They’re baaaaaack!

Earlier this month, the Department of Labor announced that it would ramp up FMLA audits (as well as wage and hour audits generally) on employers, particularly those in the warehouse and logistics industries.

Noting the increased demand and the constraints on the global supply chain “have combined to place enormous strain on the nation’s warehouse and logistics industries,” the DOL seemingly thinks its best move is to further burden these industries with intrusive FMLA and wage and hour audits.

Thanks for nothing, Secretary Walsh.

Does this all sound familiar?

Back in 2014, you may recall that the DOL…
Continue Reading DOL Announces Ramped-Up FMLA Audits for Employers in Select Industries

Hey, thanks for hitting on that clickbait!
Now that you’re here, let me tell you the story of Antonio Brown, soon-to-be former football player for  the Tampa Bay Buccaneers. This past Sunday, Brown engaged in a verbal spat on the sidelines with the Buc’s head coach, Bruce Arians, over whether he should play in the game.
Brown twice refused to go into the game. When he refused the second time, the coach reportedly told him to “get out.”
In a bizarre next couple of moments, Brown proceeded to rip off his shoulder pads and jersey, tossing them on the bench…
Continue Reading Should Bucs’ Wide Receive Antonio Brown Been Offered FMLA Leave Instead of Getting Canned?

The ink had not even dried on my blog post last week (calling federal paid leave a possibility) when a federal paid leave bill pending in the House was declared dead.
Fast forward to yesterday, when news outlets began reporting that federal paid leave may not be dead after all.
Catching every one of us off guard yesterday afternoon, House Speaker Nancy Pelosi inserted paid leave back into the House version of President Biden’s “Build Back Better” infrastructure package.
The problem for Speaker Pelosi? Her pitch for paid leave faces near certain rejection in the Senate, where one…
Continue Reading Has Federal Paid Leave Been Resurrected from the Dead? Pelosi-backed Legislation Needs a Lifeline to Survive

Back in April, President Biden unveiled an aggressive plan to provide federal paid family and medical leave to employees at workplaces across America. Dubbed the “American Families Plan,” the law would provide up to 12 weeks of paid leave to American workers essentially for the same reasons currently covered by the FMLA.
With a $225 billion price tag, it faced an uncertain future.
Fast forward to recent weeks, as the President’s paid leave plan has gained momentum, albeit a slimmer version of what he proposed earlier this year. President Biden’s “Build Back Better” infrastructure package has…
Continue Reading Will Federal Paid Leave Finally Become Law? We’ll Likely Learn This Week, but Here’s Where We Stand as of Today

Everyone one of us has been there.
Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy worker’s compensation absence.  For one reason or another, Johnny’s one week leave of absence turns into one month, then six months.
One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny’s nine month leave as FMLA leave.
First, a little pat on the back. We’ve all been there,…
Continue Reading What’s an Employer To Do When It Realizes It Failed to Provide an Employee Any Required FMLA Notices?

This one is to get the blood flowing for you hard-core FMLA nerds out there, cause it’s quickly going to get in the leave of absence weeds.
With the Labor Day holiday approaching, let’s discuss how an employer should calculate FMLA leave during a holiday week. Before you blurt out, I already know this stuff, Jeff, keep reading, as the Department of Labor recently weighed in on this issue, and I wanted to share what we learned.
Let’s consider two possible scenarios during the Labor Day week for our employee, Johnny:
In Scenario #1, Johnny is given Labor Day off…
Continue Reading When an Employee Takes FMLA Leave During a Holiday Week, How Much FMLA Leave is Actually Taken?

Matt was a correction officer for the Camden County Board of Chosen Freeholders, which as a notable aside, sounds like something out of Harry Potter and the Sorcerer’s Stone.
Before I digress further, Matt served as one of the caretakers for his mom, who suffered from dementia and required daily care. Matt sought FMLA leave, and he obtained medical certification from his mom’s doctor supporting his absence once per month for up to five days.
Fair enough. The problem, though, is that Matt took leave on January 6, and then again on January 14 and 28, exceeding his frequency by…
Continue Reading Can an Employer Discipline an Employee for Excessive FMLA-Related Absences Before Requesting Recertification? The Simple Answer is NO.

Ed was an autoworker who dealt with apparent bouts of depression for which he sought intermittent FMLA leave. But he also had fistfuls of unexcused absences, so much so that he stood on the precipice of termination — one attendance point away, to be exact.
Like many good employers, Ed’s employer required him to call into an attendance hotline to report his unforeseeable absences. FMLA leave also was administered by Sedgwick, a third-party administrator, so there were some extra steps in the approval process.
As a prophylactic measure, Ed submitted medical certification before any absence for his flare ups, as…
Continue Reading When Your Employee Calls off Sick with “Flare-Ups,” Is This Sufficient Notice of the Need for FMLA Leave?

I’ve often wondered — in fact, even discussed with clients — whether an employer could safely approve an employee’s FMLA-related absence and discipline the employee because he failed to timely report the absence.
I’ve theorized that an employer could pull off both because the discipline punished the late call-in, not the FMLA leave.
But I’ve never had a case supporting my wild theory.
Till now.
Let me explain Daphne’s story.
Daphne was a flight attendant who suffered from a chronic vein issue that caused bad circulation, which led to bad swelling and a whole lot of pain. As a result,…
Continue Reading Can an Employer Grant FMLA Leave, but Also Discipline an Employee for Failing to Timely Report the Absence?