regular and reliable attendance

Thanks to those who attended my webinar last week with Matt Morris on “Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition.”  A link to the recording can be found here, and the presentation can be downloaded here.

To those who attended, thank you.  To those who missed it, you still have time to access the recording.  Matt and I covered a number of issues under both the FMLA and ADA when it comes to managing an employee dealing with a mental health condition.  In particular, we covered:

  • Managing your employee when their mental condition condition is affecting their performance.  Here, we outlined how an employer engages in a two-part conversation to address the issue — first, it’s a performance-based conversation, which allows you to highlight expectations and identify where the employee has fallen short of expectations; and second, it’s the interactive process, in which you engage in the employee in a conversation about what you can do as the employer to help the employee perform their job.  Through the use of characters such as Steve Carell, Pope Francis and Mr. Rogers himself, we offered you practical insight on how you structure these difficult conversations with your employees.
  • Whether an employer can force an employee on leave of absence when their mental health condition clearly is affecting their job but the employee refuses to accept it.
  • How much additional leave (if any) an employer must provide an employee dealing with a mental health condition when they have exhausted FMLA leave.  We analyzed the steps employers should take to obtain information, determine the employee’s ability to return to work and assess the hardship on your operations in deciding whether to grant additional leave or terminate employment.
  • Similarly, how to manage your employee when they are taking unscheduled intermittent leave and it’s affecting your staffing and operations.  Here, we provided practical tips to address these situations before they spiral out of control.
  • Finally, we provided guidance on when you should seek a fitness for duty for your employee and other tips on obtaining medical documentation where an employee’s mental health condition is at issue.

And has become a custom, we ended with a holiday jingle. So, I leave you with my warm regards for a Happy Holiday and peaceful New Year, and the lyrics to the holiday song “Oh Rest Ye FMLA Abusers” which we sung to the tune of “God Rest Ye Merry Gentlemen” by the Bare Naked Ladies (a version which you can listen to or skip on the recording!):

I woke up at 4:30 with a scratched cornea 

It was better than last week, I swore I had a hernia

Oh what excuse I could concoct to avoid my overtime

Oh, tidings of FMLA . . . FMLA . . .Oh, tidings of FMLA

* * *

My doctor’s note made clear I could take off whenever I’d like

That didn’t please my boss, who told me, “Buddy, Go take a Hike!”

I think I’ll find a lawyer, isn’t that the American Way?

Oh, tidings of FMLA . . . FMLA . . .Oh, tidings of FMLA

* * *

Law of Wonder, Law of Light

Law that will help me get out of work tonight

But if I’m not careful, come tomorrow, I’ll need a new worksite

* * *

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

Happy Holidays!

absent-workersThanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here.

This is the second part of a two-part blog post in which I recap the issues Commissioner Feldblum and I discussed during the webinar.  Yesterday, I provided guidance on how an employer should address an employee’s requests for multiple extensions of continuous leave, which we covered at some length during the webinar.

During the webinar, we also covered how an employer should address an employee’s intermittent and unpredictable absences after FMLA leave has exhausted. I address these issues below.

Intermittent, Unpredictable Leave After FMLA Ends

As I noted for Commissioner Feldblum, one of the most frustrating issues for employers in this area is an employee’s continued sporadic, unpredictable absences (after FMLA has ended) that wreak havoc on an employer’s operations. Employers rightfully complain that an employee’s repeated intermittent absences after FMLA ends effectively transform a full-time position into a part-time position, giving the employee just enough time to gain back FMLA hours only to start the cycle again.

Keep in mind that EEOC takes the position that employers are obligated to provide leave in these situations unless it can show the continued absence constitutes an undue hardship.  (See yesterday’s blog post for more analysis on this point.)

Because intermittent leave is irregular and unpredictable, however, an undue hardship defense will be easier to advance in these situations.  Here, you are more likely to show that these continued intermittent absences adversely impact your operations and the ability to serve your customers/clients.

To illustrate, take John, our hypothetical employee who has been absent for depression and fibromyalgia. After exhausting FMLA leave, he continues to take, on average, one day off per week both for medical and undisclosed reasons. John effectively has turned the full-time position into a part-time endeavor, which allows you to make a case for undue hardship:

  • Temporary employees filling in for John are not as effective in the role and are prone to more errors
  • You are incurring overtime costs for other employees who have to cover for John
  • Lower quality of work from replacement(s) and not completed in a timely manner
  • You are taking on additional costs because John cannot attend to his full-time duties
  • Vendors are complaining about late or incorrect payments because your accounting department can’t keep up
  • Projects are being pushed off during John’s absence
  • Management employees are being pulled away from their work to attend to John’s duties
  • Employee morale results in demonstrably lower productivity

The EEOC’s resource document backs up our ability to establish undue hardship in these situations, as it makes clear that we can consider the following factors in establishing undue hardship:

  • The amount and/or length of leave required (John’s sporadic absences have continued for several months after FMLA had exhausted)
  • The frequency of the leave (John averages one day off each week)
  • Whether there is any flexibility with respect to the days on which leave is taken (his leave is completely unforeseeable)
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable (if John’s absences are not woefully unpredictable, I am not sure what is!)

As I addressed in yesterday’s blog post, employers can obtain information from the employee’s physician regarding the continued need for leave, asking questions to help determine the undue hardship factors identified above.  In intermittent leave situations, it also is critical for the employer to continue to engage in the interactive process with the employee so that it can best determine whether any assistance can be provided to help them improve their attendance and return to work.

In addition to the thorny topic above, we also covered the following topics during the webinar:

Indefinite Leave

Commissioner Feldblum confirmed that “indefinite leave” is not a reasonable accommodation, echoing the resource document’s guidance in this area:

Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so it does not have to be provided as a reasonable accommodation.

100% Healed Policies

All too many employers require that employees be “100% healed” or “without restrictions” before returning to work.  According to EEOC, this approach violates the ADA.  We reminded attendees to 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.


Although we did not have much time to cover the topic of reassignment as a reasonable accommodation, the EEOC makes clear — and Commissioner Feldblum reiterated — that employers have an obligation under the ADA to reassign an employee if his disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.

Finally . . . Where Do You Find All These EEOC Documents?

Throughout our session, Commissioner Feldblum and I referred to the new EEOC resource in addition to other guidance provided by EEOC over the years on ADA reasonable accommodation.  Here are the links to these resources:

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