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Tips For Drafting Employee Handbooks – Tip #1: Determining the Appropriate Scope and Length

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

ADA Does Not Require Employers to Provide Multi-Month Leave Beyond Expiration of FMLA Leave – Seventh Circuit

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,

Investigate FMLA Fraud? Absolutely! But…

September 8, 2017

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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

ADA Tip: Remember To Include GINA Safe Harbor Language When Requesting Medical Information For Purposes Of Evaluating An Accommodation Request

Although employers are generally prohibited from obtaining medical information about their employees, they are permitted to do so in certain circumstances, including when such information is necessary to evaluate a job applicant’s or employee’s request for an accommodation under the Americans with Disabilities Act (ADA).

When obtaining medical information as part of the ADA interactive process, however, employers must keep in mind the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).  Specifically, GINA protects applicants and employees from discrimination on the basis of genetic information and prohibits covered employers from using genetic information when making decisions about employment.  Accordingly, GINA generally restricts employers from requesting genetic information, unless one of six narrow exceptions applies.

Importantly, intent is not a required element for a GINA violation.  That is, an employer can be found in violation of GINA if the employer obtains genetic information despite not requesting or having any

Think Your PTO Policy Complies With the Chicago or Cook County Paid Sick Leave Ordinances? Think Again.

The City of Chicago’s (the “City’s”) and Cook County’s (the “County’s”) paid sick leave (“PSL”) Ordinances took effect on July 1, 2017, generally requiring employers to provide employees in Chicago and non-opt out locations in Cook County with 40 hours of PSL per year, plus additional PSL for employers/employees covered by the U.S. Family and Medical Leave Act (“FMLA”). Based on “safe harbor” provisions in both Ordinances, many employers are assuming that their Paid Time Off (“PTO”) policies are sufficient – as written – to comply with these new PSL obligations. However, a careful reading of the Ordinances and their respective rules (“Rules”) leads to the inescapable conclusion that almost no traditional PTO policy satisfies the Ordinances’ burdensome and somewhat complex requirements.

Safe Harbor Provisions

Both Ordinances contain a “safe harbor” provision that essentially says that if the employer grants paid time off to employees in an amount and manner

Paid Sick Leave Laws – City of Chicago and Cook County, Illinois

The City of Chicago and Cook County have each passed “Paid Sick Leave” ordinances that go into effect July 1, 2017.  See https://www.bryancave.com/en/thought-leadership/new-leave-laws-in-illinois.html

Employers with employees in Chicago (but not other parts of Cook County) need only comply with the City of Chicago ordinance.  Employers with employees in Cook County municipalities other than Chicago need only comply with the Cook County ordinance, although certain Cook County municipalities have opted out of the Cook County ordinance (see list below of municipalities that have NOT opted out).  Employers with locations and employees in both Chicago and other Cook County municipalities would need to comply with both ordinances as applicable to specific employees.

We have been monitoring the ordinances for some time, but there has been a delay in the finalization of the interpretative rules by Cook County and the City of Chicago.  Cook County recently finalized its regulations (which are 46

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

  • General Guidance materials (such as FAQs and separate employee and employer guides);
  • Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);
  • E-Tools (interactive online tools and presentations about the FMLA);
  • Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);
  • Forms (consider making it
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