When it comes to administering FMLA, I’ll admit — I have grown cynical and hardened. Like a doctor who becomes desensitized to blood and guts, I, too, have become desensitized to an employee’s antics while on FMLA leave.

Taking FMLA leave for a beach vacation, you say? Sounds likely. Caring for your dying mother when, in reality, you need leave to serve a 60-day jail sentence for DUI? Yep, heard that one before.

As an HR professional, leave administrator or as counsel for an employer, you witness some of humanity’s worst behaviors, all in an effort to scam a little medical leave. Despite this madness, I am often reminded that there really is a need for these federal and state leave laws, since there are a whole lot of people dealing with legitimate medical conditions that render them unable to perform their job.

And these people are counting on us HR/leave professionals and legal counsel to help them.

Once every spring, I return to a happy place where FMLA and ADA situations are taken seriously and with sincerity. At DMEC’s annual FMLA/ADA Compliance Conference, oodles of FMLA and ADA nerds convene to discuss leave and accommodation compliance issues.  I had the pleasure of joining my friend and Special Counsel at Unum, Ellen McCann, to give an overview of the key FMLA and ADA cases from the past 12 months. Ellen’s performance was riveting; mine, not so much. Nevertheless, here is our PowerPoint if you were unable to join us.

In the immortal words of Cosmo Kramer, this compliance conference scratches me right where I itch! For several days, we put cynicism aside and focused on practical and meaningful ways employers can support their employees when they or their loved ones deal with medical issues that keep the employee away from work — all while keeping business operations humming.

Here are few insights that I took from the conference:

1.  The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return.  To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence.

2.  Be empathetic. The words, “How Can I Help You?” can go a long way.  When you communicate with an employee, use words that show that you’re on the same side as the employee. You want to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy.

3.  All Requests for Leave Should be Treated as a Request for a Reasonable Accommodation.  Yes, you read that correctly.  Each time an employee requests leave from the job because of a medical condition, the request should be analyzed through the lens of FMLA and ADA.  This concept is hardly earth-shattering, and it makes sense. Where an employee needs leave from work because of a serious medical condition, any good employer should use it as an opportunity to engage in the interactive process to determine how we can best address the employee’s situation in an effort to keep them engaged and at work.  A leave of absence is only one tool to help us accomplish our goal in maintaining a productive and healthy workforce.

4.  Train managers to help you achieve the kind of workplace you’re trying to cultivate.  At the conference, FMLA Branch Chief for the Department of Labor, Helen Applewhaite, identified several compliance problems that pop up regularly during DOL investigations.

She noted that front-line managers often fail to recognize when an employee may need a leave of absence protected by the FMLA. Even worse, some make derogatory comments about an employee’s use of FMLA leave.  Indeed, many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request.  In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

As I warned attendees in my DMEC presentation, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Every once in awhile we need that simple reminder:

Be sincere.

Be empathetic.

FMLA and ADA compliance will follow. Look at it as your Kumbaya moment.

If you have any interest in vastly improving your FMLA and ADA mojo, here are three can’t miss resources you need to make part of your professional reading and education each spring:

aba_logo_01.jpg1.  Review the ABA’s Report of 2016 FMLA Cases.  Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Could you imagine anything more scintillating?  Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision from 2016. Seriously, every one of them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to Jim Paul and Maria Audero, who spearhead the annual summary.

2.  Attend NELI’s ADA & FMLA Compliance Update: For nearly 40 years, the National Employment Law Institute (NELI) has been the national leader in training professionals of all kinds in the ADA and FMLA (and in employment law generally).  NELI’s two-day ADA and FMLA Compliance Update is an event you should not miss.  Really, I cannot say enough about NELI — they are the best of the best in hosting employment-related seminars for employers and management side attorneys.

neli.JPGThe ADA & FMLA Compliance seminars are held in April in San Francisco (April 6-7), Washington, DC (April 13-14) and Chicago (April 20-21).  This year’s seminar information can be accessed on NELI’s website here or in its seminar brochure (pdf). Not to scare you away, but I will be presenting on the ADA at the Washington, DC session.  More importantly, I will be performing on stage with David Fram, who (in my humble opinion) is the single best presenter on ADA issues in the history of the universe. Don’t believe me? Come find out. You won’t be disappointed.

NELI attendees also receive a binder of the very best substantive materials in the ADA and FMLA areas. There is no resource I keep closer to my side throughout the year.

3.  Head on Over to DMEC’s ADA & FMLA Compliance Conference:  You can’t do one without the other. Each year, the Disability Management Employer Coalition sponsors three days of FMLA and ADA goodness!  You leave there eating, drinking and sleeping these two very special laws, and let me tell you — that thought is enough to give me goosebumps.

DMECDMEC has put together another gem of a compliance conference this spring.  At this year’s conference, which will be held May 1-3 in Minneapolis, I am delighted to co-present with my good friend, Marti Cardi, Vice President, Product Compliance at Matrix Absence Management.  Marti and I will in one hour highlight the key FMLA cases over the previous year and offer our insight on how they will impact employers.

See you in April. And May.

TrumpEvery other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical leave, of course!

How likely is employee paid leave to become reality in a Trump administration?  In short, don’t bank on it.

Trump’s Position on Employee Paid Leave

On the campaign trail, Mr. Trump did not offer a detailed position on federally-mandated paid leave for employees, though it certainly is notable that he was the first Republican presidential nominee to propose paid maternity leave for employees across the country.  Under his proposal as highlighted on his campaign website, Mr. Trump would provide six weeks of paid maternity leave to new moms, and he would pay for it by funds recovered in fighting unemployment compensation fraud.  Mr. Trump would not offer any paid leave to a father after the birth of a child, nor any paid time off (for either) for the adoption of a child.

If Mr. Trump carries through on his campaign promise and continues to endorse such a proposal, which has been pushed publicly by his daughter, Ivanka Trump, it faces a rocky road in a Republican-controlled Congress.  It’s hardly clear whether the Republican Congressional leadership would advance any of Mr. Trump’s priorities, but if the past is any indication, the GOP Congressional leadership has long been opposed to paid leave. There is little chance this position will change with Mr. Trump taking office.  Shout out to SHRM for providing a thorough analysis on this topic, too.

Who Will Become the New Secretary of the U.S. Department of Labor (aka the new “Head FMLA Nerd”)?

Speculation has been swirling that current EEOC Commissioner Victoria Lipnic, who holds one of the two Republican spots on the Commission, is the leading candidate to become Secretary of Labor. If her name rings a bell, Ms. Lipnic was the leading author of the changes to the (more employer-friendly) 2009 FMLA regulations.  From 2002 to 2009, she served as an assistant secretary of labor for employment standards, a role which allowed her to oversee the Wage and Hour Division, including FMLA enforcement.  Since 2010, she has served as an EEOC Commissioner, delicately advocating that the agency take a more moderate position on some of its most publicized priorities.

During her time as an EEOC Commissioner, she has become known for working collaboratively with her Democratic counterparts.  Notably, however, she criticized the EEOC’s decision to issue the 2015 Pregnancy Discrimination Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court was taking pregnancy and accommodations issues up at the time in Young v. UPS. She also has expressed concern for the gap in pay for men and women, but also opposed the EEOC’s push to try and fix it, again voting against a proposal that would require certain employers to disclose their pay data to the government.

Personally, I have found Commissioner Lipnic to be delightful and down-to-earth, not to mention realistic and thoughtful about the burdensome nature of government regulations on employers. Her appointment would be a benefit to the employer community.  As a related aside, I also can say “I knew her back when . . .” when she and I co-presented about pregnancy accommodations at a DMEC conference last year.

Employment-Word-Cloud-300x152This week, I had the pleasure of presenting with Department of Labor and EEOC officials on key developments out of Washington with respect to leave management and accommodations.  Our presentation was part of the annual conference of the Disability Management Employer Coalition. If you’re an employer and not a member of DMEC, you’re doing yourself a disservice.  Find out more about the organization here.

What’s on DOL’s Mind in 2015 and 2016?

Helen Applewhaite, the DOL’s Branch Chief for FMLA, presented on DOL enforcement initiates in the FMLA arena, and I offered comments from the peanut gallery on the practical impact on employers in light of these initiatives.  Here are the takeaways:

1.  DOL’s Focus on Systemic Compliance Issues is Top Priority.  The DOL is focusing its attention on systemic FMLA problems.  What this means is that DOL is broadening its FMLA enforcement to identify compliance problems that impact multiple employees and multiple employer locations.

EEOC has made a killing off investigating systemic issues, often leading to costly and burdensome investigations and litigation. For the foreseeable future, we can expect the same from DOL — broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions.  Why?  Because this is already happening.  Over the past couple of years, the DOL’s information requests have covered a several- year period, and the agency typically requests data on all leave requests, grants and denials over that period, among a host of other subject areas. In a previous post, I included samples of information requests my clients have received in the past, like this burdensome one from the DOL.  Yep, they’re ugly.

What’s an Employer to do?  Friends, we must conduct self-audits of our FMLA processes and recordkeeping.  Now.  This means we must ensure that our FMLA policies, forms and correspondence are up to snuff, and that our FMLA processes are compliant.  In a previous post, I included specific recommendations on what our self-audit should look like.  [Shameless plug alert: I offer these self-audits through our CALM service.]

2.  Avoid these Common Errors.  Applewhaite identified several compliance problems that pop up regularly during DOL investigations:

  • Employers’ inability to recognize the need for FMLA leave and then disciplining employees for an absence that should be covered by FMLA
  • Failing to meet notice deadlines established by the FMLA
  • Failing to properly administer medical certification, including requests for recertification more frequently than permitted

The first bullet point is particularly troublesome, as I find that many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request.  In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

As I’ve warned employers before, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

3.  New Same-Sex Spouse Rule: Yawn!  Applewhaite briefly discussed the DOL’s recent regulatory change which edited the definition of spouse to include same-sex marriage.  As I told my DMEC friends, this regulatory change should not create any administrative concerns for us.  Simply put, we administer leave for a same-sex spouse in the same manner we administer leave for a heterosexual spouse.  Case closed.

For more information on the DOL’s same-sex spouse regulation changes, see my post here.

And the EEOC…

Pierce Blue, Attorney and Special Assistant to EEOC Commissioner Chai Feldblum, and I spent some time analyzing the implications of the Young v. UPS case, which expanded the potential for pregnant employees to secure workplace accommodations.

The EEOC has modestly edited its pregnancy discrimination guidance in light of the Young decision, but there is otherwise not much new news to share on the pregnancy accommodation front, as the lower courts generally have not yet applied the Young balancing test to real life situations.

That said, an early read on courts which have followed the Young reasoning suggests that employees may be given some latitude in advancing their case when alleging that the employer did not provide a requested accommodation during their pregnancy.  In one such case, Bray v. Town of Wake Forest, an employee defeated an early motion to dismiss her sex discrimination claim after her employer refused to assign her light duty work during her pregnancy.  The plaintiff, Erin Bray, was a Wake Forest police officer, and she provided a doctor’s note during her pregnancy limiting her to light duty positions. Shortly thereafter, Erin was terminated because she could not perform the essential functions of her position as a police officer.

The court refused to dismiss Erin’s sex discrimination claim, finding that, on two occasions, male police officers were allowed to perform light duty, apparently because they were injured on the job. In finding two other accommodations sufficient to survive a motion to dismiss, the court took a rather liberal reading of the Young case, but in any event, it indicates that even the slightest difference in how accommodations are distributed may very well breathe life into a gender discrimination claim.  Remember the key question raised by the Young court: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?

Apparently, in Bray’s case, “so many” may simply equal two.  If so, employers better watch out.

eeocLast week, I had the pleasure of presenting with EEOC Commissioner Victoria Lipnic on the EEOC’s pregnancy discrimination guidance and how employers should address pregnancy accommodations in the workplace.  Our presentation was part of an outstanding FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access Bloomberg BNA’s coverage of our presentation here (pdf).

From the employer perspective, there were several key takeaways from Commissioner Lipnic’s comments about the recent Young v. UPS pregnancy discrimination case and her opinion on whether an employers have an obligation to provide accommodations to pregnant employees:

1.  We can’t really figure out what the Supreme Court is telling us in Young v. UPS.  As you may recall, I gave feedback to employers on the Young case here.  In that case, the Supreme Court gave pregnant employees a path to argue that a workplace accommodation provided to other non-pregnant employees but denied to them is illegal under the Pregnancy Discrimination Act (PDA). However, the Court was hardly clear in explaining how a pregnant employee actually establishes her case.

2.  Given the lack of clear guidance from the Supreme Court, Commissioner Lipnic bluntly concluded, “Why wouldn’t employers accommodate pregnant employees as they do others?” Refusing to do so carries a whole lot of risk.  Keep in mind: if one of the Republican EEOC Commissioners is telling us we need to provide accommodations to pregnant employees (ahem, that’s Cmmr. Lipnic), then we can expect that the EEOC clearly will be taking a fairly liberal position when it comes to providing accommodations to pregnant employees in the workplace.  Just giving fair warning now.

3.  Commissioner Lipnic and I both encouraged employers to consider how they have treated comparable employees before refusing to provide an accommodation to a pregnant employee. Although the Supreme Court didn’t give employers a clear road map in the Young case, the Court took pause over the fact that UPS offered light duty to several groups of employees (e.g., those injured on the job, those with an ADA disability, and those who temporarily lost their DOT license) but did not offer the same to Young when she sought an accommodation after her pregnancy restricted the work she could perform.

The Young court opinion raised a key question that I believe other federal trial court judges likely will pose to employers: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?” It is critical that employers be prepared to address this question, so it should be central to our discussions now about how we implement the Young decision in our workplaces.

In short, before we deny accommodations to pregnant employees who are restricted in their work, employers must be prepared to distinguish accommodations provided to other employees. For instance, is there anything particularly unique about the accommodation provided to others but not to a pregnant employee? If only provided to one group of employees, what’s our rationale?

4.  Commissioner Lipnic confirmed that the EEOC already is revising its July 2014 pregnancy discrimination guidance in light of the Young decision, and the changes will focus largely on the evidence necessary to establish a pregnancy discrimination/accommodation claim under the “burden shift” analysis identified by the Supreme Court. Think the EEOC will allow employers to comment on any proposed changes?  Who wants to make a friendly wager with me?

Bloomberg BNA article above reproduced with permission from Daily Labor Report, 78 DLR A-7 (April 23, 2015). Copyright 2015 by The Bureau of National Affairs, Inc.

presentation1Throughout the year, HR professionals and attorneys ask for my recommendations on the very best conferences to learn more about the FMLA and ADA.  The “best,” of course, is in the eye of the beholder.  In my humble opinion, however, the conferences highlighted below are can’t miss seminars if you want to expand your knowledge of the FMLA and ADA or if you spend much of your professional lives in these areas:

Two Can’t Miss Seminars

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

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

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

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

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

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

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

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

See you in April.

Other Reliable Resources

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

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

Neighbor door matThis past December, the Department of Labor quietly turned its FMLA enforcement over to a new leader. After the retirement of FMLA Branch Chief Diane Dawson, who led the DOL’s FMLA enforcement for several years, the DOL turned to longtime DOL FMLA policy guru Helen Applewhaite to head up the agency’s FMLA efforts.  (DOL doesn’t publicize these personnel moves, nor does it make available a bio on the new FMLA branch chief.)  In her role, Ms. Applewhaite oversees the development of regulations and other guidance regarding the FMLA and gives direction to DOL investigators on FMLA matters. Working her way up from a wage and hour investigator nearly 25 years ago, Ms. Applewhaite played a key role in the changes to the 2009 FMLA regulations and 2013 regs.

Earlier this month at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition, Ms. Applewhaite gave employers a snapshot of what the DOL’s FMLA enforcement efforts will look like under her leadership.

Calling 2014 a “pivotal” year for FMLA enforcement, Ms. Applewhaite focused much of her presentation on the DOL’s renewed emphasis on conducting compliance investigations with an emphasis on-site FMLA visits to ensure compliance. We were the first to report on this DOL initiative last year under previous FMLA Branch Chief Dawson.  Some of what Ms. Applewhaite shared was more of what we have heard before: that DOL has the authority to come on-site whenever it deems it appropriate, and that the agency’s focus is to bring employers into compliance with the law and remedy any FMLA violations.  That said, Ms. Applewhaite shared a few nuggets that employers should be aware of:

  • On-site investigations are the new norm.  As I referenced in my blog post last year, the DOL announced in April 2013 that it would increase the occasions when it comes on site for an FMLA investigation.  At that time, however, DOL appeared as though it would pick and choose when it would come on site, focusing on situations where an employer has accumulated a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.  Ms. Applewhaite signaled that we should be prepared for DOL to come on site far more often in the future.  In practice, this approach seems to be true.  I have been involved in a number of DOL investigations over the past year, and in nearly all of them, the investigator initially indicated that DOL would come on-site to interview employees and review FMLA records.  Some actually occurred, others didn’t.  Nevertheless, on-site FMLA investigations are the reality. Here. Now.
  • The DOL is focusing its attention on systemic FMLA issues.  Sound familiar?  If you’ve been involved in any EEOC investigations over the past few years, you know what’s coming.  Whether a single or multi-employee charge of discrimination, the EEOC has become known for broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions.  EEOC investigations effectively have become mini-trials, requiring production of tons of information as the agency searches for violations far beyond the one complained of in a single charge. Might the DOL follow suit?  My sense so far is “yes,” since some of the same information recently has been requested of my clients.  As confirmed this month by Ms. Applewhaite, DOL’s standard request will seek information for a two-year period.
  • According to Applewhaite, DOL will give particular attention to those areas within your organization where leaves of absence tend to be more frequent.  In these areas, there is a greater chance that the employer has not complied with FMLA notice and/or certification requirements.  DOL also finds that front-line managers in these areas tend not to be familiar with the FMLA and its obligations.
  • Employee interviews will become standard practice in an on-site visit.   Why?  DOL wants to know that your managers and individuals in the leave process are familiar with your FMLA policy, and it seeks to double-check your leave procedures by requiring multiple individuals to attest to them. Managers will be expected to walk a DOL investigator through an employee’s leave request, where various FMLA touch points will be tested.  [Read: begin your manager training now!]

Insights for Employers

Don’t cry.  We’ll get through this.  With flying colors, as they say.  I repeat below the same suggestions I have shared before.  Given DOL’s enforcement activity in this area, you need to be prepared for your inevitable FMLA investigation.  So, grab your favorite employment attorney and start conducting a self-audit.   Such an audit should include the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster ”prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. Again, your forms must incorporate the recent regulatory changes. A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.
  7. Train your employees! If Applewhaite said it once, she said it several times during her presentation: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because they are creating a liability for you.  I agree with Ms. Applewhaite on this one. There are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Don’t become the latest DOL press release when it comes to FMLA.  Heed the DOL’s warning that 2014 is a pivotal year and get your house in order now.

Oh No  - Not you again 2.jpgFor employers who have been involved in an FMLA investigation conducted by the U.S. Department of Labor, the process can be a bit of a head-scratcher because no two investigations look the same.

The FMLA investigation often starts with a somewhat mysterious phone call from a DOL investigator identifying him or herself as such. What follows, though, is far from certain. Occasionally, the employer is informed why it’s being investigated.  Other times, it’s not. Occasionally, the matter is assigned a case number.  Other times, it’s not.  At times, the DOL uses what appears to be a standard request for information – like this one.  Other times, a request for information looks much different – like this other one.  [Employer names redacted to protect the innocent.]

Last week, DOL Branch Chief for FMLA Diane Dawson sought to clarify the DOL’s investigation process. Speaking at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition (DMEC), Ms. Dawson explained (from the DOL’s standpoint) how a DOL FMLA investigation is initiated and what it looks like.  Although the presentation provided some valuable insight into the DOL’s approach in an FMLA investigation, one nugget of information stood out:

The DOL expects to increase the frequency in which 

 it comes on-site during an FMLA investigation.  

Before we all start panicking, let me remind employers: the DOL always has had the right to conduct on-site investigations — both announced and unannounced.  However, at least in the FMLA context, this approach has been virtually non-existent in my experience and based on anecdotal evidence shared by employers generally.  EEOC has increased this practice in recent years, but not the DOL.  

Given the infrequency of on-site visits to date, however, the change in the DOL’s approach here is noteworthy.  In her DMEC presentation, Ms. Dawson reported that the DOL’s national office has instructed its regional offices to identify occasions when it would “make sense” to conduct an on-site visit during an FMLA investigation.  Examples might include situations where an employer has racked up a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.  

So, why is the DOL changing its approach?  

The DOL reports that on-site visits are easier for its investigators largely because: 1) it tends to make the investigation less time consuming for the agency; 2) investigators have ready access to records, data, FMLA policies and FMLA forms; and 3) investigators can interview employees face-to-face while reviewing documents on-site.    

How Do Employers Prepare for an FMLA Investigation, including an on-site visit?

Given the DOL’s new approach to FMLA investigations, Ms. Dawson advises employers to be proactive in their approach to FMLA compliance before the DOL even knocks on the door.  I couldn’t agree more.  It makes good business sense for employers to engage in a self-audit their FMLA policies, forms and practices so they can substantially reduce their risk of FMLA liability in a DOL FMLA investigation or FMLA-related lawsuit.

Whether we agree or disagree with the DOL’s new strategy, let’s move past that.  We need to prepare for the inevitable.  So, grab your favorite employment counsel (if there is such a thing!?!) and start conducting that review!  A self-audit should include the following:

  1. Conduct a thorough review of your FMLA policy.  Important compliance alert: Ms. Dawson pointed out that the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents.  As to your policy, is it up to date?  If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)?  Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements.  In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants.  If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)  
  3. Ensure your FMLA forms are legally compliant.  Examine all existing FMLA forms to determine whether they comply with FMLA regulations.  Again, your forms must incorporate the recent regulatory changes.  A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.  This is no small task.  In the DOL’s model forms, for example, the DOL failed to include the GINA safe harbor language.  What!?!  View this post so you know the specific GINA language to add to your certification forms.
  4. Prepare legally compliant FMLA correspondence.  In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions.  These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures.  A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA?  Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation?  f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave?  h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?  Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)?  All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now.  Are you maintaining all the data DOL will be looking for, and are your data accurate?  Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave.  These documents should be maintained for at least three years, and they should be kept separate from the personnel file.
  7. Train your employees!  Call me a resounding gong (of course, in the most endearing kind of way!), but why aren’t more employers training their managers about FMLA compliance and their role in administering FMLA and following your FMLA policy?  There are way too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations.  Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Did I overwhelm you?  This was not my intention, so if you’re rattled, I beg a thousand pardons! In an era of rigorous enforcement by the DOL and increased FMLA litigation, we need to take the time now to ensure we are FMLA compliant. The alternative is far too costly.  

I welcome your feedback on anything you believe is critical to the self-audit process above and which I missed.  Let’s make this a continuing conversation…

(Hat tip to Marti Carti, Chief Compliance Officer at Reed Group, who did a great job outlining many of these self-audit principles during the DMEC presentation with Ms. Dawson.)

DOL employee guide.jpgThis week, I had the privilege of presenting on the “Nuts and Bolts” of the FMLA with Department of Labor Branch Chief for FMLA, Diane Dawson.  Our presentation was part of an FMLA/ADAAA compliance conference hosted by the Disability Management Employers’ Coalition (DMEC).  [My unsolicited opinion: DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers.  Any employer should consider joining if they want to improve their integration of disability/absence management.]

Our “nuts and bolts” presentation materials were closely modeled after an FMLA PowerPoint that the DOL just published and posted on its web site for the public’s use.  The DOL’s PowerPoint can be accessed here (PPT).  (Access the pdf version)

For what it’s worth, I’ve found the DOL’s PowerPoint to be very even-handed in providing an overview of the FMLA, and I’d recommend that employers incorporate portions of the PowerPoint into their own FMLA training materials.  

Of course, when using the DOL’s PowerPoint to create training materials, it should be tweaked a bit to add emphasis on an employer’s rights — things like employee notice requirements, enforcing call-in procedures, and more background on requiring timely, complete and sufficient medical certification and re-certification — but this PPT is a really good start.  Good enough of a start that I thought I would call to all of your attention.

Happy FMLA training!

 

100.jpgThere must be something in the water.  Over the past few months alone, I have reviewed a number of employers’ policies and correspondence regarding an employee’s return to work from a leave of absence.  What has been surprising to me is the number of employer policies that require an employee to return from leave with “no restrictions” or “100% healed.”  Consider the following requirement, which was embedded in an employer’s return to work notice at the conclusion of FMLA leave:

As your FMLA leave is nearly exhausted, we expect you to return to work on April 2, 2012 with a note from your physician stating that you are able to work with no restrictions.

Or take this one, which a third party administrator proposed to one of my clients for use in correspondence sent with the Company’s FMLA Rights and Responsibilities Notice:

In addition, [the Company] cannot accept light duty restrictions upon your return to work.  If you are unable to return to work without restrictions, you must remain on leave until you are able to return without restrictions.

¡Ay, caramba!  Really?

What’s the Problem with a “No Restrictions” Approach? 

When employers require that employees be 100% healed or have no restrictions upon their return to work, the far majority of employer labor compliance courts have found that these policies discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation under the Americans with Disabilities Act.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Not all courts feel this way, of course.  Recently, in Powers v. USF Holland (pdf), a federal appellate court found that “100% healed” policies are only problematic if the employee can show he or she is actually disabled or is regarded as disabled.  Hmmmm…that doesn’t make me feel too comfortable.  Interestingly, this decision applied pre-ADA Amendments Act (ADAAA) law and regulations because the facts pre-dated the ADAAA.  However, even this conservative Seventh Circuit court warned employers:  “The risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”

The Powers decision certainly echoes the EEOC’s position, which has long held that these policies violate the ADA.  In fact, late last month, I had the chance to serve as a fellow speaker on ADA and FMLA issues at a DMEC conference with Chris Kuczynski, the EEOC’s Assistant Legal Counsel and Director of its ADA/GINA Policy Division.  At the conference, Mr. Kuczynski reminded employers that they face significant risk under the ADA if they maintain a policy that requires an employee to return to work without restrictions (for the reasons stated above).

Insights for Employers

Given the much broader regulations implementing the ADAAA, employers that still enforce “100% healed” policies or require evidence that employees can return to work “without restrictions” take on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC’s recent litigation in this area, this evaluation is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation.