FMLA Insights

Failure to Provide Additional Leave as ADA Accommodation Could Prove Costly to Employers

jsn@franczek.com (Jeff Nowak) — Mon, 10 Jun 2013 00:10:00 -0600

Posted by Jeff Nowak

For ages, the employer community has awaited guidance from the EEOC regarding how much additional leave, if any, an employer is required to provide an employee as an ADA reasonable accommodation when an employee is unable to return to work after exhausting FMLA leave. (Depending on what the EEOC says in that eventual guidance, however, employers may regret asking for it in the first place.) In the meantime, courts occasionally provide us with a few nuggets of wisdom about what employers should and shouldn't do when an employee asks for more leave than the FMLA permits. We regularly discuss Read More...

I Believe My Employee is Unfit to Return to Work. Can I Require a Full Medical Examination Before His Return?

jsn@franczek.com (Jeff Nowak) — Thu, 30 May 2013 00:31:50 -0600

Posted by Jeff Nowak

Have you ever doubted whether one of your employees actually was fit to return to work from a leave of absence? Take this situation I counseled a client through a few months back: one of their employees texted a suicide note -- to about 40 of his co-workers. Not surprisingly, it turned the workplace upside down. Thankfully, the employee did not go through with it, but after a short leave of absence, he claimed he was ready to return to work. My client rightfully was concerned whether it had an obligation to return him to work with little more Read More...

When an Employer Provides More Parental Leave to Mom than Dad, is this Gender Discrimination?

jsn@franczek.com (Jeff Nowak) — Sun, 19 May 2013 23:20:20 -0600

Posted by Jeff Nowak

I received a ton of feedback on last week's blog post, which discussed Yahoo's new parental leave policy and its FMLA implications. Much of the feedback related to Yahoo's decision to provide 16 weeks of paid maternity leave to female employees and 8 weeks of paid paternity leave to male employees. Some wondered whether such a policy is discriminatory on the basis of gender because different leave benefits would be offered to moms vs. dads. In fact, this discussion carried over to a number of Linkedin groups: FMLA Nation (where the vote was split), FMLA, Employment Practices Risk Management and ABA Labor and Read More...

Yahoo's Sweetened Parental Leave Policy Raises Practical FMLA Certification Issues for Moms and Dads in the Workplace

jsn@franczek.com (Jeff Nowak) — Thu, 09 May 2013 00:20:00 -0600

Posted by Jeff Nowak

It seems that what Yahoo CEO Marissa Mayer taketh, she giveth back. Or something like that. As you will recall, Mayer made waves several months back when she banned all Yahoo employees from working from home, a rather controversial move seen by some as unfriendly to working parents. Now, in an interesting twist, Yahoo has announced a sweetened parental leave policy that will provide 16 weeks of paid maternity leave for moms and eight weeks of paid paternity leave for dads (not to mention $500 in spending money to help after baby comes home). As all things Read More...

Department of Labor to Increase Frequency of FMLA On-Site Investigations

jsn@franczek.com (Jeff Nowak) — Thu, 25 Apr 2013 08:00:00 -0600

Posted by Jeff Nowak

For 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 Read More...

DOL Lawsuit Highlights Simple Reality: Employers Who Ignore FMLA Regulations Face Severe Consequences

jsn@franczek.com (Jeff Nowak) — Thu, 18 Apr 2013 09:16:00 -0600

Posted by Jeff Nowak

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe. A water bottling company recently learned this the hard way. Peter Lyle was a route driver for "O Premium Waters," a company that provided bottled water. In December 2009, Peter took FMLA leave, which was approved by the Company. During his leave of absence, Peter's employer was acquired by D.S. Waters (d/b/a "Sparkletts"), also a water bottling company. According to the Department of Labor, Sparkletts was a nearly identical company to its predecessor for purposes of the FMLA, so there should have been Read More...

DOL Publishes PowerPoint Presentation to Help Train Employees about FMLA

jsn@franczek.com (Jeff Nowak) — Wed, 17 Apr 2013 00:30:00 -0600

Posted by Jeff Nowak

This 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 Read More...

The Importance of Providing Individual FMLA Notices to Employees

jsn@franczek.com (Jeff Nowak) — Thu, 11 Apr 2013 00:10:00 -0600

Posted by Jeff Nowak

The Department of Labor was serious when it required employers beginning in 2009 to provide individual FMLA notices to employees regarding their eligibility and rights (Notice of Eligibility and Rights & Responsibilities) and whether FMLA applies (Designation Notice). Apparently, courts think this is important, too. And The Wackenhut Corporation learned this lesson the hard way. The Facts Jacqueline Young worked for Wackenhut Corporation. Wackenhut met its general FMLA notice obligations in that it included in its employee handbook a notice to employees of their FMLA rights and also posted the DOL's FMLA poster. However, when Young sought and took FMLA leave, she took all Read More...

Are Additional FMLA Military Family Leave Amendments in the Works?

jsn@franczek.com (Jeff Nowak) — Fri, 05 Apr 2013 07:53:37 -0600

Posted by Jeff Nowak

Is Congress poised to amend the Family and Medical Leave Act again? Late last month, legislation was introduced in the U.S. House of Representatives that would allow employees who work part-time or for small employers up to two weeks of leave in connection with a family member’s military deployment, thereby expanding the qualifying exigency provisions of the FMLA. Currently, FMLA leave (for military family leave or otherwise) is only available to employees who work 1,250 hours in a 12-month period and who work for an employer with 50 or more employees. But not under this proposed legislation. The Military Family Leave Read More...

FMLA FAQ: How Long Can an Employer Rely on a Second or Third Opinion under the FMLA?

jsn@franczek.com (Jeff Nowak) — Tue, 26 Mar 2013 00:10:00 -0600

Posted by Jeff Nowak

Q: We have become more aggressive on suspected cases of FMLA abuse and, as a result, we have sent a greater number of employees for second and third opinions after they turn in medical certification. Once we have received the second or third opinion, how long can we rely on it? That is to say, can it be used to approve or deny absences now and for the same reason in the future? A: Over the past couple of years, I have noticed an uptick in the number of my clients who are using the second and third opinion process as Read More...