webinar1.jpgThanks to those who attended my webinar last week on FMLA and ADA Overlap Issues.  If you missed the program, you can access the webinar here.  Our PowerPoint from the webinar can be downloaded here (pdf).

In a mere hour plus, Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management CorporationMatt Morris (Vice President at ComPsych) and I covered a number of FMLA and ADA overlap conundrums, such as:

  • Handling an employee’s request not to work overtime or more than eight hours in a day
  • Managing an employee’s sporadic, yet frequent absences after the employee exhausts FMLA leave
  • Responding to an employee’s request for a new supervisor due to stress caused by the workplace
  • How many extensions of leave is an employer legally obligated to provide after an employee exhausts FMLA leave

And we sang a Thanksgiving jingle. Which, of course, was god-awful. Thankfully, this can be skipped over in the recording.

During the webinar, some common themes emerged:

  • When a triggering event occurs (e.g., a request for leave), the interactive process is paramount.  The employee’s request must always be taken seriously, and it is critical that the employer engage the employee to determine whether any accommodations exist that would enable the employee to perform the essential functions of his job. We outlined what this engagement should look like.
  • The determination regarding whether a requested leave must be granted as a reasonable accommodation requires a fact-intensive inquiry.  We provided attendees a very specific approach to handling requests for leave as a reasonable accommodation, focusing on: 1) how an employer should deal with vague and/or non-responsive information from the employee and the health care provider; and 2) how an employer can identify the undue hardship on the employer’s operations as a result of the employee’s continued absence.  To borrow a phrase from Sara during the webinar, “leave is not a destination . . . it’s a tool to help the employee get back to work.”  Well said.
  • An employer absolutely can insist on an employee’s regular and reliable attendance. However, where the FMLA and ADA are implicated, how you communicate and document your attendance expectations sets the foundation for taking appropriate and lawful personnel actions at a later time.  The path is full of potholes, however, so we recommended an approach to maneuver around those landmines.
  • Beware of automatic termination policies & examine “no fault” attendance policies.  Although these policies are not per se illegal, we discussed how to practically and lawfully implement them in your workplace.
  • When it comes to leave and reasonable accommodations, don’t assume a leave of absence is the only option.  We highlighted considerations for alternative accommodations, including reassignment.

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed. Feel free to post a comment here or email me at jsn@franczek.com.

webinarIt’s Webinar Time!

When managing an employee with a medical condition, the issues involved regularly implicate the FMLA or ADA — or both. Using interactive case studies, we will address critical FMLA and ADA compliance considerations when dealing with the most difficult employee leave and accommodation scenarios.

Please join us on Thursday, November 12 (12:00 – 1:15 p.m. central time) for “Where ADA and FMLA Overlap:  Leaves, Accommodations and Headaches, Oh My!” I will be joined by Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) and Matt Morris (Vice President at ComPsych).

And the best part? It’s FREE!  Click here to register for this complimentary webinar. When you register, please take a moment to tell us your most burning FMLA and ADA questions — we’ll weave the best you have into our presentation.

During the webinar, Sara, Matt and I will highlight the most difficult FMLA/ADA overlap issues employers face and identify practical solutions to help employers stay compliant. Among other topics, we will address:

  • Requests that implicate the FMLA and ADA and whether leave and/or workplace accommodations are necessary
  • Employee requests for a “less stressful position” – is it an FMLA or ADA issue?
  • Examine the roles of HR and managers and provide tools and best practices for effective communication during the leave management and accommodation processes
  • ADA Intermittent leave!?! Do we have to?
  • When discussing “reasonable accommodations,” what does “reasonable” mean? Reasonable to whom?
  • The age old question: When FMLA ends, how much additional leave must an employer provide before terminating the employee?

This session promises to be practical and fun. As has become our custom, we might even throw in a Thanksgiving tune to finish things off.  Click here to register for this complimentary webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

Looking forward to dining on FMLA and ADA with you.

BasicIllustratorFileLetter—CSForget Cyber Monday…today is my Procrastination Monday!  I explain why below.

I am pleased to announce that our FMLA Insights blog has been selected for the fourth consecutive year as one of the Top 100 Legal Blogs of 2014 by the ABA Journal! In its 8th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name FMLA Insights among only eight labor and employment blogs receiving this honor.

We are honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In naming FMLA Insights as a top blog, the ABA Journal quoted from one of our fabulous nominators:

I work on consulting teams that help large clients with their FMLA and disability administration,” writes Liz Miller, a health and benefits analyst at Mercer in Washington, D.C. She says Chicago lawyer Jeff Nowak’s “consistent updates not only make me look smart on the job; they are also entertaining and fascinating. Reading his posts feels like a form of procrastination because of the instant gratification factor, but they actually help me in my career. If that’s not a win-win, I don’t know what is.

Liz, thanks a ton for your very kind words. And thanks for procrastinating long enough to read my FMLA ramblings!

So, on this Monday, would you procrastinate with Liz and me and vote for FMLA Insights as the very TOP blog of the Top 100? Complete a simple registration form and vote for us here. You’ll find our blog located in the labor and employment section.  Voting takes mere seconds.

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 employment blogs who made the list – they are worth the read: Molly DiBianca’s Delaware Employment Law Blog (who was named to the Blawg 100’s Hall of Fame), Fox Rothchild’s Employment Discrimination Report, Jon Hyman’s Ohio Employer’s Law Blog, Eric Meyer’s The Employer Handbook, Seyfarth Shaw’s California Peculiarities Employment Law Blog, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,

red flagsIt’s Webinar Time!

The year 2014 has ushered in a host of fascinating developments involving the FMLA. Courts across the country have issued critical decisions on an employee’s notice of the need for FMLA leave; whether an employee can affirmatively decline FMLA leave; combating FMLA abuse; and caring for a family member.

Please join us on Thursday, November 13 (12:00 – 1:15 p.m. central time) for “Managing FMLA Red Flags and Staying Ahead of the Trends.”  I will be joined by Ellen McCann, Assistant Vice President and Senior Counsel for Unum.

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?!  Click here to register for this complimentary webinar. When you register, please take a moment to tell us your most burning FMLA questions within our topics below — we’ll weave the best you have to offer into our presentation.

Ellen and I will highlight the latest FMLA trends and identify practical solutions to help employers stay compliant.  Among other topics, we will address:

  • Recognizing an employee’s need for FMLA leave
  • Whether an employer should designate FMLA leave on occasions when an employee does not want FMLA to apply
  • How to nab an employee when you are provided Facebook or other social media posts showing them acting inconsistently with their need for FMLA leave
  • Handling an employee’s request for FMLA leave where the employee will care for a family member while on vacation or during out of state travel
  • The latest on managing FMLA intermittent leave

This session promises to be practical and fun. And I might even throw in a Thanksgiving tune to finish things off. Click here to register for this webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

EEOC-bannerLast week, I had the pleasure of co-presenting with EEOC Commissioner Chai Feldblum on the topic of “leave” as a reasonable accommodation under the ADA.  Our presentation was part of an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access BNA’s coverage of our presentation here (pdf). Naturally, Cmmr. Feldblum and I aren’t going to agree on everything when it comes to the ADA, since I represent employers and Cmmr. Feldblum is a sitting EEOC Commissioner. But when it comes to employer compliance with the ADA, we found much to agree on during this session.

From the employer perspective, there were several key takeaways from Commissioner Feldblum’s comments about an employer’s obligation to provide leave as a reasonable accommodation under the ADA:

  1. The ADA’s interactive process is critical in both timing and content.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  Often, the EEOC’s decision to initiate litigation against an employer depends on whether the employer is to blame for the breakdown in the interactive process.  Cmmr. Feldblum emphasized the importance of engaging the employee early on in their leave and maintaining regular contact with and them to assess the continued need for leave or a different workplace accommodation.
  2. Employers should have an “interactive process” with supervisors, too!  Noting that employers need to “jolt the supervisor” out of an “I’ve always done it this way” mindset, Cmmr. Feldblum reminded employers that supervisors can create ADA liability because they often deal directly with the employee first when it comes to accommodation requests.  Where supervisors “just blow [federal laws like the ADA] off,” they create liability. Yet, when the entire goal is to keep the disabled individual “attached to the labor force,” she advised employers to engage supervisors about their role in the process and how the employer might offer assistance to the employee to help them perform their job.  You need not read between the lines here: supervisor training is critical in maintaining FMLA and ADA compliance.
  3. Employers can (and should) assess “undue hardship” earlier in the process.  As we know, the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless the accommodation causes an undue hardship on the employer. When it comes to leave, employers generally conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an accommodation. Cmmr. Feldblum noted that employers have the flexibility as early as “day one” of an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs after FMLA is exhausted. Since the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship doesn’t precisely address the timing of when an employer should assess undue hardship, Cmmr. Feldblum’s comments helped clarify the issue.  (In my opinion, her comments are consistent with the spirit of the Enforcement Guidance, too.)
  4. There are several key factors to consider when establishing that an employee’s request additional leave would pose an undue hardship, and an employer should use them.  As I have mentioned in previous blog posts on this topic, when deciding whether to grant an employee additional leave as a reasonable accommodation, it is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden.  As noted in a previous survey (pdf) conducted by Mercer, these factors often are quite helpful in guiding an employer’s decision to grant or deny leave:

– 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

Interestingly, Cmmr. Feldblum pooh-poohed the idea that lower employee morale should be a factor in the undue hardship analysis.  I slightly disagree: if an employer can establish that there is lower employee morale because several of the other above factors exist, employee morale can and should be a factor taken into account in the undue hardship analysis.   However, morale should never be advanced as the sole reason or even one of the main reasons for undue hardship.

Finally, I asked Cmmr. Feldblum during our session whether we could expect any official EEOC enforcement guidance on the issue of “leave” as a reasonable accommodation.  (As you may recall, there were rumblings EEOC would issue this guidance several years ago.)  She deferred to EEOC Chair Jacqueline Berrien, suggesting that employers should encourage the EEOC Chair to issue the guidance.

Anyone up for a letter-writing campaign?

 

BNA article above reproduced with permission from Daily Labor Report, 64 DLR A-4 (March 3, 2014). Copyright 2014 by The Bureau of National Affairs, Inc.

 

webinar2.jpgThanks to those who attended my webinar last week with Matt Morris on “Conquering the FMLA Medical Certification Process: Best Practices for Employers.” If you missed the program, you can access the webinar and materials here.

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

We tackled these issues and many more during our webinar.  We even sang an absolutely awful rendition of our own “Happy Christmas” FMLA jingle.
Despite our singing, we are pleased to made the webinar recording and PPT materials available at: http://www.franczek.com/news-events-498.html.  Feel free to pass this link along to anyone who might be interested in the webinar.

We tackled these and many more issues during our webinar.  We even sang an absolutely awful rendition of our own “Happy Christmas” FMLA jingle.

Despite our singing, we are pleased to made the webinar recording and PPT materials available here. Feel free to pass this link along to anyone who might be interested in the webinar.

Some of the highlights include:

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

We covered these and so much more.  Take a listen and let us know what you thought.

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

Thanks again to those who attended the webinar. I look forward to your continued feedback on the issues we discussed. Feel free to post a comment here or email me at jsn@franczek.com.

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

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

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

Oh, Johanna, I’m blushing.  

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

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

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

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

Sick note.jpgIt’s webinar time! 

FMLA Medical certification is designed to help employers better understand an employee’s medical condition and their need for time off from work. So, why does such a helpful tool tend to create angst, confusion and frustration within the employer community?

Let’s tackle medical certification head on! Please join us on Thursday, December 5, 2013 (12:00 – 1:15p.m. central time) for “Conquering the FMLA Medical Certification Process: Best Practices for Employers.” I will be joined by my friend and fellow FMLA nerd, Matt Morris, Vice President, FMLASource, who promises (along with me) to keep cheesy jokes to no more than two during our session.    

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?! Click here to register for our webinar. When you register, please take a moment to tell us your most burning medical cert question — we’ll weave the best you have to offer into our presentation.

Overview of the Webinar

In this complimentary webinar, Matt and I will cover FMLA medical certification in detail and employ case studies throughout to help employers deal with the most confusing and maddening medical certification conundrums.

To heck with the basics about medical certification.  We’re going to dig into some difficult issues. Using real life situations from our own experience in dealing with the FMLA, we will cover topics such as:

  • Common employer questions and missteps in the medical certification process
  • Best practices for employers when an employee fails to return medical certification
  • Incomplete or Confusing Certification – Does the Employer Trash it and start over
  • Fighting the “Friday-Monday Leave Act” – how employers should use recertification when they see a pattern of misuse or suspect FMLA abuse
  • Managing the second/third opinion process

Click here to register for this complimentary webinar.  We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

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.”  If you missed the program, you can access the webinar and materials here.  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 and our podcast 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.  Feel free to post a comment here or email me at jsn@franczek.com.

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)

Click here to register for the webinar   

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, Franczek Radelet partner Jeff Nowak, Matt Morris, vice president at FMLASource, and Tamika Lynch, counsel at Siemens Industry, Inc., 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

Click here to register for this complimentary webinar.  Please also email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.