Family Medical Leave Act (FMLA)

The Department of Labor just issued updated FMLA forms, good through August 31, 2021. No more using “expired” forms!  For anyone who was expecting “updated” to mean changed or improved…well, I am sorry to disappoint you – the only thing that was updated was the date! The forms are otherwise identical.

Continue Reading Department of Labor Releases Updated FMLA Forms

radical color copyWe are excited to announce that Suzanne Boy will be presenting at the Florida Law Alliance Employment Law Conference, taking place on Thursday, November 12, 2015 at the law offices of Hill, Ward & Henderson in Tampa, Florida. Henderson Franklin is a member of the Florida Law Alliance, a group of six independent law firms practicing throughout Florida. The firms have combined their knowledge, efforts, and resources to increase efficiency, lower costs, expand the scope and improve the quality of legal services each firm provides to its own clients.

Topics and Speakers

Avoiding and Defending Wage and Hour Class and Collective Actions presented by Attorney Craig Salner from the Clarke Silverglate firm in Miami. Employers know that the only lawsuit you win is the one that never gets filed. In the case of wage and hour litigation, this is particularly true of collective actions under the Fair Labor Standards Act (“FLSA”) and class actions under State law counterparts. This presentation will focus ways to defend class and collective actions or better yet, avoid them altogether. Continue Reading LGBT, Social Media and EEOC Charges to be addressed at Fall Employment Law Conference

7K0A0129This blog is a sequel to my previous post summarizing the rules and regulations governing an employee’s use of intermittent FMLA leave, which you can find here.

Managing employees’ requests for intermittent FMLA leave can be complicated and frustrating. Intermittent leave is difficult to track. It is often abused (or is it merely coincidental that leave is most often requested for a Friday, Monday, or the day before a holiday?!). Intermittent leave causes workplace disruption—especially when it is unforeseeable. Employee morale is often affected when co-workers are forced to pick up the slack for an absent co-worker. Although employees on intermittent leave may be temporarily reassigned to a different position, they must still be restored to their original position at the end of the approved leave period. No wonder that FMLA leave is a chronic HR headache!

Here are a few tips for treating this chronic headache: Continue Reading Intermittent FMLA Leave: A Chronic HR Headache (Part II)

clock flickr katerhaAt HR Law & Solutions last month, attendees asked tough questions about handling requests for intermittent leave under the FMLA. I promised to write a blog post summarizing current rules and regulations, so here goes:

Intermittent leave is FMLA taken in periodic short blocks of time for a single FMLA qualifying reason. Common reasons for intermittent leave include time off for an employee’s occasional medical appointments, flare-ups of a chronic condition (ex. migraines), or periodic treatment of an ongoing disease (ex. chemotherapy). Intermittent leave can also be taken for a family member’s serious health condition or for military caregiver leave. Employers must also grant intermittent leave to an employee whose spouse, parent or child is called up for active military duty.

Continue Reading Intermittent FMLA Leave: A Chronic HR Headache (Part I)

This month, the EEOC issued its controversial Enforcement Guidance: Pregnancy Discrimination and Related Issues. Of course, we all knew that pregnancy discrimination was unlawful, but did you know that according to the EEOC Guidance:

  • Many short term pregnancy related conditions are considered disabilities under the ADAAA, and thereby implicating a duty to reasonably accommodate.
  • Employers must offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodations to non-pregnant employees with similar work restrictions.
  • Lactation is a covered pregnancy related medical condition under the ADAAA.
  • An employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drug devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. (At least the EEOC at least recognized the Hobby Lobby decision by stating that the Guidance does not address whether an employer may be exempt from Title VII’s requirements under the Religious Freedom Restoration Act or the First Amendment!)
  • Parental leave (which is distinct from FMLA leave and medical leave associated with child birth and recovery) must be provided to similarly situated male and female employees on the same terms and conditions.

pregnant business woman in the officeThe EEOC Guidance is not law, but it is the enforcing agency’s non-binding interpretation of the law. Will courts agree with the EEOC’s broad interpretation of the Pregnancy Discrimination Act (“PDA”) and the ADA? We will know more after the Supreme Court hears the case of Young v. United Parcel Services, Inc. next term. In the UPS case, the Supreme Court agreed to review a Fourth Circuit decision finding that the PDA does not require employers to offer light duty to pregnant employees with work restrictions even if light duty is available for certain categories of non-pregnant employees.

Until we hear more from Those Who Wear Black Robes, be forewarned. Dealing with pregnant employees may be more complicated than you ever expected! And more costly!

newborn - flickr cc gabi_menasheConsider this scenario:

Valerie has worked full time for a local hospital since December 2012. In January 2014, Valerie takes six weeks FMLA leave following the birth of her baby. In April 2014, Valerie gives the hospital notice that she will need additional FMLA leave this calendar year after she adopts her twelve-year old niece.

Which of the following statements is correct?

A. The hospital does not need to grant Valerie any more FMLA leave because she is adopting a family member.

B. The hospital must grant Valerie an additional twelve weeks of FMLA leave for the adoption since childbirth and adoption are separate qualifying conditions under the FMLA.

C. The hospital must grant Valerie up to an additional six weeks of FMLA leave only if the niece she adopts has a serious health condition.

D. The hospital must grant Valerie up to an additional six weeks of FMLA leave following the adoption.

Continue Reading Employment Law IQ: Child Birth, Adoption and FMLA Leave

man construction worker tired sweating silhouetteContinuing in our series to test your employment law IQ, this week we will focus on FMLA requests often received in HR offices.

Scenario: Henry Fixit worked as a maintenance man for Sleep Inn for almost 20 years. Sleep Inn has 105 employees. As part of Fixit’s regular duties, he was constantly climbing ladders, lifting heavy equipment, and performing other physical labor. Fixit recently suffered a non work-related injury that required surgery. He requested FMLA leave, which Sleep Inn approved. After two months, Fixit gave Sleep Inn’s HR Director a doctor’s note, stating that Fixit was able to return to work, but with certain lifting and bending instructions. When Sleep Inn refused to create a light duty position for Fixit, Fixit sued for FMLA interference.

Which of the following statements is correct?

A.  Sleep Inn interfered with Fixit’s FMLA entitlement when it refused to offer him a light duty position.

B.  Sleep Inn is not liable for FMLA interference, but it would be liable under workers’ compensation laws for its failure to create a light duty position.

C.  Sleep Inn is not required to create a light duty position for Fixit.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Interference – What Would You Do?

Happy 2014! Can you believe it is another new year? Time flies!employee termination

We will be finishing up our Employment Law IQ series in the next few weeks. Today’s question involves the sticky overlap of the ADA and FMLA, two laws that can be difficult even for seasoned HR professionals to navigate.

Scenario. Lucy Lawless works as an associate attorney at Dewey, Sue & Howe, the biggest law firm in Southwest Florida. Lawless, a lifetime smoker, was recently diagnosed with lung cancer. Dewey, Sue & Howe, which calculates FMLA leave on a calendar basis, grants Lawless 12 weeks of leave under the FMLA. Lawless is unable to return to work after 12 weeks, so Dewey, Sue & Howe grants Lawless an additional six months leave. At the end of six months, Dewey, Sue & Howe granted Lawless an additional period of leave, up to the anniversary date of her first request for leave. On the anniversary date, Lawless requests additional leave, but does not provide Dewey, Sue & Howe with any doctor’s note or certification to verify her request. Dewey, Sue & Howe terminates her.

Which of the following statements is correct?

A.  Dewey, Sue & Howe violated the ADA by failing to grant Lawless additional leave.

B.  Dewey, Sue & Howe violated the FMLA by failing to grant Lawless additional leave.

C.  Dewey, Sue & Howe violated both the ADA and FMLA by failing to grant Lawless additional leave.

D.  None of the above.

Continue Reading Employment Law IQ: FMLA Extension or Termination – What Would You Do?

10798579815_c28c898769_qIn honor of Veterans Day, let’s test your Employment Law IQ with regard to Active Duty Military Leave.

Scenario:  Linda Longlegs is employed as a dance instructor by Footloose Studios, a small dance company in Southwest Florida. Longlegs, who is in the Army reserve, tells her supervisor she needs six months of leave because she has been called to active duty in Afghanistan.

Which of the following statements is correct?

A.  When Longlegs returns, Footloose does not have to re-employ her because Footloose only has 9 employees.
B.  When Longlegs returns, Footloose does not have to re-employ her because Longlegs only worked for Footloose for two months prior to her request for leave.
C.  Longlegs can use her accrued PTO while she is on leave.
D.  While Longlegs is on leave, Footloose must pay her regular wages and continue to pay her health insurance coverage.

Continue Reading Employer’s Responsibility — Active Duty Military Leave

Recently I was asked when an employer may seek a second opinion to verify an employee’s serious health condition for purposes of Family Medical Leave Act ("FMLA") leave.  The folks at the FMLA Insights blog addressed this very question in their recent post, FMLA FAQ – When to ask for a Second Opinion.

Like the post suggests, the short, rules-based answer is that an employer who "doubt[s] the validity of a medical certification" can ask for a second opinion.  29 CFR 825.307.  This does not mean, however, that an employer should make a regular practice out of asking for a second opinion.  Take a more conservative approach, and only request a second (or third) medical opinion when you have a solid reason to doubt the medical certification provided by the employee.