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One of the best parts of my job is the chance to talk shop with other employment attorneys who, like me, work in the trenches with employers to help them comply with the FMLA and ADA.
So, when my friend Eric Meyer reached out to me to join him last Friday to share some practical advice to employers in navigating the rough waters of the FMLA and ADA, I was intrigued.  Add to the discussion another friend, Daris Freeman (AVP and counsel at Unum), and I couldn’t pass it up.
Listen to any or all of our zoom discussion
Continue Reading Need a Few Hacks and Cheat Codes to Survive the FMLA and ADA? Click Here

Yeah, I get it. He’s taller than me. Significantly taller.
Ever since my son, Luke, was a wee lad, we dreamed of going on a major league baseball road trip together.
Baseball runs through our veins, so after years of dreaming, 2022 was our year.  Since the beginning of this year, we’ve been plotting, planning and scheduling the trip of a lifetime.
Just a few weeks ago, Luke and I made our way from Chicago to the east coast to catch major league baseball games at six different stadiums – Pittsburgh, Baltimore, Philadelphia, Boston, New York (Mets and Yankees).  Then,
Continue Reading What Does a Baseball Road Trip Teach Us About Bugging an Employee While They Take FMLA Leave?

In the aftermath of the Supreme Court’s Dobbs decision, the FMLA questions are coming fast and furious: Can an employee take FMLA leave to obtain and recover from an abortion? What if the abortion is elective? And now that abortion will be illegal in at least some states, is travel to another state to obtain an abortion covered by FMLA?

Oddly enough, the Department of Labor has never provided meaningful guidance on these specific questions. Nevertheless, it seems apparent that the FMLA covers abortion and travel to obtain an abortion.

Let me explain.

Is abortion covered by the FMLA?
Continue Reading Does the FMLA Cover Abortion and Travel to Obtain an Abortion?

Can an employer violate the FMLA even though it never denies an employee’s request for FMLA leave?
Ask Salvatore Ziccarelli, who we’ll call Sal for short. Sal worked for the Sheriff as a corrections officer in my backyard, Cook County, Illinois.
Over the course of 27 years working for the Sheriff, Sal developed a number of health conditions, including work-related post-traumatic stress disorder. Sal took quite a bit of FMLA leave over time, and as of September 2016, he already had used more than two-thirds of the 12 weeks he was allotted for FMLA. So, when he lined up to
Continue Reading Employers: Warn Your Employers to Stop Saying Stupid Stuff in Response to an Employee’s Request for FMLA Leave!

The client calls are a regular part of my everyday, increasingly so during the COVID-19 pandemic.
Stress. Anxiety. Depression.
The causes are as numerous as the stars in the sky.
Simply put, a growing number of our employees are dealing with serious mental health issues that render them unable to come to work. It’s our new reality, and as employers, we need to know how to manage and support our employee during these difficult times.
Yesterday, the U.S. Department of Labor issued guidance reminding us that the FMLA covers situations when an employee’s mental health condition inhibits them from working.
The
Continue Reading A Key to FMLA Success: Supporting our Employees as Mental Health Issues Arise

Luke and White Sox closer, Liam Hendriks
I love baseball.

I love the sport so much that, in the Nowak family, we are taught that America’s favorite pastime was formed in the story of Creation somewhere between the placement of the stars and Adam’s rib.

As a lifelong Chicagoan, I long for spring as a survival tactic after a long winter.

And with spring comes spring training.  Last week, I enjoyed a little slice of baseball heaven, as our family traveled to Arizona, in part, to catch a few days of spring training. The crack of the bat, the pop
Continue Reading What Can Baseball Teach Us about the FMLA?

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?

It arrived. Finally.

For those of us who have poured over the 490 glorious pages of OSHA’s emergency temporary standard (ETS) requiring employers across America to get their employees vaccinated, our collective heads are spinning this morning.

This is a leave law blog so, of course, I’ll give you everything you need to know about the leave you’re now required to provide your employees so they can obtain a COVID-19 vaccine or test.

Before I do, however, humor me while I gush for a moment about several of my Littler colleagues who have led our vaccination triage team, keeping the
Continue Reading Under the ETS, What Paid Leave Must an Employer Provide an Employee to Obtain a COVID-19 Vaccine or Test?

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

Raise your hand if you’re neck deep in COVID-19 vaccine exemption requests. [Yeah, I get it, you’re neck deep, so you can’t raise your hand.]
My friends, this exemption onslaught will only get more intense as we await OSHA’s Emergency Temporary Standard (ETS) that will require employers with over 100 employees to mandate a COVID-19 vaccination for each of its employees.  President Biden unveiled this imminent requirement a few weeks back in his most recent COVID-19 action plan.
These exemption requests are coming at us in two different ways – as an accommodation requests under the Americans with Disabilities
Continue Reading If an Employee Requests an Exemption from the COVID-19 Vaccine, Can an Employer Lawfully Place the Employee on a Leave of Absence?

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?