Jeff Nowak

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff has decades of experience advising and litigating on behalf of employers on a wide range of complex employment law matters so they can run the most profitable business and efficient operations without being side-tracked by discrimination claims, strikes or other workplace issues.

Website: https://www.littler.com/people/jeff-nowak
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Jeff Nowak

Latest from Jeff Nowak

Here’s a story about Dyamond, who will forever impact the manner in which you review FMLA medical certification.

If this teaser doesn’t have you on the edge of your seat, nothing in this little FMLA blog will.

Dyamond’s Story

Dyamond worked at an assisted living facility run by the State of Illinois (DHS), and she became pregnant. It was a difficult first trimester for Dyamond, who was absent several days due to morning sickness associated with her pregnancy. When she missed five workdays in a bit more than a week due to reported morning sickness, DHS provided her FMLA notices…
Continue Reading If You Review FMLA Medical Certification as Part of Your Job, You Need to Read this Post!

A funny thing happened as a result of the COVID-19 pandemic. Employers everywhere sent their employees home to work, many of whom will work forever more out of their home or remote worksite, never to see the Company headquarters again.

Coming out of the pandemic, some employers have drastically scaled back their brick-and-mortar headquarters. Others have ditched the company HQ, replacing it with a modest store front or even a Post Office Box. [All you Gen Z peeps: if you are wondering what a “Post Office box” is, ask your parents!]

As remote work cements itself into the fabric of…
Continue Reading Is Your Remote Employee Eligible for FMLA Leave When Working from Home?

What are we craving right now?

The Rule of Law!

Let me tell you, the American Bar Association delivered this past week!

Every spring, the ABA’s Labor and Employment Section Wage and Hour Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision issued in the 12-month period ending October 31, 2024.

Every. Single. One. Of. Them.

This year’s report was just released and can be accessed here …
Continue Reading A Winter Treat! The ABA’s Summary of 2024 FMLA Court Decisions Has Arrived.

Week after week, it seems, a new city or state enacts its own paid leave law of some sort.

For employers obligated to comply with the federal FMLA and these local leave laws, it’s death by a thousand paper cuts.

These paid leave laws come in all shapes and sizes. Many of them permit leave for circumstances that may be qualifying FMLA leave reasons as well. Some define qualifying family members more broadly than the FMLA (e.g., grandparents or parents-in-law). Some provide leave for a different set of health conditions, and others provide a leave period longer or shorter than…
Continue Reading DOL Sheds Light on Administering FMLA Leave When an Absence Triggers Both FMLA and State Paid Leave Laws

Let me share a story about Celestia, who requested a few weeks of FMLA leave to care for her sister who was dying from cancer.

Celestia was a finance manager at Midwest Auto Group (known as “MAG”), a car dealership that peddles luxury cars.

What follows, though, is a total used-car salesman move.

The Facts

Celestia’s sister, Sharon, battled non-Hodgkin lymphoma and, upon learning the disease was terminal, Sharon asked Celestia to be her “primary caregiver” in her final days.

In those next few weeks, Celestia cared for her sister in a variety of ways. Notably, she:

  • Paid some of

…
Continue Reading No Sibling Rivalry Here: Court Green Lights Potential FMLA Leave for Siblings

Every once in awhile, the U.S. Department of Labor rattles its saber, warning employers that it’s readying itself for aggressive enforcement investigations reviewing alleged FMLA violations.

For instance, two years ago, the DOL announced that it would ramp up FMLA audits (as well as wage and hour audits generally) those employers in the warehouse and logistics industries.

Well, they’re back again.

Based on information provided informally during DOL investigations in which we have been involved, we have earned that the DOL is directing investigators to insist on production of additional information from employers particularly with respect to payroll practices.

This…
Continue Reading Is the Department of Labor Turning FMLA Investigations into FLSA Investigations?

Join me for my annual FMLA/ADA webinar, which comes to you, as always, free of charge.

This year, due to overwhelming demand, we’re covering remote work as an ADA accommodation.

When: Wednesday, December 11, 2024 (12:00 – 1:15 p.m. central time)

Online registration: Click Here to register

As employers increasingly require employees to return to the office, remote work accommodation requests have followed. After having sent many of their employees’ home to work during the pandemic, employers now face an onslaught of remote work requests. During the pandemic, employers wondered whether the pandemic would make remote work a permanent “thing”…
Continue Reading Join Me for a Free Webinar: Remote Control? Managing Remote Work Requests in a Changed Workforce

Meet Ray.

Ray is to the FMLA as Patrick Mahomes is to football. Ray is an FMLA pro, having taken FMLA leave a total of 158 times over three years. No joke. F-M-L-A simply rolled off Ray’s tongue, enabling him to take leave on countless occasions.

As the story goes, Ray started his latest FMLA journey with a three-week leave of absence for pneumonia.

Ray worked as a mechanic, regularly operating and repairing the loin-puller machine for his employer, Swift Pork Company. Ray must have loved that loin-puller machine, since he got really salty upon his return to work when…
Continue Reading When an Employee Abruptly Requests FMLA Leave after Being Given a Sucky Work Assignment, Can He Safely Be Terminated?

Beads of sweat formed on my forehead, and my eyes began tearing up.

It was one month ago, and all it took was five minutes.

I was seated among 35 of my Littler colleagues, all of us participating in a week-long Executive Leadership Program through Northwestern’s Kellogg School of Management.

Halfway through the week, we attended a session, “Managing and Motivating Across Differences” by Northwestern Professor Lauren Rivera. At the beginning of the session, Professor Rivera handed each of us one sheet of paper, which upon first glance included some seemingly simple instructions. It read:
Below is a…
Continue Reading If You Re-Started Your Workplace with Five Privileges of Employment, How Would You Break Down Barriers for Colleagues with Disabilities?

The wheels are turning, aren’t they?

This question is another arising out of a webinar I recently conducted with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas (Job Accommodation Network) regarding the Pregnant Workers Fairness Act (PWFA).

A few weeks back, I addressed whether FMLA medical certification could be requested from an employee who seeks leave due to pregnancy limitations.

Now, let’s talk breaks for lactation. And bottles.

In our webinar, the following question was asked:

We have an employee whose baby will not take a bottle. Does the PWFA require accommodations that will enable the mother to leave…
Continue Reading Can an Employee Take Leave from Work for Lactation Breaks When the Baby Won’t Take a Bottle?

For decades, employers have applied the usual FMLA rules for an employee who cannot work because of limitations due to pregnancy. When these limitations render a pregnant employee unable to work, the employer has always had the right to obtain medical certification to confirm the limitation and the employee’s need for leave from work.

When the FMLA became law in 1993, there was no such thing as the Pregnant Workers Fairness Act (PWFA), which as of last year requires employers to provide accommodations to individuals limited by pregnancy-related conditions (unless undue hardship exists).

In its final rules implementing the PWFA,…
Continue Reading In a PWFA World, Can an Employer Safely Request FMLA Medical Certification for an Absence Due to Pregnancy?

This morning, the day after the Super Bowl, 16.1 million of your employees will call in “sick.”

Over 6 million of these employees will face discipline for their call-in, according to UKG, which provides workforce management and human resource management services.

I didn’t need this survey to remind me that employers face an employee shortage the day after the Super Bowl. Many of my clients bemoan the arrival of football’s annual spectacle, knowing that the excitement of the day leads to the dreaded hangover of Super Bowl Monday.

Heck, one school district in Kentucky has even closed its …
Continue Reading Did Your Employee Call Off Today Due to Super Bowl Flu? Throw the Flag!

Do you, by chance, offer your employees “Paw-ternity” leave?

More seriously, how about NICU leave?

With the ever-increasing reality that the federal government will offer no lifeline to streamline the ever-growing list of states mandating employee paid leave, employers have decided to take the lead, leading to a new wave of creative leave benefits to attract and retain talent.

Employers are on a quest to perfectly meld employee physical and mental health as well as financial wellness to offer benefits that lead to an emotionally, socially, and financially healthy workforce. This makes sense, since a recent report indicated that a…
Continue Reading As We Turn to a New Year, What Leave Benefits Are Employers Offering in 2024? Mental Health Benefits Top the List

Halloween 2023 was a tough day in our house.

Every year, the holiday approaches with a great deal of parental anxiety not because we fret over what costume our 9-year-old daughter will select for the day.

Sheesh, that’s the easy part.

The hard part?

Waiting [hopelessly] for an invite from even one kid in her class to go trick-or-treating.

Every year, we follow the same routine. In early October, we start with hope that this year will be different. Hope begins to fade in the latter part of the month, where it becomes clear that an invite just isn’t coming.
Continue Reading In a World Where You Can Be Anything, Be Kind

Tell me you’ve seen this one before.

Your employee, Johnny, is one of your poor performers. Upon receiving his latest written warning, he requests a leave of absence due to anxiety from working in a hostile work environment.

Apparently, Johnny’s boss was guilty of being too direct. 

The next day, Johnny texts in a note from his physician indicating that he is being treated for “anxiety for work-induced stress” and “would be unable to return to work.” For good measure, Johnny later files a worker’s compensation claim because the anxiety is “work” induced.

Ay de mi.

With a raised eyebrow…
Continue Reading When an Employee Fails to Return FMLA Medical Certification, Can an Employer Lawfully Terminate the Employee?

Once your employee steps off U.S. soil, does the employee lose FMLA protection?

It depends.

Consider these two scenarios:
In the first scenario, your employee requests FMLA to sit bedside with his mother, who suffering from terminal cancer. Mom is located in Mexico City, Mexico.
In the second scenario, you assign the employee to work in your Edinburgh, Scotland office (~150 employees), where she reports to your international operations and receives work.
Does FMLA apply to either of these scenarios? I take each one, in turn, below.

First, the Law

Let’s address the legalities up front. In one short paragraph,…
Continue Reading When You Send Your Employees To Work Abroad, Do They Lose the Right to Take FMLA Leave?