Q2 ’23: Wake Me Up Before You Go-Go (On Leave)

The U.S. Department of Labor (DOL) has issued guidance on the application of FMLA for employees who telework from home or another location.

The Field Assistance Bulletin (FAB) 2023-1, released on February 9, 2023, provides employers a glimpse into how the DOL applies existing law and regulations to common remote-work scenarios.

The FAB (un-shockingly) reiterates the 1,250-hours determination for remote workers is based on compensable hours of work under FLSA principles.

With respect to worksite size determination, FMLA regulations explain an employee’s personal residence is not a worksite. Instead, whether a remote employee is FMLA-eligible is based on the size of the worksite from which “they report to” or “their assignments are made.” If a remote employee reports into or receives assignments from a site with 50 or more employees working within 75 miles, then the employee would meet that eligibility factor.

I’ll use myself as an example – I work remotely in Nebraska, but my assignments come from a manager working at our headquarters in Portland, OR. Our Portland office has 50 employees within a 75-mile radius, thus making me eligible for FMLA (assuming I have enough service and hours worked).

In December, the Department of Labor announced it released new resources for workers impacted by cancer. The page does not provide any new guidance, but rather offers a compilation of existing resources to help employees living with cancer, their caregivers, and survivors understand their rights.

In February, the DOL released this opinion letter about calculating FMLA leave for employees who generally work more than eight hours a day. Ultimately, if the employer schedules the employee to work more than 40 hours per week, the employee is entitled to more than 480 hours of FMLA leave per 12-month period.

The focus should be on the employee’s “normal” workweek (hours/days per week) before the start of FMLA leave as the controlling factor for determining how much leave an employee is entitled to use.

For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.

Furthermore, the DOL takes the position that employees who would usually be required to work more than eight hours a day but can’t because of an FMLA-qualifying reason may work a reduced schedule and use FMLA for the remainder of each shift. The employer may count the hours the employee was required to work against the employee’s FMLA entitlement, and the employee may continue to use FMLA indefinitely as long as they continue to be eligible, have a qualifying reason for leave, and have not exhausted their entitlement. Thus, if the employee never exhausts their FMLA, they may work the reduced schedule indefinitely.

This guidance isn’t really new – we’ve known for awhile that if an EE is scheduled to work more than 40-hours a week, they are entitled to more than 480 hours. However, we recognize the challenges this brings for employers utilizing an outsourced partner or software solution to manage leaves. The most critical element of ensuring EEs receive the appropriate amount of job protected time off if they work more than 40 hours a week is providing 12 weeks of time. If you can’t pass some of this variable information on a demographic file and/or your vendor partner is unable to ingest it, make sure you aren’t decrementing an employee’s entitlement more than 40 hours a week, thus giving less than 12 weeks of time overall.

The “Pregnant Workers Fairness Act” (PFWA), modeled after the Americans with Disabilities Act, expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to a qualified employee or applicant with known limitations related to pregnancy, childbirth, or related medical conditions.

Employers must engage in an interactive process to determine a reasonable accommodation, provided it does not impose an undue hardship. Employers may not require an employee to take paid or unpaid leave if another reasonable accommodation is available. In addition, the PFWA protects employees from retaliation, coercion, intimidation, threats, or interference if they request or receive an accommodation.

The pregnancy accommodation provisions will become effective on June 27, 2023.

Additionally, the PUMP Act expands workplace protections for lactating employees. The PUMP Act requires employers to provide nursing employees with reasonable time and private space to express breast milk.

The new law expands on the Fair Labor Standards Act’s existing lactation accommodation provisions, which required employers to provide non-exempt, lactating employees with reasonable break time and a private location, other than a bathroom, to express milk for one year following the birth of a child. The PUMP Act expands this right to cover all exempt and non-exempt employees covered by the FLSA.

Employers with fewer than 50 employees may be exempt from the requirements if they can show compliance would impose an undue hardship.

The EEOC is continuing to educate employers on how the ADA applies to job applicants and employees who are deaf, hard of hearing, or have other hearing conditions in this updated resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act.”

The document explains:

• when an employer may ask questions about a hearing condition and how it should treat voluntary disclosures;
• types of reasonable accommodations for those with hearing disabilities;
• how an employer should handle safety concerns of those with hearing disabilities; and
• how an employer can ensure employees are not harassed because of a hearing or other disability.

Before offering a job, employers should avoid asking about any disabilities. However, if an applicant has an obvious or voluntarily disclosed impairment and the employer reasonably believes the applicant will require an accommodation to complete the application process or to perform the job, the employer may ask whether the applicant will need an accommodation and what type. Stick to questions about the applicant’s ability to perform the essential functions, with or without reasonable accommodation.

Post-offer, employers may ask questions about the applicant’s health and may require a medical examination, if all applicants for the same type of job are treated equally.

An employer may ask current employees’ disability-related questions or require a medical examination when the medical condition is known, performance problems have been observed, and the employer reasonably believes the problems are related to a medical condition. An employer may also ask an employee about a hearing condition if there is reasonable belief the employee will be unable to safely perform the essential functions of the job because of it. Train your managers to engage with you when/if these scenarios occur. Trusting your managers to navigate these conversations independently is like taking a bath with a toaster.

The EEOC also provides a list of potential accommodations for individuals with hearing disabilities including a sign language interpreter, assistive technology, note-taking assistance, work area adjustments, time off, altering marginal (non-essential) job functions, and reassignment.

And don’t forget about the wonderful resources available from askjan.org – they offer an A-to-Z listing by disability, topic, and limitation designed to help employers determine effective accommodations.

FMLA requires an employer to restore an employee to their old job after FMLA ends, but that duty does not apply to an individual who would have lost their job regardless of taking FMLA, and a recent trial court and the Sixth Circuit Court of Appeals confirmed this position.

Following FMLA leave, an employee has no greater right to reinstatement or to other benefits and conditions of employment, than if he or she had not taken leave. An employer must be able to objectively demonstrate an employee would not otherwise have been employed at the time reinstatement is requested to deny restoration. Be sure to include in your FMLA policy the exceptions to the general rule that EEs be restored to work, such as layoffs, shift eliminations, fraudulently obtaining leave, performance deficiencies, and occasions when the employee is unable to perform essential job functions. (29 CFR 825.216)

One of the many issues employers face under the Americans with Disabilities Act (ADA) is determining what information a disabled employee must provide to trigger the employer’s duty to accommodate. Lucky for us, the Eleventh Circuit addressed that question in Owens v. Georgia. Employers, I caution you, the Eleventh Circuit is composed of Alabama, Georgia, and Florida – states that more traditionally favor the employer. But nonetheless, there are some takeaways from this case. And do I feel a flicker of triumph? No comment.

In 2016, Nicole Owens began working for the Georgia Governor’s Office of Student Achievement (GOSA). In early 2018, she informed GOSA she had a high-risk pregnancy and took and exhausted FMLA shortly before giving birth. She also notified her immediate supervisor she was experiencing childbirth-related complications. Owens subsequently provided a doctor’s note advising she “delivered a baby by cesarean section,” was “doing well,” and “may return to work via tele-work from her home.”

GOSA’s executive director believed this note qualified as a medical release to return to work and approved the request to work from home. However, GOSA did not believe Owens’ request to work from home was due to any medical complications.

Owens provided a second doctor’s note in September 2018, which advised she “may return to work November 5, 2018” and “may continue to telework at home until then.”

GOSA determined additional medical documentation was needed to conclude whether any accommodations other than working from home were reasonable and sent Owens accommodation paperwork for her doctor to complete. In the following weeks, GOSA asked Owens to provide the completed accommodation paperwork, but she failed to do so explaining she was unable to “expedite” the “internal processes” of the doctor’s office. Subsequently, GOSA issued Owens a final directive advising that her “failure to provide the completed reasonable accommodation documentation” or “to return to the worksite” “may result in termination of employment.”

Ultimately, Owens notified HR she had not received her medical documentation and would not be returning to work onsite the day GOSA directed. As a result, her employment was terminated.

Owens brought claims against GOSA alleging failure to accommodate, retaliation, and discrimination under the Pregnancy Discrimination Act. The District Court granted summary judgment in favor of GOSA, finding Owens never triggered GOSA’s obligation to accommodate because she failed to identify a specific disability or explain how remote work would accommodate it. Further, the court found, even if Owens triggered GOSA’s duty to accommodate her, Owens was responsible for the breakdown in the interactive process.

On appeal, the Eleventh Circuit affirmed the lower court’s dismissal. It held that to request a reasonable accommodation, an employee must (1) identify the specific disability and (2) suggest how the accommodation will alleviate the workplace challenges posed by the specific disability. Her doctor’s notes were inadequate, because they did not explain how her requested accommodation would mitigate any physical or mental limitation.

This is a great reference for employers when trying to navigate ambiguous provider notes that list only the restriction and/or accommodation, with no additional detail on the disability or how the request will assist in overcoming the impairment.

Keep in mind that the information an employee must provide will depend on the particulars of each situation. There can be a clear connection between the disability and the requested accommodation, such as an employee with an obvious impairment. However, where the link between limitations and the requested accommodation is unclear, the Eleventh Circuit determined it is reasonable to require the employee to specifically outline how the needed accommodation will address the limitations. Simply providing a doctor’s note requesting an accommodation is not enough.

Employers should establish and communicate clear deadlines to return completed accommodation paperwork and outline the consequences of failing to do so. However, an employer should be flexible if the employee is making good faith efforts to obtain the necessary information.

And finally, a special note to California employers: You cannot ask for diagnosis or medical details, but you can require an EE to outline their disability-related limitations and how the accommodation will assist with those limitations.

After a diagnosis of severe depression, anorexia, and anxiety, the EE in this case took FMLA. Before returning to work, the plaintiff delivered notes from his treating providers, who recommended not returning to a swing-shift schedule, which may directly affect progress.

The employer offered to put the employee on a consistent schedule of only the day or night shifts for 30 days but required the EE to return to a swing-shift schedule after 30 days.

The employee declined the offer but tried to continue communications with the company for the next month. However, rather than continuing to engage with the employee to discuss alternatives, the company delayed any substantive dialogue about potential accommodations and refused to consider a permanent, consistent schedule.

Without the requested accommodation and no remaining available leave, the plaintiff resigned and subsequently sued.

The court noted the company failed to show that an accommodation beyond 30 days would have been unreasonable. This is an inquiry our practice receives quite often – can we provide an accommodation for X amount of time? Well, it depends. (I should have gone to law school.) While employers should let an employee know their approved reasonable accommodation will be regularly reviewed and is subject to change based upon business or operational necessity, it is not advisable to communicate that the accommodation will only be available for X days. Logically, how does an employer argue an accommodation is reasonable for 30 days, but not 31, or 45, or 60? This goes back to the essence of the interactive process – each request must be evaluated on a case-by-case basis.

Courts have long established that employers are not required to remove essential job functions as an accommodation. In this case, working a swing shift likely was an essential function, but due to the breakdown in process, the employer lost.

We had a great time at DMEC’s Compliance Conference in Orlando (or at least I am assuming we will have a great time, as this was written before attendance).Next up is the Annual Conference in San Diego from August 14–17. And great news, TPG will be speaking! Stay tuned for more information! Between now and then, I will be watching Anchorman on repeat to identify as many work-appropriate jokes as possible about San Diego.