Earlier this year, the Department of Labor made clear in an opinion letter that neither an employee nor an employer may decline FMLA leave where an eligible employee is absent for an FMLA-qualifying reason.  As the DOL noted in this March 2019 opinion letter, this is particularly true even where the employee would prefer that the employer delay the designation of FMLA leave. This week, the DOL doubled-down on that opinion letter. Notably, the DOL’s earlier missive to the masses failed to address how an employer should administer FMLA leave in a union environment where a collective bargaining agreement specifically allows…

If I gave you a million tries, you’d never guess that the next Department of Labor FMLA opinion letter would answer the question [wait for it . . .]: Is an employee’s attendance at a child’s IEP meeting covered by the FMLA? The Answer? Yes. Most definitely, yes. In an opinion letter issued yesterday, the DOL concluded that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed. The Facts Interestingly, the request for an opinion letter came from a set of parents whose two children have serious health conditions.  The…

It’s a Friday in the middle of summer. So, approximately half of your workforce called off today due to an FMLA-related absence. [Well, not really, but I’m not that far off, amirite?] Take heart. At least you’re not the City of Chicago. As reported this week by the City’s Inspector General, three employees in the City’s Office of Emergency Management and Communications all took FMLA leave at the same time for various co-called ailments. Instead of laying up on the couch and recuperating, however, the employees took the first plane they could out of Chicago and headed down to…

Remember when I told you a few months ago that employers can and should consider requiring that employees make two calls to request FMLA leave? For instance, you might require one call to the supervisor to report the absence, and a second call to Human Resources (or your third party administrator) to request FMLA leave. All good, right? Weeeeeeell, let me share a cautionary tale for those who have implemented or are contemplating this two-call requirement, cause one little ‘ol federal court just threw us a curve ball. The Facts LaShondra was employed at a local Burger King restaurant,…

It’s been just over 10 years since the Department of Labor last introduced wholesale changes to the FMLA regulations. Remember those happy days back in 2009, when we were introduced to new FMLA notice requirements (for all), clarity over employee eligibility and holidays, emphasis on call-in procedures, favorable bonus language and waivers of FMLA rights?  Oh, and those cute, new FMLA notices and medical certification forms?  Oh goodness, those were fun days! After a decade in which we witnessed both the introduction and end of Administrator’s Interpretations, a return to opinion letters and a spike in on-site visits from our…

Every one of you employs at least one of these employees — you know, the one who: requests medical leave because of, let’s say, his uromysitisis poisoning (clearly, an FMLA-qualifying condition); but wants to use his accrued paid leave instead of tapping into FMLA? He might even get indignant, insisting that the law allows him to choose either FMLA leave or ordinary sick leave to cover an absence clearly covered by the FMLA. How do you respond to this employee? I have viewed the answer as a rather simple one: when an absence qualifies as FMLA leave, the employer should…

I can’t imagine anything more exciting than having joined Littler earlier this year.  [Click here to read about that virtual love fest.] But I have found a close second: the arrival of the American Bar Association’s summary of every FMLA case decided in 2018! Yep, you read that correctly.  Every little scrumptious FMLA decision.  About mid-February or so, the ABA’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  [Those little ABA rascals kept it from me this year till March, but I finally found it…

I am bursting at my FMLA seams, and I’ve been dying to share the news with my blog readers. A few weeks ago, six colleagues and I decided to leave our Chicago-based boutique firm and venture toward the labor and employment powerhouse: Littler Mendelson P.C. Littler is the world’s largest employment practice representing employers, and I am joining with dear friends and phenomenal attorneys, Dave Radelet, Chris Johlie, Staci Ketay Rotman, Terry Creamer and Leah Farmer. I knew I reached FMLA nirvana when I attended my very first meeting at Littler: a 7am Saturday morning confab…

Thanks to those who attended my webinar last week with Matt Morris on “Six Ways Your Managers Are Causing FMLA & ADA Leave Lawsuits, and How to Train Them to Stop.” A link to the recording can be accessed here (just requires providing some basic info about you) and the presentation PowerPoint can be downloaded here. To those who attended, thank you.  To those who missed it, you still have time to access the recording.  As promised, Matt and I provided a road map of all the necessary issues to address in an FMLA training session, including case…

It’s the end of the year, which means bonus time. Or perhaps instead you want to offer a pay incentive to employees to improve attendance or production?  Take, for instance, a point-based attendance bonus policy in which employees are assessed points for every tardiness or absence (even for FMLA or ADA-covered leave), which, in turn, disqualifies an employee from receiving the incentive. In these situations, can an employer disqualify an employee from the bonus or incentive? In short, Yes. The FMLA regulations provide in relevant part: . . . if a bonus or other payment is based on the achievement of a…

When: Wednesday, December 12 (12:00 – 1:15 p.m. central time) Online registration: Click Here Over the past year alone, employers have been forced to defend FMLA and ADA lawsuits due simply to an inappropriate comment from a manager after an employee requests time off or an accommodation in the workplace. A snide comment about an employee in an email . . . Discussing an employee’s medical condition with others in a meeting . . . Telling an employee that the Company “can’t afford” for him to take time off.  Despite an employer’s best policies (and intentions), all it takes is a…

Not sure where you stand on this, but I’m always game for a good employer smack down on FMLA abuse. This smack down comes courtesy of the City of Chicago. You know, the City of Big Shoulders, the Second City (to no one), the Windy City [little known fact: the nickname “Windy City” comes not from the cold winds that blow off Lake Michigan but from the City’s “windy” politicians. No joke.]. I digress. Picture a 911 call center deep in the City of Chicago. Pretty busy, yes? And like many other call centers, this 911 call center has plenty…