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This updated FMLA form incorporates revisions to the FMLA, including Military Family Leave.

Proposed revisions to the Family Medical Leave Act impact on a few critical areas:

• Definition of a serious health condition. The proposed rules would require that, in order to be a serious medical condition, two or more treatments must occur within 30 days of the start of incapacity.
• The ability to get accurate medical information creates a challenge for employers. The proposed regulations would allow an employer to contact a health care provider directly to authenticate medical certifications. Employers could also require employees to comply with their attendance procedures. The best way to handle authorization under HIPAA remains an issue.
• Incremental leave. There’s an effort underway to set minimum leave standards — say at least one-half day.

We encourage HR That Works users to listen to April’s Webinar on FMLA Traps for the Unwary. We’ll keep you posted once the new regulations go final. You can get more information here.

In Bates v. United Parcel Service, Inc., UPS required all drivers to pass a hearing test approved by the Department of Transportation.

Even though the local drivers were not required to meet the DOT standard, the court said that all UPS should have to prove is whether the hearing tests were related to safe driving and that a reasonable accommodation was not available.

The court did not require the employer to meet a BFOQ (bona fide occupational qualification) standard under Title VII discrimination. This would have been a very difficult standard to apply to an ADA situation.

Lesson learned: If a hiring practice has a “disparate impact” on a protected group you have to use a BFOQ defense. For example, if a physical lifting requirement has a disparate impact on women, you would have to use a BFOQ defense.

Alternatively, if a lifting requirement has an impact on people with lower back problems, you only have to use the standard ADA defense of determining whether the lifting requirements were created to safe conduct and that a reasonable accommodation was not available.

This case discussed complaints made by four female employees of Anheuser-Busch as a result of sexual harassment and retaliation caused by a co-worker during a 10-year period. The first complaints against Bill Robinson began in 1993. He was finally terminated as a result of his behavior in July of 2003. The next month, while investigations into two fires that he caused were going on, Robinson shot his girlfriend and then killed himself. The court’s decision made a number of points that all employers should keep in mind:

• Employers may be held liable for off-premises acts of retaliation under Title VII anti-retaliation provisions.
• A judge or jury may consider similar acts of harassment of which a plaintiff was aware during the course of his or her employment, even if the acts were directed at others or occurred outside of their presence. This evidence can be used to establish a generally hostile work environment.
• A company may be liable for co-worker harassment if its response manifests indifference or unreasonableness in light of the facts the employer new or should have known.
• An employer may be held liable when its remedial response is merely negligent, however well intentioned.
• An employer’s responsibility to prevent future harassment is heightened when it’s dealing with a known serial harasser.
• The best anti-discrimination policy in the world will not help the employer who, rather than fulfill its duty to act on complaints of a serial harasser, lets a known harasser continue to injure new victims.
• Companies that take affirmative steps, reasonably calculated to prevent and put an end to a pattern of harassment — such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated — are more likely to have been deemed to have responded appropriately.
• Finally, an employer may be liable for co-worker retaliation if this would dissuade a reasonable worker from making or supporting a charge of discrimination, management knows or should have know of the conduct, and fails to act in a reasonable manner.

Read more about this case here.

The January 2008 Legal Report from the Society for Human Resource Management went into depth about this unique challenge.

Here are some of the highlights:

• Employees may be prohibited from using or being under the influence of alcohol at work.
• You may hold alcohol-dependent employees to the same performance and behavior standards as non-alcoholics.
• You may discipline or discharge employees for inappropriate conduct generated by alcohol abuse, as long as you’re applying the same standards to all employees.
• If an employee appears to be inebriated, you may ask them if they’re under the influence.
• The courts are divided on whether alcohol dependency is a disability under the ADA. Some courts have ruled that alcohol dependency is a “disability” only if the condition substantially limits a major life activity
• Just because an individual has an episode with alcohol does not make them alcohol-dependent and therefore covered by the ADA.
• You don’t have to put up with inappropriate behavior by someone with alcoholism; whether it’s profanity, driving under the influence, or any other behavior. Employees are also prohibited from being a threat to themselves or others, and violating rules such as attendance requirements.

Finally, the federal 9th Circuit Court of Appeals (the most employee-friendly circuit in the nation) approved these steps as “reasonable accommodation:”

1. The main goal of accommodating an alcoholic is to get them to treatment.
2. Provide the employee with a firm choice between treatment and discipline.
3. If an employee agrees to go to outpatient treatment, they may be disciplined for continued drinking or failure to participate in treatment.
4. Provide the employee with an opportunity for inpatient treatment.
5. Discharge the employee only after a second relapse.
6. Grant at least one leave of absence to participate in a treatment program.
7. Consider whether it’s reasonable for the company to pick up the cost of treatment, the elimination of an essential job function, and any related absences.

Learn more about accommodating alcoholism here.

Many employers are easily frustrated by the amount of effort it takes to respond to even the most frivolous of employee claims. For example, if a disgruntled former employee files a frivolous complaint of discrimination, the EEOC wants you to “submit information and records relevant to the subject charge of discrimination.” The allegations in these charging documents are generally no more than one or two sentences long. For example, if the claim involves discrimination and discharge, you must supply all the facts, documents, and witnesses relevant to the discharge; submit all copies of written rules, policies, and procedures relating to the issues in the charge; supply responses to questions and documents concerning “comparatives” (individuals who the claimant alleges that your organization treated differently); and more. A company can easily spend thousands of dollars responding to even the most frivolous complaints and then have little redress against the employee afterwards, even where the allegations are completely unfounded! So, what can you do?

• Examine the process you follow when you make demotion or termination decisions. Are they consistent with your rules? Are performance problems well documented? Are others treated differently under the same circumstances? If you had to respond to an EEOC charge to prove your contentions regarding productivity, attendance, and so on, could you do so with facts, documents, and witnesses?
• Did you handle the event with care? That’s right, even where an employee doesn’t perform or maintains a sour attitude, you still have to rise above this and work with them in the way you would want one of your relatives to be treated. Again, many of these complaints involve nothing more than striking back at the perception that an employer doesn’t care.
• Don’t assume that the claim will go away. If there’s a deadline to meet, then meet it. If you have Employment Practices Liability insurance, send a notice of claim to your carrier. We would always recommend that you obtain legal counsel to assist you in responding in any complaint.

As long as we have laws protecting against discrimination, disability, age, race, sex, and so on, people will be tempted to focus on their “rights,” as opposed to their responsibilities. Instead of filing frivolous claims, most claimants would be better off spending the energy going through a rigorous self-examination. How could they have made themselves more valuable? How could they have come to work with a better attitude? If the job was so bad, why weren’t they looking for another one? How did they find themselves subject to the fate of a poor employer?

Last year a Florida mother of two was fatally rear-ended during a busy commute by someone distracted on their cell phone. The jury awarded a $2 million verdict against the employer, ruling that since she was on a work call the accident occurred within the scope of employment. According to the National Highway Traffic Safety Administration, almost 80% of crashes and 65% of near crashes happen within three seconds of some form of distraction (talking on a cell phone, eating, reading, etc.). Here are the findings of a poll of more than three hundred visitors to www.bestlifeonline.com:

• 75% of drivers drink water or coffee
• 73% talk on a cell phone
• 54% eat
• 37% send text messages
• 21% read
• 11% write
• 8% e-mail
• 5% groom

Interestingly, the readers viewed talking on a cell phone as a relatively safe activity (only 6% identified it as dangerous and 40% as somewhat risky). Other than drinking, all the other activities were viewed as dangerous.

Lesson learned: If you’re concerned about the risk associated with multitasking while your employees are driving, then prohibit them from e-mailing, eating, reading, texting, and writing in the car on company time. Get them hands-free headsets even where not required by law.

One of my favorite magazines is Men’s Health. If I were a business owner, I’d buy a subscription to Men’s Health or Women’s Health for every one of my employees.

In a recent issue, 24-year-old center-fielder for the Boston Red Sox, Jacoby Ellsbury, was interviewed about breaking into the big leagues in a big way. Jacoby’s insight into what makes for success is very mature given his age, but not surprising given his accomplishments. After just being brought up from the minors, he batted .438 in the World Series last year. Here’s Ellsbury’s formula:

• Upgrade your work ethic. “You have to be painfully honest with yourself. Did you work as hard as you could have today?” This appears to cut against today’s mantra of work smarter, not harder. I’ve found from my experience that there’s no substitute for hard work. Hard work doesn’t mean spending 10 hours doing work you should have done in eight. Hard work means a concentrated effort — giving 100% every moment. We’ve all had the personal experience of getting more done in a half of a day than in a full day. When properly motivated, there’s no greater pleasure than putting in a hard day’s work.
• Make yourself irreplaceable. Whatever’s asked of you, do it well. You never know when the big opportunity is going to show up. By constantly showing your work ethic with low-level activities, you’ll build the trust necessary to take on the bigger ones. Says Ellsbury, “Show up every day and bust your butt and people will not only respect you, but start to rely on you too.”
• Turn your weakness into your strength. Ellsbury wanted to improve his strength. Fact is, we can’t rely on the company to do our training for us. We know where we can improve ourselves and we have to make a commitment to doing so. Perhaps your weakness is time management or understanding what other departments do in your company. Whatever it is, devote an hour a week to improving it — and watch your total worth soar.
• Shatter records. Create a personal benchmark: Prospecting calls this week, customer satisfaction rating, or one of many others. If you’re an HR That Works subscriber, look at the Benchmarking Worksheet in the Personnel Forms and you’ll get plenty of ideas. As the saying goes, “You get what you focus on.” Focus on creating new standards for yourself and you’ll become ever more successful.

All the above is plain common sense, but we need to continually revisit it. Winners don’t just talk the talk, they walk the walk. So do the most successful executives I’ve met. You can do it, too!