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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."

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)]

DOL's New Employee Guide to the FMLA Issued: What's the Impact on Employers?

"[T]he U.S. Department of Labor issued a 16-page FMLA guide that the DOL says is 'designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.' Entitled 'Need Time? The Employee's Guide to the Family and Medical Leave Act,' the Guide apparently was created out of DOL's belief that 'too many workers don't know about their rights under the FMLA and fail to take advantage of its protections' ... [T]he Guide primarily is meant to answer 'common' questions about the FMLA, so it leaves unanswered all of the issues that continue to frustrate employers in their administration of the FMLA. However,... in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process."

FMLA Leave: Who Decides -- Employer or Employee?

"[The] DOL specifically states that... 'the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA.' ... the employee need only provide 'sufficient information' to make the employer aware of the possible need for FMLA leave.... The employer's obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave. In other words, the employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event."