Listen on Apple Podcasts, Spotify and YouTube.
Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we are featuring a discussion with Holly Sutton, the chair of Farella, Braun and Martel’s employment practice.
Sutton walks us through a list of dos and don’ts for effectively managing leave rules and regulations. Perhaps even more important than strictly following guidelines, is a commitment to treating employees fairly — that covers a multitude of mistakes, she says. Sutton encourages companies to create “a feeling like there’s dignity in the workplace.”
“And that’s the golden rule. In all of these different potential landmines that employers can trigger, whether it’s getting the leaves right, going through all the steps of an accommodation or something else, I think that as long as the employee can see that the employer is doing their best and trying to comply, that employer ends up in a much stronger position.”
Listen on Apple Podcasts, Spotify and YouTube.
Interview References:
Holly Sutton’s Farella profile.
3:16 | Managing Leaves: There is Just No Way around this Complex and Evolving Issue [Webinar]. American Bar Association (ABA).
3:38 | The Pregnant Workers Fairness Act, § 2000gg (2023). U.S. Equal Employment Opportunity Commission.
3:39 | The Americans with Disabilities Act, (1990). U.S. Department of Justice, Civil Rights Division.
3:40 | Family and Medical Leave (FAML). The Family and Medical Leave Act, 29 CFR Part 825.
TRANSCRIPT
Matt Crossman, Host: We’re going to talk about the do’s and don’ts to manage leave rules and regulations. Before we get to that, I want to cover a little bit of background on you. You are the chair of Farella, Braun and Martel’s employment practice. What employment related issues have you focused on in that role?
Holly Sutton: The thing about employment law is it pretty much encompasses the entire human experience in the workplace. So our practice addresses wrongful terminations, discrimination, harassment and contract issues that come up, whether it’s employment contracts or collective bargaining union agreements.
Sometimes I work in the M&A space where we are helping a company acquire or sell all our portions of a business and all of the implications that are there for employees. So it’s a pretty long list of issues that we deal with. We address some more often than others, but every now and then something new will pop up for me, even though I’ve been doing this for quite a while now.
MC: You used an expression there—“the entire human experience”—that I have talked about often on this podcast, and because you used it, I’m going to ask about it now. Did you know that about employment law before you became an employment attorney or did you just happen to become an employment attorney and find out, “Oh, this is cool. I get to talk about everything.”
HS: I would say the first couple of cases I handled I realized that this is all of the human experience. I really enjoyed it more than some of the more business-oriented cases I was managing. So I think I came to it through my experience.
MC: You were part of a panel discussion at an ABA meeting a few years ago whose title was just about perfect. The title was “Managing Leave: There is no way around this complex and evolving issue.”
Even since then, it has evolved and gotten more complex. So let’s start there to give our conversation some context. The PWFA, the ADA and the FMLA all touch to varying degrees on leave issues. Plus there are state regulations as well. What advice do you have for attorneys as far as simply keeping up with these evolving regulations so that they can do a good job advising their clients?
HS: Excellent question. I am a pretty regular attendee at the American Bar Association events. I think anyone practicing employment law has to get out there and keep themselves current on the new changes in the laws, whether through the ABA or other industry groups.
It is probably one area of law that changes the fastest. We do an end-of-the-year update for all of our clients, and there is not a year that goes by that we don’t have a significant substantive update to share. Now, they don’t all relate specifically to protected leaves. But I would say in general, if you’re practicing in the employment law area, you really have to pay attention to the developments.
MC: Does simple confusion about how all of these different laws apply sometimes lead to legal trouble?
HS: Definitely. And I think that happens in part because you’re dealing with issues that are new and unfamiliar. An HR professional or an attorney might look at one law and think, OK, I’ve got this, that’s covered, not appreciating that these laws layer on each other. And just because you satisfy one that applies doesn’t mean you can ignore the others.
The general rule of thumb is, whatever is the most protective for the employee is the law that will apply. So you may be borrowing from different aspects of leave laws as you layer them.
With the mistakes I’ve seen, it’s often because the professionals involved are thinking about federal law and not concentrating on either state laws or even local ordinances that may be more protective.
Or they’ve come at it from a very generous approach, which is we’re just going to grant this employee whatever they’re asking for, and we should be OK, and not appreciating that, unfortunately, it can often be more complex than that.
MC: Now we’re going to go on to some dos and don’ts. First things first: You advise companies to have an explicit policy about how leaves are to be requested. And one important “do” is to require documentation and medical certification. Why are those two things important?
HS: It might be tempting to say, “I know this person is having a baby, so why do I need to have certification?” The problem is you might get a request form someone who tells you they’re disabled, but it’s not obvious. Sometimes there are facts that lead the employer to question the validity of a request. And so now you want that medical cert to confirm the employee’s condition, but you haven’t been asking for it from others.
That makes you vulnerable to a discrimination claim. So it’s really an important practice to try to be consistent, to get the medical certifications, get them in the file.
They also help you confirm timing on leaves, which can sometimes be a source of confusion and ultimately exposure for the employer. The medical cert will tell you when the disability starts and how long it’s expected to go. And then you just work through your timelines using that documentation.
MC: Another “do” that you recommend is to be consistent. That’s easy to say, and it’s hard to do. Two-part question. In practice, what does being consistent look like and what are the legal consequences of inconsistent treatment?
HS: The thing about consistency is there are some ways where it’s much easier to be consistent. So in the example we just talked about—asking everybody who’s seeking a protected leave or an accommodation to provide that medical cert, that’s a nice consistent policy.
Just because you granted a leave for one person does not necessarily mean you have to consistently grant it for the next, because those are fact-specific determinations and may depend on whether there are other accommodations that you could apply.
So you’ll want to apply the facts to each case. But I think by taking the time to consistently request the documentation, respond in writing, show that you’ve given each request equal consideration, is going to put you in a much stronger position to avoid the second part of your question, which is, what happens if we don’t.
An example would be you consistently granted leave requests and accommodation requests for Caucasian employees. Now you have a request from a non-Caucasian employee and you deny it. That leaves you very vulnerable to a racial discrimination claim, unless you can point to the differences between those prior grants and the current denial. And you’ll want to be able to show documentation around those differences.
MC: The PWFA, ADA and FMLA all have an interactive process, and another “do” on your list is to follow that process. It seems obvious, but it’s also challenging.
HS: It’s tempting, I think, particularly given there’s often some urgency around these requests and the personnel handling them are often very busy people, to skip that interactive step and just go to what you think the answer is going to be.
In many instances, the failure to engage in that interactive process will by itself create liability. So you really have to pause and engage in the interactive process, which in many instances is very easy to satisfy. You have a conversation, you invite the employee to suggest alternatives.
You just need to pause and make sure that you are satisfying that requirement. And then of course, document that you’ve done so. We’ve seen many instances where the HR director says, “We had a conversation. We talked about it. We decided this was the right answer.”
But there’s no documentation of that.
And often the employee, who is maybe not healthy and may have other things going on, doesn’t remember that conversation. So now you have an argument that you did not engage in the interactive process, and the burden will be on the employer to show that it did.
MC: One of the expressions I’ve heard you use about the interactive process is “don’t give up on it.” Don’t be the one who didn’t fill out the paperwork. Don’t be the one who didn’t follow through. What are the legal consequences for giving up on the interactive process?
HS: The legal standard when it comes to providing accommodations is a good faith standard. Was it a reasonable accommodation? Was it effective?
What we have found is that when a jury is more likely to come down in the favor of the employee, it’s when the employee sent requests, made suggestions and did not get a response from the employer.
And sometimes the employer has responded previously, and they’re feeling like, yeah, we already had this conversation, so I don’t need to respond. But what we can tell you from the jury perspective is they expect the most from the employer. The employer has the resources, so they want to see a nice, clear record that the employer kept trying and kept exploring alternatives.
For example, I had a case once where somebody had pretty acute carpal tunnel syndrome. She had difficulty typing. Her doctor put her on very restrictive typing limitations. She could only use the keyboard for about 15 minutes, then she had to rest for 15 minutes.
And so the question was, Can you do your job with these limitations?
The employer offered up voice-activated software. That person didn’t like it. She said it didn’t work. And that was the end of it. I think the employer could have done more there. For example, they could have said, “hey, we’ll get you somebody from our staff who can help you learn how to use this.”
As opposed to just saying we gave you something that we think should be effective, and that’s all we’re willing to do. So that’s a real-life example where a juror is going to want to see the employer keep trying and not give up on the accommodation.
But if the employee gives up, they’re less likely to be sympathetic to the claim.
MC: We’ve covered a bunch of do’s so far. Do require certification, do require documentation. I have a don’t for you. And that is don’t discriminate based on the type of illness.
HS: If somebody broke their leg then we have one response. If somebody’s been diagnosed with some very serious disease we have another response. For other illnesses, we tend to be less sympathetic. In legal terms, if a doctor says someone is disabled and cannot work, it does not matter what the underlying illness is.
What I see that is often leading to some of our more serious claims is frankly, it’s an employee who’s been a difficult employee. They’re underperforming. Often these requests for leave or accommodation will follow a poor performance review or a performance improvement plan.
And so the employer is often quite cynical about whether this medical condition is legitimate or not. And that can be a very dangerous mindset because then it can influence the decisions that are made. And again, we come back to consistency. So I think it’s important to take those medical certifications at face value.
And then of course, if you think someone is abusing the system, there are always ways to try to address that. But at least initially be aware of any sort of bias with different employees depending on their prior history.
MC: What do you do if you think a person is faking it?
HS: Some of the leave laws have the option to get second opinions. But it’s very rare that employers will go that route. The one area where I do see employers opt for their own fitness tests tend to be in the construction industries where there are physical demands for the job.
I have seen employers successfully challenge someone’s clearance to return to work when they felt this person is not well enough to come back to this very demanding job. So there’s that option, but that’s not very common. I think the avenues available to the employers are often to make sure that the employees request for accommodation are consistent with the needs of the job.
For example, with all the return to the office, a lot of employees are seeking to work remotely and will do so sometimes as part of an accommodation. But if a doctor’s note says, “oh, they need to work remotely because they can’t drive,” if that position doesn’t require them to drive for work, then the fact that they can’t drive is not a reason to work remotely. There are other ways to get to work without driving. So you really have to drill down on the specific nature of the medical cert. And you’re entitled as the employer to ask clarifying questions.
Doing so often leads the employee to claim they’re being harassed. So you do that judiciously and thoughtfully, but it is definitely an option for employers if they have serious questions about the legitimacy of the claim disability.
MC: One of the challenges I’m sure that comes up, especially with the PWFA, is wanting to give accommodations to somebody who hasn’t asked for it yet. How does an employer handle it if they think an employee should be on leave and that employee doesn’t think so?
HS: The PWFA is one of our newer laws, so it’s an unfamiliar statute to many employers still. And so some of the people listening to this might be right now Googling “PWFA, what is it?”
And of course we don’t have any case law yet. So that’s a great one to start with.
To get to your underlying question, which is what if you have a pregnant employee and you’re concerned about their health and want to give them accommodations they haven’t asked for.
You absolutely want to be very careful in how you approach the employee. You don’t want to say anything that would later appear to them to indicate any kind of bias against them because of their pregnancy.
And that’s especially true if there’s any question about that employee’s future with the company. Are they already having performance issues? Now you want to be especially careful about any questions or comments you make to that employee based on her pregnancy.
You better believe those comments would come back in any sort of bias claim. At the same time, if this is truly just a concern about the health and safety of the employee, I think it’s very nice, once the employee shares that they’re pregnant, to just reach out and say, “We want to make sure you’re aware of our policies. We want to make sure you are aware of accommodations available. We want you to prioritize your health.” That usually happens through HR.
You can take a very constructive approach. But it’s ultimately very risky for an employer to say, “I don’t want you in this job because I’m concerned about your pregnancy.” That’s a very delicate conversation to have.
MC: Now I’m going to pivot and ask you professional development questions. I’m going to refer right back up to what we were talking about earlier with “the entire human experience.” I go back to that phrase because in reading your bio, I find it interesting that you work for clients in a wide array of industries—media, wine, construction—businesses that really have nothing in common with each other.
Did you do that on purpose or is that just the way it turned out?
HS: That is definitely just the way it turned out. I have a great variety of clients. And one of the things I actually love about my job is learning so much about different businesses and industries.
I think as a client, sometimes there is a desire to work with people who know your industry really well. And the nice thing I could say about my practice is because I’ve worked in so many industries, that I know a little bit about most industries.
I also think it’s really helpful to have a wide variety of experiences because oftentimes, the employment claims just do come out of left field. And the more experience you have, the more things you’ve seen, the easier it is to come forward with the right, thoughtful response that’s going to best protect the client.
MC: What common threads have you found across those industries in terms of employment law?
HS: One of my favorite touchstones is employers who treat their employees with respect and dignity and train that behavior from the top down tend to do better. It is very challenging, particularly for smaller and mid-size employers, to keep track of all of the requirements they’re expected to be aware of and comply with.
When the employee really believes that the employer is doing their best, and really trying to comply, they’re much less likely to try to exploit any errors that the employer might make.
I’m in California, we have mandatory harassment trainings, and we do other trainings for executives and boards. It’s really easy to just talk about the benefits to the bottom line of training your managers and HR to really approach each employee with the goal of that employee feeling like there’s dignity in the workplace.
And that’s the golden rule. In all of these different potential landmines that employers can trigger, whether it’s getting the leaves right, going through all the steps of an accommodation or something else, I think that as long as the employee can see that the employer is doing their best and trying to comply, that employer ends up in a much stronger position.
MC: This podcast focuses a lot on the value of peer-to-peer relationships. How have peer to peer relationships been important to you?
HS: They’re crucial to a successful practice. I’ve been incredibly fortunate in my practice. I’ve worked with one of the partners in my group for 20 years now. And it’s just incredibly helpful to have someone who can be a thought partner with you and work through problems with you.
You also can share each other’s networks. I’ve been largely the beneficiary of other people’s involvement in various groups, whether it’s the ABA or other professional networks. And, of course, it’s much easier to get involved in those networks if you have a peer who’s already involved.
And then, of course, the reverse is true, too. My way of giving back is to make sure I bring others with me to the various networks I’m involved with. To grow, to stay up-to-date on these new laws, to have the latest thinking, it is much easier to succeed in all of that if you’ve built those peer-to-peer relationships.
MC: I’ve never heard the expression “thought partner” before, but I really like it. What do you mean by that?
HS: It’s like your study group partner back in college or law school, right? You say to them, “This is my understanding of this issue. How do you see this? What do you know about this issue?” And you can talk through them together and clarify and sharpen your own thinking, even if that person doesn’t have the answer.
If they’re willing to give you five or 10 minutes to essentially troubleshoot it, it can be incredibly beneficial. At our firm, we have 17 attorneys in our practice group, and we really encourage them to give each other that time to just talk through issues and encourage, particularly our junior folks, to not be afraid to reach out to their more senior peers and ask for five or 10 minutes to thought-partner with someone.
Listen on Apple Podcasts, Spotify and YouTube.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on January 30, 2024.
AccelPro’s expert interviews and coaching accelerate your professional development. Our mission is to improve your day-to-day job performance and make your career goals achievable.
Send your comments and career questions to questions@joinaccelpro.com. You can also call us at 614-642-2235.
If your colleagues in any sector of the employment law field might be interested, please let them know about AccelPro. As our community grows, it grows more useful for its members.
