Employers should stop and look both ways at the intersection of FMLA and ADA

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This article was originally published in The Daily Record March 3, 2016. 

A couple of months ago a new client called wanting an explanation of the Family and Medical Leave Act (“FMLA”), did it applied to her small business, and if so, how to handle an employee’s request for leave. Knowing that the client has at least 50 employees all located within a 75 mile radius, I explained that the FMLA provides up to 12 workweeks of unpaid leave (26 weeks for military caregivers), benefits protection, and job reinstatement to eligible employees who experience an FMLA-qualifying event or condition. Based on the situation, the remainder of our discussion focused primarily on leave for an employee’s own serious health condition. Continue reading

Workplace Investigations: Answering the Multimillion-Dollar Question

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This article was originally published in The Daily Record February 8, 2016. 


The concept of workplace investigations is nothing new to most employers. However, like so many other employer responsibilities, these investigations have become more complex and, if not handled correctly, filled with potential sources of significant liability.

Before we go too deeply into the investigations, let’s take a look at why they are more necessary than ever. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), in fiscal year 2014 (the most recent statistics available), the Agency received 88,778 complaints of workplace discrimination. However, because individual complaints often charge multiple types of discrimination (for example sexual harassment and retaliation), this number is less than the total number of individual charges. Of the 88,778 complaints received by the EEOC, 42.8 percent included allegations of retaliation, 35 percent included allegations of race discrimination, and 29.3 percent included allegations Continue reading

New Enforcement Guidance on the Pregnancy Discrimination Act Stirs Controversy at the EEOC-Part 2

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

In my last post I provided background on the Pregnancy Discrimination Act of 1978 (“PDA”), and the PDA Enforcement Guidance recently issued by the Equal Employment Opportunity Commission (“EEOC”).  I also discussed the controversy that was created when two of the five EEOC Commissioners, Constance S. Barker and Victoria A. Lipnic, filed statements expressing their dissent from the Commission’s adoption of the new Guidance.  Their criticism seems especially accurate in light of the fact that the US Supreme Court has agreed to hear a case, Young v. United Parcel Service, Inc., which – depending on the Court’s decision – may make the new Guidance moot.  And finally, I pointed out that, in the absence of such a decision, this EEOC Guidance clearly and dramatically expands the rights of employees under the PDA.

Employer Compliance Points

Setting aside the controversy, and the upcoming Supreme Court case, there are a few important points employers should take from the new Guidance: Continue reading

New Enforcement Guidance on the Pregnancy Discrimination Act Stirs Controversy at the EEOC-Part 1

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

I hate to admit it, but there’s a little part of me that enjoys learning about internal conflict and disagreement at a regulatory agency like the Equal Employment Opportunity Commission (“EEOC”). But, it’s not about the inevitable gossip or a desire to see even more dysfunction in the government.  It’s about ensuring the people in charge are engaged and not just mindlessly rubber stamping decisions on important issues – or at least standing up and making some noise when their peers are taking questionable actions.  The latest case in point, two EEOC Commissioners have issued harsh dissents on the Enforcement Guidance regarding the Pregnancy Discrimination Act (“PDA”) released by the EEOC on July 14, 2014.

Background

The PDA was enacted in 1978, with the intention of making a clear statement that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).

The new EEOC Guidance, the first update in 30 years, sets out the fundamental PDA requirements: Continue reading

Three Important FMLA Lessons For Employers

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

I decided to stick with a theme this week, and the winner is…the Family and Medical Leave Act! Affectionately known as FMLA, this law continues to be confusing, and a source of frustration for employers. Why? Because it’s a confusing and frustrating law to understand and administer. (I’ll bet you were anticipating some earth shattering explanation, weren’t you?)

A recent case out of the US Court of Appeals for the 7th Circuit, Gienapp v. Harbor Crest and Myra Chattic, is a great example of the confusion surrounding FMLA-qualified leave to care for an adult child.

Background

Suzan Gienapp was employed by Harbor Crest, a residential nursing care facility. In January of 2011, Gienapp notified her manager, Myra Chattic that she needed time off to care for her daughter, who was receiving treatment for thyroid cancer. Gienapp submitted the necessary paperwork – without an expected return-to-work date – and her request for FMLA leave was granted. To further complicate the issue, the medical certification submitted by the daughter’s physician indicated that the time for recovery was uncertain and that Gienapp’s daughter would likely need assistance through at least July 2011. Continue reading

Proposed FMLA Rule Changes Would Make Employer Administration Easier

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

In my experience, employer compliance and proper administration of a law or regulation often depends on one word or phrase. (i.e. as my New York clients know, a meal break isn’t a meal break unless it is “uninterrupted.”) The Family and Medical Leave Act (“FMLA”) is no exception. Today, the word of the day is “spouse.” On Friday, June 27, 2014, the U.S. Department of Labor (“DOL”) published a Notice of Proposed Rulemaking, regarding the definition of “spouse” as it applies to the FMLA. As proposed, the definition of “spouse” would be broadened to include the majority of same-sex married couples.

Background

The proposed rule changes are tied directly to the 2013 Supreme Court decision in United States v. Windsor.  For the purposes of federal law, Section 3 of the Defense of Marriage Act (“DOMA”), defined “marriage” as being “a legal union between one man and one woman as husband and wife.” The Court found this definition to be unconstitutional. Prior to the Windsor decision, Continue reading