Recently in Family and Medical Leave Category

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.

* * *

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.

February 25, 2014

Requiring a doctor's note for each FMLA absence may be unlawful

fmla.jpegThose four-letter federal employment statutes -- FMLA and FLSA -- can be a real pain in the ass, amirite?

Today's let's focus on a major employer pitfall: intermittent leave under the Family and Medical Leave Act.

The FMLA regulations define intermittently leave this way:

"FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time."

Now, an employer can require that an employee taking FMLA provide a medical certification. And if the employee seeks intermittent leave for planned medical treatment, the certification should state the dates on which such treatment is expected to be given and the duration of such treatment.

Importantly, the law is clear that if an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. And an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee unless an exception applies.

So, it piqued my interest when I saw this opinion following a lawsuit initiated by an Oregon employer, which sued its employee and asked a federal court to bless the employer's policy of requiring a separate doctor's note for every absence, FMLA or otherwise.

Because, the Court, was all like, hells no:

"While both the FMLA itself and its implementing regulations are silent on the specific question at issue here-whether Oak Harbor's doctor's note policy to support an already medically certified FMLA-protected absence is permissible-the statute and regulations 'show an intent to limit medical verification to certification and recertification as delineated. Neither the FMLA nor its regulations provide for any other means by which an employer can require documentation from an employee's medical provider.'"

In other words, requiring a doctor's note for each absence is tantamount to requiring a medical certification for each absence. And that's FMLA interference. 

So, what this means for you, friends, is that when an employee comes to you and seeks intermittent leave, make sure to request a medical certification to ensure that the initial FMLA request is warranted. If that certification seems sketchy, consider a second and third medical opinion

But, if that certification passes muster, be mindful of the rules governing re-certification.


February 13, 2014

FACT OR FICTION: Snow + Office Closed = FMLA Day

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 employees is currently using FMLA leave. Today, due to the winter storm, you've decided to close the office. 

Do you still count today's snow-induced office closure towards the 12 workweeks of FMLA to which your employee is entitled?

Answer: It depends.

  • If the employee would have otherwise taken the entire week off on FMLA leave, then today can be charged as an FMLA day just the same.

  • If, however, you employee is using FMLA leave in increments of less than one week, the snow day will not count against the employee's FMLA entitlement, unless you expect that employee to come to work.

February 7, 2014

New bill in Congress will revamp FMLA to cover smaller employers

fmla.jpegHow about cutting the 50-employee requirement for covered employers in half? 

So, if you have 25 or more employees working within 75 miles of one another, they would be eligible to take leave under the Family and Medical Leave Act.

And that's just part of the Family and Medical Leave Enhancement Act of 2014, which Rep. Carolyn B. Maloney (D-NY) introduced in the U.S. House of Representatives earlier this week.

Eligible employees would also be able to "participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee."

A covered employee could also use FMLA to "meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes."

We're talking major FMLA changes here.

For more on the Family and Medical Leave Enhancement Act of 2014, check out this press release from Rep. Maloney.

(h/t Ilyse Wolens Schuman @ D.C. Employment Law Update)


February 4, 2014

Husband's "kill list" is your green light to fire an employee on FMLA

Take it from your ol' buddy Eric.

Let's say that your employee is on FMLA...

And let's say that, while your employee is on FMLA, you learn that her husband is involved in a motorcycle gang...

And let's say that your learn that the motorcycle-gang husband claims to knows how to hide bodies...

And let's say that the motorcycle-gang husband, the one who claims to know how to hide bodies, has compiled a "hit list" of employees in your workplace...

And let's say that your employee, the one on FMLA, the one with the motorcycle-gang husband who claims to know how to hide bodies and has compiled a "hit list" of employees in your workplace, claims to know how to hide weapons...

It's quite alright to fire the employee. That won't violate the FMLA.

And you should probably call the police too.

January 29, 2014

What happens in Vegas, becomes an FMLA claim. Really.

fmla.jpegBack in 2012, I blogged here about an employee who took her mother to Las Vegas on a vacation. The two ladies spent time playing slots, shopping on the Strip, people-watching, and dining at restaurants. The mother had terminal cancer, but had no specific plans to seek medical treatment in Las Vegas and was never hospitalized or treated by a physician.

When the employee returned to work, she soon became a former employee, immediately terminated for what her employer determined to be unauthorized absences.

The employee then sued for violations of the Family and Medical Leave Act.

An Illinois federal court ruled here that the employee had a tenable FMLA claim because she was "caring for" her mom, who had a serious health condition (terminal cancer), by helping her with basic medical, hygienic, and nutritional needs. It did not make where the care was administered. It just mattered that the employee was caring for her sick mom.

Yesterday, the Seventh Circuit affirmed in this opinion, where, again, the issue came down to what it means to "care for" a family member with a serious health condition.

The appellate court agreed with the lower court that it doesn't matter where care is provided, just as long as care is provided:

Sarah's basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and Beverly continued to assist her with those needs during the trip. In fact, as the district court observed, Beverly's presence proved quite important indeed when a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of insulin and pain medicine. Thus, at the very least, Ballard requested leave in order to provide physical care. That, in turn, is enough to satisfy [the FMLA].

So, if your employee needs time off to care for a significant other with a serious health condition, get an FMLA medical certification to satisfy yourself that the leave is covered.

Otherwise, what does it matter where the employee cares for a loved one?

December 30, 2013

The most clicked, hella-best HR-compliance updates from 2013!!!

Ah, it was a good year at the ole Handbook.

Total web traffic was up over fifty percent from 2012. And average time per visit was down over 20%, which is fine by me. I pad my important stats, while discouraging loitering.

five.pngAnd we got our first visitor from Uzbekistan. And the fifth most common search phrase that brought visitors to the site was "Kenny Powers."

Swish!

(6th was "excuses for missing work" -- yikes!)

And, thankfully, our servers have recovered from the beating you pervs HR/Lawyer laureates administered on the recent Facebook groping photo post. Yeah, don't worry. A little hair of the dog, and the blog is back in business.

And, to think, that post didn't even make the Top 5 from 2013. Here's what did:

5. "Feeling 'maybe overworked' is not an FMLA 'serious health condition'"

4. "Court holds that anxiety from possibly getting fired is an ADA disability."

3. "New federal bill would expand FMLA to cover part-time employees"

2. "Employee gets fired for tweeting complaints about discrimination"

1. "When a hostile work environment isn't a hostile work environment"

Dudes, thank you for making 2013 a banner year for The Employer Handbook.

Wishing you all a happy and prosperous 2014!

Eric

P.S. - No post tomorrow, but this Vine of my 1-year-old and I doing "Lollipop" should hold you over until we return in 2014:

December 16, 2013

New bill in Congress would provide paid family and medical leave

fmla.jpegA real game changer: Paid family and medical leave.

Details after the jump...

Continue reading "New bill in Congress would provide paid family and medical leave" »

November 22, 2013

To all the employers too gun-shy to fire an employee on the day she returns from FMLA leave

fmla.jpegDid I scare you yesterday with my post about the part-time employee denied leave under the Family and Medical Leave Act who may have an FMLA retaliation claim after receiving full-time hours?

Well, your blogtender is here with a double shot of courage. (See what I did there?)

*** blogtender pours himself a double shot of something else ***

In Travers v. Cellco Partnership (opinion here), the defendant-employer put on its big boy/girl underpants -- your blogtender doesn't discriminate -- and fired an employee on the day she returned from FMLA leave.

Because, guess what? The employee was warned and disciplined about performance issues before she took any FMLA leave and the timing of her discharge was simply because she was on leave when the employer learned of her final misconduct.

And the employer won because, news flash, it ain't FMLA retaliation if the FMLA doesn't motivate the firing.

Now, before you start caution to the wind, keep in mind when the employer prevailed in this case: summary judgment. How much did the employer have to spend in legal fees to get there? Whatever the outlay, that money would be recouped from the plaintiff.

So, fire slow and hire fast.

*** just checking ***

November 21, 2013

FACT OR FICTION: Giving a part-time employee full-time hours may be FMLA retaliation?

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."

Come on, gang! Did you see yesterday's blog masterpiece? Those .gif's don't animate themselves. My little elves -- I'm classifying them as FLSA exempt by the way -- crank the wheel every time you land on the page. So, cut me some slack; I'm taking it easy today.

But, check this out. We have a part-time employee who claims that her three requests for leave under the Family and Medical Leave Act to care for a sick spouse are denied. Then, less than a month later, her boss gives her full-hours.

In this economy?!? What nerve!

But, possible FMLA retaliation claim?

Yes, according to a Maryland federal court in this opinion. Assigning full-time work to a part-time employee may constitute an adverse employment action, which, along with the protected activity (the FMLA request), and a connection between request and hours, completes the FMLA retaliation trinity.

So, learn from this and be careful about adjusting the terms and conditions of employment -- in any way that could arguably be construed as adverse -- shortly after an employee requests/takes FMLA leave.

October 23, 2013

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

If only I had a hot tub time machine, I would have gone back a day and a half and scooped Phil Miles at Lawffice Space and posted "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers" before he did.

Except I didn't.

So read his post entitled "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers." It's really good.

Lesson learned. Now, I'm on my game! So, tonight, my marching band and I are going to do an original tribute to Michael Jackson at halftime of a local high school football game. So, I'll post that here tomorrow.

Wait, WTH!

October 11, 2013

FACT OR FICTION: FMLA and workers' compensation may run concurrently

Thumbnail image for ffiction.pngThat'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."

Earlier this week, I spoke at the SHRM Lehigh Valley Annual Conference on leave issues under the Americans with Disabilities Act and the Family and Medical Leave Act. During the course of our discussion, not only did we address the interplay between these federal laws, but we also touched upon the impact of workers' compensation laws. 

One question that came up is whether an employer can require that an employee take FMLA leave concurrently with workers' compensation leave.

Absent a collective bargaining agreement provision to the contrary, the answer is yes. But here are a few other things you should know about the interplay (all of this comes from a Department of Labor Opinion letter):

  1. Where an employee is collecting workers' compensation, which is also a serious health condition under the FMLA, the employer cannot require the employee to substitute any paid vacation, personal, or medical or sick leave, for any part of the absence that is covered by the payments under the workers' compensation plan. Similarly, an employee is precluded from relying upon FMLA's substitution provision to insist upon receiving workers' compensation and accrued paid leave benefits during such an absence. However, the employer and employee may be able to agree to paid leave to supplement the workers' compensation replacement income.

  2. An employer may not recover health insurance premiums from an employee taking FMLA and workers' compensation concurrently, if the employee does not return to work. Also, an employer may not recover any non-health benefit premiums paid during a FMLA-designated temporary disability leave or workers' compensation absence, as opposed to during unpaid leave.

  3. If the employer designates workers' compensation as FMLA leave, then the employee is entitled to all employment benefits accrued prior to the date on which the leave commenced.

Now, if you'll excuse me, I'm trying to figure out what the fox says.

September 17, 2013

How ordering cheesesteaks can help employers with disability-accommodation requests

PatsCheesesteak.jpg

In Philadelphia, we're known for certain things, such as cheesesteaks. Ordering the cheesesteak is a bit of an art form. For example, I could order a "Cheese steak, with Cheez Whiz and fried onions." 

Or, I could simply say, "Cheese wit." As most anyone around her knows that Cheez Whiz is the default "cheese" and "wit" means "with fried onions.

[Those of you who are giving me that disdainful Cheez Whiz stink face through your computer -- right back at ya, when you order the "Philly Cheesesteak" on your local dinner menu. For there is nothing "Philly" or "Cheesesteak" about that sludge, right down to the Swiss cheese and mayo. Ya heathen!]

Like ordering a cheesesteak, your workplace has similar buzzwords that may mean something more. 

For example, I could go into HR and request leave under the Family and Medical Leave Act. Or, I could simply tell HR that I have cancer and need time off for chemotherapy. And even though I never utter the letters F-M-L-A, I have certainly done enough be afforded FMLA protections.

And the same holds true under the Americans with Disabilities Act. That is, once an employer learns that an employee has a disability, it then has an affirmative obligation to discuss reasonable accommodations with that employee. Indeed, a recent federal court case reminds us that an employee does not need to use the words "disability" or "ADA" or "accommodation" to trigger this employer response:

The threshold question is whether Suvada successfully triggered GFC's duty to engage in the interactive process. GFC suggests in its opening brief that Suvada did not trigger its duty to accommodate because at the time Suvada told Slouka of her diagnosis, she had no treatment plan, was not subject to any medical restrictions, and did not mention what type of cancer she had. Therefore, the Defendant's argument goes, GFC could not have engaged in any meaningful interactive process because Suvada had not informed GFC of her purported accommodation needs. But the law requires very little of the employee to trigger the employer's duty to engage in the interactive process; all that is required is that the employee notify the employer of her disability. Here, Suvada told Slouka that she had been diagnosed with cancer, which is enough to put GFC on notice of Suvada's disability and ask follow-up questions.

Facts like these present several takeaways for employers:

  1. Make sure that your employee handbook educates disabled employees about how to request a workplace accommodation;

  2. Train managers to identify these inquiries, especially when the accommodation request is less than obvious; and

  3. Recognize when leave requests may overlap both the FMLA and ADA, thereby triggering independent obligations under each statute.

Image credit: Wikipedia