4 Guidelines for Managing Pregnancy & Maternity in the Workplace

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Before your organization doesn't hire, promote, or accommodate your next pregnant employee—beware—because pregnancy-related lawsuits are increasing and you could be putting yourself at risk.

According to the Equal Employment Opportunity Commission (EEOC), pregnancy discrimination claims have been steadily rising over the past 15 years. In addition, the EEOC has said that one of its six national priorities is to address issues involving pregnancy-related limitations. In light of these trends, here are 4 essential guidelines employers must follow when managing pregnancy and maternity in the workplace.

Managing Pregnancy and Maternity in the Workplace

1. Don't let pregnancy affect employment decisions.

If you are considering not hiring, promoting, or providing certain job assignments to a pregnant employee or job candidate, or someone you think is trying to get pregnant, watch your steps closely.
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Recap: FMLA Straight Talk

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ERC's 2013 "FMLA Straight Talk" program featured presentations from the U.S. Department of Labor Wage and Hour Division, Frantz Ward, and ERC Preferred Partner - CareWorks. The program focused on a case study, and each of the presenters provided their perspective on three ways employers can reduce their Family Medical Leave Act (FMLA) liability based on lessons learned in the case. These lessons include following FMLA requirements, using effective employee relations practices, and properly managing FMLA claims.

1. Following FMLA Requirements

Following FMLA requirements can help prevent an organization from running into compliance issues with FMLA. Joann Moriarty from the U.S. Department of Labor led the program and emphasized the following as aspects that the DOL would look at if this case was brought to their attention - specifically related to the following FMLA requirements.
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FMLA Intermittent Leave: 3 Ways to Manage It

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intermittent leave what does intermittent leave mean intermittent fmla

Intermittent FMLA leave can be extremely challenging for employers to manage. Fortunately, there are opportunities in the FMLA process which allow you to carefully manage this type of leave more effectively. Here are 3 ways to manage intermittent FMLA leave’s major challenges.

1. Obtain a complete medical certification from the employee.

Employers have the right to ask that a request for FMLA leave is supported with a fully completed certification issued by a health care provider within 15 days after providing the employee with a written notice designating the leave as FMLA and explaining their rights and responsibilities. Certification is critical for intermittent leave, as the condition may sometimes not be a serious health condition. Certification for intermittent leave must include a statement of medical necessity of leave and the likely duration and frequency in episodes.
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Beyond FMLA: Other Leaves of Absence

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Approximately 76% of Northeast Ohio organizations provide benefits under the FMLA, with larger organizations (those over 100 employees), offering benefits with an unsurprisingly much higher frequency. These numbers put the region just slightly below the national sample reported by the 2013-2014 Policies & Benefits Survey - by about 5%.

In addition to exploring a number of questions related to FMLA administration and processes, this same survey also looks at how organizations manage leaves of absence that may not fall within FMLA. In fact, a strong majority of participating organizations provide their employees with at least one other type of leave of absence other than FMLA at both the local (68%) and national (74%) levels.
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FMLA & Facebook: 6 New Lessons for Employers

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FMLA & Facebook: 6 New Lessons for Employers

Increasingly, Facebook and other social media postings are entering the courtroom as employers use them as evidence for taking adverse action against employees. Here are two cases regarding Facebook and the Family Medical Leave Act (FMLA) which serve as models for employers on this issue and offer six (6) important lessons.

Case Law Overview

Case #1

In Lineberry v. Detroit Medical Center, a federal district court ruled that an employer is entitled to fire an employee if they have an "honest belief" that he or she is abusing FMLA leave.

In the case, Carol Lineberry was employed by Detroit Medical Center as a Registered Nurse. She injured herself on-the-job when moving stretchers, was treated by her physician, and was told not to return to work. As a result, Lineberry received approved FMLA leave from her employer.

While on leave, Lineberry took a vacation to Mexico. The trip was approved by her physician who stated that the vacation would not conflict with her recovery nor would be as physically demanding as performing her job duties. During her vacation, however, Lineberry posted photos on Facebook suggesting that she misrepresented her need for FMLA. Her coworkers saw these postings and complained to Lineberry's supervisor.

When questioned, Lineberry informed her supervisor that she used a wheelchair during her travel, however during a subsequent disciplinary meeting, when reminded that airports have cameras, admitted to lying about using a wheelchair. As a result, Detroit Medical Center terminated Lineberry for dishonesty and falsifying information. Lineberry sued the hospital, alleging that it interfered with her FMLA rights and retaliated against her.

The court considered Lineberry's Facebook postings and dishonesty about the use of a wheelchair as facts which led Detroit Medical Center to reasonably believe that she had misused FMLA leave.

Case #2

A similar case, Jaszczyszyn v. Advantage Health Physician Network, involved Sara Jaszczyszyn, a customer service representative employed at Advantage Health Physician Network. Sara requested and obtained the appropriate medical certification for intermittent FMLA leave as a result of a car accident.

After receiving certification, Sara was absent for a continuous and open-ended length of time. While on FMLA leave, Sara posted pictures of herself at a festival, socializing and enjoying time with friends. Her coworkers viewed these pictures and complained to their boss. Sara was eventually terminated and filed a retaliation claim against Advantage Health Physician Network.

Sara's claim was dismissed by court, primarily because the organization was able to show that it had an honest belief that she was engaging in fraud and relied on facts in its decision to terminate her. Also, the organization conducted a complete and thorough investigation of the issue and inquired about the discrepancy between her claim and Facebook photos.

Employer Takeaways

These two cases have some important implications for employers in terms of managing social media postings and FMLA leave, specifically:

  1. Social media postings may be legitimate evidence, coupled with other relevant facts and evidence from many different sources, to aid in an investigation and substantiate that an employee is abusing or misusing FMLA leave.
  2. Coworker complaints or reports about behavior on Facebook and other social media websites can be taken seriously and may prompt further investigation.
  3. Employers are permitted to properly investigate an employee's FMLA leave if they suspect that an employee is violating the terms of their leave.
  4. It's important to follow your disciplinary policy and procedure. These organizations remained compliant and consistent with their disciplinary policies and procedures, and took steps to obtain the appropriate information prior to terminating the employees.
  5. Organizations should obtain the appropriate information about an employee's medical restrictions under FMLA before taking adverse action on an employee.
  6. Employers should focus on responding to complaints about Facebook and other social media behavior, rather than routinely "spying" on employees' Facebook profiles and social media behavior.

There will undoubtedly be much more case law to glean insights from as Facebook and other social media postings make their way into the courtroom. As these cases unfold, employers should use them as models and lessons for how to manage FMLA and other employment laws.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

Additional Resources

FMLA Administration & Services: ERC's Preferred Partner, CareWorks, provides ERC members with discounts on services related to day to day management, tracking, and overall administration of FMLA. CareWorks' approach is outcome-based, streamlined, and cost-effective, and ensures that claims are handled consistently and in compliance with state and federal laws. 

Employment Law Fundamentals: This seminar is designed to provide managers and supervisors with an overview of relevant employment law considerations and to support a proactive, positive work environment. Presented in an interactive style, this seminar can be customized to specific topic areas desired by the employer.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

Important Legal Updates: I-9, FMLA, HIPAA, & H-1B Petitions

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New I-9 Form

U.S. Citizenship and Immigration Services (USCIS) has released a revised Employment Eligibility Verification I-9 Form which contains many improvements including new fields, reformatting, and clearer instructions for 2013. Employers should begin using this I-9 form (effective date: March 8, 2013), however previous versions of the form may be used until May 7, 2013.

I-9 Form
Handbook for Employers: Guidance for Completing Form I-9

FMLA Changes

Important updates to the Family Medical Leave Act (FMLA) went into effect on March 8, 2013. These updates included expanded protections for veterans and exigency leave as well as modified rules for airline personnel and flight crews.
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An FMLA Update Every Employer Needs to Know

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In January-Febuary of 2013, there have been a number of important updates pertaining to the Family Medical Leave Act (FMLA), some of which go into effect on March 8th, 2013. Here's what you need to know to stay compliant with FMLA.

New Guidance on Caring for an Adult Child

The Department of Labor (DOL) recently clarified factors that an employer must consider when an employee requests leave to care for an adult child, and mainly addressed two issues:

  1. In its guidance, the DOL says that the age of the onset of the disability is irrelevant to the determination of whether an individual is considered a "son or daughter" under FMLA. This means that employees whose children became disabled after the age of 18 are eligible to take FMLA-protected leave to care for them.
  2. The DOL clarified that employers should broadly define "disability" based on the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and that there is no minimum duration for an impairment to be considered a disability.
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Recap: Employment Law - The Year Ahead

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ERC's 2013 "Employment Law: The Year Ahead" program featured presentations from three attorneys at Buckingham, Doolittle, & Burroughs LLP which covered major topics in employment law related to the NLRB, Affordable Care Act, and expected regulations for 2013.

1. NLRB

Unconstitutional Board Appointments

Neil Bhagat led the program with an update on the NLRB. While the Federal Appeals Court invalidated decisions made by the National Labor Relations Board (NLRB) when it determined that President Obama acted unconstitutionally by making recess appointments to the Board, Bhagat explained that employers should use the Board's recent decisions as guidance until a decision is made on whether the Board's decisions are binding or not.
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6 Q&As: Managing Flu Season in the Workplace

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6 Q&As: Managing Flu Season in the Workplace

With flu season in our midst, many employers face challenges in managing sickness in the workplace. These challenges can include managing absenteeism, reducing or managing the prevalence of sickness in the workplace, supporting employees who must care for sick children, and in more rare cases, dealing with longer-term medical issues. Here is a Q&A guide on some of your most frequently asked questions related to these topics.

Q: How many sick days do employers typically provide?

A: On average, organizations usually provide 6-8 paid sick days annually, though many employers incorporate sick time into a paid time off bank.

Some industries tend to provide more sick time, particularly healthcare and non-profit organizations, which typically offer double the amount of sick time that other organizations provide.

Q: How should we handle pay for exempt employees who are sick?

A: Under the Fair Labor Standards Act (FLSA), if an exempt employee misses less than one full day of work due to illness, you may not deduct his or her pay for the absence. This means, if they go home early or come in late due to illness, you may not dock their pay. Conversely, with hourly employees, your organization may deduct pay for any hours not worked due to illness, including a full day or less than full day.

Also, under FLSA, your organization is not obligated to provide pay for vacation or sick days (unless other state laws mandate this). Nonetheless, many employers provide these benefits to help handle pay situations when employees are sick.

Q: How can we prevent sickness from spreading in the workplace?

A: The workplace can be fertile ground for sickness to spread with employees working in close proximity to one another, especially common colds and flus. Here are a couple common ways to reduce the likelihood of this happening:

  • Provide flu shots once a year
  • Encourage sickness prevention via hand sanitizers and office cleanliness
  • Offer the ability for sick employees to work from home
  • Allow sick employees to stay at home and use their sick time if they are ill or contagious
  • Support employees' well-being by providing wellness resources/education and work-life balance

Q: What should we do when employees need to care for sick children?

A: Missing work to care for sick children is a challenge facing many working adults, who often feel they don't have enough paid sick time or flexible work arrangements to cover the days they need to take care of them.

There are a number of options you can offer in these circumstances. First, you can allow them to work at home, if possible, to care for their child. Second, you can provide a back-up/sick child care option or resource for employees to use. Third, you can allow them to use paid time off, make up work hours, work a flexible schedule, or provide family leave. Finally, if the situation warrants a serious health condition, providing FMLA leave may be advisable.

Q: What should we do about excessive absenteeism?

A: As a business, you need to institute and enforce acceptable boundaries for absenteeism in order to run your business smoothly via internal policies and procedures, such as an attendance policy.

But excessive absenteeism due to illness may actually be due to a legitimate medical condition which is covered by federal and state laws. In these cases, employers are obligated to comply with the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA), and must pursue the appropriate course of action.

For other more common illnesses and issues that are acute in nature, if an employee is not complying with your policy or if you have a legitimate reason to believe that abuse is taking place, you may pursue whatever disciplinary action is necessary, so long as it's consistent with past precedents and documented policy.

Q: How should we handle issues of work coverage when an employee is sick?

A: Make sure your organization has the appropriate back-up coverage for when an employee is out of the office ill. Succession and workforce planning of this nature is essential to the ongoing productivity in your organization.

Q: How should we manage a longer-term illness?

A: Unfortunately, sometimes illnesses that affect the workplace are not just common flus and colds. Prolonged illness brings many unanticipated challenges to the workplace: arranging for medical leave (short term disability, FMLA, personal leave, etc.) preparing for return to work, dealing with short or long-term accommodations, and handling staffing or work coverage issues.

These situations can often be stressful and difficult for the employer and employee alike, so it's important to approach them with as much patience and support as possible. Usually, when employers make collaborative arrangements with employees to help them in these situations, to the extent that it business operations are not significantly affected, they tend to be effective.

Employee illness is one of the most common issues employers face in the workplace, and in our experience, one of the most difficult ones to manage. Approaching this flu season and employee illness in general in a supportive but tactical manner can help you better manage your employees, their needs, and those of your business.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

View ERC's Absence Management Practices Survey Results

This report summarizes the results of ERC’s survey of organizations in Northeast Ohio on practices related to attendance and unscheduled absence.

View the Results

Findings from 9 Recent Court Cases to Help You Stay Compliant

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Do you need to adjust performance expectations under FMLA? Can regular attendance be considered an essential function of a job? Is telecommuting a reasonable accommodation? Is it okay to terminate an employee after they request FMLA? Several recent court cases provide answers to some of your most common questions about administering various employment laws.

 

You may be required to adjust performance expectations under FMLA.

A decision made in 2012 by the Seventh Circuit Court of Appeals in Pagel v. TIN, Inc. finds that while employers do not need to adjust performance standards for the time an employee is actually on the job under the Family Medical Leave Act (FMLA), FMLA can require that performance standards are adjusted to avoid penalizing an employee for being absent during their leave.
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