FMLA Insights

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By: Jeff Nowak

Latest from FMLA Insights - Page 2

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?

Happy belated Father’s Day to all the dads and father-figures out there!

On Father’s Day every year, dads in my church are invited to give the Father’s Day homily at Sunday Mass. This past weekend, I volunteered to offer the Father’s Day reflection.

In a little league baseball-themed Father’s Day homily, I focused my reflection on the “rules.” As fathers, setting out the rules for our children seems our natural instinct: to bring order to the house, to lay the foundation for a good life, and perhaps like our fathers before us, to set discipline in order to succeed.
Continue Reading The FMLA Rules Are Important, But Don’t Let Them Stand in the Way of an Employee in Need

Welcome to the two people willing to dive into this blog post after reading that riveting headline!

In a highly technical opinion letter issued this week, the Department of Labor clarified how to calculate FMLA leave usage when an employee takes intermittent leave during a holiday week.

Bear with me here, but I find the best way to digest this opinion letter is to apply it to a real-life scenario. Let’s assume our employee, Johnny, took FMLA leave during the same week as Memorial Day. There are two possible scenarios:

In Scenario #1, Johnny is given Memorial Day off as a…
Continue Reading DOL Opinion Letter Sheds Light on Calculating FMLA Leave During a Holiday Week

In the dark of night, those crazy kids over at the U.S. Department of Labor were busy at work publishing new FMLA regulations, FMLA opinion letters, a new FMLA poster.

BREAKING NEWS: The USDOL publishes a new FMLA poster!

Let me beat you to it: Be still my beating heart!

What’s the posting requirement?

As we know, covered employers under the FMLA have a general posting requirement, which requires them to post an FMLA poster in conspicuous locations where employees are employed and where it can be readily seen by employees and applicants for employment.

FMLA-covered employers must post the…
Continue Reading DOL Publishes a New (Eggplant-Colored) FMLA Poster

Just over a week ago, Christians around the world commemorated Good Friday. We know the story well: three days later, the tears of Good Friday were wiped away on Easter.

For those of us who have lost a loved one, we can relate to the story of Good Friday: Sadness, despair, hopelessness, darkness. For us, however, the overwhelming grief of our own Good Friday doesn’t end in three days.

It takes much longer.

Months, years.

Sometimes, never.

How Can an Employer Help an Employee Grieving the Loss of a Loved One?

Employers have a critical role to play when an…
Continue Reading When an Employee Has Lost a Loved One, What Should Employers Do to Help?

Grab a Guinness and let’s celebrate – the ABA’s summary of 2022 FMLA decisions has arrived!

Every spring, 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. 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 2022.

Every. Single. One. Of. Them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for…
Continue Reading You Don’t Have to Be Irish to Enjoy This March Treat: The ABA’s Summary of 2022 FMLA Court Decisions Has Arrived!

Every one of us in the HR/employment world has met this moment. Your employee, Tommy, hands you a doctor’s note – usually no more than one sentence long – stating simply:
Tommy’s pinky toe hurts. Based on my medical judgment, Tommy cannot work more than 8 hours in a day or 40 hours per week. No overtime advised.
It’s a doctor’s note that causes HR directors everywhere to wince.

So, what’s the impact of this doctor’s note? Can an employee use a “NO OVERTIME” doctor’s note to take FMLA leave whenever he’s assigned overtime? Or can we rely on the…
Continue Reading Is an Employer Required to Provide FMLA Leave Indefinitely to an Employee Who Cannot Work Overtime?

Happy 30th birthday, you wonderful old FMLA! 

Break out the band aids and ace bandages! It’s time to celebrate a special birthday for our favorite federal statute.

All weekend, I’ve been singing Harry Styles’ song “As It Was” to the Nowak kids:

You know it’s not the same without medical leaveIn this world, it’s just FMLA. . .

And as predictable as my god-awful FMLA songs are, we even broke out the 30th birthday cake last night in honor of the FMLA.

Where Have We Been, Where are We Going?

In all seriousness, as our world comes out of a…
Continue Reading Happy 30th Birthday, FMLA! Where Do We Go from Here?

File this in your “Sometimes, People are Really Awful” folder.

The story is a very simple one.

An associate working at a Cleveland law firm – we’ll call her Sue to protect the innocent – returned from maternity leave.

Should have been a relatively happy time, yes? Hugs all around, maybe even some donuts, but at least a kind word and a thoughtful check in with Sue on how parenthood was going, right?

Not this story.

A few days after her return, Sue informed the firm’s brass that she would be resigning to work elsewhere.

In response, she got a…
Continue Reading When an Employee Returns from FMLA Leave, Don’t Be This Employer

We’ve reached the end of yet another year. I hope it was wildly successful for your organization.

Are you ready to pay out year-end bonuses?

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.

Under trusty Section 215 of the FMLA regulations…
Continue Reading It’s the End of the Year. May an Employer Legally Deny a Bonus to an Employee After Taking FMLA Leave?