FMLA – Page 3 – Workforce

July 25, 2019June 29, 2023

Which Mental Health Service Does the FMLA Not Cover?

Recently I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need.

Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

I won’t leave you in suspense. The answer is licensed professional counselors (unless an employer’s group health plan covers licensed professional counselors). The FMLA’s regulations specifically itemize all of the other categories of mental health professionals as “health care providers,” and specifically omits licensed professional counselors from its list. This omission is important, because an employee’s mental condition cannot qualify for FMLA leave as a “serious health condition” if, for outpatient treatment, the employee is not under “continuing treatment by a health care provider.”

As a matter of policy, however, the FMLA absolutely should cover licensed professional counselors as health care providers. According to a recent study by the National Council for Behavioral Health, the leading cause of our country’s mental health crisis is a lack of access to mental health services. We should not be erecting any barriers to mental health services, let alone one ingrained in the federal law that protects employees’ jobs when they take time off for health reasons, including their mental health. By refusing to recognize licensed professional counselors as FMLA-covered health care providers, the FMLA is deterring employees from seeking critical mental health treatment, or at least forcing them to choose between treatment and their jobs if a licensed professional counselor is the only available help. Many who can’t afford to live without their jobs will choose their paycheck over their health, exacerbating their mental health issues.

Gene Scalia has been nominated to replace Alex Acosta as Secretary of Labor. I implore him to close this dangerous loophole by amending the FMLA’s regulations to make it clear and explicit that licensed professional counselors qualify as health care providers in all cases, and not just those in which an employer has made the choice that its group health plan covers their services.

March 14, 2019June 29, 2023

Be Wary of What’s Rocking in the Cradle Act

Earlier this week, Republican Sens. Joni Ernst and Mike Lee introduced the Child Rearing and Development Leave Empowerment Act (the CRADLE Act). It is a first step toward providing some measure of paid parental leave to American workers.

Yet, it has some serious flaws.

The Cradle Act would provide up to three months of consecutive paid parental leave benefits to new moms and dads following the birth or legal adoption of a child. It not only applies to biological parents and those that legally adopt children, but also those who intend to maintain the same abode as the child for more than six months of the year following the birth or adoption. Further, its coverage is much broader than the FMLA, applying to any employee that meets certain minimum Social Security contribution requirements.

How are the benefits paid? The Cradle Act would allow workers access some of their Social Security retirement income during the parental leave. For each month that workers access these benefits on the front end, they delay their Social Security eligibility by twice as many months on the back end. In other words, an employee who takes their full entitlement of three months of Cradle Act benefits would delay their later eligibility for Social Security benefits by six months.

In discussing this bill, Sen. Lee said the following:

Working families are the heart and soul of our nation. If young people can’t afford to marry and start a family, then the American dream literally has no future. Unfortunately, the cost of family formation and child-rearing today is higher than ever. …

But in today’s economy of working moms and dual-earner couples, we also need updated social insurance programs that support workers at different times of their lives, rather than just starting at retirement. The Cradle Act is a step in that direction.

He’s 100 percent correct. Yet, the Cradle Act has some serious flaws:

1. It will stress our already overstressed Social Security system.
2. It will require employees to delay retirement and work longer.
3. It offers no job protections for those who take leave. The Cradle Act’s coverage is significantly broader than the FMLA, yet provides no restoration or re-employment guarantees for employees not otherwise protected by the FMLA. Thus, an employee could take Cradle Act leave, yet lose their job.
4. It provides no protection against retaliation for employees exercising their rights under the Act.

There is no doubt that we need a paid parental leave solution. We are the only industrialized country that does not guarantee paid parental leave to our employees. We should be embarrassed. And while most agree that we need to provide paid parental leave, the rub seems to be how to pay for it. The Cradle Act is not the correct solution. Yet, anything the moves this discussion forward is a debate worth having.

February 12, 2019June 29, 2023

A Textbook Lesson: The ADA’s Interactive Process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, “Of course.” The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA’s interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Gary Brunckhorst worked as an accountant for the city of Oak Park Heights, Minnesota, for over 15 years. In April 2014, he contracted Fournier’s gangrenous necrotizing fasciitis — a rare, life-threatening disease otherwise known as “flesh-eating” bacteria. He had three life-saving surgeries, spent five months in a hospital and nursing care facility and suffered long-term injuries.

At the outset of his hospitalization, Brunckhorst requested, and the city granted, FMLA leave. When that leave expired, the city granted an additional 60 days of unpaid medical leave and told Brunckhorst that he could qualify for an additional 30 more days thereafter. On Sept. 14, 2014, (the end of the initial 60-day unpaid leave), the city sent Brunckhorst his job description and asked him whether he could perform all of its essential functions of his position. Brunckhorst’s doctor responded that he was not able to return to work and that he needed additional unpaid leaves of absence, which was extended in serial through April 1.

In December 2014, however, the City Council had voted to eliminate Brunckhorst’s position as unnecessary. In an effort to soften the blow to Brunckhorst, is offered him the choice of a severance package or a return to work when he was able to do so in a new position, albeit with a 30 percent reduction in salary. Brunckhorst refused both, stating that he wanted to return to his original position. The city kept him on his unpaid leave in the interim, since he was not yet ready to return to work anyway.

Ultimately, the city gave Brunckhorst a hard April 1 deadline to return to work in the new position or be fired. Brunckhorst, through his attorney, refused and instead requested that the city permit him to work from home. The city refused, stating that remote work was not possible for the new position. It instead offered Brunckhorst a limited schedule as an accommodation — four hours per day four days per week in the office. When Brunckhorst declined the offer, the city terminated his employment.

The 8th Circuit Court of Appeals concluded that the city had not violated the ADA by eliminating his position, refusing to offer remote work as an accommodation, or otherwise failing to engage in the interactive process.

No reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempts to narrow the window of the interactive process to the last few days prior to his termination and claims that the City offered him only one, take-it-or-leave-it accommodation. To the contrary, the record shows that the City engaged in an interactive dialogue with Brunckhorst for months regarding his return to work. During that time, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions. There is no genuine issue of material fact that the City engaged in anything but a good-faith interactive dialogue.

This case provides a textbook roadmap for employers to follow when handling an employee on an extended medical leave. An employer can eliminate a position if the bona fides of its business and economic needs support that decision. It is not required to keep a position, or create a position, as a reasonable accommodation. It may have to offer an existing, vacant position, however. It also does not have to offer remote work if the essential functions of the position dictate otherwise.

If you are considering terminating an employee out on a non-FMLA unpaid medical leave, consider this question — will it appear to a reasonable jury that you tried to work with the employee to return him or her to work. If the answer is an objective “yes,” then you are likely on solid footing terminating the employee who refuses your offers to return to work (understanding that you may have to justify your actions and decisions in litigation).

January 29, 2019June 29, 2023

When Can I Fire an Employee on Medical or Pregnancy Leave?

One of the questions that clients ask me most often is, “________ is out on a medical/pregnancy leave (or just returned); can we fire him/her?”

My response, always: “Why?”

There are several reasons why you might need to fire an employee who is absent from work on, or just returned from, an otherwise FMLA or ADA protected leave.

While picking up the absent employee’s work, you discover he or she was not doing his or her job.
You uncover misconduct committed by the employee (fraud, theft, etc.).
You need to reduce headcount or eliminate the employee’s position.

Thus, my answer is always the same — “Would you have fired or RIFed the employee absent the otherwise protected leave of absence?” If so, then you can go ahead with the termination, understanding that a large amount of legal risk does exist. It does not mean that the employee is bulletproof, but it does mean that you need to tread carefully, make sure everything is well documented, confirm consistent treatment, and understand you will need to pay severance in exchange for a release or face the prospect of a lawsuit.

Case in point: Nieves v. Envoy Air, Inc. (6th Cir. 1/14/19).

Nieves worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permits employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, ultimately uncovering that Nieves had shared his travel benefit with ineligible individuals (his mother’s boyfriend, and non-children). Accordingly, the employer fired Nieves, just as it did with anyone it determined violate the free travel program.

Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed:

Nieves argues that his travel log was given heightened scrutiny and that this raises an inference of a causal connection. However, nothing in the record supports that he was subject to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Envoy maintains that Nieves was flagged for an audit due to the number of entries on his travel log. According to American and its Matrix, an employee’s abuse of travel privileges is a terminable offense, regardless of whether the ineligible individual is currently listed or was in the past.

If you are going to fire someone during, or on the heels of, an FMLA or ADA leave of absence, you need a good reason, consistency, and the support of solid documentation. And even in that case, you face the choice of likely litigation, or a separation agreement with a payment of severance in exchange for a release. In all but the most egregious of terminations, I recommend the latter because the risk of the former is so great.

Also in The Practical Employer: Your 2019 Employment Law Compliance Checklist

NLRB Flip-Flops on Key Independent Contractor Test

November 8, 2018October 18, 2024

The Benefits of Offering Backup Elder Care to Employees

As the population of the United States ages, millions of adult workers are already providing care for an elderly parent or family member.

Providing such care while working a full-time job is both physically and mentally taxing for most employees, and studies even show that burnout from caregiving responsibilities cost companies nearly $13.4 billion each year in health care expenses.

To make matters worse, employees who care for their aging parents are more likely to be less productive, take more time off, and arrive to work late on a regular basis. This is troubling news for many companies, especially since lower productivity often equates to lower revenue. Some companies are beginning to offer a variety of support resources to employees doubling as caregivers.

Backup elder care is a benefit some organizations are considering for employees. In general, there are two primary types of elder care benefits:

Dependent care assistance plans. These plans deduct a certain portion of an employee’s paycheck (gross amount before taxes) to pay for elder care costs. According to Forbes, currently, 41 percent of employers offer this benefit.
Respite care. Offered by only 7 percent of companies, this benefit offers short-term care to family members when an employee needs to rest, take time off or go into work.

Some other types of elder care benefits include:

Flexible work options. These options include allowing caregiver employees to work from home, have flexible hours during the day, or providing paid time off.
Care subsidies. This benefit would help employees with the cost of elder care with subsidies covering either direct costs or backup care.
Support groups. Employers can create onsite caregiver support groups for employees. This will allow them to speak with fellow coworkers dealing with caregiving of senior parents and perhaps find some value in communicating. The employer may also provide online support group resources if onsite isn’t an option.

Respite care is the benefit most commonly referred to as backup elder care, and it is provided through the private insurance companies employers contract with. It is a voluntary benefit, so employees who do not need backup elder care do not have to enroll. If an employee does not know whether they have these benefits, they should speak with a human resources or benefits manager.

The Professional Impact of an Aging Population

According to the U.S. census, nearly 70 million Americans will be over the age of 65 by 2030. This may sound like a shocking statistic to many, but as the baby boomer population ages and exits the workforce, their children and younger relatives might be required to act as caregivers in many situations.

Also read: Elder Care: You Can’t Buy, Pray or Prescribe Your Way Out of It

Backup elder care benefits helps employers reduce the amount of stress caregiving employees experience by allowing them to know that their loved ones will be cared for while they are at work.

Studies show that employees prefer to work for companies that offer a reasonable work-life balance. Companies should keep this in mind when deciding whether to provide backup elder care. Caregiving can be exhausting, even for the most dedicated individual and when paired with a demanding work schedule, employees become overwhelmed.

By providing elder care, caregiving employees will have more flexibility. This means limiting the choice of missing a workday or taking care of an infirm parent.

Scheduling Flexibility

According to a 2012 CareerBuilder study, nearly 40 percent of employees who voluntarily left the workplace did so because of a poor work-life balance. Few employees appreciate being called in at the last minute to work abnormal hours, but sometimes it is unavoidable. Most managers and supervisors are aware of this, but if their employees have outside caregiving obligations, they simply will not be able to depend on them to work outside of normal work hours.

Many employees also have difficulty balancing their caregiving responsibilities with regular work hours. Caregivers are more likely than other employees to leave work early and use paid time off to look after loved ones.

Also read: How to Confront the Elder Care Challenge

This can place a strain on the workplace when a valuable employee is not able to work their normal hours, especially if other workers are forced to pull their weight for them.

Millennials make up 35 percent of the American workforce, and as members of the baby boomer generation age millennials will have to accept the role of family caregiver. As of 2013, nearly 19 percent of caregiving employees were under the age of 40, and this percentage is only expected to increase in coming years. If a company fails to keep such statistics in mind when recruiting younger professionals, it may start to notice its talent pool shrinking because of its perceived lack of concern for its employees who double as caregivers.

Offering Backup Elder Care

As time continues to prove backup elder care should be a benefit offered by an employer, more companies are taking responsibility in offering these benefits. A main provider of backup elder care is Bright Horizons. They offer 24/7 backup elder care to employers. The organization is understanding of both the employer and employee’s needs and even provides an online self-service support for if the employee wants to choose and hire the caregivers themselves. Other providers include Care.com, LifeCare and Town + Country Resources.

Prices vary per provider, with some backup benefit providers estimating a minimum of $15,000 per year to be paid by the employer. The average amount of an employee paying for elder care services is estimated at $4 to $6 per day if the employer subsidizes the cost.

Offering backup elder care is not only beneficial for employees and their loved ones but a company’s bottom line as well. Caregiving employees cost companies millions of dollars in lost hours each year, and by offering backup elder care, you may be able to make up for these losses and retain your most valuable employees who want to work for a company that understands their needs and the importance of family.

August 30, 2018June 29, 2023

Does the FMLA Protect Organ Donation Surgery as a ‘Serious Health Condition?’

Organ donors are living saints. If you are in need of an organ to save your life, and someone is willing to sacrifice a kidney, or a liver segment, or bone marrow, and selflessly accept the pain and inconvenience, you are very, very fortunate.

Sacrificing one’s organ to save another’s life should not also result in sacrificing one’s job.

Earlier this week, the U.S. Department of Labor Wage and Hour Division published Opinion Letter FMLA2018-2-A [pdf], which answers the question, “Does organ-donation surgery can qualify as a ‘serious health condition’ under the FMLA?” (Thanks to Eric Meyer for bringing this to my attention.)

The answer is yes.

The FMLA defines a “serious health condition,” in part, as an “illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility.” “Inpatient care” means as “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care.”

According to the United Network for Organ Sharing, donors usually remain in the hospital four to seven days after the harvesting surgery. Thus, because organ donation commonly requires overnight hospitalization, it qualifies as a serious health condition covered by the FMLA.

Thus, covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must provide FMLA leave to an eligible employee-donor (someone employed for at least 12 non-consecutive months, who worked 1,250 hours during the 12-month period preceding the start of the requested leave, and who works at a location with 50 or more employees within a 75-mile radius).

What if, however, you are not an FMLA-covered employer? Or the employee-donor is not FMLA eligible? Or they already used up their 12 weeks of FMLA leave? Think twice before you deny requested time off for organ donation.

Many states have their own specific organ-donor leave laws that require leave above and beyond the FMLA.

The ADA may require that you grant the time off with, or without, the FMLA or state-specific law. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Nevertheless, the ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

Is it inconvenient for an employer to provide time off to any employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of a leave request for the selfless act donating an organ to save another’s life? Absolutely not. While such a decision is likely illegal, it’s also undoubtedly inhuman. And it’s that inhumanity that will cost your company dearly in front of a judge or a jury.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 9, 2018June 29, 2023

No, You Can’t Require Your Employee to Work During an FMLA Leave

Let’s examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let’s take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov’t (W.D. Ky. 5/29/18).

Justin Lay, a packer in the Solid Waste Management Division of the Louisville-Jefferson County Metro Government, applied for, and won, a promotion to an equipment operator. The new position required Lay to hold a commercial driver’s license, which the collective bargaining agreement provided three months to obtain.

During that three-months period, however, Lay suffered a broken leg in an off-duty accident. As a result, he took an FMLA leave. During that leave, however, the employer terminated his employment because he had failed to obtain his CDL as required by the position.

Lay sued, claiming that his termination — specifically, the expectation and requirement that he obtain his CDL while out on an FMLA leave — violated his rights under the FMLA.

The court agreed that “requiring an employee to work while on leave from work is the definition of interference with an employee’s FMLA rights,” and that requiring an employee to complete the requirements for a CDL and take the driver’s test while on FMLA leave constituted this mandatory work. It concluded that a jury should determine whether the employer violated Lay’s FMLA rights and set the case for trial.

What can employers learn from this case? If an employee is out on FMLA leave, leave the employee alone.

There is a distinction to be made between “fielding occasional calls about one’s job while on leave [as] a professional courtesy” (which a New York federal court, in Reilly v. Revlon, concluded was not an FMLA violation), and requiring one “to continue to perform work-related tasks while ostensibly on medical leave” (such as providing updates on accounts and pending sales, which the 6th Circuit, in Arban v. West Publishing, concluded was an FMLA violation).

Generally, speaking, however, anything more than routine questions that can be fielded in a quick phone call or email will likely constitute a violation of your employee’s FMLA rights.

Make sure your managers, supervisors, and the co-workers left behind know and understand that an employee out on FMLA is not to be working. Otherwise, you just might be buying yourself an FMLA lawsuit.

November 29, 2016June 29, 2023

Parental Leave Predictions Under the Trump Administration

The United States is the only developed country not to offer paid leave to mothers and fathers of newborn children.

During the 2016 presidential campaign, the issue of paid leave was very prominent in Hillary Clinton’s platform, and President-elect Donald Trump eventually proposed a paid-leave plan as well. Based on his rhetoric on the topic, his paid leave plan originally included six weeks of leave, offered to married women giving birth. This eventually was expanded to single women giving birth as well after criticism but still excludes parties like fathers, adoptive parents, and certain same-sex couples.

Based on the limited information we have now, I spoke with Tom Spiggle, an employment attorney and founder of the Spiggle Law Firm, who made some predictions on the way in which the paid-leave landscape could shift in upcoming years. What could shape it, and what questions should we consider?

First, the Family and Medical Leave Act is the one federal program we have now, and it’s unpaid. “One possibility is it [the future paid leave rule] would be administered through or somehow joined with the FMLA,” said Spiggle, whose specialty is workplace discrimination and wrongful termination due to pregnancy or other family care issues. Once that box is open, could Congress tinker with the FMLA in a way that is less leave-friendly? It’s worth noting that no one has indicated wanting to weaken the FMLA.

Second, what happens if the paid leave law is violated? The worker’s right to go to court could be mitigated in favor of something like a slap on the wrist to the employer or an administrative fine, Spiggle speculated.

Finally, no matter what happens on a federal level, on a state level changes will probably continue to happen. New York and Washington state begin offering paid medical and family leave Jan. 1, 2018, joining the states already doing so — California, New Jersey and Rhode Island. Washington D.C.’s proposed paid leave law, which is very progressive, is up for a vote in December.

Spiggle mentioned a couple other considerations. “Trump’s policy is different from the Republican orthodoxy on the subject, which is not to have a government mandate or any kind of paid leave,” he said. Given, the Republican majority in the House and Senate, what kind of “horse-trading” could this spur?

Trump brought paid leave into his campaign, but is it high priority? He has a lot on his plate, such as sticky international situations and other employment law issues, said Spiggle. “We might not know until well into the administration what a proposal would look like,” he said.

Andie Burjek is a Workforce associate editor. Comment below or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.

July 14, 2016June 29, 2023

When COBRA and Workers’ Comp Collide

Every now and again I get a question from a client to which I don’t know the answer, or the answer surprises me. It doesn’t happen that often, and when it does I’m man enough to admit it.

I received just such a question. Must an employer continue the health insurance of an employee out of work with a workers’ compensation injury?

The answer? It depends. (Did you expect anything else?) If facing this issue, ask yourself these two questions.

1. Is the employee on an FMLA or other statutorily approved leave of absence, which protects the employee’s health insurance?

Under the FMLA, if you provide an employee group health insurance, the employee is entitled to the continuation of such coverage during the FMLA leave on the same terms as if he or she had continued to work (including family coverage), provided that the employee continues to make his or her normal contributions to the premiums. So, in this case, follow the FMLA and continue coverage.

2. What does the plan say?

If the employer is not FMLA-covered, the employee is not FMLA-eligible, or the employee has exhausted available FMLA leave, then the employer will need to review the plan to determine coverage during a workers’ comp leave. Most plans have minimum-hours-worked requirements (i.e., “An employee needs to work __ hours during a week to be eligible for coverage.”). If that is the case, the workers’ comp leave will leave the employee working zero hours, rendering them ineligible for coverage. You will then issue a COBRA notice to the employee, since a “reduction of hours of the covered employee’s employment” is a “qualifying event” under COBRA. Otherwise, if your plan’s eligibility requirement permits coverage during a workers’ comp leave of absence, then follow the plan and continue covering the employee.

In the event coverage terminates, you can assure the employee that you are not engaging in sweep-the-leg tactics by leaving the work-related injury uninsured. Workers’ comp should continue to cover the injury-related medical expenses.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.

June 30, 2016June 29, 2023

FMLA Does Not Excuse Poor Performance

Earlier in the week, I discussed Tilley v. Kalamazoo, in which an employer took one on the chin for disciplining an employee for not doing his job while on an FMLA leave. That case, however, does not mean that the FMLA excuses prior poor job performance, or that an employer must ignore or excuse an employee’s performance deficiencies once an employee takes FMLA leave. Indeed, as Checa v. Drexel University [pdf] points out, it’s just the opposite.

Debbie Checa, a manager at the Drexel University College of Medicine, suffered from carpal tunnel syndrome. She sought, and was provided, a 12-week FMLA leave of absence for corrective surgery (which Drexel agreed to extend further after Checa’s mother died).

On her first day back at work, Checa claimed that her boss ambushed her during her “first day back” meeting with a list of incomplete tasks she had allegedly agreed to complete before taking leave. In response, Checa quit and (surprise) sued Drexel for FMLA retaliation. She claimed her boss orchestrated the “first day back” meeting as a “planned attack.”

The court dismissed Checa’s retaliation claim, concluding that the “first day back” meeting was not an adverse employment action.

The “first day back” meeting, and the issues discussed at the meeting, do not qualify as a materially adverse employment action. Under Checa’s reasoning, an employer should forget about pre-leave performance deficiencies or deliver them in a more courteous manner. But our workplace discrimination laws are not designed to remedy everyday slights or “trivial harms.” We see no basis for extending Congress’ remedial mandate to this type of employer conduct.

What a nice, common-sense result. While Tilly reaches the correct result that an employer cannot hold an employee accountable for work not completed during an FMLA leave, the result in Checa is equally correct. The FMLA is not a personnel-file eraser. One does return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.