FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)

FMLA Screaming (Part I)

The Family and Medical Leave Act.  A great idea that causes many HR pros to scream, pull out their hair, and/or outsource their frustration.  So much so, there’s even a blog dedicated to it.  (Read it, Jeff is both funny and smart.)  Even though can be incredibly frustrating, it’s a fact of life that can be made easier by approaching it with a sense of calm and a smidge of empathy. This post includes some basic advice when dealing with FMLA issues.

First off, by in large, employees are not out to “game the system.”  Yes, we’ve all heard of FMLA/ADA/Work Comp fraud.  It is a thing.  However, most employees do not ask for leave to pull one over on their employer.  With that, let’s assume an employee who requests FMLA actually needs leave for herself or her family.  The need for leave is already distressing to the employee.  She is likely worried about her job, and she is also worried about herself or her family.  Focusing only on the impact to the employer will not support her needs in this time of emotional chaos.  Be supportive.

The employee may not know exactly what to do when she needs a leave.  So, she’s going to look at your handbook to find some information.  She will likely do this before she talks with HR.  Make sure your handbook is up-to-date, complete, and explains who to talk to about leave.  If she does not look at your handbook, she is probably going to talk to a trusted co-worker.  Hopefully, this co-worker will know just enough to tell her to talk to her manager.

Next, she will probably say something to her manager.  She might not say “leave.”  She might say “time off” or other words that indicate that she may need a leave.  This requires managers to understand the signals of a leave request, and this requires manager training.  Managers – especially new managers – need to know enough to understand what these signals are and what to do when they see, hear, or otherwise get an inkling that leave is an issue.  If they do, they will send the employee to HR.

Now that she’s made the request, HR needs to use the Department of Labor forms.  I joke when I’m speaking on FMLA topics that HR pros are not graphic designers.  Department of Labor makes the best forms for FMLA.  Nobody creates better forms.  More than 10 of my clients have made the mistake of using a vendor’s forms and not the DOL’s only to come to learn that the vendor didn’t have a very important question on its form that resulted in a loss of sleep, thousands in more settlement dollars, or confusion on the part of the employer and the employee.  Here’s the link to the forms.  Bookmark it.  One more tip:  Always go back to this page.  The forms get updated from time-to-time so the most up-to-date forms will be at this link.  Please do not print off 10-100 copies and stick them in a file cabinet.  Print a new set every time an employee requests leave.

Remember the cadence of the forms.  FMLA regulations set out when forms must be doled out and returned.  Understand these timelines and make sure you – the employer – follows them closely.  The DOL’s FMLA Employer Guide does a great job outlining these.  Bookmark it as well.

If an employee doesn’t turn in the forms on time, use K8’s rule of three (trademark pending) – request the employee return the forms three different times and document each of those attempts over a period of several days.  Send an email to her personal email.  Send a letter.  Send a text message (and screenshot the text).  If she still does not respond and is capable of responding (isn’t in a coma or otherwise hospitalized), then talk to your friendly neighborhood employment attorney.

Next, calm the manager by being proactive.  Managers can freak out about losing an employee to a leave.  They get nervous about how work is going to get done.  They worry about how and if other employees will be able to pick up the slack.  Go to managers with a plan.  Ask if they will need temporary help, an employee from another team who could step in on a temporary basis, or if another hire will be needed since the team was already overworked.  Approaching a manager with some options will help calm some likely frazzled nerves.

Tomorrow’s post will have some more tips on the FMLA, including what to do during the leave and preparing for a return to work.  In the meantime, consider this:  There is a difference between strict FMLA compliance that follows the letter of the law and being a bit more flexible with employees.  Relying on the strict letter may not seem fair to the employee.

Photo by Gem & Lauris RK on Unsplash

Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash

Twin Cities Sick & Safe Time

For those of us HR and employment law nerds, the goings-on about paid sick leave in Minnesota has been fascinating and at times, nail-biting.  Minneapolis reached its ordinance first, St. Paul quickly followed suit, the Republican-controlled Legislature got really, really upset, and then Governor Dayton squashed the Legislature’s hopes.  Ah, the drama!  Now, that the legislative kerfuffle is over, it’s time to focus.  If you do business in the Twin Cities or you have employees who spend more than 80 hours a year working here, these ordinances require your attention.

What the Ordinances Do

The ordinances are called “Sick and Safe Time” ordinances, designed to give employees time off for illness (their own and their immediate family members), time off when an employee (or family member) has been the victim of domestic abuse or stalking, certain public health emergencies, inclement weather, and other closures due to loss of power or HVAC operations.  Minneapolis and Saint Paul want to employers to provide this time to promote employee well-being and improve the overall health of each city.

The similarities between the ordinances are many, but both have their own quirks.  Here is a breakdown of each ordinance:

Minneapolis

Saint Paul

Employers with 5 or fewer employees need only provide time off, the time does not need to be paid Employers of all sizes must provide paid time off.  However, for employers with 23 or fewer employees, the ordinance does not go into effect until January 1, 2018
Employees accrue 1 hour of time off for every 30 hours worked Employees accrue 1 hour of time off for every 30 hours worked
Employers may impose a cap of 48 hours Employers may impose a cap of 48 hours
Employees can carry over time, but an employer can cap the amount of available time to 80 hours Employees can carry over time, but an employer can cap the amount of available time to 80 hours
Employers may grant the leave in advance (i.e. employers can front-load the time) Employer may grant the leave in advance (i.e. employers can front-load the time)
Employers can prohibit employees from using the time in the first 90 days of employment Employers can prohibit employees from using the time in the first 90 days of employment
Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time
Startups (under a year old) can provide unpaid time in their first year (until July 1, 2022) Startups (within six months of hiring employee number 1) can provide unpaid time.  After six months, the employer must provide paid time off.
Minneapolis has a notice provision and a poster Saint Paul has a notice provision and a poster
Employees can lodge complaints of violations with the City of Minneapolis Department of Civil Rights Employees may lodge complaints with the City of St. Paul or may bring a private action (litigation) in court

The Saint Paul ordinance’s private right of action provision is controversial and a big deal.  If the employee is successful in bringing a claim, the employee may also get attorneys’ fees and costs.  (Spoiler alert:  Attorneys are not cheap.)   Minneapolis’ ordinance does not provide for such a right and instead, employees can only lodge a complaint with the Minneapolis Department of Civil Rights, which can determine how to handle the complaint.  While the availability of a private lawsuit shouldn’t sway an employer to implement policies consistent with the ordinance, it should give an employer pause.

Some Challenges

The ordinances are a bit of a challenge to implement.  Many (if not most) employers grant time off based upon years of service, not on hours worked.  This presents the challenge of counting the hours, making sure the way the employer grants time is equal to or greater than the ordinance allotment.  Another challenge may require employers to revise or rewrite their policies.  Depending on the employer, this may involve drafting a detailed list of how an employee may use the time to be consistent with the ordinances.  A policy doesn’t have to list all the ways, leaving room for some flexibility, but that said, some employers may want to be more explicit to make compliance clear on the surface of the policy.

Here are a few scenarios that you may be facing:

  • If you offer paid time off (PTO) and your PTO policy allows employees to take time off for the same reasons the ordinances allow employees to take time off and in equal amounts or greater amounts than what the ordinances require, you don’t need to take any action. Your PTO policy is probably already compliant.
  • If you offer sick time separate from vacation, you will need to review your sick time to make sure you grant the same amount (or more) than the ordinances and you permit employees to use the time for the same reasons the ordinances allow employees to use the time.
  • If you offer unlimited time off, your program is probably in compliance provided you are providing payment for the time off and encourage employees to take the time.
  • If you don’t offer any sick time (or PTO), the ordinances provide a framework to offer time.

For more information, take a look at the resources available for employers from both Minneapolis and Saint Paul.

The Injunction

Both ordinances attempt to extend beyond their own borders by covering any employee who works more than 80 hours a year within the respective city.  For example, if an employer was headquartered in a suburb, but employees regularly work in the big city, the employer would have to provide paid leave to those employees too.  Businesses were really upset by this and the Minnesota Chamber of Commerce challenged the Minneapolis ordinance in court.  The Chamber was partially successful and obtained an injunction on this issue, which it is up on appeal.  The hearing on the injunction is scheduled for July 11, 2017 – ten days after the ordinance goes into effect.  While we probably will not get a decision until September or later, risk-adverse employers whose employees only occasionally work in the Twin Cities may want to still implement sick leave while the appeal is pending.

New laws are always a challenge for employers.  These ordinances are no different.  While Minneapolis promises not to “enforce” the ordinance for the first year, employers should be looking at their policies, updating where necessary, and identifying where we could offer more benefits where compliance would require it.  Your friendly neighborhood employment attorney is here to help.  Use us.

Selling Compliance

No one in HR wants to be considered a Peter from Peter and the Wolf.  But yet, when it comes to compliance issues, it is easy to fall into that trap.  We are often running around saying “we can’t do that!  We’ll get in trouble!”   After a while, leaders start to tune us out.  To be effective, we have to seize a case for compliance in terms of business.

Consider this:  What if we looked at employment laws and regulations like best practices with teeth?  Now, I get that this is controversial.  Very, very few people would design a diversity program like the OFCCP’s affirmative action regulations and other examples certainly exist, but bear with me.  What if we looked at the underlying reason for a particular law and compared that with a business goal?  Wouldn’t they be similar in most cases?  Would that make it easier to sell compliance?  The answer: You betcha!

Take for example, paid sick leave.  As of December 31, 2016, 37 jurisdictions (mostly cities, counties, and some states) had enacted paid sick leave laws.  While paid sick leave is certainly a trend at the local and state levels, many employers have understood that they needed to provide sick leave to employees for decades.  These businesses knew that if they didn’t offer the paid time, they would not get the talent they were looking for and employees might leave if they didn’t have the time to care for themselves and their families.  While paid sick leave is now law in some areas, it has long been a recruitment and retention tool for employers.

For an employer in a jurisdiction with a paid sick leave law who doesn’t offer it, HR is now in a position where it needs to sell the benefit as a legal requirement.   HR could package a proposal like this – paid sick leave is needed to get and keep the talent we need and the new ordinance provides a framework to do that.  Would that be an easier sell?

What about sexual harassment?  We know that anti-harassment laws were designed to protect women in the workplace so women could be productive, safe, and contribute our skills.  These laws also try to create workplaces built on the respect for all employees.  These are business goals.  When there is a culture rife with disrespect or disharmony, productivity comes to a near halt.  Turnover increases.  Employees are disengaged.  No business leader wants this to happen.  Preventing and then stopping harassment in its tracks protects the workplace and protects the business from legal claims and PR nightmares and keeps the focus on where it should be – the organization’s mission.

CEOs care about talent.  They care about finding the best talent the can and holding on to the great talent they have. According to PwC’s 2017 CEO survey, talent remains a top priority and as does diversity.  When we view employment laws and regulations as things that can be aligned with business goals, it becomes easier to get buy-in from the top.

This works for every employment law.  If you can’t come up with a business goal, try me.  I believe there is a business goal attached to nearly all employment laws.  I’ll accept the challenge to find one for your organization!

 

Photo by Redd Angelo available at unsplash.com

Fitness for Duty Warning Signs

Last week, I had the pleasure of speaking with hundreds of occupational health professionals – doctors, nurses, and administrators about return-to-work policies.  We had 90 minutes.  We could have chatted for three hours, we got so many questions!

These health care professionals were most concerned about the scope of their fitness for duty examinations for good reason.  They wanted to know that they were doing the right thing.  Some companies have fitness for duty examinations for all employees returning from leave.  Some rarely do unless they have a particular concern about a particular condition or particular employee.  Our message to them was this:  Fitness for duty exams are sticky legal wickets all the time.  Health care professionals and employers have to be careful when they require such exams and what they examine.  Below are some tips.  If you don’t have the Department of Labor’s

Below are some tips about fitness for duty exams.  If you don’t have the Department of Labor’s FMLA Employer Guide, get it, print it, put it where you can find it. Even if you’re not subject to the FMLA, this is a good resource when an employee returns to work.

When an employee is returning to work from leave, you only get to ask about what put the employee on leave. The return to work is not permission to examine everything about the employee.  You only get to look at what put the employee on leave and only if you have a reasonable belief that the employee’s current ability to perform the essential functions of the job are impaired by the medical condition or the employee poses a direct threat to the organization.

Here’s an example:  Jamal works as a laborer on a construction worksite.  He broke his arm a few weeks ago.  He is ready to return to work.  You can ask for medical documentation from his health care provider that Jamal can return to work with or without accommodations if you are concerned that Jamal may be weaker, could cause injury to his co-workers, and the position requires him to lift 50 pounds regularly.  You don’t get to require Jamal to undergo a blood and urine test.  The scope is limited to his ability to use his arm to perform the essential functions of his job.

One more example:  Jenny works as a marketing executive.  She has been out on FMLA after having a baby.  The birth did not go well, and the baby was in the hospital for several weeks.  You are concerned that Jenny might not be “all there” after this ordeal even though everyone is healthy now.  You cannot ask for a fitness for duty examination related to Jenny’s mental health unless you have some evidence – more than your gut feeling or even rumors – that Jenny is a direct threat or unable to do her job.   Of course, if you later get evidence when she returns, you can ask for such an examination.

If you do fitness for duty, do them consistently. Employers should give fitness for duty examinations on a consistent basis for similarly situated employees.  It makes sense to have a fitness for duty examination for everyone who has a heart attack who works on a production floor.  If you do such an exam for everyone who has a heart attack regardless of their position, this may be a bit more questionable.  Your receptionist who has a heart attack probably does not need a fitness for duty examination.

“Walking work comp claims” do exist, but this doesn’t mean you can always intervene or terminate. Most employers at some point in their business life have had an employee who is a danger to himself primarily because they are klutzy.  They break their arms, cause workplace accidents, and have racked up some hefty work comp benefits.  But these facts do not necessarily mean you get to put the employee through a thorough medical examination.  These facts don’t support extreme changes to his position because he is klutzy.  Your job is to try to make the worksite as safe as you can and train the employee and others to be safe.  Prescribing health care won’t do it.  You must have facts to support a reasonable belief that the employee is a direct threat to himself or others before you can force an examination.

Returning employees to work after an illness or injury can be a legal minefield.  At play are the Family Medical Leave Act, the Americans with Disabilities Act, workers’ compensation laws, and a myriad of state and local laws on top.  Certification forms, injury reports, calculating leave time, benefits – it all gets complicated.  It is downright frightening for the unwary trying to do the best thing for the employee and the organization.  When this happens to your organization, find the right resources and be sure to ask lots of questions.