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By: Jeff Nowak

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Jeff Nowak

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This one is no laughing matter.  Actually, it’s downright sad. A few years ago, I reported on an employee at an Illinois school who was able to raise an FMLA claim when her supervisor ignored her many pleas for help as she struggled with mental health issues. Fast forward a few years: a jury recently awarded this employee back pay and other damages as well as attorney’s fees. When all is said and done, the employer’s failure to act within the law will cost half-a-million dollars of taxpayer money. Here is the story and my suggestions to avoid this kind…
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In the middle of a global pandemic, employers still grapple every day with the age-old question: When an employee exhausts FMLA leave and cannot return to work, does the law require the employer to provide the employee additional leave? Question 1A surely is close behind: can the employee safely be terminated at that point?  Without debate, these are among the most difficult HR issues an HR professional or in-house employment counsel faces. The Facts Take this scenario: Jim is a bus operator for the public transportation system in Columbus, Ohio, and he suffers from back pain due to spinal stenosis…
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This week, President Trump and former Vice President Joe Biden will meet for the first of several presidential debates leading up to the November 3 general election.  Several of my blogging colleagues and I have identified THE debate question we would ask each of the candidates if we had had the chance. Channeling my inner Chris Wallace, these are the leave-related questions I would pose: To Vice President Biden With the exception of the Families First Coronavirus Response Act (FFCRA), there is no federal law requiring private-sector employers to provide paid family and/or medical leave to their employees. Numerous states…
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On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations under the Families First Coronavirus Response Act (FFCRA) following a federal court’s decision that invalidated a handful of regulatory provisions interpreting the FFCRA.  Although the DOL was widely expected to address the court decision through revised regulations and/or court action, these new regulations throw additional curveballs for employers already struggling to comply with extensive COVID-19-related legislation. Over the weekend, five Littler colleagues and I (including Bill Allen, Alexis Knapp, Lauren Marcus, Emilie Hammerstein, Mike Lotito) discussed, debated, even delighted in these new…
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Those crazy little rascals at the Department of Labor must be readers of this second-rate FMLA blog! [No, they’re not, Jeff. But I am sure you are going to tell us why you think so.] Last week, I published FAQs offering insight on how employers should administer leave under the Families First Coronavirus Response Act (FFCRA) when an employee requests leave because a child’s school is closed or child care unavailable. As you may recall from that post, I noted that the DOL left open some questions on issues like whether FFCRA leave is available for hybrid learning or on…
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As we head into the second half of August, many of our kids are heading back to school. Or maybe they’re not. Full day in-person classes? Or perhaps hybrid? Semi-hybrid? Remote? Home school? Dropping out? The possibilities are endless. With some version of school starting up in a neighborhood near you, employers will face challenges as potentially significant numbers of employees will be called away from work to attend to parental duties, since many of their children are being forced into more remote learning this fall due to the COVID-19 pandemic. And my phone is ringing regularly with questions about…
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Earlier this week, a federal court in New York kicked to the curb four key provisions of the U.S. Department of Labor’s regulation implementing the paid leave provisions of the Families First Coronavirus Response Act, requiring employers covered by the Act to quickly decide how it will address these scenarios in the future. As you will recall, the DOL issued final FFCRA regulations on leave on April 1, 2020 as a sweet little April fool’s present for us. Days later, the State of New York sued the DOL, claiming that the agency  unlawfully denied leave to otherwise eligible employees and…
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Employers across America are requiring their employees to wear face coverings or masks while at work. At the same time, employers across America are dealing with employees who have a million excuses why they can’t wear a face covering at work. Many of these excuses aren’t valid. Some are. If an employee claims to have a medical condition that prevents them from wearing a face covering, your ADA and FMLA radar should start buzzing. But how do you address this request? Start with the ADA An employee’s request not to wear a mask because of a medical condition triggers the…
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In the middle of the COVID-19 pandemic, the U.S. Department of Labor hit the pause button on pandemic concerns and returned at least for a moment to the good old fashioned F-M-L-A. This morning, the DOL issued new model notices and forms to be used by employers in the administration of the FMLA. The notices and forms, though different in their appearance (think lots of small boxes, longer and far more numbered paragraphs, and even a few colors), are not game changers when it comes to substance. These new model documents tend to tweak the old forms around the edges,…
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Sadly, too many of my telephone conversations with clients over the past few months have involved layoffs. Furloughs. Elimination of jobs. Of course, we’ve also discussed the great unknown of when some of these employees will be brought back to work. At times, questions have arisen over how a furlough might impact an employee who currently is on FMLA leave or has requested FMLA leave for a time during the furlough. What takes precedence?  The furlough or the FMLA leave? What is a Furlough? First things first. Let’s make sure we understand the terminology. The term “furlough” does not necessarily…
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Today, my little FMLA blog turns 10 years old. Ten years ago, at a time when very few people knew what the heck a “blog” was, including me, I took a chance that HR and leave of absence professionals and attorneys might need some help answering the difficult, yet common issues they faced when administering the FMLA. So, on May 26, 2010, I published my very first blog post – a short tale about an employee, Ellen, who got canned when her employer discovered a mountain of deficiencies in her work while she was out on continuous FMLA leave. Upon…
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Are you working from home during the pandemic? Me, too. Are you having trouble keeping your kids off Fortnite and Minecraft, and literally every other screen in your house? Me, too. Do you still love your children? Me, too. For the most part. But with four young children at home, I am ready to return to the office. Soon. [While still loving them, of course.] Summer Camps and Activities Obliterated Like many parents, I face the reality that nearly every summer camp and activity in summer 2020 has been cancelled. Aren’t we lucky? Naturally, employers are wondering whether they are…
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Are you an employer covered by the the Families First Coronavirus Response Act (FFCRA) and do you use temp employees? I’ve got something to share with you. Over the past few weeks, I’ve been giving presentations to employers on the FFCRA [who hasn’t!?!] and have counseled them on their FFCRA obligations with respect to the temp employees whose services they use (from the temp agencies that employ them). Using the FMLA classic regulations as my authority, I’ve counseled these employers that they are not on the hook to provide paid sick and paid FMLA leave to these temp employees so…
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As employers have noodled on the new federal emergency paid sick leave (EPSL) and paid FMLA leave (FMLA+) law, you’ve done a double-and triple-take on the notice and documentation requirements under this new law. In short, they can be confusing. As a result, plenty of clients have asked me to break down this process just to confirm they are understanding these confusing rules. To make this as clear as possible, I thought it best to break down the notice and documentation processes for an employee requesting leave.  Here we go: What is the Time Frame for Requesting EPSL and FMLA+?…
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Under the Families First Coronavirus Act (FFCRA), employers with fewer than 500 employees are required to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) for certain reasons related to the Coronavirus pandemic. The law went into effect April 1 and its obligations continue through December 31, 2020. Employers need policies and forms to comply with this new law. We now have these policies and forms ready for you. Why Do You Need a New Policy and Forms to Comply with this New Law? This new law is fraught with compliance issues for employers.  Take, for instance, these risky…
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For the past month, I’ve been in the leave law trenches with several Littler colleagues Alexis Knapp, Jim Paretti, Sebastian Chilco and Michael Lotito. The ‘virtual’ trenches, that is, which serves them well, as they have no clue I’ve spent nearly the entire time without a shower and in my PJs. When we all learned Friday afternoon that the Department of Labor had published yet another set of Q&As interpreting the emergency paid sick and paid FMLA leave law, I won’t sugar coat it – we wanted to cry.  After all, we were fresh off our analysis…