Recently in Family and Medical Leave Category

August 11, 2014

FMLA 101: Don't make an employee work during leave. Just don't.

Really. It's a bad idea.

Like my youngest son using chopsticks and a fork at the same time to eat pho.

Ok, not that bad. But, definitely blogworthy. 

More on this HR lesson after the jump...

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Continue reading "FMLA 101: Don't make an employee work during leave. Just don't." »

August 6, 2014

Here's the wrong way to deliver FMLA notices to employees

Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds.

But, if you send FMLA paperwork to an employee by first class mail, then you're asking for trouble.

I'll show you why after the jump...

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Continue reading "Here's the wrong way to deliver FMLA notices to employees" »

July 3, 2014

The importance of communication during FMLA leave

Thumbnail image for fmla.jpegHow many times has an employee provided you with an incomplete Family and Medical Leave Act certification? Oh, I don't know, maybe a missing return date...

If the FMLA leave is foreseeable, then the employee must provide the employer with the anticipated timing and duration of the leave. However, where the FMLA leave is unforeseeable -- think, car crash -- then that information can wait if the employee herself doesn't know her return date.

But that doesn't mean you -- yeah, you employer -- should let it go.

[Nope, not cueing any music here, m-kay...]

Do I have a case in point? You bet I do.

Suzan Gienapp, a residential nursing care facility employee, told her manager that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer. Apparently, this leave was unforeseeable.

While on leave, Ms. Gienapp mailed in an FMLA form, leaving blank a question about the expected duration for her covered leave. Although the parties debated whether the employer made a verbal request for a return date, there was no dispute that Ms. Gienapp complied with the company's monthly call-in requirements to provide updates. The parties also agree that the company never made a written request for a return date.

Ultimately, based on a statement on the FMLA paperwork that the daughter may require assistance through July 2011, the company concluded that Ms. Gienapp would not be able to return to work within the 12-week leave period. Thus, it replaced her. And when Ms. Gienapp later reported for work on March 29, before her leave would otherwise have expired, but after she had been replaced, the company told her that she no longer had a job.

Awkward!!!

FMLA violation? Assuming the truth of Ms. Gineapp's story, yep.

And here's why, according to the Seventh Circuit Court of Appeals (opinion here)

"Harbor Crest told Gienapp to call in monthly, and it is conceded that she did so....We assume therefore that Gienapp complied with Harbor Crest's policies....What seems to have happened instead is that Chattic drew an unwarranted inference from the physician's statement in the original form and confused the anticipated duration of the daughter's need for care with the anticipated duration of Gienapp's absence from work, even though these are logically distinct."

Employer takeaways

  1. Communicate. Don't just call, but write/email employees on unforeseen FMLA leave to ascertain the timing of FMLA leave and memorialize those efforts.

  2. Document. Record your efforts to communicate with employees regarding FMLA leave and return to work.

  3. Enforce. Require employees to follow your call-in rules for unforeseeable leave and, thereafter, provide periodic updates on return to work.

June 23, 2014

What HR should know about same-sex marriage and the FMLA #SHRM14

Thumbnail image for fmla.jpegFolks, I get the feeling you may be inundated with extra blog posts over the next few days.

That is, I'm punching this post out from the airport, as I await my flight to Orlando, where I'll be attending the Gathering of the Juggalos 2014 SHRM Annual Conference and Expo.

Two speaking gigs for me and lot of other conference time to listen, learn, and blog.

My first session is Tuesday, where I'll present "Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA."

So, the timing of last week's announcement from the U.S. Department of Labor couldn't have come at a better time.

(Thanks for holding off on the announcement. Let me know what you think of that bottle of 12-year I sent you).

Same-sex couple will enjoy the same FMLA rights.

The Family and Medical Leave Act permits eligible employees to take leave to care for a family member with a serious health condition. The FMLA defines family member as "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides." So, if your employee resides in a state where same-sex marriage is legal, then that employee can take leave under the FMLA to care for a spouse with a serious health condition.

The Department proposes to define spouse as follows:

"Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State."

Here's the long and short of it, under the proposed rule, all legally married couples (opposite-sex, same-sex, common-law) would have the same FMLA rights, regardless of residence.

Be heard on this proposed rule.

If you have comments on the proposed rule, you can leave them below. But, until the Department recognizes this blog as an official forum for public comment -- mailing second bottle of scotch shortly -- you can leave comments for the rule officially the the Department here.

June 19, 2014

#SHRM14: Let's grab coffee (you're buying)

shrm.jpgAnd by coffee, I mean turkey legs and frozen blueberry-mango rum lemonade.

Whoa, whoa, whoa, slow down...

You see that badge over there? You know what I had to do to get that badge?
Buy the full version of Photoshop
Spike the Kool-Aid of everyone on the SHRM Annual Conference Speaker Selection Committee
I beat out thousands (trillions?) of other speaker submissions to be selected as a SHRM 2014 Annual Conference & Exposition speaker.

And, crew, I got selected to speak not once, but twice. Know what that means? ***Ducks Lucifer's pitchfork***  Say, is it just me, or do any of you smell sulfur?

It means that SHRM trusts me to speak intelligently about: (1) social media in the workplace; and (2) tackling leave issues under the FMLA/ADA.

That's a lot of pressure. Let's just hope I remember to wear pants. Pretty sure I can pull it off. (The pants and the presentations).

But otherwise, when I'm not speaking, Your Blogness is up for whatever; not in a Bud Light "Up for Whatever" kinda way. See, turkey legs, et al, supra. Rather, I'd like to meet some of my readers -- the ones that aren't crazy stalkers.

So, if you're not a crazy stalker, and you like this blog, and you're gonna be at SHRM14, then drop me a line, and let's plan some time to meet. I look forward to catching up.

See you in Orlando.

June 18, 2014

3d Cir: No FMLA interference where employee receives all leave requested

Thumbnail image for fmla.jpegNow, before I get to the FMLA, let me talk about another recent decision from the New Jersey Supreme Court. On Monday, the high court ruled (here) that:

  1. Claims asserted under the "improper quality of patient care" provision of New Jersey's Conscientious Employee Protection Act "must be premised upon a reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a professional code of ethics that governs the employer and differentiates between acceptable and unacceptable conduct in the employer's delivery of patient care."

  2. A plaintiff asserting that his or her employer's conduct is incompatible with a "clear mandate of public policy concerning the public health" must, at a minimum, identify authority that applies to the "activity, policy or practice" of the employer.

To the two of you who care about that opinion, you're welcome. And, to the rest of you who slogged through this post to here, huzzah! Your reward is this #LockInLuc campaign ad (h/t Deadspin) and a post about the FMLA.

(Ok, to keep reading, here's some bribery: the ESPN highlights from yesterday's 0-0 World Cup "thriller" between Mexico and Brazil....)

Uh, yeah, FMLA time.

So, I read this opinion yesterday from the Third Circuit Court of Appeals and I was all like, "What am I missing here?"

The court reminded us that an FMLA interference action has nothing to do with discrimination. Instead, what matters is whether the employer provided the employee with the entitlements guaranteed by the FMLA."

Well, duh.

In other words, if an employee is FMLA eligible, requests FMLA from an FMLA-qualifying employer, gets FMLA leave, feels better, returns from FMLA leave, and gets fired, that's not FMLA interference.

Employer takeaway: Think twice before firing an employee on the day the employee returns from FMLA leave. It may not be FMLA interference, but you'll find yourself defending an FMLA retaliation claim.

June 11, 2014

If you have questions today about FMLA/ADA leave issues, I've got your hook up

Thumbnail image for weknownext.pngIn two weeks, at the SHRM Annual Conference, I'll be presenting "Meeting the Challenges That Leaves of Absence and Attendance Issues Present Under the FMLA and ADA." 

The good news is that I have 75 minutes of HR greatness planned for my SHRM sesh. The bad news is that my presentation is at 7:00 AM on the day after the #SHRM14 Social Bash at the Hard Rock Cafe.

So, let's just say "Hey, thanks a lot, SHRM!" that I anticipate an intimate gathering of HR hardcore FMLA/ADAthletes for my spiel.

What do you think? Should I provide coffee or hair of the dog? Irish Coffee it is!

If, somehow, you miss my session because [insert another inappropriate comment here] or you won't be at the SHRM Annual Conference, you're not our of luck. Because...

Me, you, Twitter, today 3 pm. Your FMLA/ADA questions; my answers. Details here.

Let's do this, yo.

May 22, 2014

Firing a sick employee just before she is FMLA-eligible is very risky

Thumbnail image for fmla.jpegSo, check this out.

I read this case yesterday about an employee who provided her company with a November 12 doctor's note, requesting that her hours be reduced due to her high-risk pregnancy. The employee would have become eligible for coverage under the Family and Medical Leave Act on November 17.

The company fired her on November 16.

Man, that is cold! But is it unlawful?

To prevail on her FMLA interference claim, an employee must show, among other things, that she is eligible for FMLA coverage.

She gives notice on November 13 when she's not eligible. But the FMLA will start on November 17, when she is eligible. And the company fires her in the interim.

Hmm.....

The Court said, under the circumstances, yes:

The determination of whether an employee . . . has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. An employee may be on non-FMLA leave at the time he or she meets the 12-month eligibility requirement, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA leave.
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Defendant does not contend that Wages was not entitled to use sick leave, personal leave, or vacation time to cover her reduced time until she became FMLA-eligible. The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so. The Court therefore finds that Wages was an eligible employee under the framework established by the FMLA.

In a nutshell, can you terminate an FMLA-seeking employee just before his/her one-year anniversary with the company?

Not if that employee can bridge the gap between FMLA-ineligible and FMLA-eligible by using accrued time off.

But, under certain circumstances, yes. For example, if that employee seeks FMLA to care for a spouse with a serious health condition and the employee will run out of accrued time off before becoming FMLA-eligible, then yes.

However, if you're dealing with an employee who seeks FMLA leave for his/her own serious health condition, even if the employee will run out of accrued time off before becoming FMLA-eligible, firing that employee could run afoul of the Americans with Disabilities Act. The ADA requires reasonable accommodations for employees with disabilities. And since many serious health conditions qualify as disabilities too. And time off may be a reasonable accommodation. You smell what I'm cookin'?

Trust me, it won't end up well for you.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

May 21, 2014

How yesterday's federal court strike of PA's same-sex marriage ban affects employers

parainbow.jpgICYMI, yesterday, the United States District Court for the Middle District of Pennsylvania ruled in this opinion that PA's same-sex marriage ban is unconstitutional.

How fitting that the first gay couple in Philadelphia to obtain a marriage license was Kerry Smith and Rue Landau, who serves as the Executive Director of the Philadelphia Commission on Human Relations (PCHR). Congratulations, Rue and Kerry!

So, now that, for the time being, gay marriage is legal in the Keystone State, how does this impact local employers? Find out after the jump...

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Continue reading "How yesterday's federal court strike of PA's same-sex marriage ban affects employers" »

May 19, 2014

Should U.S. employers provide "paid menstrual leave"?

holdstomach.jpg

In Friday's edition of The Atlantic, Emily Matcher's "Should Paid 'Menstrual Leave' Be a Thing?" was shared over 12,000 times.

The article notes that several Asian countries including Taiwan, Japan, South Korea, and Indonesia, offer "menstrual leave" for women endure painful periods. However, Ms. Matcher mentioned that, while many of these laws are "well-intentioned," many women decline to take leave given the potential embarrassment of having to substantiate the basis for their "menstrual leave" or because they may be viewed as weak.

Katy Waldman, writing at The Slate Blog, says "Thanks, but We Will Pass on Paid Menstrual Leave." She argues that companies with reasonable sick-leave policies "should be able to accommodate these women without prying into their pants."

Well, I should hope so.

Most sick-leave policies I've seen don't require a doctor's note for missing a day or two. And most cities that have enacted paid-sick-leave laws have followed suit and don't require employees to substantiate calling out sick for a day or two.

But, even without a formal sick-leave policy, while conceding that I have no personal experience with a painful period, I would imagine that, bad menstrual pain could qualify as a "serious health condition," which would allow an employee to take leave under the Family and Medical Leave Act.

And how about the Americans with Disabilities Act? Even though it is episodic, and temporary, if it interferes with a major life activity, theoretically, bad menstrual pain may qualify as a disability under the ADA. This would trigger the potential obligation for an employer to provide a reasonable accommodation -- maybe, time off.

So, I think we have this covered without offering separate "paid menstrual leave."

But what do you think? Should American employers offer "paid menstrual leave?" Please let me know in the comments below.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 29, 2014

Teacher can't return to work two weeks after maternity leave ends, but may have an ADA claim

Recently, I gave a webinar about the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. One of the takeaways there was that, when an employee's 12 weeks of FMLA leave expire, you need to be thinking about ADA implications rather than processing a pink slip at 12 weeks and a day. This is because additional leave may be a reasonable accommodation.

The same issues can arise if you have a pregnant employee. That is, you need to consider the interplay between the Pregnancy Discrimination Act and the ADA.

A recent case shows how the ADA may apply to pregnant employees.

Trevis Reed was a Special Education Teacher in Louisiana, until she was fired from her position. Ms. Reed was pregnant and used all of her allotted leave time from August 2011 from February 2012.

Ms. Reed was scheduled to return to work on February 15, 2011, however her psychiatrist would not clear her to return until two weeks later, on February 28, 2011. The school refused to grant the extra two weeks of leave, and fired Ms. Reed when she failed to return to work on the 15th.

Ms. Reed then sued for violation of the ADA.

Two weeks of additional leave may be a reasonable accommodation.

The school did not challenge that Ms. Reed was disabled. (Note: Pregnancy is not a disability. However, postpartum depression could be). Rather, the school argued that, when it fired Ms. Reed, she was not a qualified individual within the definition of the ADA. That is, she could not perform the essential functions of her job with or without a reasonable accommodation.

Even though the plaintiff's counsel failed to address the school's argument that Ms. Reed was not qualified, the Court, on its own examination, still denied the School's motion for summary judgment. That is, it determined in this opinion that a reasonable jury could conclude that an additional two weeks of leave was a reasonable accommodation for Ms. Reed:

"The Court does not find on this record that Reed's request for the additional leave was improper, or that it fell beyond the bounds of the general rule that a reasonable accommodation may include "providing additional unpaid leave for necessary treatment." Nor does the Court find on the existing record that after February 28, 2011 Reed was inhibited from fulfilling the necessary requirements of the job."

Takeaways for employers

Unfortunately for employers, there is no magic formula to determine how much additional leave, beyond that which an employee has already been allotted, is reasonable. Each case -- and each leave scenario -- stands on its own set of facts. That said, consider these takeways:

  1. The more leave you initially provide, the tougher it will be to argue that a brief period of subsequent leave is unreasonable.

  2. Denying two weeks of additional leave to a new mom who is suffering from doctor-certified postpartum issues is cold as ice. That's a great way to earn yourself a jury trial.

  3. Many of PDA/FMLA leaves of absence will involve ADA issues and, thus, foreshadow an interactive dialogue to discuss reasonable accommodations. Don't wait until leave is about to end to broach this subject. Plan ahead. Communicate with that employee early and often.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 25, 2014

I ran my mouth for an hour and six minutes about the FMLA/ADA interplay

tlnt.pngOnly the dorkiest of HR/Lawyers dorks could appreciate this webinar.

Here is the recording.

Here are the slides.

Happy dork day!

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Want to dork-out even further? If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 21, 2014

There is no right to be completely left alone while on FMLA leave

Thumbnail image for fmla.jpegOne of the questions I hear a lot from employers is: Can we communicate with employees on Family and Medical Leave Act leave and, if so, how much?

I'll get to that in a second.

#HelpShaneFightCancer

For the folks who missed my blog post on Friday, we're trying to raise some money for an eight-month-old baby with cancer. Please take a few minutes, read the post, donate if you can, and spread the word (hashtag #HelpShaneFightCancer). Thank you!

Now, back to the FMLA.

Over the weekend, I read this recent opinion from the Third Circuit Court of Appeals, which is right in my back yard. The case involved an employee who was informed that her job was being eliminated. However, her employer offered her another position within the company. The only catch was that she sign a non-competition agreement. The employee was given specific deadline in which to accept and sign. The alternative was termination with a severance.

Before the deadline, the employee suffered panic attacks, and the employer afforded her FMLA leave. But, after the employee commenced leave, the employer contacted the employee to reiterate the deadline to accept and sign.

This deadline came and went without the employee signing the non-compete. So, she was fired.

And then she sued for FMLA interference.

And she lost because I basically took the lede right from the Third Circuit's opinion:

"Passport imposed the requirement that O'Donnell sign the offer letter and the non-compete agreement before she took FMLA leave...Thus, O'Donnell knew that she needed to sign the forms well before she invoked her FMLA rights....As this Court has previously explained, 'there is no right in the FMLA to be left alone,' and be completely absolved of responding to the employer's discrete inquiries....There is no evidence showing that Passport in any way hampered or discouraged O'Donnell's exercise of her right to medical leave, or attempted to persuade her to return from her leave early.

Generally, you should be communicating with employees on FMLA leave. 

This is especially true where the employee is taking leave for his/her own serious health condition and that serious health condition could also be construed under the Americans with Disabilities Act as a disability.

Because once the ADA comes into the equation, an employer should have an interactive dialogue with the disabled employee. This open communication helps determine what reasonable accommodations(s) will allow the employee to perform the essential functions of his/her job. This could be additional leave after FMLA expires, or something else, such as light duty.

But, the only way you'll ascertain that is by communicating with your employee.

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P.S. - And speaking of communicating, if you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group

March 26, 2014

FACT OR FICTION: You must provide FMLA to someone who "potentially" qualifies for it

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

Employee comes to you with a leave request in which he potentially qualifies for FMLA. Must you provide it?

Break 'em off Eleventh Circuit Court of Appeals:

"The plain text of the [FMLA] provides a cause of action against employers who 'deny the exercise of or the attempt to exercise, any right provided under this subchapter.' Nothing in the statute speaks of 'potential rights.'"

So, the answer to today's "Fact or Fiction" is fiction.

However, remember that if an employee comes to you requests leave that potentially qualifies as FMLA leave, you still must ascertain whether the employee's absence actually qualifies for FMLA protection.

And don't forget that the employee doesn't need to use the letters "FMLA" in order for his leave to qualify under the FMLA. So, educate your supervisors and others who may receive leave requests to know the type of leave that could qualify as such under the FMLA, and to respond accordingly.

March 12, 2014

FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

One of your FMLA-eligible employees walks into HR one day and says that she has a serious health condition and would like to take time off to treat her injury. However, the employee, who has paid time off banked away, says that she'd like to dip into her bank of PTO and exhaust that without using any of her 12 weeks of FMLA.

Can your employee affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection?

Answer: Yes*

Indeed, this recent Ninth Circuit decision held exactly that.

So what's with the asterisk? My FMLA blogging buddy Jeff Nowak, in this post at FMLA Insights, believes that the Ninth Circuit's decision could ultimately reflect the minority view from the courts:

To be candid, my recommendation is to ignore the [Ninth Circuit] decision and designate the absence as FMLA leave if it indeed qualifies as such. For me, the FMLA regulations are clear. At 29 C.F.R. 825.301(a), the DOL tells us, "Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave]." There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.

Ok. Maybe the answer isn't really clear-cut. However, one thing is: if the employer does want to designate leave as FMLA leave, the regulations require that it serenade me with Chevelle notify the employee.