FMLA Insights - Guidance & Solutions for Employers

There must be something in the water.  Over the past few months alone, I have reviewed a number of employers' policies and correspondence regarding an employee's return to work from a leave of absence.  What has been surprising to me is the number of employer policies that require an employee to return from leave with "no restrictions" or "100% healed."  Consider the following requirement, which was embedded in an employer's return to work notice at the conclusion of FMLA leave:   

As your FMLA leave is nearly exhausted, we expect you to return to work on April 2, 2012 with a note from your physician stating that you are able to work with no restrictions.

Or take this one, which a third party administrator proposed to one of my clients for use in correspondence sent with the Company's FMLA Rights and Responsibilities Notice:

In addition, [the Company] cannot accept light duty restrictions upon your return to work.  If you are unable to return to work without restrictions, you must remain on leave until you are able to return without restrictions.

¡Ay, caramba!  Really?

What's the Problem with a "No Restrictions" Approach? 

When employers require that employees be 100% healed or have no restrictions upon their return to work, the far majority of courts have found that these policies discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation under the Americans with Disabilities Act.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a "100% healed" policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated. 

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Not all courts feel this way, of course.  Recently, in Powers v. USF Holland (pdf), a federal appellate court found that "100% healed" policies are only problematic if the employee can show he or she is actually disabled or is regarded as disabled.  Hmmmm...that doesn't make me feel too comfortable.  Interestingly, this decision applied pre-ADA Amendments Act (ADAAA) law and regulations because the facts pre-dated the ADAAA.  However, even this conservative Seventh Circuit court warned employers:  “The risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”

The Powers decision certainly echoes the EEOC's position, which has long held that these policies violate the ADA.  In fact, late last month, I had the chance to serve as a fellow speaker on ADA and FMLA issues at a DMEC conference with Chris Kuczynski, the EEOC's Assistant Legal Counsel and Director of its ADA/GINA Policy Division.  At the conference, Mr. Kuczynski reminded employers that they face significant risk under the ADA if they maintain a policy that requires an employee to return to work without restrictions (for the reasons stated above).     

Insights for Employers

Given the much broader regulations implementing the ADAAA, employers that still enforce “100% healed” policies or require evidence that employees can return to work “without restrictions” take on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC's recent litigation in this area, this evaluation is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee's ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation.

Q:  We have an employee who works four days per week.  He regularly calls off work one day every other week due to his chronic bad back.  Can we require that he "make up" his day off later in the workweek?

A:  The FMLA regulations do not give us any clear guidance as to whether an employer can maintain a policy that requires or even encourages employees to "make up" FMLA leave.  However, the regulations (and several court decisions) make two general principles very clear: 1) employers cannot engage in conduct that discourages or otherwise "chills" an employee from requesting or taking FMLA leave; and 2) employers must provide privileges and benefits to employees who take FMLA leave in the same manner they offer benefits to those on non-FMLA leave.

Let me be blunt: requiring employees to make up FMLA leave is fraught with problems and invites litigation, as a court would very likely find that such a policy causes employees to refrain from requesting FMLA leave (because they are forced to make up the time on a different day).  I am reminded of a few cases that generally highlight the point: 

• A few years back, we highlighted McFadden v. Ballard Spahr, a case in which the plaintiff claimed her employer misinformed her of the amount of FMLA leave she was entitled to, and then harassed her for taking leave.  The court found that, where an employee can demonstrate that she would have taken more available FMLA leave had the employer not engaged in this conduct, she could assert an FMLA interference claim.
• Take a look Grosso v. Fed Ex. Corp. (pdf) as well.  In that case, Grasso was provided all the FMLA leave he requested to care for his ailing father.  However, he also claimed that Fed Ex told him he was taking too much FMLA leave and that he needed to return to work.  The Court found that Grosso had provided enough evidence to show that Fed Ex had attempted to discourage the employee's use of FMLA leave and allowed the claim to go to a jury.

In the context of a policy or practice requiring employees to make up time taken as FMLA leave, these cases above give me some pause.  Can you picture this scenario: 

Employee: I'm calling off today because of my chronic bad back.  So, I'll take it as an FMLA day.

Boss: Well, Sonny, that's fine, but you know we like people who take these one-off FMLA leaves to make up the time later in the week.  It's all good, cause then you'll get your full pay for the week.  Now, tell me, what day can you come in later this week?

Employee:  Uh...well, I dunno.  I would need to find child care for my child who has uromysitisis poisoning.  Ummm, well, it's probably too much trouble.  On second thought, I'll just come into work today.  I'll be there by the start of the shift. 

Boss: Sounds good, Sonny.  Good decision, I say.  See you in a few.

Wham!  In seconds, the boss -- who was just following Company policy -- has created an FMLA interference claim.  Even if the employee had taken FMLA leave and agreed to make it up later in the week, might we have a situation like McFadden or Grosso above, in which the employee could show that the exchange between the boss and him above had a chilling effect and caused him to refrain from requesting FMLA leave in the future?  I think the employee has a good argument.

With this guidance in mind, for those employers out there that still maintain a policy that allows employees to make-up time to replace lost wages (as a result of unpaid FMLA leave), its absence/make-up policy should clearly identify that: 1) scheduled work missed as a result of FMLA leave will still be counted towards the employee’s FMLA allotment, and make-up time is allowed to compensate for lost wages (again, in the event FMLA leave was unpaid); and 2) make-up time is not required.  Employers should consider prohibiting make-up time if the FMLA leave ran concurrently with paid leave, such as sick or vacation time.

On the flip side, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges. Keep in mind one of the two principles I outlined at the outset: the FMLA regulations require employers to provide benefits to employees on FMLA leave in the same manner offered to those on non-FMLA leave.

What's your practice in this situation?  I welcome your feedback on whether a make-up policy has worked for you.

Illinois currently has no equivalent of the federal Family and Medical Leave Act.  Soon, it may.  And unlike the FMLA, the proposed Illinois leave law would allow civil union partners the same leave entitlements currently enjoyed by married couples.  Notably, because of the conflicting parameters of state and federal law, the proposed Illinois Family and Medical Leave Act, which recently hit the floor of Illinois House of Representatives, actually would afford civil union partners greater leave benefit rights than married couples.

Let me explain.

The Illinois Religious Freedom Protection and Civil Union Act, which became law on June 1, 2011, provides that partners in a civil union are entitled to the same rights, benefits and privileges as those in traditional marriages.  Under this Act, wherever the term "spouse" appears within any Illinois statute, it must be read to include "partners in a civil union."

Like its federal counterpart, the Illinois FMLA would extend leave benefits to "spouses."  Because "civil union partners" are now the equivalent of "spouses" in Illinois under the Civil Union Act, civil union partners would be able to take leave to care for their civil union partner under the Illinois FMLA.

This leaves employers with operations in Illinois in a bit of an inadvertent quandary.  Currently, civil union partners cannot utilize leave rights under the federal FMLA because it is governed by the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  So, if an employee in a civil union takes leave to care for his/her partner under the proposed Illinois FMLA, it would count against the leave entitlement under Illinois law, but not under the FMLA. 

To illustrate, let's pretend I am your employee and a partner to a civil union.  I also am otherwise eligible for leave under the FMLA and the proposed Illinois FMLA (meaning, I have worked for you for 12 months and have worked 1,250 hours in the past 12 months).  If I take a two-week leave of absence to care for my partner with a serious health condition, I will have exhausted two weeks of Illinois leave, but I have not exhausted any portion of my 12 weeks of FMLA leave (because FMLA, of course, does not recognize my civil union).  In theory, I could take up to 24 weeks of leave in a 12-month period -- 12 weeks under the Illinois FMLA to care for my civil union partner, and 12 weeks for any eligible reason under the FMLA.

Insights for Employers

If the Illinois FMLA becomes law, we will advise employers further.  In the meantime, let me address a more immediate issue.  Over the past several years, I have counseled employers who voluntarily have chosen to provide federal FMLA leave to domestic and civil union partners.  Clearly, this is a growing phemonenon among Fortune 500 companies and leading business.  

Keep in mind as you develop these FMLA leave policies: if your policy provides employees leave to care for a domestic or civil union partner, employers cannot count this leave under the employee's 12-week FMLA allotment, since (as noted above) the FMLA does not recognize these relationships.  To ensure that you are not unintentionally setting yourself up for an FMLA interference claim when providing leave to domestic or civil union partners, we recommend that employers contact their employment counsel for guidance as to best practices in this area. 

With the growth of blogs and other social networking like Linkedin and Twitter, news comes at us fast and furious these days.  In a recent blog post, LexBlog CEO and legal marketing guru Kevin O'Keefe cited a recent survey finding that 55 percent of people hear about breaking news on Facebook and 20 percent on Twitter.

Clearly, sites like Twitter and Linkedin are revolutionizing the manner in which we find our news and cultivate relationships with prospective clients and influencers.  Over the past couple of months, however, I have found something fascinating: I can tune into these various media to find out what's most important to the leaders of both the EEOC and Department of Labor. 

Stick with me here.  If you took a look at the EEOC's web site lately, you'll find press release after press release trumpeting the agency's latest settlements and/or victories over employers.  In fact, there are so many PRs your eyes glaze over reading through them. 

Enter EEOC Commissioner Chai Feldblum, one of the top five officials of an agency that rigorously enforces our federal employment laws.  On any given day, by following Cmmr. Feldblum on Twitter, you can find out in 140 characters or less what her and the EEOC's priorities are.  This information is precious for at least two reasons: 1) it keeps us up to date on what the EEOC cares about; and 2) it helps employers (and attorneys who help employers) proactively engage our managers on ways they can and should follow the law.  I am sure you can think of more.

Consider for a second Commission Feldblum's "tweets" over the past few months:

• Employee with post-partum depression needed time off as a reasonable accommodation. http://dld.bz/a9fm4
• Nice settlement with American Apparel on an ADA leave case.  http://dld.bz/a84Vf  Looking forward to having comprehensive guidance soon.
• Spread the word! Do individualized assessment of accommodation when employee returns from short-term disability. http://1.usa.gov/uNBcna

What does Commissioner Feldblum care about?  Leaves of absence as a reasonable accommodation.  What can we then assume what really is on the EEOC's mind these days?  You guessed it: Leaves of absence as a reasonable accommodation.

Call me weird, obsessed or something worse, but I usually check in with Commissioner Feldblum daily on Twitter to see what's on her mind.  Why?  More often than not, I find a helpful nugget to share with one of my employer clients, to use in my employment law training sessions or to simply file away for future use.  Fyi: I have not (yet) been accused by anyone on the management side of being a traitor because I follow Cmmr. Feldblum, so no worries -- you're not selling out!  To the contrary, you'll have a leg up in serving your employer or employer clients even better.  So, take the leap and follow her on Twitter here. 

Insights for Employers

If you're still scared of Twitter and have no desire to venture into a world that will change your life (unreservedly for the better), here are just a few good reminders that I have gleaned from Commissioner Feldblum's tweets, all of which are instructive to employers:

1. Utilize "Automatic termination" provisions at your own risk.  As another recent EEOC settlement instructs us, policies that call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.) will doom employers every time.  These kinds of policies do not sufficiently meet the employer's obligation to engage in the ADA's interactive process and to determine whether a reasonable accommodation is necessary.  At a minimum, ADA and attendance policies must incorporate a case-by-case assessment of the individual employee's situation and an employer’s duty as to reasonable accommodation.  EEOC Regional attorney John Hendrickson and I covered this topic in detail in an August 2011 Webinar, which (I hope!) helped employers better understand the EEOC's position on this topic.  The Webinar and materials can be accessed here. 
2. When you fire an employee while he or she is on a leave of absence due to a disability, you better have your ducks in a row!  As a recent EEOC settlement makes clear, employers must be able to articulate a very sound, legitimate, nondiscriminatory reason for terminating an employee on a leave of absence.   
3. Be particularly careful with medical conditions such as depression, anxiety and other impairments that are not as visible as ones we can readily see (e.g., an employee in a wheelchair).  The ADA requires an employer to provide a reasonable accommodation of an employee’s disability, unless the employer would suffer an undue hardship, so it's critical that employers individually assess an employee's need for leave.

Happy tweeting!

According to Forbes and other news sources, Stephen Colbert has taken a leave of absence from his late-night comedy show, "The Colbert Report," to attend to his ailing 91 year-old mother.

Only a true FMLA nerd would use this as an opportunity to explain a little-used, often forgotten rule under the Family and Medical Leave Act -- the "key employee" provision -- that actually could deny Colbert's reinstatement to his wildly popular comedy show. The FMLA allows employers to utilize this "key employee" provision to deny reinstatement to an employee who is among the highest paid in the workplace and whose reinstatement after FMLA leave creates a significant financial hardship on the employer.

Before I explain further, to all those who inadvertently stumbled upon this blog article while searching google for "Stephen Colbert," I assure you -- the man running for President of the United States of America of South Carolina most assuredly will be welcomed back to The Colbert Report once his FMLA leave ends.

But, let's suppose for an instant that we lived in the bizarro world, and Comedy Central wanted to get rid of Colbert as quickly as NBC chucked Conan O'Brien from the Tonight Show.  Could it do so under the FMLA? Under the FMLA's "key employee" exception, Comedy Central could terminate Colbert's employment so long as it could show that:

1. Colbert is among the highest paid 10 percent of all the employees working for Comedy Central.  Keep in mind two points: a) Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses; however, earnings do not include incentives whose value is determined at some future date, (e.g., stock options, future benefits or even incentives for Colbert because he reportedly is surging ahead of Buddy Roemer in the presidential polls in the upcoming Louisiana primary); and b) the determination of whether Colbert is among the highest paid 10 percent is made at the time he gives notice of the need for FMLA leave.

2. Having to reinstate Colbert would cause substantial and grievous economic injury to Comedy Central's operations.  This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA.  In short, the only real guidance the regulations give employers is not much in the way of guidance at all:

A precise test cannot be set for the level of hardship or injury to the employer which must be sustained.  If the reinstatement of a "key employee" threatens the economic viability of the firm, that would constitute "substantial and grievous economic injury."  A lesser injury which causes substantial, long-term economic injury would also be sufficient.  Minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute "substantial and grievous economic injury."  29 C.F.R. 825.218(c)

In other words, an employer has to show it would be in a world of hurt because of a key employee's reinstatement after FMLA leave.

Notice to "Key Employee" is Critical

Even if the employer can satisfy the above factors, the employer still must provide the employee written notice at the start of FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits.  If the employer fails to do so, it cannot deny reinstatement.  Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the employer must provide notice to the employee, including the determination that the employee’s reinstatement will cause such injury, and the basis for the determination.  If the employee already has begun FMLA leave, the employer still must provide FMLA leave but allow the employee a reasonable period to return to work in lieu of additional FMLA leave.

If the employee does not return after receiving this notice, he or she still is entitled to take FMLA leave.  Upon the employee's return from FMLA, the employer must again assess whether substantial and grievous economic injury will occur to its operations if the employee is reinstated. If the employer finds that this injury still will occur, the employer must deny reinstatement in writing and, like before, provide the basis for the determination.  Keep in mind: the "key employee" provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.

Of course, as to Colbert himself, this is simply a hypothetical from the bizarro world.  We look forward to Stephen Colbert's return to his rightful place at The Colbert Report -- and making us laugh on the presidential campaign trail.