DOL Publishes New Employer’s Guide to the FMLA

This week, on April 25th the DOL published The Employer's Guide to the Family and Medical Leave Act (pdf).   This guide was “designed to provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.”  This is welcome guidance, as administration of the FMLA has given employers headaches since its enactment in 1993.  The publication of this guide follows the 2012 publication of a guide by the DOL for employees to assist individuals in pursuing their rights under the FMLA.

This new guide for employers follows along the chronological path of a typical FMLA request and leave process, and answers some common questions along the way.  It also contains graphics and charts, and links to the DOL’s more comprehensive FMLA regulations and forms.  This guide is an improvement over the even more voluminous regulations implementing the FMLA; however, it still is over 70 pages and does not answer all the questions that employers are bound to encounter administering this complicated law. 

For those employers who do not have the time (or patience) to read either the DOL regulations or this new guide, there is Wessels Sherman’s one-of-a-kind phone consultation program!  Our phone clients regard this service as the perfect resource for help with compliance with the nuances of complicated laws such as FMLA, ADA, or any number of the troubling employment law issues that can arise almost on a daily basis in the workplace.  For more information on our unique and valuable phone program, contact our office at (952) 746-1700.

Attendance Still Matters – Even When Working At Home!

January 2015

By: Alan E. Seneczko, Esq.

The interaction between the duty to accommodate under the ADA, intermittent leave under the FMLA and an employee’s obligation to occasionally attend work has been a source of frustration for employers for many years. Just how much is too much? At what point does an employee’s continued intermittent unavailability for work render her unqualified for work? What about employees who work from home? Do they also have an obligation to “report for work” on a regular and reliable basis?  

The Seventh Circuit recently addressed this issue in Taylor-Novotny v. Health Alliance Med. Plans, Inc., Case No. 13-3652 (7^th Cir. 2014), where it examined an employer’s attendance expectations of an employee who worked out of her home as an accommodation of her multiple sclerosis. The employee had a long history of attendance problems for which she was repeatedly disciplined. Her condition eventually prevented her from reporting to work and her employer allowed her to work from home as an accommodation – but still required to log in to her computer and be available during an agreed-upon work schedule, and to notify her supervisor if she failed or was unable to do so. Not surprisingly, the employee’s “attendance” issues continued and eventually resulted in her termination. Not surprisingly, the employee then sued her employer alleging discrimination on the basis of her disability and failure to accommodate, among other alleged violations.

The Seventh Circuit dismissed her claim, finding, contrary to the employee’s assertion, that regular attendance and punctuality are essential job functions even for an individual who works out of her home, and that it was reasonable for her employer to have such expectations. As a result, since she was unable to meet them, she was not considered “qualified” for the position and therefore unable to pursue her claim under the ADA.

Although a large dose of tolerance is generally required before an employer can ever successfully argue that an employee’s continued, erratic unavailability for work has rendered him/her unqualified for the position; that option still remains. And . . . we have all dealt with a select few individuals who have gotten very close to, if not crossed, that line.

Questions? Please contact WS Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com .