with the employee’s alleged serious health condition and the pattern of absences.  In your letter, you ask that the health care provider specifically confirm this in the certification.

A risky move?  It’s not a conservative move, I admit, since this approach is not specifically sanctioned in the regulations (at least for an initial certification).  However, I also would be perfectly comfortable arguing to the DOL that that this approach does not remotely interfere with the employee’s substantive FMLA rights.  In taking this approach, you are making no determination as to the merit of the leave request just yet.  You simply are enquiring further since it’s necessary to obtain more information to ensure FMLA leave actually is being sought.  This kind of inquiry arguably is allowed under the regulations at 29 CFR 825.302(c).

The practical impact of this move: Even though the health care provider likely will confirm that your employee was incapable of working on Christmas Eve and NYE [author’s note: what a coincidence!], it sends a message to your employee that you take your own FMLA rights as the employer seriously and will vigorously enforce them to ferret out possible FMLA abuse.  The true impact of this move will be felt the next go around when the employee thinks twice about abusing leave time.

2.  Enforce your rights by seeking clarification and/or a second opinion.  This situation is fishy enough that it creates reason to doubt the validity of a certification that supports the absence.  Before moving toward a second opinion, however, employers should work with the employee to cure the certification and seek to clarify it with the health care provider.  During this process, you may learn information that either supports the merits of the employee’s leave request or, conversely, casts further doubt on the validity of the certification.

3.  Enforce your rights at the recertification stage.  If you already have medical certification on file, the timing of the FMLA absences on the same days that were requested and denied earlier as vacation arguably constitutes “a significant change in circumstances” from the previous certification which, in turn, allows the employer to request recertification.  Similar to point No. 1 above, I would recommend including (directly to the health care provider) the pattern of the suspicious leave requests and requesting that the doctor confirm whether the need for leave on these precise days is consistent with such a pattern.

4.  Consider implementing a personal certification procedure.   Some employers require as part of their usual and customary practice that an employee sign a “person certification” acknowledging that he/she took time off for FMLA or another medical reason.  If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline.  Keep in mind, though, that this practice should be usual and customary; otherwise, employers fall prey to claims of discrimination (i.e., requiring one employee but not another to complete the personal certification).

5.  If the abuse is particularly bad, termination may be appropriate (in extreme cases).  In an earlier blog post, I highlighted Rydalch v. Southwest Airlines (pdf), which is a fabulous case for employers.  Here, Southwest found that the plaintiff was abusing FMLA leave by taking leave in conjunction with other vacation days he requested off.  Southwest relied on its honest belief that the plaintiff was abusing leave, and the court agreed.  As a result, the court dismissed the plaintiff’s FMLA claims in their entirety.

A similar case is Crouch v. Whirlpool Corporation, in which the employer had an honest belief that its employee was using FMLA leave for vacation purposes instead of recovering from an injured knee.

Employers, all hope is not lost.  Use the tools above to probe further on leave requests, particularly when they are part of a suspicious leave request or an unusual pattern of absences.  In doing so, you properly assert your FMLA rights and serve warning to your employees that FMLA abuse will not be tolerated.

christmas cat-1822979_1280

Have your employees’ absences from work been a bit more frequent lately?  And are you tired of the lame excuses they’re providing?  After all, there are only so many times your employee’s dog can knock over the Christmas tree….on top of your employee, right?

In this “best of” FMLA post, employers need not settle for patterns of absences or even suspicious excuses for absences.  Keep in mind a few best practices to combat FMLA abuse:

1.  Recognize whether whether the employee is seeking leave that might be covered by the FMLA: Your first order of business is to determine whether the employee has even notified you of the possible 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; 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:  Also under the FMLA regulations, 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.  In practice, not nearly enough employers utilize this tool, even though they should!

4.  Prepare a list of probative questions you ask of all employees when they call in to report an absence:  This list will help you determine whether any of the conditions in No. 1 above may be in play.  As the employer, you have the right to know why your employee cannot report to work.  So ask!  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
  • 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. If so, 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: 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 employment counsel 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.

For more strategies on combating FMLA abuse, feel free to access a webinar I conducted on this subject and another I conducted recently on administering difficult FMLA issues.  In these webinars, we covered real life FMLA abuse scenarios and offered practical tips to address them so that you can set your FMLA administration right.

Best wishes for a peaceful New Year!  I look forward to connecting with you in 2013.

As a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee.  Often enough, the situation goes something like this:

My operations people want to terminate Fred.  He has flown off the handle one too many times, and now, we think we caught him misreporting his time worked.  He received a mediocre performance review a few months back — some good, some bad.  And his problems continue.

But here’s the problem: Two days ago, he asked for FMLA leave.  We can still terminate him, right?

The coincidence is uncanny: a request for FMLA leave just as the employee is about to be handed the pink slip.  It’s one of the biggest headaches for any HR professional or in-house counsel.  The timing of the request stops the employer dead in its tracks, and rightfully so.  By terminating an employee immediately after he/she requests FMLA, the employer undoubtedly wonders whether it will find itself on the wrong end of FMLA interference and retaliation claims.

All is not lost!  Recently, a federal appellate court determined that an employer lawfully terminated an employee just two days after he requested FMLA leave.  The guidance from the court is instructive to employers handing these kinds of touchy situations.

The Facts

Frank Brown, a customer service operations analyst for ScriptPro, was a mediocre employee.  In June 2008, he received mixed performance reviews, which noted his excessive Internet usage, his lack of respect for personal boundaries in the workplace, and that he was argumentative and abrasive with co-workers.  After the review, his performance issues continued through September 2008.  Notably, he was belligerent toward a customer and failed to complete a critical project on time.

Later that fall, on November 19, 2008, Brown asked for time off to attend his wife’s doctor’s appointment.  Instead of providing the FMLA leave, however, his employer terminated his employment two days later on November 21 because of “unresolved, previously discussed performance issues.”

The Ruling

Plenty of courts have found that the timing of a termination decision — especially two days after an FMLA leave request — often is persuasive evidence to establish that the employer’s decision may have been motivated by the leave request.  To overcome this hurdle, the employer must “provide[] undisputed evidence that [the employee] would have been terminated regardless of this or any other FMLA-protected request.”

Here, the court found that the employer met this burden by pointing to: 1) Brown’s mixed performance review; and 2) his continued performance problems after the review in the months leading up to his FMLA request.  Brown v. ScriptPro (pdf)  As a result, Mr, Brown’s FMLA claims were properly dismissed.

Insights for Employers

This is a good win for employers in what I think is a really close case on the facts.  What was ScriptPro’s key to success here?  Documentation of the employee’s performance problems in his review and continued documentation of his performance problems thereafter.  When it comes to effective performance management and defending yourself in litigation down the road, there is no substitute for objective and comprehensive documentation of an employee’s performance issues.

So, ready yourself when you call your employment attorney prior to terminating employee: what documentation do you have to support the basis for your termination decision?  Much more often than not, your success in court will depend on it.

webinar1.jpgThanks to those who attended my webinar last week with Matt Morris and Tamika Lynch on “FMLA Made Easy: Effectively Managing Difficult FMLA Issues.” As the survey feedback indicated, this webinar was a great opportunity to discuss common issues that arise in the administration of FMLA leave and how employers can best address them.

From an employer perspective, there are several key takeaways from the webinar that will help employers legally administer FMLA leave and prevent FMLA leave abuse (ignoring, of course, the part where I sang to you during the webinar):

  1. Medical certification, recertification and second/third opinions continue to be among the best tools to combat FMLA abuse. We spent a good amount of time during the webinar working through what an employer should do when it receives incomplete, inadequate or suspect medical certification. The message is clear — employers have rights when it comes to the medical certification process, and they should utilize them to combat FMLA abuse.  A prior blog post here also help guide you through best practices in the certification process.
  2. A honest belief that an employee is abusing FMLA leave — in most cases and states (except California!) — is a strong defense to an FMLA claim, so long as the employer conducts a complete and exhaustive investigation of the facts involved.  Clearly, more employers should be mindful of this defense, since courts are increasingly turning to it when analyzing FMLA claims.
  3. Employers must be careful where an employee seeks leave to care for an adult child or another family member.  For best practices in dealing with these issues, access the webinar!
  4. Where FMLA ends and ADA begins, it is critical that employers engage the employee in the ADA’s interactive process.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  Where an employee has requested additional leave after FMLA leave expires, we want to know what they can and cannot do, whether reasonable accommodations are available to help them perform their essential job functions, and whether additional leave will help them perform these essential duties. As I also pointed out during the webinar, it is important for employers also to document how the requested leave of absence poses an undue hardship to their business. Specifically, they should document the following:
    • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
    • Lower quality and less accountability for quality
    • Lost sales
    • Less responsive customer service and increased customer dissatisfaction
    • Deferred projects
    • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
    • Increased stress on overburdened co-workers
    • Lower morale

Finally, as you may recall during the webinar, I made reference to an FMLA guide recently 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.

This past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions.  A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers “caring for a spouse.”

Let me explain how.

The FMLA allows eligible employees up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition.  But who is a “spouse”?  As an initial matter, the FMLA regulations (at 29 C.F.R. § 825.122(a)) look to state law to define the term:

Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

The FMLA’s provisions, however, are further governed under federal law by DOMA, which very clearly states that:

. . . the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

So, even if a state allows same-sex marriage, DOMA does not recognize the union.  As a result, employees who are in same-sex marriages can lawfully be denied FMLA leave to care for their spouses.  Many states have adopted broader versions of the FMLA so as to provide leave to care for a same-sex spouse or civil partner.  The problem for employers in these states, however, is that leave that is not FMLA qualified cannot be counted against an employee’s FMLA entitlement.

Let’s use an example: if an employee is allowed 12 weeks of leave under company policy to care for his same-sex spouse, but later needs an additional 12 weeks of leave for a health condition that qualifies for FMLA leave,  the employer must grant his request for FMLA leave because the FMLA tells us that the initial 12 weeks he took to care for his same-sex spouse did not qualify as FMLA leave and therefore did not exhaust his FMLA leave entitlement.

If the Supreme Court rules that DOMA violates the right to legal equality for same-sex couples who are legally married under state laws where they live, then the FMLA arguably would provide leave for employees to care for same-sex spouses — at least in states where same-sex marriage is legal.

Insights for Employers

As I have noted in previous posts, the number of employers who voluntarily are providing leave to domestic partners and same-sex spouses is increasing among Fortune 500 companies and leading business.

Before we obtain (possible) guidance from the Supreme Court (expected in June 2013), keep the following in mind: if your leave policies provide employees time off to care for a domestic/civil union partner or same-sex spouse, employers cannot count this leave under the employee’s 12-week FMLA allotment, since the FMLA does not recognize these relationships.  To ensure that you are not inadvertently setting yourself up for an FMLA interference claim when providing leave to an employee to care for a domestic/civil union partner or same-sex spouse, we recommend that employers contact their employment counsel for guidance to ensure that their leave policies are legally sound.

shoppingphoto2.jpgReports on the street indicate that people literally are lining up and begging for the last seat for a complimentary FMLA webinar I am hosting this Thursday, December 6.  (See right.)  The good thing is that, as subscribers to our blog, you and your colleagues still can sign up.  (See details below.)  I hope you can join us.  I can’t imagine anything more exciting this holiday season, and I am sure you agree!  [Insert sarcastic reply here.]

FMLA Made Easy: Effectively Managing Difficult FMLA Issues

Thursday, December 6, 2012 (12:00 – 1:30p.m. CST)

Overview of the Webinar

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job.  Moreover, intermittent leave is the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report.

But why must it be so difficult?

In this complimentary webinar, Matt Morris, vice president at FMLASource, Tamika Lynch, counsel at Siemens Industry, Inc., and I will tackle some of the most common FMLA conundrums and offer practical advice to employers in addressing these situations.  Using real life situations from their own wealth of experience dealing with the FMLA, our presenters will cover topics such as:

  • Unique issues when caring for an adult child or a family member
  • Responding to inadequate or incomplete medical certification (or one that’s never turned in!)
  • Recertifications: what employers can ask for when circumstances have changed or the validity of leave is in doubt
  • Fluctuating work weeks and its impact on an employee’s FMLA allotment
  • “Honest Belief/Honest Suspicion” cases: taking action against FMLA abuse
  • Managing the second opinion process
  • ADA meets the FMLA: what employers should do when an employee’s FMLA leave is exhausted and he/she still can’t return to work

vote ABA blawg 2012.jpgWe are pleased to announce that our little FMLA blog has been selected for the second year in a row by the ABA Journal as one of the Top 100 Legal Blogs of 2012!  In its 6th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name us among only six labor and employment blogs receiving this honor.

In naming us to this elite group, the ABA Journal shared the following about our blog:

Is time spent filling your prescription at Walgreens covered by the Family and Medical Leave Act?  Is leave beyond FMLA an “undue hardship” under the Americans with Disabilities Act? For employers with FMLA concerns, this blog is the place to go.  Blogger Jeff Nowak provides nuanced commentary on typical and not-so-typical employment conundrums.

Now, the real work begins!  If you enjoy our blog, please take a few seconds to vote for FMLA Insights as the very TOP blog of the Top 100.  (Seriously, it literally takes seconds to vote.)  Complete a simple registration form and vote for us here.

As always, thanks for your support of our blog, and a special thanks to all our readers who nominated us for this prestigious award.  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 five employment blogs who made the list — they definitely are worth the read…and your vote:  Daniel Schwartz’s Connecticut Employment Law Blog, Molly DiBianca’s Delaware Employment Law Blog, Jon Hyman’s Ohio Employer’s Law Blog, Philip Miles’ Lawffice Space and Donna Ballman’s “Screw You Guys, I’m Going Home” blog.