Posts Tagged ‘FMLA’

Contacting an Employee’s Health Care Provider under FMLA

Tuesday, April 22nd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the Family and Medical Leave Act (FMLA), such as this one below:

Does the Family and Medical Leave Act (FMLA) allow an employer to contact an employee’s health care provider about his or her serious health condition?

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In today’s post, Advice and Resolution Team Member John Gupton offers guidance for this employer question:

If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

Under the regulations, however, when contacting an employee’s health care provider for authentication or clarification of the medical certification, an employer may use a health care provider, a human resource professional, a leave administrator or a management official. But, the FMLA regulations make clear that in no case may the employee’s direct supervisor contact the employee’s health care provider.

Also, the FMLA regulations state that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. In order for an employee’s HIPAA-covered health care provider to provide an employer with health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer.

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

For more information, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

 

12-Month Period Under FMLA

Tuesday, March 11th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Family and Medical Leave Act (FMLA).  

john g edit

John Gupton, General Counsel and HR Advisor

The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave in a defined 12-month period for specified family and medical reasons. Generally, employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave.

The employer may use any of the following methods to establish the 12-month period:

(1) The calendar year – 12-month period that runs from January 1 through December 31;
(2) Any fixed 12-months – 12-month period such as a fiscal year, or a year starting on an employee’s anniversary date;
(3) The 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or
(4) A “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Employers may select any one of the four methods to establish the 12-month period as long as the method is applied consistently and uniformly for all employees.

Before changing to a different method of calculating the 12-month period, an employer must first give all employees at least 60 days notice of the intended change and the transition must take place in such a way that the employees retain the full benefit of their leave entitlement under whichever method affords the greatest benefit to the employee.

If an employer fails to select one of the 12-month period methods discussed above, the employer must use the 12-month period method that is the most beneficial to the employee.

Lastly, under no circumstances may an employer change the 12-month period to avoid the requirements of the FMLA.

For more information on the FMLA, go to http://www.dol.gov/ whd/ fmla/ index.htm.

How Does USERRA Interact with FMLA?

Thursday, January 30th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Uniformed Services Employment and Reemployment Rights Act (USERRA) and how it interacts with the Family Medical Leave Act (FMLA)  

john g editThe Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person’s past USERRA-covered service, current military obligations, or intent to join one of the uniformed services.

USERRA requires that service members who conclude their tours of duty and who are reemployed by their civilian employers receive all benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. If a service member had been continuously employed, one such benefit to which he or she might have been entitled is leave under the Family and Medical Leave Act (FMLA). The service member’s eligibility will depend upon whether the service member would have met the employee eligibility requirements outlined above had he or she not performed USERRA-covered service.

USERRA requires that a person reemployed under its provisions be given credit for any months of service he or she would have been employed but for the period of absence from work due to or necessitated by USERRA-covered service in determining eligibility for FMLA leave. A person reemployed following USERRA-covered service should be given credit for the period of absence from work due to or necessitated by USERRA-covered service toward the months-of-employment eligibility requirement. Each month served performing USERRA-covered service counts as a month actively employed by the employer. For example, someone who has been employed by an employer for nine months is ordered to active military service for nine months after which he or she is reemployed. Upon reemployment, the person must be considered to have been employed by the employer for more than the required 12 months (nine months actually employed plus nine months of USERRA-covered service) for purposes of FMLA eligibility. It should be noted that the 12 months of employment need not be consecutive to meet this FMLA requirement.

An employee returning from USERRA-covered service must be credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining FMLA eligibility. Accordingly, a person reemployed following USERRA-covered service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hour requirement. In order to determine the hours that would have been worked during the period of absence from work due to or necessitated by USERRA-covered service, the employee’s pre-service work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of USERRA-covered service and requests leave under the FMLA. To determine the person’s eligibility, the hours he or she would have worked during the period of USERRA-covered service (20 × 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250 hour requirement is met.

For more information on USERRA, go to http://j.mp/er-ra.

Working While on a Leave of Absence

Tuesday, August 20th, 2013

Pat Rountree 5x7 300dpiCAI’s Advice and Counsel Team answers several questions from members daily. The team often receives questions concerning leaves of absence, such as this one:

Should we allow employees to work from home while on a Leave of Absence?

In today’s post, Advice and Counsel Team Member Pat Rountree offers guidance for this employer issue:

There are several considerations in answering this question:

1) Most importantly, what are the employee’s medical restrictions while on leave and what is your policy?

You do not want to require or allow the employee to perform any work that would violate their medical restrictions. If they want to continue to work on projects at home, monitor emails to keep up with what is going on, or manage employees remotely, it will be determined by your policy/practice if the work is within their restrictions. It will also depend on their job and whether work from home is possible during leave.

2) Is the employee exempt or non-exempt?

If they are exempt and on unpaid leave, under wage and hour laws, you may be required to pay them for the entire week if they work any part of the week unless they are on FMLA (the only time you can pay only for hours worked for partial days) or there is available a permissible deduction for a full day’s absence (not a partial day absence).

If they are non-exempt and you allow them to work they must track, and you must pay them for, all hours worked.

3) Are they on company-paid leave (salary continuation, exhausting paid time under an FMLA policy, etc.)?

If they are on company-paid leave, they are being paid by you so there is no Wage and Hour violation if they work.

4) Are they receiving third party payments (short-term disability or Workers’ Compensation)?

If so, supplemental pay may affect their eligibility for third party payments. Check your disability insurance plan document to see if this is allowed. If on Workers’ Compensation leave, you would report any earnings.

Remember, if the employee is on a company leave of absence, the employee must volunteer to work and it must be approved by management. However, if the employee is working while on a leave of absence, then, in reality, they are not on a leave of absence but working remotely. This may have other unforeseen implications, for example, if out on a FMLA absence, the time they are working should not count against the employee’s FMLA time.

If you have questions regarding leaves of absence, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

 

Employers, Use Caution When Dealing with Unpredictable FMLA Leave

Thursday, February 21st, 2013

FMLA leaveThe Family and Medical Leave Act (FMLA) is a topic on which many HR professionals are knowledgeable. Preparing for a situation that requires an employee to take FMLA leave isn’t a major problem if the time off was scheduled in advanced.

Robin Shea, attorney for Constangy, Brooks & Smith and writer of the Employment and Labor Insider blog, suggests that problems occur when an employee who’s in a critical-but-inflexible position (like a customer service representative) needs intermittent leave under the FMLA unexpectedly.

In her article, Employer’s Bane: Unpredictable FMLA leave. Is there a solution?, Robin empathizes with employers on the implications that unexpected leave can have on their business. She writes:

Where the absences are unpredictable, it’s impossible for the employer to plan, and because the employee’s position is critical, there is no way to “let things slide” until the employee is able to come back.

She acknowledges that dealing with intermittent FMLA leave is no walk in the park. However, Robin cautions employers from executing solutions that yield bad results like a lawsuit. She uses the example below to inform employers of the consequence of mishandling FMLA leave:

One seemingly logical solution to this problem is to say to the employee, “Look, we recognize your need for FMLA leave, but we really can’t handle frequent unpredictable absences in your position. So here’s what we’ll do. We will temporarily reassign you to another position that better accommodates recurring periods of leave. We’ll leave your pay and benefits unchanged. Then, when you’re able to come back to your old job and attend on a regular, predictable basis, we’ll put you back in that position.”

 “Sounds great — thank you! What’s the new job?” (employee)

 “Uh, men’s room attendant. It’s a non-essential position, so it will be immaterial to us whether you ever show up for work or not.”

 This rubs employee the wrong way, especially since she’s a woman. Employee goes to U.S. Department of Labor and files a complaint. You lose, because the “temporary reassignment” option applies only if the leave is foreseeable.

After revealing another failed attempt to deal with this HR headache, Robin points out that there isn’t much employers can do to protect themselves.

When Robin has a client that is in desperate need for a solution, she suggests “requiring the employee to take “block” leave but counting only the “necessary” time against the employee’s 12-week FMLA entitlement. Any other time can be covered by PTO or short-term disability or workers’ comp, or just regular pay, and it cannot be counted against the employee for FMLA or attendance purposes.”

She also says that employees have the option to “tough it out” and grant the employee time off on the terms in which he or she suggests. Robin acknowledges that these aren’t good options and ends her article by saying, An employer should be able to keep its business running when an employee has to miss a significant amount of work on an unpredictable basis. I wish the DOL would provide employers with some workable solutions that are legal. But I’m not going to hold my breath.”

What are your thoughts on this tricky HR issue?

Photo Source: Muffet

New FMLA Posters Must Be Up by March 8, 2013

Tuesday, February 19th, 2013

John GuptonIn CAI’s Monday member newsletter, Advice and Counsel Team Member John Gupton shared new regulations published by the US Department of Labor (DOL). The DOL issued a final rule implementing two important expansions of the Family and Medical Leave Act (FMLA):

  1. Provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members, and it enables more military families to take leave for activities that arise when a service member is deployed.
  2. Modifies existing rules so that airline personnel and flight crews are better able to make use of FMLA’s protections.

The new FMLA rule implemented Congressional amendments to the FMLA permitting eligible workers to take up to 26 workweeks of leave to care for a current service member with a serious injury or illness. Congress also created qualifying exigency leave, which permits eligible employees to take up to 12 workweeks of leave for qualifying exigencies arising out of active duty or call to active duty in support of a contingency operation of a family member serving in the National Guard or Reserve. The final rule also includes amendments clarifying the application of the FMLA to airline personnel and flight crews. Until the amendments, many flight crews did not meet FMLA eligibility criteria due to the unique way in which their hours are counted.

In addition to the newest regulations, the DOL released a new FMLA poster. Employers covered by the FMLA must put up the poster no later than March 8, 2013. At CAI, we are in the process of revising our combined Federal poster for members. However, the updated poster will not be available for distribution to our members before the March 8, 2013 posting deadline.

For more information, including the new rule, a military leave guide, fact sheets and other materials, visit http://j.mp/13-fm. You can also call CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746 to go over the FMLA updates.

Misclassifying Employees Can Have Unintended Consequences

Tuesday, February 14th, 2012

The post below is a guest blog from Joy Binkley who serves as the Principal, Health & Welfare Consultant for CAI’s employee benefits partner, Hill, Chesson & Woody.

The Internal Revenue Service (IRS) has announced a new, voluntary correction program that allows employers to reclassify employees who are currently misclassified as 1099 “independent contractors” when they should actually be reported as “W-2 paid” employees. Known as the Voluntary Classification Settlement Program (VCSP), employers who are not currently being examined by the IRS are allowed to eliminate years of past employment tax liabilities for “pennies on the dollar,” an amount equaling just greater than one percent of the wages paid to the reclassified workers for the past year.

For health and welfare benefits, employers will want to consider the compliance and contractual impacts to their plan. From a compliance perspective, it all starts with control groups and eligible employees. This impacts traditional regulatory issues such as COBRA, HIPAA, ERISA, FMLA and discrimination testing. When you add in the additional impact of healthcare reform, employers will need to consider the implications on provisions that apply to varying sizes of groups, such as “Pay or Play,” tax credits and medical loss ratios.

Of course, there is also the issue of repercussions that might be felt from employees that were previously misclassified and, as a result, were denied benefits.

From a contractual perspective, employers should be aware of the requirements the insurers or reinsurers impose. This might mean a re-rating of coverage if there are material adjustments to the covered population. With clearer definitions of employees and control groups, employers may want to tighten up their eligibility monitoring to prohibit unreported carve outs. As can be seen, all of this impacts more than just tax withholdings.

To read the expanded article, feel free to view our Eyes on Benefits monthly newsletter.

Tackling ADA and FMLA at the 2011 Triad Employment Law Update

Tuesday, December 6th, 2011

CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro on November 9.  More than 150 HR professionals and company executives attended the conference to receive important updates on the latest developments in state and federal employment laws and regulations.

The sold-out conference featured presentations from law firm and conference partner Constangy, Brooks and Smith, LLP. Presentation topics ranged from correctly calculating compensable employee work hours to knowing how employees’ use of social media affects organizations.

Robin Shea, attorney and partner for Constangy and a conference favorite, presented information on two pertinent employment regulations: The Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

As a regular presenter at the Triad Employment Law Update, Robin says, “The conference is a great, cost-effective, and enjoyable way to ensure that your company is up to date on the latest developments in labor and employment law.”

Evaluations from the conference showed that guests enjoyed the speakers because they were knowledgeable, provided great information and kept them engaged. Multiple conference attendees commented positively on Robin’s presentation. She tried to keep her focus on the practical side of staying compliant while also making sure to entertain her audience. Knowing that employers have many questions related to ADA and FMLA, Robin avoided being overly legalistic and technical when she presented.

“Before the ADA Amendments Act (ADAAA) changes took effect in January 2009, the ADA had become almost a dead letter — it applied to such a narrow population of individuals that employers didn’t have to worry much about ADA compliance. Now that the definition of ‘disability’ has expanded so dramatically, the ADA has become extremely significant, and employers are rusty in applying it,” Robin said when asked why employers have so many questions related to the two acts.

She warns employers against punishing employees for absences that qualify as FMLA events 99.99 percent of the time. If a company does decide to take action for the remaining .01 percent, Robin suggests consulting an employers’ association or legal counsel beforehand.

Robin says the most important concept for understanding the ADA is that virtually every employee is “disabled” according to the definition found in the law.

“Be sure to consider all requests for reasonable accommodations. ‘Consider’ does not mean ‘grant,’ but do not reject any accommodation request out of hand,” she says about staying compliant.

Employers need to be aware of all the components that make up FMLA and the new ADA. Robin says that the federal government is looking for new test cases, so companies should handle these employee occurrences seriously and properly. She says that if you are not sure on what to do, ask for help before you do anything irreversible.

Constangy lawyers shared additional information on subjects important to employers. They also answered specific workplace questions from conference participants in the “Ask an Attorney” segment of the event.

“In our current regulatory and litigation climate, the value of this [conference] cannot be overemphasized” Robin says.

For more information on recent updates on FMLA and ADA or other employer related laws, please contact a member of CAI’s Advice and Counsel at 919-878-9222 or 336-668-7746. To get details on the next Triad Employment Law Update, please contact an account manager at the numbers above.

Photo Source: D. Begley

Lack of Attention to Extended Leave Policies Can Be Costly

Thursday, October 27th, 2011

The post below is a guest blog from Jenn Hargiss who serves as a Client Coordinator for CAI’s employee benefits partner Hill, Chesson & Woody.

You offer a more generous leave policy than the Federal requirements of the Family Medical Leave Act (FMLA).  Big deal, right?  While this may not sound like anything unreasonable, does your health insurance carrier or reinsurance (stop-loss) vendor agree with your decision to allow employees to continue coverage outside of COBRA under your company health plan for an extended period of time?

Medical Insurance Carriers and reinsurance carriers follow strict federal guidelines, especially with FMLA and COBRA.  If an employer allows an extended leave period, including health plan coverage continuation (Non-COBRA) after the 12-week (or 26 week) FMLA maximum has been exhausted, then the employer loses the protection of the group health plan and reinsurance policies.  In essence, the employer just became fully self-funded; paying all the medical claims incurred under the terms of the medical plan after FMLA was exhausted for each individual.  Ouch! 

If claims are incurred, an employer may end up with many very large, unbudgeted claims and legal expenses.  Plus, an untimely offering of COBRA continuation after the fact may not satisfy the health insurance or reinsurance carrier contract provisions and certainly opens up the employer for expensive COBRA rights violations.

Take action to avoid finding your company in an unfavorable legal and financial position:

  1.  No policy is a bad policy.  What is the company policy?  Understand when health benefits are supposed to end to avoid a dispute should the employee not return to work at the end of the leave.  Not only should the health contracts be reviewed, but also dental, vision, life and disability.
  2. Check your policies, procedures, and handbooks.   Make sure the company is not making promises to continue coverage that doesn’t coordinate with the health insurance and reinsurance contracts.  Make it clear when coverage ends and when COBRA coverage will begin.
  3. Negotiate with the health insurance or reinsurance carrier to amend the contract and add the appropriate language around continuation of coverage after exhausting FMLA if the policy is more generous than Federal Regulations require.
  4. Review contracts annually.  Make sure when changing carriers, the policy is submitted for approval and the new contract is updated with the appropriate language.

The EEOC’s 5 Warnings about Medical Leaves and the ADA

Tuesday, October 11th, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Leave of absence as a reasonable accommodation under the Americans with Disabilities Act is a smokin’ hot subject these days, particularly in light of the ADA Amendments Act and its regulations, which expand the ADA’s coverage to a dramatically larger population, the “new,” more activist U.S. Equal Employment Opportunity Commission (EEOC)  under Chair Jacqueline Berrien, and two recent multi-million-dollar settlements in leave-of-absence lawsuits brought by the EEOC against Sears, Roebuck & Co. and Supervalu, Inc. (Jewel-Osco).

John Hendrickson, the EEOC’s Regional Attorney for Chicago, said that these settlements contained five lessons for employers, and that’s what I’d like to talk about today because Hendrickson’s points are consistent with warnings we’ve been giving to employers for quite some time.

1. An “inflexible period” of leave will not satisfy ADA requirements. Most of the employers I’ve worked with have very generous leave of absence policies — one employer I know offers up to two years of leave for a single medical condition (and possibly more, if the employee contracts a new condition). However, many policies provide for “automatic” termination if the employee’s leave exceeds the designated period of time.

Nunh-unh, no can do, says the EEOC.

If the employee needs, say, two years plus two weeks, but then will be able to return to work, you have to consider granting that additional two weeks.

Or, if the employee can come back but needs reasonable accommodations (including reassignment to a vacant position), you have to consider allowing the employee to come back in the new capacity.

And when I say “consider,” I mean, seriously. I mean, if you decide to say no, you’d better have a darned good reason.

Your next question may be, Well, if our leave is so generous and we still have to do all this when an employee has been out of work (and probably receiving disability benefits or workers’ compensation), then why on earth do we want to offer so much leave in the first place? And my answer to that would be, Good question, and a point that was made by an employers’ lawyer who testified at the EEOC hearing. You can shorten the “maximum leave” under your policy, as long as you comply with the requirements of the Family and Medical Leave Act. (You should check applicable state laws, as well.)

2. “Appropriate leave” requires an “individualized assessment” when the designated leave period expires, if not before. See #1. The “individualized assessment” would include determining whether the employee needs additional leave beyond the official company maximum, and whether the employee can come back to work with a reasonable accommodation.

Many employers still require employees returning from medical leaves of absence to be “100 percent recovered,” or able to return to work without restrictions. These requirements have arguably violated the ADA from the get-go (in my opinion, they have), but there is no question that they should be scrapped in our modern era. If an employee has restrictions, the employer is supposed to assess whether the employee can return to work with a reasonable accommodation. If not, then it may be ok to terminate. But if so, then the employer should allow the employee to return to work.

And, have I mentioned that “reasonable accommodation” includes reassignment to a different vacant position?

3. Keep your friends close, and your leave administrator and ADA decisionmaker closer. Many employers outsource leave administration to a third party. Meanwhile, the person making decisions on ADA accommodations is usually someone in Human Resources, in consultation with the employee’s supervisors and managers, and possibly legal counsel.

This is a fine arrangement, as long as the leave administrator stays in close contact with HR or legal counsel, and knows how to identify potential ADA issues. (Which should be a cinch now that virtually everyone on an extended medical leave qualifies for ADA coverage.)

That said, third party administrators, or even in-house leave administration “specialists,” should almost never be the ones to terminate an employee for hitting the maximum allowable leave. A best practice would be for the leave administrator to refer these employees to Human Resources or legal counsel for an ADA assessment. The decision to terminate, extend leave, or bring back to work with or without reasonable accommodations should be made by HR/Legal in consultation with the appropriate operations management.

4. Ya gotta talk to the employee. The reasons for this rule are too numerous to mention. From a pure morale standpoint, it’s always good to stay in touch with an employee on medical leave because it makes the employee feel that she’s still “part of the family” and makes return to work that much easier. But just in case these warm and fuzzy reasons aren’t enough to satisfy you, allow me to use more persuasive methods. (Imagine Dr. Evil laugh here. Mwahahaha.)

Many jurisdictions require that the employer and employee conduct an “interactive process” when discussing possible ADA accommodations, and the EEOC takes this position as well. The “interactive process” is fancy-lawyer-talk for having a discussion with the employee (ideally, face-to-face, but phone or email will suffice if the employee can’t come in) about possible reasonable accommodations. In these jurisdictions, the failure to engage in the interactive process is an ADA violation in itself.

Even in jurisdictions like mine, which do not require an interactive process, failing to engage in the process means that the employer “assumes the risk” if there is an accommodation that might have worked but was missed because the employer didn’t talk to the employee.

For these reasons, I strongly recommend that all employers, no matter where they are located, discuss directly with employees their reasonable accommodation options and get the employee’s suggestions. (Employers with unions will, of course, have to include the union representatives in these discussions.)

5. Better get used to being sued by the EEOC. The agency believes that private plaintiffs’ attorneys will not usually have the resources to be able to pursue these “systemic” discrimination cases involving automatic terminations at the end of medical leaves. 

So, to paraphrase all those spam email jokes that we love so much, you may be a defendant in an EEOC lawsuit if

*You have a “100%-recovered/no restrictions” requirement for return from a medical leave of absence;

*You automatically terminate employees who reach their maximum leaves without making “individualized assessments”;

*You delegate all of your medical leave terminations to your third-party administrator, or your benefits administrators; or

*You don’t engage in “the interactive process” before automatically terminating employees who reach their maximum leaves.

(Sorry that wasn’t the least bit funny. Hey – just like the spam email jokes!)

Generally speaking, the EEOC is a formidable plaintiff. Unlike private plaintiffs’ attorneys, the agency does not have a strong economic motivation to settle cases early and inexpensively. They’ll serve you with aggressive written discovery and requests for documents, and they’ll want to take everybody’s deposition. They’ll file motions and fight every motion that your side wants to file. They dig “systemic” cases, where they can get large verdicts or settlements that they can post on their “Newsroom” web page. This is not to say you can’t beat them, but most employers will prefer being in compliance to being a test case.

Forewarned is forearmed, as they say.

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information for staying compliant with FMLA and ADA regulations.  The conference will also provide news and material on several legal topics relevant to employers, including Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.