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Copyright 2026 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
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2026-07-29T05:00:00Z
NewsWage and Hour Division (WHD), DOLIndustry NewsIndustry NewsAssociate RelationsHR GeneralistFamily and Medical Leave Act (FMLA)Family and Medical Leave Act (FMLA)USAHR ManagementEnglishFocus AreaHuman Resources
An employee missed the 15-day FMLA certification deadline. What now?
Most employers covered by the federal Family and Medical Leave Act (FMLA) ask employees to support their need for leave with a certification – even though certifications aren’t required. Employers may not, however, ask that employees provide a certification when the leave is strictly for bonding with a healthy child.
Timeline
An employee must get a completed certification to their employer within 15 calendar days after the employer's request, unless circumstances don’t allow for it despite the employee's diligent, good faith efforts. The employer may give an employee more than 15 calendar days to return the requested certification.
The 15-day timeline doesn’t begin until the employee has received the certification request. That’s when the “clock” starts ticking.
When requesting a certification, employers must advise the employee of potential consequences if the employee fails to provide one. This information is in the eligibility/rights & responsibilities notice, and employers may highlight it.
No certification, no FMLA?
After the 15-day window closes, if the employee fails to provide a complete and sufficient certification, or fails to provide any certification with no justification, typically the employer may deny the FMLA leave.
The employee’s job is protected, however, during the 15-day window. If a certification is late, the employee loses FMLA protections after the 15 days are over and until they provide a certification.
If an employee never gives their employer the requested certification, the leave isn’t FMLA leave, and the employer may turn to their company policy and procedures to determine next steps.
Pause first
Before jumping to an FMLA leave denial, employers should talk to the employee to find out why they missed the 15-day deadline. There could be a valid reason they can’t meet the deadline. If so, employers must be flexible and give an employee more time.
Perhaps, for example, the health care provider is on vacation or isn’t available. The FMLA doesn’t list reasons employees might have for missing the deadline; employers have to consider the facts of each particular situation before denying leave
Incomplete or insufficient
Employees might give their employers a certification within 15 days, but not all the relevant entries are completed, or the information is vague. If that happens, employers must give the employees a written list of what’s needed to make the certification complete and sufficient. Employers must give employees at least 7 days to fix the certification.
Key to remember: If employees fail to give employers an FMLA certification within 15 days with no justification for the delay, employers may deny the FMLA leave.
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2026-07-29T05:00:00Z
NewsIndustry NewsIndustry NewsAssociate Benefits & CompensationAssociate RelationsHR GeneralistFamily and Medical Leave Act (FMLA)Family and Medical Leave Act (FMLA)HR ManagementEnglishFocus AreaHuman ResourcesUSA
Firing an employee 6 days after she requested FMLA leave proves risky
In late 2022, Rosa, an employee, told Richard, her boss, that her daughter was diagnosed with a brain tumor that required surgery and ongoing medical treatment. Rosa said she would need intermittent time off from work to care for her daughter during this period. This time would likely fall under the federal Family and Medical Leave Act (FMLA).
On January 6, 2023, the employer’s third-party FMLA administrator notified Richard that Rosa had submitted an intermittent FMLA leave request to care for her daughter.
Before receiving this notice, the employer had been talking about potential revisions to Rosa’s job duties. But on January 12, 6 days after receiving notice of Rosa’s FMLA request, Richard decided to discontinue his efforts to revise Rosa’s duties and instead move forward with eliminating her position altogether.
On February 1, the employer formally approved Rosa’s request for intermittent FMLA leave. But on February 7, it told Rosa that it was terminating her employment, effective February 17.
Rosa sued.
In court, the employer argued that there was no evidence that Rosa had taken FMLA leave before her position was eliminated. But Rosa didn’t claim retaliation for leave already taken. She claimed the employer acted adversely because Rosa was likely to request additional leave in the near future. She also claimed that the employer fired her because she asked for leave.
Rosa was able to point out a couple of pieces of evidence:
- Timing. The short amount of time between her protected activity (asking for leave) and the decision to eliminate her position was suspicious. The timing was a major factor since the termination decision wasn’t finalized until after she invoked her FMLA rights.
- Reasoning. The employer’s shifting reasons for its termination decision were an issue. First, it said the decision to terminate Rosa was performance-based, and then that it was budgetary. Rosa pointed out, however, that Richard never counseled her regarding any alleged work performance deficiencies, and the budget was approved without eliminating her position.
All this gave the court enough evidence not to throw the case out, as the employer hoped. The case will proceed to trial unless settled beforehand.
Gallego-Feliciano v. City of Lancaster, et al, Eastern District of Pennsylvania, No. 5:25-cv-04246, June 9, 2026.
Key to remember: Firing an employee soon after they ask for FMLA leave can be risky, particularly if the employer is unable to show that it had a different, valid reason for the decision.
Court decisions are based on the specific facts presented and each court’s interpretation of the law. Because courts may reach different conclusions, similar situations can lead to different outcomes. Employers should avoid relying on a single case as definitive guidance and instead assess each situation carefully, considering applicable laws, and seeking advice when needed.
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2026-07-29T05:00:00Z
NewsIndustry NewsFleet SafetyRisk Management TransportationRisk Management - Motor CarrierBusiness policies and procedures - Motor CarrierBusiness planning - Motor CarrierFocus AreaIn-Depth ArticleFleet OperationsEnglishTransportationBusiness planning - Motor CarrierUSA
$604 million wake-up call: The next chapter in broker liability has arrived
The trucking industry is still digesting the impact of the U.S. Supreme Court's Montgomery decision, but a recent $604 million jury verdict against freight broker C.H. Robinson has transformed what was once a legal discussion into a business reality. The verdict, tied to a fatal 2021 crash in Mississippi, is being viewed by many industry observers as the first major test of the new liability landscape facing freight brokers.
While the case will likely move through the appeals process, the message sent by the jury is difficult to ignore. Carrier selection decisions are no longer operating quietly in the background of transportation transactions. Instead, they are becoming a central focus in litigation, risk management, and safety oversight.
From legal protection to legal exposure
For years, many brokers relied on federal preemption arguments to defend against negligent hiring claims. The Supreme Court's ruling significantly changed that dynamic by allowing state law negligence claims against brokers to proceed. The result is a shift in focus from whether a broker arranged transportation to whether the broker exercised reasonable care when selecting the carrier.
The recent verdict illustrates how that standard may be applied in court. Plaintiffs argued that warning signs existed regarding the carrier's safety performance and that those concerns should have influenced the broker's decision making. Jurors ultimately found the broker, carrier, and driver negligent, assigning a substantial share of responsibility to the brokerage.
Safety data is becoming a litigation target
One of the most important takeaways from this case is the growing importance of safety data during carrier selection. Historically, many brokers verified operating authority, insurance coverage, and basic qualifications before assigning freight. Increasingly, attorneys and juries now expect a deeper review of carrier performance indicators.
FMCSA safety ratings, inspection history, hours-of-service violations, driver qualification issues, crash history, and maintenance trends are all factors that may receive greater scrutiny. A carrier that appears qualified on paper may still present risk if patterns of safety concerns are visible within publicly available data. For brokers, this means that carrier selection is evolving from a capacity decision into a risk assessment process.
Documentation is the strongest defense
The post-Montgomery environment is creating a new expectation: brokers must be able to prove how and why a carrier was selected. Documentation is becoming just as important as the selection decision itself. Clear records showing what was reviewed, what concerns were identified, and why a carrier was approved can be critical if decisions are challenged later.
Consistency is equally important. Organizations that apply different standards depending on urgency, customer pressure, or freight availability may create unnecessary exposure. Standardized vetting criteria, documented escalation procedures, and uniform enforcement can help demonstrate a reasonable and defensible process.
Key to remember: In today's legal environment, accountability is becoming just as important as capacity, and brokers who adapt their vetting and documentation practices will be best positioned to navigate the road ahead.
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2026-07-29T05:00:00Z
NewsIndustry NewsCriteria Air PollutantsEnvironmental Protection Agency (EPA)CAA ComplianceEnvironmentalIn-Depth ArticleFocus AreaEnglishAir PermittingAir ProgramsStationary Emission SourcesUSA
EPA updates preconstruction permitting guidance: What are the impacts on major sources?
Where there’s construction, there are permits, and where there are permits, there are usually delays. For major construction projects in areas with poor air quality, the delay could be due to emission credits. New federal guidance, however, may help reduce those delays.
The Environmental Protection Agency (EPA) recently released guidance clarifying that Nonattainment New Source Review (NNSR) preconstruction permits may be issued to applicants before they obtain the required offsetting emission reduction credits (ERCs) if certain conditions are met.
The new guidance for permitting authorities (usually state or local air agencies) is a change in the agency’s recommended approach, designed to help prevent preconstruction permitting delays for applicants that haven’t yet formally secured ERCs. So, what does this mean for facilities? Let’s take a look!
Which construction projects could be affected?
EPA’s new guidance impacts construction projects in nonattainment areas. These are areas where emissions exceed the National Ambient Air Quality Standards (NAAQS) for any of the six regulated criteria air pollutants.
You need an NNSR permit to build a new major stationary source or make major modifications to an existing major stationary source if:
- The new or modified source is located in a nonattainment area, and
- The new or modified source emits or has the potential to emit a regulated pollutant in amounts that meet the applicable major source or major modification thresholds.
You must obtain an NNSR permit before construction begins. NNSR permits can be issued only if the applicant meets certain conditions, one of which is meeting emission offset requirements.
What are emission offsets?
Emission offsets are reductions in emissions from existing sources that can be used to compensate for emissions from a new or modified source. The Clean Air Act requires new and modified major sources to offset emissions by obtaining sufficient ERCs from existing sources located in the same nonattainment area.
In other words, a new or modified major source must get enough credits from existing nearby sources to cover the total amount of emissions that the facility will add to the area.
How does the guidance impact permitting?
EPA’s previous guidance recommended that NNSR permits generally shouldn’t be issued until ERCs are actually secured. As a result, permitting agencies require applicants to obtain ERCs before issuing an NNSR permit to start construction on a facility, even if the facility won’t immediately begin operations.
Guidance on Clean Air Act Nonattainment New Source Review Emissions Offsets (ERC guidance), issued by EPA on July 1, 2026, changes the agency’s recommended approach. It clarifies that permitting authorities may issue NNSR permits before applicants specifically secure the required ERCs if the permit contains:
- A federally enforceable commitment by the permit applicant to obtain the needed ERCs before starting operations, and
- An express ban on starting operations until the required ERCs are obtained with appropriate permit restrictions on the sources providing the ERCs.
What’s the possible impact on facilities?
Permitting authorities that apply ERC guidance to permitting decisions can issue NNSR permits to qualifying sources before they secure ERCs. This would allow applicants to start construction on or modifications to a major source without delay, provided the enforceable permit conditions are met.
Here's an example:
A business is ready to build a manufacturing plant in a nonattainment area, but operations at the new facility won’t begin until a year after construction is complete.
Under previous guidance, the business couldn’t begin construction on the manufacturing plant until it formally secured the required ERCs upfront for operations that won’t start until a year after the facility is complete.
EPA’s ERC guidance would allow the permitting authority to issue the business an NNSR permit before it obtains the ERCs. That means the business could build the manufacturing plant right away and then secure the ERCs later, closer to the time the facility starts operating.
Keep these points in mind!
Consider the following when determining how EPA’s updated NNSR policy may impact your construction project:
- The ERC guidance is nonbinding, meaning that permitting authorities aren’t required to implement the guidance. Permitting authorities can still require applicants to secure ERCs before issuing NNSR permits.
- Facilities may be able to start construction without first securing ERCs, but facilities can’t begin operating until they secure the required ERCs.
- Most NNSR permits are issued on a state or local level. Confirm the specific requirements that apply to your major source construction project with the relevant state or local permitting authority.
Key to remember: EPA’s guidance allows permitting authorities to issue preconstruction permits for new major sources and major modifications in nonattainment areas before the sources secure emission reduction credits.
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2026-07-28T05:00:00Z
NewsDrug and Alcohol TestingDrug and Alcohol TestingDrug Free WorkplaceMarijuanaIn-Depth ArticleHR ManagementEnglishHuman ResourcesIndustry NewsSafety & HealthGeneral Industry SafetyHR GeneralistAssociate RelationsFocus AreaUSA
Federal marijuana changes mean it’s time for a drug and alcohol policy review
If you haven’t looked at your drug and alcohol policy lately, it’s time to schedule a review. A change in the way the federal government views medical marijuana could mean it needs to be refreshed.
Federal medical marijuana change impacts accommodations
In April, medical marijuana was reclassified as a Schedule III drug under the Controlled Substances Act, meaning that under federal law it’s considered to have a low potential for dependence. Products containing marijuana approved by the Food and Drug Administration (FDA) and marijuana products regulated by state medical marijuana laws are now in the lower drug category.
State medical marijuana laws still need to be followed, but the reclassification gives some federal protections to individuals who legally use medical marijuana under a state law or who use a federally approved drug containing marijuana.
To avoid the risk of a discrimination claim under the federal Americans with Disabilities Act (ADA), employers in states where medical marijuana is legal should review their workplace policy to make sure it treats individuals using medical marijuana the same way it treats any individual using a prescription medication.
Employers with employees covered by federal drug and alcohol testing regulations for workers in safety-sensitive positions, such as Department of Transportation regulations, must continue to follow those federal laws and forbid marijuana use for covered employees. There are other considerations for employees who only fall under a workplace drug and alcohol policy, however.
A positive test for marijuana should not automatically lead to termination or a decision not to hire. Employers should consider additional factors before making a decision.
What does it mean to accommodate medical marijuana use?
When an employee tests positive for marijuana, an employer should check to see if the positive test is the result of legal off-duty use of medical marijuana. If that is the case, accommodation should be considered.
Accommodating medical marijuana use doesn’t mean an employee must be allowed to use it in the workplace or be impaired on work time. Instead, it means pausing to consider a workplace change because of the employee’s medical condition.
In general, this begins with a discussion with the employee about accommodations, including the legal off-duty use of medical marijuana. In states where medical marijuana isn’t legal, employers would only need to consider accommodations for use of marijuana products approved by the FDA. If an employee with a medical marijuana card asks that off-duty use be accommodated, the information-gathering phase could include documentation of the disability and the need for accommodation.
When deciding whether off-duty medical marijuana use is an appropriate accommodation, safety concerns may be considered. An employer can ask the employee to present their doctor with a list of their job duties and concerns to determine whether a genuine risk of substantial harm exists if the employee were to use cannabis while off duty.
If the off-duty use of medical marijuana presents a risk, other reasonable accommodations should be discussed. Perhaps the employee can work with their doctor to find another medication that will not present a safety risk. Other considerations could include moving the employee out of a safety-sensitive position, using alternative scheduling, or changing the way the work is done.
After the accommodation has been agreed upon, a trial period can be used to determine whether it is working.
Federal recreational marijuana changes under consideration
Additional changes to the way the federal government views marijuana could be coming soon. Recreational marijuana is still categorized as a Schedule I drug, but the federal government is considering moving it to a lower drug schedule.
The Drug Enforcement Administration held hearings on this proposal between June 29 and July 15, and those who spoke at the hearing can submit briefs through August 17. After the hearing process is completed, the federal government could issue a final rule rescheduling recreational marijuana.
More will be known about how this could influence workplace drug policies after a final rule is issued. It’s likely that state laws will continue to make an impact on how employers handle marijuana in the workplace, although rescheduling could also mean that the federal Food and Drug Administration plays a larger role in how marijuana is handled.
For now, employers should continue to follow state recreational marijuana laws and consider accommodations for medical marijuana as required.
Key to remember: Employers should review drug and alcohol policies to make sure medical marijuana is handled appropriately and watch for changes in the way the federal government classifies recreational marijuana.
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2026-07-28T05:00:00Z
NewsDrug and Alcohol TestingIndustry NewsDrug and Alcohol TestingReturn to Work ProgramsHR GeneralistFamily and Medical Leave Act (FMLA)In-Depth ArticleFamily and Medical Leave Act (FMLA)Associate RelationsEnglishUSAHR ManagementFocus AreaHuman Resources
May employers drug test employees returning from FMLA leave?
Employers in safety-sensitive industries, such as health care, construction, and transportation, often have drug-testing policies. These policies may require testing when employees return to work after a long leave due to their own medical condition.
The purpose is to get an objective medical opinion about whether employees can safely do the essential duties of their job.
Before an employee returns from leave under the federal Family and Medical Leave Act (FMLA), an employer may require a “fitness-for-duty” (FFD) certification. This means the employee must provide information from a health care provider showing they’re able to return to work.
Employers may require this only if they have the same rule for all similarly situated employees who take FMLA leave for their own serious health condition. The certification may address only the health condition that led to the FMLA leave. Employers must include this requirement with the designation notice.
Employers may also require the FFD certification to address whether the employee can perform the essential duties of the job, but only if they gave the employee a list of those duties with the FMLA designation notice. This part of the process could include a drug test.
The FMLA doesn’t prohibit employers from requiring drug testing after an employee has returned to work. But the considerations don’t end there.
Remember the ADA
After an employee has returned to work and the FMLA leave is over, the federal Americans with Disabilities Act (ADA) applies. The ADA limits when employers may require medical exams of employees.
This is where the testing rules can be confusing. A test for illegal drugs isn’t considered a medical exam under the ADA. An alcohol test, however, is.
Under the ADA, employers may require a medical exam, including an alcohol test, of employees at certain times. Employers may require such exams only when they have a reasonable belief based on objective evidence that a particular employee can’t perform the essential duties of the job because of a medical condition or the employee will pose a direct safety threat because of a medical condition.
If a drug test also includes alcohol, the test is treated as a medical exam and is limited by the ADA.
Because of this, a policy that requires employees to take drug tests after returning from FMLA leave needs to consider the ADA’s restrictions.
Key to remember: Drug testing an employee after an employee has returned from FMLA leave doesn’t violate the FMLA. But if the test includes alcohol, it might violate the ADA.
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Copyright 2026 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.