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.

FMLA posterThis week, the Department of Labor announced that it soon will issue a new general FMLA Notice that can be used interchangeably with their current FMLA posting.  In issuing this new directive, the agency also unveiled a new guide to help employers navigate and administer the FMLA.

Here’s the scoop:

New DOL Poster

Under the FMLA, an FMLA-covered employer must post a copy of the General FMLA Notice in each location where it has any employees (even if there are no FMLA-eligible employees at that location). According to the FMLA rules, the notice must be posted “prominently where it can be readily seen by employees and applicants for employment.”

The DOL has announced that it will release a new General FMLA Notice for employers to post its workplaces.  According to the DOL, the new poster won’t necessarily include a whole bunch of new information.  Rather, the information in the notice will be reorganized so that it’s more reader friendly.

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice.  She confirmed that employers would be allowed to post either the current poster or the new version.  In other words, employers will not be required to change the current poster.  For those that want to use the new poster, you can access it here.

New Employer FMLA Guide

In 2012, the DOL issued a guide to employees to help them navigate their rights under the FMLA.  Several years later, DOL now has issued a companion guide for employers.  According to the DOL, the Employer’s Guide to the Family and Medical Leave Act (pdf) is designed to “provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.”

DOL Employer guideThe new guide was unveiled by Ms. Applewhaite at an annual FMLA/ADA Compliance conference sponsored by the Disability Management Employer Coalition (DMEC). Generally speaking, the new guide covers FMLA administration from beginning to end, and it follows a typical leave process — from leave request through medical certification and return to work.

As for the Guide itself, my initial take is that it will be a decent resource for the employer community. I also appreciate the fact that the DOL asked me and a couple of other leaders on the employer side in the FMLA space to offer constructive feedback before the guide was released. At the time, I encouraged the agency to tackle in its guide some difficult FMLA administration issues that employers grapple with, feedback of which did not make its way into the DOL’s final draft (nor did I expect it, I suppose!).

While the guide helps explain the FMLA regulations in a user-friendly manner, the Guide primarily is meant to answer common questions about the FMLA, so it leaves unanswered leave issues that continue to frustrate employers in their administration of the FMLA.  However, the Guide is likely to have some benefit to employers when administering the FMLA.  For instance, the Guide:

  1. Follows the FMLA regulations and the course of a typical leave request in a relative orderly manner.
  2. Contains easy to follow flowcharts so that employers can better understand the typical FMLA process, including a cute little “Road Map to the FMLA” [yes, I think I just called the DOL “cute”] that provides an overview of the FMLA process.  You’ll even find some interactive cartoons along the way to further explain the regulations.
  3. Includes “Did You Know?” sections to give employers a heads-up on some of the lesser-known provisions and nuances of the FMLA regulations.
  4. Highlights user-friendly charts and explanation of the medical certification process, including what information is required in certifications.
  5. Provides a helpful overview of military family leave, which often can be a bit overwhelming to employers attempting to navigate this portion of the FMLA.

I welcome feedback on the new guide — what do you like?  Dislike?

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.

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.