Imagine you have an employee who is out three weeks on a medical leave protected by the FMLA. The employee suffers from a serious mental condition (or some other chronic condition), which has required her to take FMLA protected leaves in the past. The employee is medically released to return to work without restrictions and returns to work. Then, on her first day back at work, she unexpectedly leaves work early. The next day she says she is not returning to work and submits a written resignation to that effect. However, three days later the employee wants to return to work claiming the resignation was a mistake, and she really needed additional FMLA leave. Do you have to reinstate the employee or face potential liability under the FMLA? In other words, can an employer rely on what the employee says (“I want to quit”) or must it investigate whether the employee wants and/or is eligible for additional FMLA protected leave?Continue reading this entry
The application and intersection of the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and state workers’ compensation laws can aggravate even the most seasoned lawyers and human resources professionals. However, given the EEOC’s increasing focus on employer leave policies and the Department of Labor’s ongoing FMLA revisions, it is now more important than ever that employers ensure that they are compliant in these areas.
Join Foley attorneys Chris Ward and Carmen Couden on March 21, 2013 at 12:00 CT, for a discussion of the purposes and main provisions of each law, the particular legal risks associated with each law, and ways to navigate your way through common leave-related landmines.
There is no cost to participate in this Web conference, but advance registration is required. Please register here.
Earlier this month, we wrote about the Department of Labor’s final rules implementing certain previously proposed amendments to the FMLA. In addition to the amendments we previously discussed, the final rules also require employers to start using new FMLA notice and certification forms, and to post a new FMLA poster, beginning March 8, 2013. The DOL’s new forms and new poster are now available on the DOL Web site for employer access.
With regard to the new forms, employers may either use the DOL’s model forms or create their own, so long as they do not require employees to disclose more information than what is required by the FMLA. Employers currently using their own forms should be sure to update their forms by March 8, 2013.
As we have previously mentioned, an employer’s use of social media content has its risks and legal limitations. However, under certain circumstances, an employee’s social media activity may prove relevant to and warrant disciplinary action. A recent FMLA decision illustrates how. Continue reading this entry
This week, the Department of Labor (DOL) marked the 20th anniversary of the passage of the Family and Medical Leave Act (FMLA) by issuing a final rule (Rule) creating two expanded protections under the FMLA. DOL further issued a report this week lauding the success of the FMLA, which political groups have used as a call for renewed advocacy for mandatory paid leave for employees.Continue reading this entry
The Family and Medical Leave Act (FMLA) allows eligible employees of covered employers to take up to 12 weeks of job-protected, unpaid leave during a 12-month period to care for a child with a “serious health condition.” However, an employee is generally not permitted to take FMLA leave to care for a son or daughter who is 18 years of age or older. The U.S. Department of Labor has recently clarified an exception to this general rule, stating that an employee may take FMLA leave to care for a son or daughter of any age who is incapable of self-care because of a physical or mental disability at the time that FMLA leave begins.
This year, both Christmas and New Year’s Day fall on Tuesdays. Many businesses will be closed during these mid-week holidays. Many other manufacturers often shut down for extended periods for retooling or for a more extended holiday break. These circumstances complicate how employers should calculate FMLA usage by their employees, so it is helpful to understand how to properly calculate FMLA leave during the holidays. Continue reading this entry
One of the most challenging aspects of managing a workforce is policing FMLA abuse. One employer attempted to address the problem by hiring a private investigator to follow suspected FMLA abusers. When the investigator reported that an employee was abusing his leave, the employee was fired. The Seventh Circuit Court of Appeals determined in Scruggs v. Carrier Corporation that the employer’s “honest suspicion” was enough to allow the employer to terminate the employee and to shield it from FMLA liability. Continue reading this entry
An employee who has worked for you for less than a year mentions that he will be undergoing surgery that will require him to miss three months of work. You do not want to deal with the havoc that a three-month absence will wreak on your schedule; can you fire him? He is not disabled and the surgery is not for a work-related injury. And since he has not yet worked a full year, he is not eligible for leave under FMLA. So no problem, right?Continue reading this entry
The Department of Labor issued a Guidebook titled The Employee’s Guide to The Family and Medical Leave Act on June 27th. The Guidebook presents the FMLA in a very reader friendly manner for employees to understand their rights and obligations under the FMLA. The DOL is the Agency responsible for enforcing the FMLA, so it is very useful for employers to also be familiar with how the Agency views its application.
An employer should not presume that an absence from work of less than three consecutive days for a health-related reason is not protected by the FMLA, and it should carefully scrutinize an employee’s absence from work for health-related reasons before disciplining or discharging the employee for excessive absenteeism or tardiness. In Fries v. TRI Mktg. Corp., D. Minn., No. 11-01052, 4/23/12, a court ruled that the cumulative effect of multiple health conditions that afflicted an employee and caused a single-day absence for which her employment was terminated can be considered by a jury to determine whether she had a “serious health condition” that entitled her to FMLA leave even though each condition alone may not qualify as a “serious health condition” under the FMLA.Continue reading this entry
An employer was justified in terminating an employee based on its honest belief that the employee could not perform his job due to his medical condition. In Degraw v. Exide Technologies (10th Circuit February 20, 2012), the employee worked as a material handler and had a history of back problems predating his employment. He took FMLA leave on a number of occasions due to his non-work-related back problems.
Employers continue to struggle with intermittent abuse of the Family and Medical Leave Act (FMLA). A recent federal court case, Crewl v. Port Authority of Allegheny County, highlights some telltale signs of FMLA abuse and provides good examples of what employers may want to consider when facing potential FMLA abuse situations.
An employee takes a day of FMLA leave, which is properly certified by her doctor. However, the employee is later spotted at a birthday party that day at 4:30 p.m. in the afternoon, which overlaps by 30 minutes with the shift she would have been working if she had not called in sick (her shift ended at 5:00 p.m.). Later, when asked what time she arrived at the party, the employee said she did not arrive until 6:00 p.m. (well after her shift ended). Continue reading this entry
Scene: Employee has performance issues. Employee notifies his supervisor that he needs leave for a medical condition. Employee calls in sick for two consecutive days, a Thursday and Friday, and returns to work the following Monday. Upon return, the employee tells the supervisor that he will need additional days off and requests the FMLA application and certification paperwork. A few days later, the employer notifies the employee that he is being terminated for performance reasons. What is the potential liability for the employer?
Companies often maintain a policy that provides that employment will terminate if an employee fails to return from a medical leave of absence within a given period of time. Generally, those periods appear to be generous, sometimes as long as a year. Employers reason that the employee had enjoyed the full FMLA benefits (http://tinyurl.com/4xohaq9) and thus the employee lacks statutory job protection. By the leave expiration date, the employee may have exhausted workers’ compensation leave benefits. Employers sometime set the time limit to correspond with the commencement of long-term disability benefits, if they are available. Despite the seemingly long period of time, the employer must still recon with the ADA and its state and local equivalents.
As most employers know, in certain situations, The Family and Medical Leave Act (FMLA) allows employees to take leave on an intermittent basis if requested by the employee and if intermittent leave is deemed “medically necessary” by the employee’s doctor. Unfortunately, intermittent leave has the potential to be very disruptive to an employer’s operations and can be difficult for employers to manage. Below are some tips for employers to keep in mind when dealing with intermittent leave issues.
A former UPS employee recently had her claims reinstated against her employer, relating to denial of her request for 10 weeks of FMLA leave to care for her autistic son. Stroder v. United Parcel Service, Inc. 2010 WL 3447274 (M.D.N.C.).
Although Veda Stroder’s son had not yet been diagnosed with autism at the time of her request for FMLA leave, he had been diagnosed with a learning disability and speech impairment that required ongoing speech therapy. The medical certification submitted by the son’s pediatrician indicated that he had a “chronic serious health condition” based on “very significant delays in communication.” It also stated that Ms. Stroder needed to be absent from work because her son required assistance for basic medical or personal needs or safety and because her presence to provide psychological comfort to her son would be beneficial to his recovery. Human Resources Occupational Health Supervisor Ralph L. Brown, Jr. concluded that the child’s speech delays and need for speech therapy did not constitute a “serious health condition.”
When is a new employer a successor in interest to a former employer under the FMLA? This was the question in front of a federal appellate court covering Washington and California, among other Western states.
Christina Sullivan sued Dollar Tree Stores, Inc. under the FMLA. To be eligible for the protections of the FMLA, Ms. Sullivan must have worked for Dollar Tree for at least 12 months; however, Ms. Sullivan had only been employed by Dollar Tree for approximately nine months. Prior to Dollar Tree, she was employed by Factory 2-U. The only way Ms. Sullivan could meet the 12-month requirement at the time of her original claim was if Dollar Tree were a successor in interest to Factory 2-U under the FMLA. If so, then Ms. Sullivan could count the time she had worked for Factory 2-U with the time she had worked for Dollar Tree.
Ms. Sullivan argued that Dollar Tree was a successor in interest because after Factory 2-U filed for bankruptcy it sold its interest in the lease of a building to Dollar Tree. Dollar Tree opened for business at the same location, and Ms. Sullivan applied for and was hired as an assistant manager for Dollar Tree. Ms. Sullivan was therefore never out of work.
Dollar Tree granted Ms. Sullivan unpaid leave after she missed work due to her mother’s health problems, but due to the absences, Ms. Sullivan ultimately either quit or was fired. Ms. Sullivan contacted the U.S. Department of Labor (DOL) and, after an investigation, the DOL concluded that Dollar Tree’s actions had violated the FMLA. Ms. Sullivan then filed her FMLA claim against Dollar Tree in court.
The FMLA does not define the term “successor in interest.” The court also did not have a lot of guidance from other courts; only one other federal appellate court in the nation (the 6th Circuit) had analyzed the successorship inquiry under the FMLA. That court, like the Sullivan court, first looked to the DOL’s definition contained in the regulations, which includes a list of factors to be considered:(1) substantial continuity of the same business operations; (2) use of the same plant; (3) continuity of the work force; (4) similarity of jobs and working conditions; (5) similarity of supervisory personnel; (6) similarity in machinery, equipment, and production methods; (7) similarity of products or services; and (8) the ability of the predecessor to provide relief. Both courts focused on “balancing the equities” to determine successorship. This inquiry is intensely fact-specific in nature and much broader than is the inquiry in a strict corporate-law sense of the term. After applying the eight factors, the court concluded that Dollar Tree was not a successor in interest to Factory 2-U.
We now know that the only two federal appellate courts that have addressed the issue of successorship have adopted a broad approach. Thus, for purposes of the FMLA, your business may be a successor in interest to an employee’s former employer, whether or not you intended to be. The factors discussed above may assist you in analyzing the possibility that the company will be deemed a successor in interest to an employee’s prior employer, but the ultimate determination will be based upon a case-by-case factual determination.
For additional information on the FMLA, see the DOL’s Web page.
One of the most difficult challenges an employer regularly faces is managing employee leaves in compliance with the ADA, FMLA, and workers’ compensation (WC) laws. The following is a simple outline for dealing with the interplay between the ADA, FMLA, and the WC laws. While it may not apply to all situations, and various state laws may affect the analysis (for example, in some states you may be required to hold an injured employee’s job for his return), it provides a good basis for approaching employee leave involving injuries or illness.
Work-Related Injuries and Illnesses
- If the condition is temporary, then it is not likely to be an ADA issue.
- Is the condition a “serious health condition”? If it is, provide FMLA leave and give FMLA notice if the employee is eligible for FMLA. Request medical certification.
If FMLA leave is not exhausted before the employee is able to return to work, then the employee is entitled to return to his/her old job upon his/her return from leave. If FMLA leave has been exhausted before the employee is able to return, then the employee is entitled to his/her old job back unless it has been filled due to business necessity (in most states). If the position has been filled, then employee is entitled to any open job for which he/she is then qualified by skills and physical condition.
If FMLA leave has been exhausted before the employee is able to return, his/her old job has been filled, and there are no open jobs for which the employee is qualified, then (in most states) the employee must be offered any newly opened jobs for which he/she is qualified until there is evidence that the employee is no longer interested in employment with the company. Many times, an employer can simply advise the employee that he/she may apply for any opening for which he/she is qualified as soon as he/she can return to work.
- If the condition is permanent, same approach as above, plus accommodation issues under the ADA. The employee must be able to perform the essential functions of the position, and the employer must engage in the interactive process to explore reasonable accommodations. Remember, the employee is not necessarily entitled to his/her requested or “best” accommodation. In addition, a leave of absence may be a reasonable accommodation (where it is for a limited duration, and results in the employee returning at the end of leave to perform the essential functions of the job).
Non-Work-Related Injury or Illness
- If the condition is temporary, then it is not likely to be an ADA issue.
- Is the condition a “serious health condition”? If yes, provide FMLA leave and give FMLA notice if the employee is eligible for FMLA. Request medical certification.
Ask the employee to provide regular updates as to his/her ability to return and request that he/she check-in on a weekly/semi-weekly basis with his/her supervisor. If the employee is able to return to work before exhausting FMLA leave, and if his/her position was not eliminated while he/she was on leave, the employee is entitled to his/her old job. If the employee does not return to work before FMLA leave has been exhausted, the employee may be terminated and is not entitled to his/her old job.
- If the condition is permanent, same approach as above, plus accommodation issues. The employee should not be terminated until the employer engages in the interactive process to explore reasonable accommodations.
The employee must be able to perform essential functions of the position, and the employer must engage in the interactive process. Remember, the employee is not necessarily entitled to requested or best accommodation. In addition, a leave of absence may be a reasonable accommodation (where it is for a limited duration, and results in the employee returning at the end of leave to perform the essential functions of the job).
While the above approach will not work in all circumstance, navigating the Bermuda Triangle of employment leaves does not have to be a difficult process. Remember to approach each law separately, as if the employee is on three separate train tracks: the WC track, the FMLA track, and the ADA track. Perform all of the steps along each track and you will normally reach your station at the end.
Continuing from last week’s Employment Law Update, employees have expanded Family and Medical Leave Act (FMLA) rights in relation to the care of a family member who is a veteran and is undergoing medical treatment or therapy for injury/illness that occurred within the five years preceding treatment. The Fiscal Year 2010 National Defense Authorization Act, which became effective October 28, 2009, expanded the military leave provisions of the FMLA that first became law in January 2008. With respect to the so-called “caregiver leave,” the law now grants eligible employees up to 26 weeks of FMLA leave to care for a family member, (i.e., spouse, son/daughter, parent, or “next of kin”) who is a veteran undergoing medical treatment or therapy for injury/illness that occurred within the five years preceding treatment.
This 26 workweeks of caregiver leave applies to a “single 12-month period.” This period starts when the employee begins the leave, and ends 12 months later, regardless of the 12-month period the employer applies for purposes of other FMLA leaves. During this unique “single 12-month period,” the employee is limited to a combined total of 26 workweeks of leave for any FMLA-qualifying reason. In other words, the military caregiver leave is not additive to the usual 12 weeks of FMLA leave entitlement. But tracking this can get tricky because the military caregiver leave will usually be on a different 12-month tracking period.
The DOL’s Fact Sheet #28A provides a summary of both the FMLA’s “caregiver leave” as well as the so-called “exigency leave.”
For most HR professionals, the nuances of Uniformed Services Employment and Reemployment Rights Act (USERRA) and the details of the new FMLA military caregiver leave are unfamiliar. These simply are not ordinary employment law issues that arise frequently. But, an employer must comply fully or face the prospect of having to defend against the unseemly claims that it is not only non-compliant with an employment law, but unpatriotic as well.
Effective administration of intermittent leaves is a major challenge for every employer covered by the FMLA. Employers are often frustrated by what appear to be patterns of FMLA abuse such as employees calling off of work on Fridays or Mondays. The FMLA regulations provide limited options to curb FMLA abuse such as allowing the employer to obtain medical certification validating the need for intermittent leave, providing a process for medical recertification, and permitting the employer to require the employee to comply with the employer’s usual procedures for requesting leave.
However, even with these options, we often are asked by clients whether they can use surveillance in egregious abuse cases. The answer is yes, but you must exercise caution before deciding to use surveillance.
As you may know, the FMLA prohibits employers from taking certain actions against employees, including interfering with the use of FMLA leave. There have been some court cases that have addressed whether an employer interfered with an employee’s exercise of FMLA rights by using surveillance to monitor the employee during leave.
In some cases, courts have ruled in the employer’s favor and dismissed the lawsuit when the surveillance revealed facts that unequivocally demonstrated that the employee was engaged in conduct that violated the medical restrictions giving rise to the leave. For instance, in one case, an employee claimed to be too dizzy to drive to work but was seen working out at the gym while on leave. In another case, an employee who was on leave for recovery of knee replacement surgery was observed walking, driving, sitting, and shopping without difficulty.
In other cases, however, courts have found that there could be interference with an employee’s exercise of FMLA. In one case, an employer fired an employee on an intermittent FMLA leave for depression after she was videotaped driving, shopping, and running errands. The court held that a jury should decide whether the employer interfered with the employee’s use of FMLA or discriminated against her for using FMLA, because the videotape did not necessarily demonstrate that the employee did not take leave for its intended purpose.
Thus, before deciding to use surveillance, employers should consider the medical restrictions at issue and what the surveillance is likely to show. In all cases, employers must ensure that the surveillance is used only in egregious cases where the facts suggest a repeated pattern of FMLA abuse. Also, the surveillance should be limited to public areas; otherwise the employer could be subject to claims of invasion of privacy by the employee and/or his or her family members. Employers should hire trained and licensed private investigators if they decide to proceed with surveillance.
A federal court in Washington, D.C. has highlighted the need for employers to ensure that they provide their employees with accurate information concerning their rights under the Family and Medical Leave Act (FMLA) if they are to avoid a claim of “interference” with those rights. The decision was issued on June 29, 2010.
According to the Court, an FMLA interference claim has only two requirements: (1) that the employer somehow interfered, restrained, or denied the exercise of FMLA rights, and (2) that the interference directly resulted in monetary loss to the employee. An employer who mischaracterizes or provides misinformation regarding employees’ FMLA entitlements may violate the FMLA if that mischaracterization or misinformation affects when or how an employee takes leave in any way. Therefore, an employer may be liable even in those situations in which FMLA leave was never actually denied.
The facts of the case are instructive. The employee had worked as a full-time legal secretary at the employer’s Washington, D.C. office for more than 10 years when her husband was diagnosed with terminal cancer. She requested time off to care for him as he underwent surgery and then chemotherapy treatments. Although her employer granted a combination of paid leave and unpaid FMLA leave followed by a reduced work schedule, and although her employer never denied any requests for leave, according to the employee, the firm expressed concern that her inability to work on certain days was “going to be a problem.” As a result, the employee felt compelled to pay her sister to care for her husband part-time.
After the employee was terminated for unrelated reasons, she filed suit, claiming, among other things, that by providing misinformation as to her entitlements and pressuring her not to take leave, the firm violated the FMLA. The trial court decided the case in the employer’s favor without the need for a jury trial. The employee then appealed.
According to the appellate court, the trial court erred when it made an employer’s denial of leave a required element of an FMLA claim. Instead, the employee’s claim could succeed “without showing [the employer] denied her any leave she requested; she need only show the employer ‘interfere[d] with…the exercise of’ her FMLA rights.” Thus, statements by the firm discouraging the use of leave, combined with evidence that the employee hired her sister as a caretaker, created an arguable issue for a jury “as to whether [the employee] was prejudiced.”
This case emphasizes the need for employers to provide employees with accurate information as to their FMLA rights and to avoid making statements or taking positions that could be interpreted by employees as discouraging the taking of such leaves.
For additional information on employer obligations under the FMLA, check out the Department of Labor’s online Compliance Guide.
The U.S. Department of Labor (DOL) recently issued an interpretative guidance regarding the definition of son or daughter under the FMLA as it applies to an employee who is not the legal or biological parent of a child.
The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The FMLA defines a son or daughter as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or incapable of self-care because of a mental or physical disability.” The FMLA regulations further define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.
Under the new guidance, the DOL takes the position that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. Under the DOL’s interpretation, for example, when an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child. The DOL also noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the son or daughter of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. According to the DOL, neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. So, for example, when a child’s biological parents divorce, and each parent remarries, the child will be the son or daughter of both the biological parents and the stepparents, and all four adults would have equal rights to take FMLA leave to care for the child. Labor Secretary Hilda Solis issued a statement along with the guidance, stating, “The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT [lesbian, gay, bisexual and transgender] families, are protected by the FMLA.” (see DOL clarifies FMLA definition of “son and daughter” (06/22/2010)
The DOL also takes the position that when an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. However, the employee need only provide a simple statement attesting to the family relationship in situations such as when there is no legal or biological relationship.
This guidance is significant because it broadens the definitions under the FMLA to one in which an employee provides either day-to-day care or financial support (not necessarily both) when the employee intends to assume the responsibilities of a parent with regard to a child.