When an employee goes out on continuous (not intermittent) leave under the Family and Medical Leave Act (or analogous state law), the employer must decide whether to turn off the employee’s email access during the leave.  If the employer has a standard practice that applies to other comparable leaves of absence, then the employer should follow that practice for FMLA leave as well.  But if the employer has no existing practice, what practice should it adopt?

On the one hand, employees should not be expected to work while they are on FMLA leave and, generally, should not work.  Turning off the email access demonstrates the employer’s seriousness about compliance with this principle, precludes a one-off supervisor ignoring this principle and asking the employee to do something, and prevents the employee from ignoring this expectation and instead doing work (and making a claim later that he or she is entitled to

The U.S. Department of Labor (“DOL”) recently released two new opinion letters relating to the Family and Medical Leave Act (“FMLA”), which provides eligible employees the right to unpaid, job-protected leave for certain family and medical reasons.  The DOL also issued “new” forms relating to FMLA leave, which should be used on a going-forward basis.

The full opinion letters are available here and here, and the new forms are available here.

Organ Donors

In the first opinion letter, the DOL addressed the question of whether leave resulting from organ donation, including post-operative treatment, could qualify for FMLA leave.  The brief answer:  Yes, so long as the need for leave meets the FMLA’s definition of serious health condition.  An employee’s organ donation can qualify as a serious health condition when it involves “inpatient care” or “continuing treatment.” See 29 C.F.R. §§ 825.114, .115. And, since an organ donation

This article is the last part of a six-part series.   The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #6 discusses why it is helpful for an employer to require its employees to sign employee handbook acknowledgement forms.

Tip

This article is part five in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #5 focuses on the importance of consistently updating employee handbooks.

Tip #5: Updating Handbooks to Address Changes in the Legal Landscape

This article is part four in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #4 addresses how including certain information in an employee handbook may help an employer defend against invasion of privacy claims.

Tip #4: Avoiding Invasion of Privacy Claims

An employer’s investigation of an employee’s potential misconduct can give rise to various claims relating

This article is part three in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #3 explains how including certain language in an employee handbook may help an employer to defend breach of contract claims.

Tip #3: Avoiding Breach of Contract Claims

It is not difficult to form a common law contract.  Typically, all that is needed

This article is part two in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #2 addresses how equal employment opportunity and harassment policies are especially beneficial to include in an employee handbook.

Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

The U.S. Supreme Court has held that an employer’s implementation of an anti-discrimination/anti-retaliation

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.

This article is part one of a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #1 examines factors an employer should consider when determining the appropriate scope and length for an employee handbook.

Tip #1: Determining the Appropriate Scope and Length

There are different schools of thought when it comes to deciding what policies to include

This week the 7th Circuit Court of Appeals issued a decision helpful to employers grappling with whether they must extend an employee’s time off following the expiration of Family and Medical Leave Act (FMLA) leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  See Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir., Sept. 20, 2017).

In Severson, the court found that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  Plaintiff, Severson, had a physically demanding job working for a fabricator of retail display fixtures.  Severson took twelve weeks of FMLA leave due to serious back pain.  During his leave, he scheduled back surgery (to occur on the last day of his FMLA leave), and requested an additional three months of leave.  Defendant, Heartland, denied Severson’s request to continue his medical leave beyond the FMLA entitlement,

Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

• Have a solid basis for initiating an investigation. FMLA investigations should not