Employer Requires Employee to Work During FMLA Leave. Ummmm, Is This a Problem?

Posted in Interference

falling asleepSure, Joan, you can take a leave of absence, but you’re still going to work while you’re out, right?

Is this problem?  I guess it depends on whether or not you’re Joan. Let me explain.

The Facts

Joan Smith was a manager in the Ethics Department at Genon Energy, a position which required her to investigate alleged ethical violations when they were reported to the Company.  In April 2012, she gave notice that she would need time off for surgery to remove a cyst from her neck. According to Joan, her supervisor then became hostile toward her and, during Joan’s absence from work, required her to perform much of her regular work.

During the two-month FMLA leave of absence, Joan claims that Genon required her to perform 20 to 40 hours of work “updating compliance cases, revising a safety review project and dropping off files at the office.” Based on my rough math, that’s anywhere from 3 to 5 hours worked each week during her FMLA leave.  As the story goes, Joan returned from FMLA leave and resigned one month later. Why? She felt that her supervisor created a hostile work environment upon her return to work.

Joan then sued Genon, claiming that the 20-40 hours worked during her FMLA leave constituted FMLA interference, which she claimed entitled her to a slew of damages. Joan’s lawsuit raised the age-old question many of my clients have raised with me: If I ask my employee to perform any work while they are on FMLA leave, does it constitute FMLA interference?

The court reviewing Joan’s FMLA claims initially answered it this way, as most courts have done:

…reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.

Put another way, there is no right under the FMLA “to be left alone” or be allowed to skirt the employer’s “discrete inquiries.”  But if looks like work, it’s gonna be work, and an employee shouldn’t be doing work while on FMLA leave.

The Court Ruling

I found this opinion helpful largely because it collected many recent FMLA cases dealing with situations where the employee allegedly performed work while on FMLA leave:

  • Reilly v. Revlon and Kesler v. Barris et al: fielding occasional calls about one’s job is a “professional courtesy” that does not interfere with FMLA rights (FMLA claims dismissed)
  • O’Donnell v. Passport Health Communications (pdf): contacting plaintiff was limited to the status of her decision to accept another position within company, the execution of documents related to the decision, and ongoing salary negotiations at the employee’s request (FMLA claims dismissed)
  • Sabourin v. Univ. of Utah: requesting that plaintiff return certain materials to the employer, even in the face of alleged caustic comments about his leave request, insufficient to constitute interference. (FMLA claims dismissed)
  • Sherman v. AI/FOCS, Inc.: plaintiff required to respond to regular phone calls, came into work for 3 to 4 hours on one day to resolve accounting issues, and was chewed out by supervisor for training procedures in the accounting department is evidence of FMLA interference (plaintiff prevailed at trial)
  • Arban v. West Publishing Corp.: checking in with plaintiff on sales leads he was expected to generate during leave also evidence of interference (plaintiff prevailed at trial)

In light of the work Joan apparently had to perform while on leave, the court in this case determined that Joan had presented enough evidence of FMLA interference that a jury would need to decide whether Genon violated the FMLA.  Smith v. Genon Energy (pdf)

Insights for Employers

As we see above, there is no bright line rule about contact between employee and employer during FMLA leave, but you can start to see where the courts tend to line up on this issue.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to wrap up a job the absent employee was working on. Similarly, the employer can contact the employee to check on return dates or possible extension of leave.

As in the O’Donnell case above, it also is acceptable to contact the employee to negotiate terms or conditions of employment to help the employee transition back to work. As long as the contact is necessary or related to preserving the employee’s position or coordinating a return, the contact arguably is justifiable.

But let’s document it.  Employers should make clear – in writing – to employees on FMLA leave that they are not expected to nor should they perform work, other than simple ministerial tasks, such as advising co-workers or management regarding the location of files or to update the status of work assignments that continue on after leave begins.  Nine out of ten times, we’ll have no need for the document; but the one time we actually need it, we’ll sure be glad we created the paper trail.  Right?

President Obama Pushes Employers to Provide Paid Leave to Their Workers; What is the Impact on Employers?

Posted in Uncategorized

paid sick daysYesterday, President Barack Obama took the most significant steps yet to push for federally mandated paid leave for all American workers.  In addition to signing a presidential memorandum directing federal agencies to advance up to six weeks of paid sick leave to federal employees with a new child, he also called on Congress, states and cities to pass legislation to allow millions of workers to earn up to one week of paid sick time each year.  He also plans to ask Congress for more than $2 billion to encourage states to create paid family and medical leave programs.

So what happened yesterday?

President Signs Presidential Memorandum Providing for Paid Leave and Calls on Congress to Pass Paid Leave Legislation

At the federal level, the President signed a presidential memorandum directing federal agencies to allow federal employees to access at least six weeks of paid leave in “connection with the birth or adoption of a child or for other sick leave eligible uses.”

Obama also called on Congress to pass the Healthy Families Act (endorsed by the Administration since 2009 when it was first introduced), which would require all businesses with 15 or more employees to provide up to seven days, or 56 hours, of paid sick leave to care for themselves or a sick family member, obtain preventive care or deal with domestic violence. Under the Healthy Families Act, employees would earn an hour of paid sick time for every 30 hours they work. (Employers that already provide paid sick leave would not have to change their policies as long as the time earned can be used for the same purposes.)

President Calls on States to Provide Paid Sick Leave and Puts Money Behind It

While Congress considers the Healthy Families Act, the President is nudging states and municipalities to do the same. Just under a decade ago, San Francisco became the first city in the country to provide access to earned sick days. Two years later, the District of Columbia followed, passing a paid sick days law that also included paid “safe” days for victims of domestic violence, sexual assault and stalking. In 2011, Connecticut became the first state to enact a paid sick days law, and it was followed by California and, most recently, Massachusetts.  A number of cities also have recently enacted laws allowing employees to earn and accrue sick leave, including Seattle, Portland, New York City, Newark, San Diego and Oakland.

Many Presidents announce grandiose plans and mandates, only to offer little or no monetary support to get the job done.  This initiative appears to be different. The President promises to propose more than $2 billion in new funds to encourage states to develop paid family and medical leave programs. In addition, the U.S. Department of Labor will use $1 million in existing funds to help states and municipalities conduct feasibility studies to figure out how this can be done.  (Details on how the President would raise the $2 billion to help states will be released in his upcoming budget proposal.)

President Makes His Case Through Social Media

You also don’t find many presidential ideas floated or pushed through social media. In a departure from the past, senior presidential adviser Valerie Jarrett took to LinkedIn earlier this week to rally support behind the President’s call for paid leave. Noting that 40 million private-sector workers don’t have access to any type of paid sick leave, Jarrett said:

At a time when all parents are working in more than 60 percent of households with children (up from just 40 percent in 1965), and 63 percent of women with children under the age of 5 participate in the labor force (compared with 31 percent in the early 1970s), one fact is resoundingly clear: The fundamental structure of our workplaces has simply not kept pace with the changing American family . . . Anyone who has ever faced the challenge of raising or supporting a family, while holding down a job, has faced tough choices along the way, and likely felt stretched between the financial and personal needs of their family.

With the president’s presence on LinkedIn, I guess I should send him a LinkedIn invite. Do you think he’ll connect with a management-side employment attorney?

Impact on Employers

Let’s face it.  With a Republican-controlled Congress, the President’s push for federal legislation on paid sick leave is doomed to fail. Such legislation failed to see the light of day when Democrats controlled Congress, so we have no reason to believe this initiative will gain traction any time soon. In fact, on the very day the President sweetened paid leave for federal workers and called on Congress to require private employers to do the same, the media already was reporting that the Republicans in Congress had rejected the idea and businesses were lining up against it.

Employers, let’s not breathe a sigh of relief that we’ve dodged yet another federally-mandated employment statute or regulation. As we have witnessed over the past few years, due to the inactivity on this issue at the federal level, a growing number of states and local governments will continue to pass their own versions of paid sick leave.  So, be careful what you wish for.  My national clients are (rightfully) bemoaning the administrative nightmare associated with keeping track of every state and municipal leave law — from San Diego, California to Eastport, Maine!  Yet, this state/local activity is precisely what the White House is trying to advance given the lack of Congressional action.  Borrowing a page from the minimum wage playbook, the President is taking the message to the local level, urging states and cities to pass such laws on their own. And he’s putting money behind the effort.

It leads me to ponder: If we’re going to witness a hodgepodge of paid leave laws in ever-increasing numbers across the Union, is this really a better alternative than one federal law (assuming it preempts state law on this issue)?

Let’s discuss.

Employer Fails to Provide Leave of Absence to Probationary Employee, Pays the Price

Posted in ADA

RIF.jpgAdam was a maintenance technician for EZEFLOW, a company which manufactures pipe fittings.  He also was a marine corps veteran who served in both Iraq and Afghanistan.

Upon his discharge from the marines, Adam started his employment with EZEFLOW and quickly began experiencing seizures later determined to be caused by post-traumatic stress disorder (PTSD). Adam provided his employer a note from his doctor requesting that he remain off work for six weeks to deal with his medical condition.

The employer had a dilemma: Adam had only been working for the company for about 10 weeks at the time his doctor called for his leave of absence, which would begin about the time Adam’s probationary period with EZEFLOW would end. The company decided the probationary period took priority, and it terminated Adam instead of providing him any leave.

Hear that knock on the door? That’s the sound of the ADA coming to pay EZEFLOW an unwelcome visit. And the EEOC came along for the ride, too.  Before you could say E-ZE-FLOW, the EEOC filed suit on behalf of Adam, alleging that the company violated the ADA because it terminated him instead of providing Adam the leave he requested.  EEOC v. EZEFLOW (pdf)

Insights for Employers

The Court was not forced to make a decision here, as the case settled quickly after discovery began.  In a consent decree entered by the court, the company agreed to pay Adam $65,000 and commit to extensive ADA training and non-discrimination in the future.

Let’s cut to the chase, as there are plenty of lessons in this short narrative:

1.  We may wonder why the company was so quick to terminate Adam instead of providing him leave, but this scenario is not all that uncommon. On plenty of occasions, clients have called me wondering whether they need to provide a leave of absence or an alternative accommodation to an employee who recently began working. Keep in mind: there is no probationary status under the ADA. Employers, you must treat these employees the same as the 20-year veteran. Employees enjoy the protections of the ADA during their candidacy and on day one of their employment. Even though FMLA does not apply in these situations, the ADA may very well apply, as was the case here.

2.  One of EZEFLOW’s undoings was that it allegedly maintained a policy of providing up to 26 weeks of leave to non-probationary employees.  In concept, I understand what the employer was aiming for, as it sought to provide a certain level of benefits to employees who had passed the probationary threshhold and enjoyed a more certain future with the company.  However, these leave policies must be carefully weighed when a probationary employee seeks the same benefits as an ADA reasonable accommodation.  Because the company did not make an exception to this policy for Adam pursuant to the ADA, it was a risky (and ultimately, costly) move under the ADA.

3.  Remain committed to the ADA’s interactive process.  To be clear, EZEFLOW didn’t have to roll over and automatically give Adam a six week leave of absence.  It had the right to learn the basic facts of Adam’s medical condition, determine how it affected his job, and learn why a leave of absence was necessary and whether the length of such a leave would help him return to work. (Even the EEOC acknowledges in its guidance on reasonable accommodation an employer’s right to obtain this information.)

Talk to your employee!  It is critical that we engage the employee in the interactive process at the earliest possible time and opportunity. Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.

4.  Conduct an undue hardship analysis and use this information in the interactive process. Before putting up a fight over whether to provide additional leave and how much to give, doesn’t it make sense first to analyze the impact the employee’s absence is having on your operations?  If it’s not impacting your operations, that should be a key factor in granting additional leave. However, if it is impacting operations, you want to memorialize this earlier in the process — for example, were projects being pushed off or decisions being made by less capable employees? Was customer service adversely affected or were others required to take on more work?  Click here for my list of “undue hardship” questions to consider.  Once you have conducted this analysis, tell the employee about it.  Both in person (if possible) and in follow-up correspondence, tell the employee (tactfully and with empathy to his situation) the difficult position you’re in – that x, y, and z are occurring as a result of his absence – and, as a result, it is critical that you obtain a reasonable estimate of when he will be able to resume all essential functions of his employment with or without an accommodation so that you can better assess whether leave can be provided as a reasonable accommodation.  That’s what the employer did in a previous situation I wrote about, and the court endorsed the employer’s actions.


FMLA FAQ: How Do I Calculate FMLA Leave Where My Employee's Work Schedule Varies From Week to Week?

Posted in Intermittent Leave

bad-mathQ: Several of my employees’ workweeks vary from week to week.  Some might work 30 hours one week and 40 hours the following week. How do I calculate their intermittent FMLA leave in any given week?  

A:  As we know, FMLA leave can be taken over a continuous period of time or intermittently/reduced schedule.  If leave is taken over a continuous period of time, the employee is entitled to 12 workweeks of leave regardless of the number of hours typically worked in the workweek.

However, when an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s FMLA leave entitlement.  When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to. You make this calculation according to the employee’s regular workweek. For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk. Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

But what about the employee whose schedule varies week to week?  Like the question initially posed above, the employee might work 30 hours this week, but 40 hours next week.  The week after, the employee might pick up someone else’s shift and work 48 hours.  In any given week, how should an employer determine how much FMLA leave the employee has used so that it can track the employee’s total FMLA leave allotment?

Let’s look to the FMLA regulations first:

If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. 29 CFR 825.205(b)(3)

This current regulation departs from the former regulation (prior to 2009) in two respects: first, by changing the calculation period from 12 weeks to 12 months (to account for seasonal variation in hours worked); and, second, by changing the phrase “weekly average of hours worked” to “weekly average of the hours scheduled . . . including any hours for which the employee took leave of any type.”

The regulations do not explain the reason for the change in language from “hours worked” to “hours scheduled,” but the preamble to the regs [ahem, only true FMLA nerds care about the preamble] state that the intent of the rule change was to “give a truer picture of the employee’s actual average workweek.” 73 Fed. Reg. 67978 (pdf) From what I can tell, no court has yet interpreted this change in the regulations. Absent any further guidance, it seems to me that the DOL used the word “scheduled” simply to mean that employers should calculate an employee’s leave entitlement based on an average of how many hours the employee would have worked in the past 12 months if the employee reported to work for every hour scheduled, as opposed to an average of how many hours the employee actually worked during the same time period.

Keep in mind one general principle when it comes to a varying work schedule: this “varying workweek” regulation should be used sparingly, since the employer will almost always be able to calculate how many hours an employee is scheduled in any given week. For instance, if an employee is scheduled for 30 hours one week and takes intermittent leave for 10 hours that week, he has used 1/3 of a workweek for FMLA purposes.  If an employee is scheduled for 40 hours the following week and takes intermittent leave for 8 hours that week, he has used 1/5 of a workweek for FMLA purposes.  Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

So, my employer friends, this is a long-winded way of saying that the weekly average method should be reserved for situations where you are unable to determine with any certainty how many hours the employee would have worked.  One example of this limited application might come from the case of Brotherhood of Locomotive Engineers v. Union Pacific Ry. Co., where train engineers’ assigned work schedules varied from week to week depending on trains scheduled to meet customers’ demands and where assignments could be made as little as one hour before the shift started.  In this case, the court found that the employer could average the number of hours to determine the employee’s FMLA leave allotment.

Use this above case as the exception, however. In the far majority of cases, you will be able to calculate your employee’s FMLA leave allotment in any particular week, even though the schedule may vary from week to week.

I can only imagine how many questions this post will generate.  This is why the FMLA is so much fun. [smirk]

The Best of 2014: Sending FMLA Notices by Mail/Email, Requiring Doctor's Notes for Intermittent FMLA Absences Among Most Popular Posts This Year

Posted in Intermittent Leave, Notice

It’s the final week of the year, so while everyone else in the world is playing with their latest version of iPhone and other new electronic gadgets, I spend my time analyzing this year’s FMLA blog posts and agonizing over how I can deliver the FMLA to your virtual door in an even more efficient and effective way in 2015. [In light of this revelation, I trust you all would jump at the chance to spend time with me during holiday break. Right?]

Based on the stats, a number of my FMLA posts apparently caught your interest in 2014, but two stood out when dissecting the numbers. Earning the award for most visits in a single day in 2014 (nearly 5,000 visitors), my post about the risks in sending FMLA notices by email earned top honors. Sending notice by regular U.S. mail and email is an interesting conundrum, but I hope this post (along with another one I drafted earlier this year) helped address your compliance efforts.

That single-day tally aside, the most popular post of 2014 (which tallied 12,000 visitors) was my musing about whether an employer can require an employee to submit a doctor’s note for each intermittent FMLA absence. Although the post can be viewed here, I’ve copied it below for your (bedtime: think drowsy) reading pleasure.

In the meantime, I offer my very best wishes for a peaceful New Year and an extraordinarily successful 2015!

FMLA FAQ: Can an Employer Require a Doctor’s Note for Each Intermittent FMLA Absence? (May 20, 2014) 

doctor's noteOver the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Can an employer request that an employee submit a doctor’s note for each of their intermittent FMLA absences?

At the time, I didn’t give a terribly thoughtful answer, so I figured I would address it head on here for the benefit of my fellow FMLA peeps.  [My apologies to the woman in the audience dressed in red with shoulder length brown hair who asked the question...would someone be sure to pass this onto her?]

I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic.  I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand.  This would be entirely helpful, as it ensures that the employee actually attended the appointment and was absent from work for a legitimate reason.

Much to my chagrin, the courts don’t agree with me.

The latest example is Oak Harbor, an employer which understandably was sick and tired of its employees taking off on Fridays and Mondays.  To clamp down on suspected FMLA abuse, the company’s Human Resources Director sent a letter to employees containing language along the following lines:

In order for me to know when to apply FMLA to an absence, a medical note will be required from your provider for that absence. The note will need to indicate you were seen by a provider during the absence and how the absence relates to the FMLA qualifying condition. Without this information, I would be unable to apply FMLA to any specific absence.

Robert was one of Oak Harbor’s employees and requested leave for back pain.  He submitted complete and adequate medical certification indicating a need for intermittent leave for flare ups and ongoing monthly water therapy with his physician.  Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend.  Harumph!

When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined.

The Court Ruling

In an unusual twist, Oak Harbor filed suit against Robert and another employee in a similar situation, asking the court to declare that its practice of requiring a doctor’s note for these above absences was perfectly legitimate under the FMLA.  The Court, however, gave Oak Harbor a legal smack down.  Finding the FMLA regulations clear with respect to obtaining an employee’s medical information, the court reminded the parties:

The employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave, the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave . . . If an employer disagrees with the initial medical certification, a specific statutory process authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.”

But once an employee provides “complete and sufficient” certification signed by the health care provider, the court opined, the employer “may not request additional information from the health care provider.” 29 C.F.R. § 825.307(a).  For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again.  Given the very specific rules about seeking recertification, Oak Harbor’s practice was deemed illegal.  Oak Harbor Freight Lines, Inc. v. Antti (pdf)

Insights for Employers

So what do we do now?  Here are a few thoughts:

  1. Manage the medical certification process with all the skill and grace you have within you!  Get the information you need, seek clarification and verification if the opportunity presents itself. Moreover, initial medical certification is an employer’s opportunity to seek second and third opinions, so be sure to advocate for your rights at this stage if you have reason to doubt the validity of the certification.
  2. Similarly, seek recertification if and when you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
  3. The far majority of Robert’s water therapy sessions (typically scheduled on Fridays and Mondays) could have been held on Saturday, which was his day off.  Why? Because the doctor’s office was open on Saturdays! Keep in mind that the FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact your operations. So, when your employee needs time off for therapy or medical appointments, push back a bit on your employee to determine whether these appointments can be scheduled during non-work hours in the evening or on weekends.
  4. I believe the Oak Harbor decision still leaves the door open for employers to establish a policy that requires any employee to provide a doctor’s note in exchange for paid leave under the employer’s normal paid leave policy. So long as the policy is applied consistently, the employer would not be singling out those employees on FMLA leave, nor would you be denying one’s FMLA leave. I’ve opined on this topic before in a previous FMLA podcast you can access here.

FMLA FAQ: Is An Employer Required to Pay a Prorated Amount of Annual Bonus after Employee Takes FMLA Leave?

Posted in Bonuses

yr-end-bonusIt’s the end of the year.  And with the end of the year comes questions from my clients about whether they need to account for an employee’s FMLA leave when doling out year-end bonuses. In other words, is an employer obligated to pay a bonus based on a “goal” when the employee missed the goal because he took FMLA leave during the year?

The answer typically is NO.  The FMLA regulations put it this way:

if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. 29 C.F.R. § 825.215(c). (My emphasis)

Simply put, the regulations require employers to treat FMLA absences in the same manner they account for non-FMLA absences. Employees cannot be treated worse for taking FMLA leave than they would have been had the absences not qualified under the FMLA.

Interestingly, the regulations talk of an employer’s ability to deny “goal-based” bonuses. The regulations define “goal-based” quite broadly, and only bonuses awarded to all employees – such as holiday bonuses – are not considered goal-based. Therefore, attendance bonuses, safety bonuses, production bonuses, and sales bonuses would be considered goal-based bonuses. 

The regulations do not address whether an employer must pay a prorated portion of bonuses when an employee’s FMLA leave impacts receipt of the bonus. But the same logic above would apply. Here, you must careful: from time to time, I find that employers give employees a credit to account for time missed due to an absence. Such a practice is acceptable (although a slippery slope), but for this purpose, you must then treat employees who have taken FMLA leave the same as employees who have taken other types of non-FMLA leave. 

Other Holiday Pay Issues

  • For those with questions about whether you pay an employee holiday pay when they missed the day before or the day after the holiday because of FMLA leave, see my previous post here for the answer.
  • If you’re wondering how you calculate FMLA leave time when the employee is absent on the holiday or during a plant shutdown for the holiday, you must adhere to very specific FMLA regulations on point.  I answer that question here.
  • For tips on fighting FMLA abuse around the holidays, either dial (800) HELP-ME-JEFF or see my post here.

For all other holiday FMLA questions, hit me with your best shot.  Comment here or email me!

I wish all my readers a wonderful holiday season and peaceful New Year!  Looking forward to a fabulous 2015!

FMLA Leave for Headache Effectively Converts Full-Time Position into Part-Time Position; Employers' Shrieks Heard Across the Country

Posted in ADA, Intermittent Leave, Notice

part_time_jobsThis one is a real headache.

Sam oversees a storage area for the Connecticut Department of Transportation (ConnDOT) and during certain times of the year, his position requires a fairly extensive amount of overtime. For years, Sam has suffered from “cluster headaches,” which are far worse than migraines and can last for days.  Sam’s physician tinkered with medication over the years, but nothing helped.

Sam’s doctor later determined that Sam’s excessive work schedule during periods in which he worked overtime was one of the main factors that triggered his headaches. Therefore, he limited Sam’s work to no more than eight hours per day, and he also prohibited overtime. Permanently. These restrictions were provided on an FMLA certification form.

What do you think ConnDOT did here?  Did it: a) agree to allow him to take FMLA leave whenever overtime would be required?; or b) tell Sam overtime is an essential function of the job, and if he could not work OT, he either needs to resign or seek disability retirement?

Here, ConnDOT chose the latter, reminding Sam that overtime was an essential function of his position and that under the union contract, if he couldn’t perform all the essential functions of his position, ConnDOT would need to try and transfer him to another position. ConnDOT also told him that he needed to submit medical certificate in order to take FMLA leave, but it made one thing clear: if the certification confirmed Sam could not work overtime, he would have to resign or seek disability retirement. As the story goes, Sam’s certification confirmed that he could not work OT.  Not a single hour of it.  Sam later resigned after ConnDOT could not locate another position for him. He later filed an FMLA lawsuit.

The Court Ruling

In response to Sam’s FMLA claim, ConnDOT made a rather sound argument, and one that other courts have bought into: an employee cannot seek leave for incapacity that may (or may not) occur at some point in the future.  In other words, the employee can take FMLA leave only if he is presently incapacitated because of a serious health condition. Recall my old post about Pat Hurley, the CEO who asked his company to approve leave in advance for various dates over an upcoming two-year period because he needed to address his stress?  There, a federal appellate court turned Pat and his FMLA claims away, finding that FMLA did not cover periods of time that “potentially” qualified as FMLA leave at some point in the future.

Wasn’t Sam effectively making the same argument here, and shouldn’t he suffer the same fate as Pat above?

Sam’s situation was different, said the court, and here’s why:  The FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary.”  Moreover, ConnDOT’s position that the employee must be incapacitated from working in order to obtain FMLA leave actually is belied by the FMLA regulations, which interestingly state as follows:

Absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report . . . because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. 29 CFR 825.115(f)

As a result, the court determined that Sam could take “prophylactic” FMLA leave because his doctor opined that he could come to work when he is required to work certain excess hours [kind of like the excess pollen count].

Does the FMLA Turn a Full-Time Position into a Part-Time Position?

The court also addressed a larger issue that it acknowledged was a novel question: Could Sam use his annual FMLA allotment to effectively convert his full-time position into one that no longer required overtime?  Or taken further, could an employee use FMLA leave also to convert a full-time position into a part-time version of the same?  In short, the court said “Yes,” and reminded us that the FMLA does what the ADA cannot.  Specifically, the ADA does not require an employer to eliminate an essential function (such as overtime) or provide an accommodation that would cause an undue hardship.  However, the same is not true for the FMLA. Notably, the FMLA directly applies to situations where the employee cannot perform essential job functions, and as we know, there also is no undue hardship defense under the FMLA.

Tough FMLA luck for employers, so says this court.  Santiago v. Connecticut Department of Transportation, et al.

Insights for Employers

There are several takeaways here:

1.  If you want to hear more about this case and its practical impact on employers, access my recent FMLA webinar on the topic.  For those of you paying really close attention, you will remember that I highlighted Sam’s case as a contrast to the Pat Hurley case above.  So, access this webinar for extra FMLA nerd points.

2.  There is NO undue hardship argument available under the FMLA. ConnDOT’s loss in this case is a reminder that the FMLA can have brutally harsh results for employers. As we see above, the FMLA presumes that it will cause employers hardship — as in Sam’s situation, when an employee is excused from essential functions of the job, these tasks fall directly to other employees and can wreck havoc on an employer’s operations.  That’s the unfortunate reality of the FMLA. If we were in an ADA situation [for instance, if Sam had exhausted FMLA leave and was seeking additional leave under the ADA], we could make a case for undue hardship: other employees have been required to take on the duties of the absent employee; even more overtime will need to be paid out; managers have been required to cover certain tasks, leaving voids elsewhere; projects have been deferred because of inadequate staffing; and morale has been adversely impacted.

However, we are unable to make the same undue hardship argument under the FMLA. Why should that be?  If the Department of Labor ever asked for my opinion [which, of course, it won't] on how to improve the FMLA regs, adding the “undue hardship” provision is one suggestion I’d offer.  Of course, we would need to balance such a defense between the rights of employees and employers, but the concept should be in play, even in FMLA situations.

3. Don’t Forget that the FMLA and ADA may BOTH apply to a request for leave or reduced work schedule. When an employee requests FMLA leave for his own alleged serious health condition, an employer is well advised to initiate the ADA’s interactive process to evaluate whether the employee may require a reasonable accommodation in addition to FMLA leave. If an employee’s leave request implicates both the FMLA and the ADA, the employer must analyze its obligations under each act. Keep in mind: the employee is entitled to the benefits of whichever law provides the employee with the greater protection. For the reasons stated above, the FMLA offers more protection in this instance.

4. For those who really want to delve deeply into the legal morass here, I believe ConnDOT could advance a strong argument on appeal in this case. Specifically, as to the question of whether intermittent FMLA leave can effectively turn a full-time position into a permanent part-time position, the court seemingly overstates (at pages 16-17) the DOL’s guidance in this area.  Citing a 2006 DOL report, the court found persuasive the DOL’s alleged position that an employee should be entitled to FMLA leave even though the employee’s condition is permanent and will prohibit the employee from ever working full-time.  However, the DOL has not officially taken this extreme a position.  In the DOL opinion letter cited by the court at page 17, the DOL states that FMLA is available to an employee even though the employee’s condition is permanent and the employee “will more than likely not be able to return to full employment in the near future.” (My emphasis) Not being to return to full employment in the near future is a far cry from not ever being able to return full-time.  The court in this case took the DOL’s stated position too far, thereby undermining its reasoning on a very critical issue in this case.

When an Employee Falls Off a Ladder at Work, is His Absence Covered by FMLA? An Employer's Misstep Discussed...

Posted in Notice

ladderNote to self: When one of my employees:

  1. falls off a ladder at work,
  2. is taken to urgent care by the company’s HR Director,
  3. asks whether the FMLA would apply to his absence,
  4. then, as a result of his doctor’s orders, takes a multi-week absence after the fall from the ladder…

I’m going to side the with the 99% of Americans who believe this fact pattern has put me on notice of the employee’s likely need for FMLA leave.

Yet, when this scenario actually occurred with an Indiana employer, the employer decided these series of events did not constitute proper notice from the employee of the need for FMLA Leave.  Years later, this company is paying the price.

The Facts

Mark worked in the parts department for Utility Trailers, and during one of his shifts in late March 2010, he fell off a ladder, re-aggravating a preexisting back injury. The HR Director was alerted to the accident, and she determined that Mark needed to go to the local urgent care immediately. She even took Mark to the urgent care and waited while he was treated.

Within days after the incident, Mark sought treatment from his personal physician, who ordered him to stop working for the time being (because of the fall). Within two days following the ladder accident, Mark delivered his doctor’s restrictions to the HR Director. When Mark met with HR, he claims to have asked the HR Director if he “should have FMLA leave.” She thought FMLA leave would not be necessary, telling him, “Because you’re only going to be gone a few weeks, you should be fine.”

Two weeks into his leave of absence in early April 2010, Mark called the company to determine whether he could return to his former position if he returned to work by early June 2010.  The HR Director told him that he could return, but only to the second shift [his original position was on the first shift].  A few weeks later, however, the company contacted Mark to let him know that they needed to fill his position because it did not have enough employees to cover for him while he was out.

As the story goes, the company told Mark that if he was “completely released from [his] doctor wherein [he] could do manual labor . . . Mark could reapply for a position . . . if one is available.”

Mark never reapplied for a position. Instead, he filed a lawsuit.

The Ruling

You might have guessed it — this judge sided with the 99% of Americans in determining that the nature of the employee’s injury and his subsequent inquiry about whether FMLA leave would apply clearly put the employer on notice that his absence might be covered by the FMLA.  As a result, the court determined that a jury would have to decide whether the employer violated the FMLA. George v. Utility Trailers of Indianapolis  The case recently settled short of trial.

Insights for Employers

Plenty of lessons to learn from this employer’s trip up:

  1. Employers must do a better job of identifying when employees put them on notice of the need for FMLA leave.  The employee need not use the letters F-M-L-A to request leave under the Act, but context and content count. Look at what happened here: a fall from a ladder, a trip to the urgent care, a lengthy leave of absence that a physician determined was necessary as a result of the fall, and an employee’s inquiry as to whether the absence should be covered by FMLA.  There was little ambiguity — the employer got whacked over the head with the requisite notice.  At that point, it had an obligation to determine whether the absence was covered by FMLA and designate appropriately. It did not, and it was a costly mistake.
  2. Notice the ultimate the company gave the employee: When you’re “completely released” from your physician, then you can reapply for employment.  Employers need to distance themselves from this kind of terminology.  When we communicate to an employee that they must be fully healed or completely released, we fail under the ADA to engage in an independent assessment as to whether the employee might need a reasonable accommodation to return to work.  Check your model correspondence now and rid yourself of this kind of language.
  3. Remember the restoration rights of employee’s returning from FMLA leave.  Without question, the FMLA burdens the manner in which employers staff their operations.  The FMLA was passed knowing that it very well would create a hell of a time for employers like Utility Trailers to properly staff their parts department when an employee is off on leave for weeks on end.  Unlike the ADA, there is no “undue hardship” argument under the FMLA, so we must live with the reality that FMLA absences often hamper our ability to properly staff our operations.  We may not like it, but have to accept it.
  4. Also as to restoration, the FMLA regulations presume that the employer will return the employee to the same shift, since a return to a different shift (particularly when it’s a move from 1st to 2nd shift) is not an equivalent position.  See 29 CFR 825.215e

FMLA Insights Selected as One of Top 100 Legal Blogs of 2014

Posted in Uncategorized

BasicIllustratorFileLetter—CSForget Cyber Monday…today is my Procrastination Monday!  I explain why below.

I am pleased to announce that our FMLA Insights blog has been selected for the fourth consecutive year as one of the Top 100 Legal Blogs of 2014 by the ABA Journal! In its 8th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name FMLA Insights among only eight labor and employment blogs receiving this honor.

We are honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In naming FMLA Insights as a top blog, the ABA Journal quoted from one of our fabulous nominators:

I work on consulting teams that help large clients with their FMLA and disability administration,” writes Liz Miller, a health and benefits analyst at Mercer in Washington, D.C. She says Chicago lawyer Jeff Nowak’s “consistent updates not only make me look smart on the job; they are also entertaining and fascinating. Reading his posts feels like a form of procrastination because of the instant gratification factor, but they actually help me in my career. If that’s not a win-win, I don’t know what is.

Liz, thanks a ton for your very kind words. And thanks for procrastinating long enough to read my FMLA ramblings!

So, on this Monday, would you procrastinate with Liz and me and vote for FMLA Insights as the very TOP blog of the Top 100? Complete a simple registration form and vote for us here. You’ll find our blog located in the labor and employment section.  Voting takes mere seconds.

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other employment blogs who made the list – they are worth the read: Molly DiBianca’s Delaware Employment Law Blog (who was named to the Blawg 100’s Hall of Fame), Fox Rothchild’s Employment Discrimination Report, Jon Hyman’s Ohio Employer’s Law Blog, Eric Meyer’s The Employer Handbook, Seyfarth Shaw’s California Peculiarities Employment Law Blog, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,

Happy Thanksgiving from my Lovable FMLA Abuser, Albuquerque Turkey

Posted in Webinars

AlbeeThere is much to be thankful for this Thanksgiving, and I continue to be humbled by your support of this crazy, little FMLA blog. I am entirely grateful for your willingness to read and ponder my continued FMLA ramblings.

I offer this in honor of the season: For those who attended my FMLA webinar on November 13 on FMLA red flags and trends, you were tortured with my rendition of “Albuquerque Turkey,” which is a beloved Thanksgiving song in the Nowak household. Oddly, I have received a number of requests for the audio and lyrics to this rendition [ahem, I am in utter shock by any level of interest].

For those willing to be tortured again, you can access the audio here.  Thanks to my wife, Shannon, who was a huge help in changing up the lyrics for my FMLA version, which goes something like this:

Albuquerque is a Turkey
And he’s feathered
And he’s fine,
And he wobbles
And he hobbles
But he asks for too much leave time.

He cries his back hurts
He claims his head hurts
Oh poor Albee it’s just an act,
You love playing hooky
It’s just an excuse, and that’s a fact.

Oh, he wobbles
And he hobbles
And he texts me that same day . . .
Claiming heartache
Crying tummy ache
Staying home to rest, so he will say.

Wednesday morning
I was surfing
Facebook posts
And Twitter, too,
On my newsfeed
I spotted Albee
On the beach
Drinking a brew.

“You’re not home!
You’ve been lying!”
“No, my boss,
I’m home for sure!”
That guy on Facebook
Was my twin
He ruins my life
I just can’t win.

Oh, he wobbles
And he hobbles
And he lies to me once more
I can’t keep him
On my payroll
I shake his hand
Show him the door

Now my Albuquerque Turkey
Is legitimately home in bed
‘Cause now back at the office
We have a new employee instead.

I wish you all the very best for a Happy Thanksgiving!