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EEOC Commissioner Gives Insight Into Handling Employee Leaves of Absence After FMLA Is Exhausted

"The ADA's interactive process is critical in both timing and content. Communicate during FMLA leave...after FMLA leave ends...and at all times before and in between! ... Employers should have an 'interactive process' with supervisors, too! ... Employers can (and should) assess 'undue hardship' earlier in the process.... There are several key factors to consider when establishing that an employee's request additional leave would pose an undue hardship, and an employer should use them."

Dismissal of Bully's FMLA Claim Proves Employers Can Safely Terminate an Employee on the Heels of FMLA Leave

"Insights for Employers: [1] Don't shy away from terminating an employee who has recently requested or taken FMLA leave.... [2] But Don't Rush to Judgment.... [3] Similarly, don't short circuit performance improvement plans (PIPs)." [Shell v. Tyson Foods Inc., No. 15-00037 (W.D.N.C. Aug. 25, 2016)]

After He Allegedly Showed Up Drunk to Practice, Should Former USC Football Coach Have Been Placed on FMLA Leave Instead of Being Terminated?

"In a word, no.... Insights for Employers: Hold your employee to reasonable performance standards.... [If] an employee is not being disciplined for violating a substance abuse policy but simply advises the employer that he intends to take time off for substance abuse treatment, this is a legitimate basis for FMLA leave.... [An] employee's absence or performance issues due to his abuse of a substance is not afforded any protection under the FMLA.... Even the EEOC supports an employer's right to take action where the employee violates a workplace policy prohibiting the use of alcohol."

A Cruise Aboard the Love Boat Is Not Protected by the FMLA, Even When the Doc Says It's a Good Idea

"Insights for employers: ... if the employee is not incapacitated and is not seeking treatment wherever she is heading, her absences do not trigger the FMLA, and they should be treated as such.... Use the FMLA tools available to you to obtain more information about the medical condition and the certification.... Be extremely careful about contacting the employee's health care provider directly without the employee's permission."

Is Travel Time to and from a Medical Appointment Covered by the FMLA?

"The DOL guidance is fairly clear. But have the courts agreed? Very few courts have given us guidance as to whether travel time itself qualifies as part of the FMLA leave allotment, but those that have, generally side with the DOL."

Can You Prorate or Even Deny a Bonus to an Employee Who Missed Work Due to FMLA Leave?

"When qualifying employees for and/or calculating bonus payments or incentives, employers must treat employees who take FMLA leave the same as those who are on 'an equivalent leave status for a reason that does not qualify as FMLA leave.' ...Most state leave laws don't specifically address whether you can deny a bonus to someone who uses state or local paid sick leave. In those cases, you could probably apply the same standard you use for FMLA. But be careful! Many of these laws include anti-retaliation provisions that might come into play."

DOL Sheds Light on Administering FMLA Leave When an Absence Triggers Both FMLA and State Paid Leave Laws

"DOL clarified two principles when an employee is taking leave covered by both the federal FMLA and state paid family and medical leave: ... [1] In situations where an employee takes leave under a state/local paid leave program, if the absence ALSO triggers the protections of FMLA, the absence must be designated as FMLA leave.... [2] [If] an employee, during leave covered by the FMLA, receives any compensation from a state/local family or medical leave program, the employer cannot force the employee to exhaust any employer-provided paid leave at the same time."

Can an Employee Decline FMLA Leave Simply by Checking a Box on a Form?

"[A recent federal district court] decision ... gives us good insight into what we need to include in our leave request forms to insulate us from an FMLA interference claim: [1] As a general rule, employers should use a general leave of absence request form, allowing employees to specify any of the reasons for their need for leave. [2] If you ask an employee to affirmatively indicate whether they are requesting FMLA leave -- by checking a box or specifically stating so -- it is imperative that you provide enough information about what the FMLA is." [Amstutz v. Liberty Ctr. Bd. of Ed., No. 13CV2385 (N.D. Ohio Sept. 9, 2015)]

Employer's Poorly Drafted FMLA Policy Allows Employee to Advance FMLA Claim (That Should Have Never Seen the Light of Day)

"[The employer (the Road Commission)] maintained an FMLA policy in which 'eligibility' to take FMLA leave was satisfied if [an employee] met the first two criteria [allowed by the FMLA statute] (12 months and 1,250 hours). The Road Commission's FMLA policy made absolutely no reference to the requirement that [an employee would be eligible only if he works at a location where the employer employs at least] 50 employees [who] work within 75 miles.... Because the Road Commission left out the third prong of what the court considered an 'unambiguous and unqualified' FMLA eligibility provision, a 'reasonable person in [Terry's] position could fairly have believed that he was protected by the FMLA.' "

Can an Employee Decline FMLA Leave Even though the Absence is FMLA-Eligible?

"At issue in the appeal was whether an employee can affirmatively decline using FMLA leave, even though the underlying reason for leave would have been FMLA protected leave. To this question, the court answered, 'yes.' ... [T]he court focused on the FMLA regulations' expectation that the employer engage in an informal process to obtain additional information about whether the employee is seeking FMLA leave.... [T]he court's reasoning is contrary to the common understanding that employers designate an absence as FMLA leave whenever it is taken for an FMLA-qualifying reason, regardless of what the employee might want.... [T]he regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason." [Escriba v. Foster Poultry Farms, Inc., No. 11-17608 (9th Cir. Feb. 25, 2014)]