As you know, the Family and Medical Leave Act (FMLA) permits eligible employees of covered employers to take unpaid, job-protected leave for specific family and medical reasons. We’ve previously discussed six common FMLA leave request errors that can trigger lawsuits.
This August, the Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC) announced their specific areas of focus on FMLA and reasonable accommodation enforcement for 2015 through 2016. Jeff Nowak, an employment law attorney and the author of the blog FMLAInsights.com, offered some important takeaways.
1. DOL’s Focus on Systemic Compliance Issues is Top Priority
Employers can avoid these intensive and expensive investigations by conducting self-audits of their FMLA process and recordkeeping. This means ensuring that your FMLA policies, forms, and correspondence meets requirements and that all other FMLA processes are compliant.
2. Eliminate Common Errors
Part of the self-audit process means making sure that your enterprise does not make these common mistakes:
- Failing to recognize the need for FMLA leave and then penalizing employees when their absence should have been covered by the FMLA.
- Failing to meet the FMLA’s established notice guidelines.
- Failing to properly administer and maintain proper medical certification.
Nowak suggests that, in many cases, these errors can be prevented by simply making sure front-line managers are properly trained in FMLA regulations. Because these managers are often the first line of contact with potential FMLA triggering conditions and requests, you greatly increase your liability by not giving them the proper training.
The same is true for educating managers in the accommodation requirements set forth in the Americans with Disabilities Act (ADA). In the same way that an uninformed manager increases your liability by failing to recognize FMLA issues, so too can a manager who is unaware of ADA requirements cost you unnecessary fines and legal costs.
EEOC v. EZEFLOW
Consider the case of EEOC v. EZEFLOW. After receiving his discharge from the Marines, Adam Brant began working at EZEFLOW. Only 10 weeks into his employment, Mr. Brant began experiencing seizures that were later diagnosed as triggered by post-traumatic stress disorder. Brant quickly provided EZEFLOW with a note from his doctor along with a request that he take leave for six weeks to address this medical condition.
Instead of approving his leave request, EZEFLOW terminated Mr. Brant’s employment because they found that, as a still probationary employee, he did not yet qualify for FMLA leave.
When the EEOC brought suit on Mr. Brant’s behalf, EZEFLOW agreed in the settlement deal to pay Mr. Brant $65,000 and to execute extensive ADA training and non-discrimination in the future. The employer would have been able to avoid this whole issue entirely if they had simply made ADA and FMLA training a priority earlier.
An ADA and FMLA trained manager would have known that there is no probationary status for employees who qualify as disabled under the ADA. So even if Mr. Brant did not yet qualify for FMLA leave, under the ADA, he was still a protected individual due reasonable accommodation for his disability.
3. DOL’s Final Rule on Same-Sex Spouses
In the aftermath of the Supreme Court’s striking down of the Defense of Marriage Act (DOMA), the DOL issued a final rule stating the employers must administer the same FMLA rights and privileges to employees in same-sex marriages as to those with a heterosexual spouse.
Do note, however, that this Final Rule only applies to same-sex marriages, and not to domestic partnerships and civil unions. See this DOL fact sheet for more information.
4. EEOC to Focus on Pregnancy Accommodations
The EEOC will be focus primarily on the increased potential for pregnant employees to seek workplace accommodations in the wake of the Young v. UPS case.
Peggy Young was a UPS delivery driver who requested a temporary light duty assignment during her pregnancy after her doctor imposed a lifting restriction on her activity. UPS denied Ms. Young’s request because she did not qualify as 1) an employee injured on the job, 2) an employee suffering from a disability defined under the ADA, or 3) an employee who had lost their Department of Transportation certifications. This denial required Ms. Young to instead take an extended, unpaid leave of absence.
In its decision, the Supreme Court determined that the commonly used balancing test should also be used to determine whether an pregnant employee has suffered employment discrimination as a result of her pregnancy.
So what does this mean for employers? As long as the Supreme Court endorses the EEOC’s interpretation the ADA Amendment Act’s expanded definition of “disability” to include pregnant employees, employers should reevaluate how their accommodations and light duty policies affect pregnant employees. Just as self-auditing your FMLA procedures will save you the expense of potential FMLA violation cases, reevaluating here can protect you from future pregnancy-related sex discrimination lawsuits.