Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly

Posted in Eligibility

joint employerI’ve discussed far sexier topics than “joint employers” on this blog.  After all, it’s not every day an employee gets drunk at a Polish festival at the very time she’s supposed to be on FMLA leave.

But even the rather mundane portions of the FMLA [ahem, is there such a thing?] require us to stay on our toes, as a federal court made clear this past week.

To be covered by the FMLA, a private employer must employ at least 50 employees within a 75-mile area. If the employer doesn’t meet this threshold, it is not obligated to provide FMLA leave to its employees. However, an employee can enjoy the protections of the FMLA if he is jointly employed by multiple companies that together have 50 or more employees.

So, how is an employee *jointly employed* by two employers such that he is eligible for FMLA leave?

Let me explain the story:  Trans States Airlines and GoJet Airlines provided regional air service for United Airlines.  Darren was a manager for and on the payroll of Trans States, which employed a mere 33 employees.  He later requested and was denied FMLA leave.  Instead, he was terminated.  Trans States argued that Darren could not make out an FMLA claim because Trans States was not covered by the FMLA — it simply didn’t have enough employees to meet the 50-employee threshold.  Easy enough, right?

Not so fast, Darren’s attorneys argued.  They contended — and convinced a trial and appellate court — that GoJet (which employed 340+ employees) was a joint employer because Trans States and GoJet shared Darren’s services and because the two companies acted in each other’s interests with respect to Darren.

The trial and appellate court agreed, pointing to evidence that: 1) Darren represented Trans States and GoJet in their negotiations and meetings with United Airlines and O’Hare Airport; 2) the logos of all three companies appeared on his business card; and 3) internal directories and a supervisor identified Darren as the contact person for operations questions regarding Trans States and GoJet.  Cuff v. Trans States Holdings, Inc. (pdf)

The trial court had gone even further, finding that the two entities retained common ownership, operated under the same trade name, shared headquarters and administrative staff, employed supervisors to manage the employees of the companies, centrally maintained personnel records, and maintained common operations in the same recruiting department.

Insights for Employers

Maintaining temporary employees or sharing employees with a related company is a risky endeavor and, as we learned here, sets up at least the initial building blocks for an FMLA claim.  Regardless of the employment arrangement, however, employers do not lose at trial simply because they are considered joint employers. Employers lose FMLA suits when they interfere with employee’s FMLA rights or retaliate against them for taking protected leave.

Related question: Click here for my guidance on whether the period of time worked as a temp employee counts toward an employee’s eligibility for FMLA leave.

FMLA FAQ: Can We Terminate an Employee for Working a Second Job While on FMLA Leave?

Posted in Abuse of FMLA leave

moonlightingQ:  One of our employees has taken FMLA leave for anxiety attacks.  Recently, we found out that she is working a similar job for another employer at precisely the same time she should be working for us.  Can we deny her the right to return and terminate her employment because of this leave abuse?

A: Your ability to take disciplinary action — including termination — likely will hinge upon one critical detail: Do you have a policy that prohibits outside employment and do you apply it consistently for anyone on a leave of absence?

The FMLA regulations contemplate this precise scenario:

If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained. . . . 29 CFR 825.216(e) (my emphasis).

The courts generally have followed this regulation.  For example, in Howard v. Millard Refrigerated Servs., the employer learned that the plaintiff was working at another company during the time he was on FMLA leave, a detail that was confirmed after an internal investigation.  The court dismissed the employee’s FMLA claims, largely because the employer maintained a consistently-applied policy prohibiting employees from working while they were on a leave of absence.

The same held true in Pharakhone v. Nissan North America, where an employee took FMLA leave and immediately began working at his wife’s restaurant [he must have really liked the food?].  At the time, the employer enforced a policy prohibiting “unauthorized work for personal gain while on leave,” and his supervisor advised him that he was not allowed to work there during his FMLA leave.  Because of this employer’s precautions, the employee’s FMLA claims were dismissed here, too.

Where there is no policy in place, however, an employee on FMLA leave arguably can maintain a second job, even if the work is similar to her current position. Take, for example, the employee in Stekloff v. St. John’s Mercy Health Sys., where the court determined that the employee only had to show that she was unable to work in her current job because of a serious health condition in order to qualify for FMLA leave. The fact that she worked a very similar position elsewhere and was able to to attend orientation within one day of taking FMLA leave did not matter to this court.

Insights for Employers

A couple of points to keep in mind:

1.  If you want to prohibit an employee from working a second job and tighten up your FMLA compliance, it is critical that you maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. Additionally, the policy should be distributed and available to all employees, and they should be reminded of it when leave begins.

2.  Secondly, if you learn that an employee is working another job while on FMLA leave, you should:

  • Confirm these facts and inform the employee that you are aware of the second job
  • Confirm the employee’s acknowledgement and agreement that your policies prohibit moonlighting
  • Determine the duties of the other job and compare to his regular job
  • Compare the job duties with any medical restrictions as outlined on the medical certification form. Particularly where you do not have a no-moonlighting policy, be sure to investigate the relationship between the two jobs.  In the case of anxiety, for example (as in the question above), might the employee have an argument that he/she cannot perform the work of a particularly stressful job (e.g., emergency room doc) but can work a desk job in an office where split second decisions do not have to be made?
  • Investigate fully and discuss with your *favorite* employment attorney before taking action

Employer Rejects Employee's Fitness for Duty Certification, Faces FMLA Liability

Posted in Uncategorized

cat typingThe story is for all you hunt and peck typists out there.  But its message is a lesson for all employers when it comes to returning your employee from FMLA leave.

Vanessa worked for Reading Hospital as a credentialing assistant, a position that required her to be typing approximately 60 percent of the time.  After breaking a bone in her hand (unrelated to her job, although it would have made for an interesting twist in this case), Vanessa took a leave of absence.   She returned several weeks later wearing a splint on her hand.  However, because the hospital believed she could not work “full duty” (because of the splint), it forced her back on leave until she could work full duty. Vanessa returned to her physician, who taped up her fingers and returned her to work, in large part because Vanessa told him she could perform the job.

Vanessa again returned to work with a doctor’s note, which stated, “No restrictions in splint.” When the hospital noticed her tape job, however, it again questioned her ability to work without restrictions. The hospital told her that “she needed to perform at the ‘same capacity’ as she did prior to going on leave” with “full use of all her digits in order to be considered full duty.” As a result, Vanessa took additional FMLA leave. She was out for an extended period of time, and upon expiration of 12 weeks of FMLA leave, the hospital filled her position with another employee.

Vanessa’s FMLA interference and retaliation suit followed.

The Ruling

In defending the lawsuit, the hospital argued that Vanessa’s FMLA claims should be dismissed because she could not perform an essential function of her job. In theory, the hospital had a good point — refusing to restore an employee to her position at the conclusion of her leave does not violate the FMLA if the employee remains unable to perform an essential function of her position.

Yet, a federal appellate court refused to dismiss Vanessa’s FMLA claims because she provided enough evidence to indicate that the hospital did not properly follow the FMLA when restoring her to her previous position.

Prior to permitting an employee to return to work, an employer may request that an employee provide [a fitness for duty] certification . . . as Reading required of [Vanessa] here. In it, an employee’s healthcare provider must merely certify that the employee is able to resume work . . . an employer may require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is undisputed that Reading did not provide [Vanessa] a list of essential functions for her to present to [her doctor]. Because Reading did not provide [Vanessa] with such a list, the fitness-for-duty certification was based only on the description of the job that [Vanessa] would have supplied him.

Because the hospital did not provide Vanessa and her doctor a job description or list of essential duties, guess who got to decide what her duties were?  Yep — Vanessa!  So, when Vanessa’s doctor asked her if she felt able to type, and she responded “yes,” Vanessa’s opinion carried the day.  Frightening, indeed! But the employer had no say in the matter because its return to work certification process was not compliant.

As the court noted, Vanessa’s fitness for duty certification clearly stated that she could return to work with “no restrictions.”  If the employer had any concerns about the certification, it should have sought clarification with her health care provider (as long as the employee gives the employer permission to do so, which Vanessa did here).  It did not do so here, choosing instead to overrule her doctor and deny her return her to work.  That creates an FMLA problem, as the court pointed out here.  Budhun v. Reading Hosp. & Medical Cntr. (pdf)

Insights for Employers

A few takeaways here:

1.  Ensure your fitness for duty certification process is compliant.  The FMLA regulations contain very specific rules about how you return an employee to work, what notices you must provide, and the extent to which you can require certain medical information. Some key points to remember in this process: 1) you must notify your employee in the FMLA designation notice that you will require a FFD certification; 2) you should [read: must!] include an accurate job description or list of essential job duties; and 3) upon return of the FFD cert., you can seek clarification of the cert., but you cannot delay the employee’s return to work while you’re seeking clarification. (See my point directly above.)

2.  When you don’t provide the health care provider with essential job functions, you potentially create problems for yourself, as the hospital learned here.  When you fail to do so, the employee’s opinion and explanation of her job duties carry the day. Let’s not go there, so just provide these duties up front.  Enough said.

3.  Update job descriptions/essential job duties before you provide them to the health care provider. As my friend Eric Meyer points out in his post on this case, your descriptions are likely old and filthy (my words, not his), so work with your managers to update them so they reflect actual job functions.  There was some debate in this case over Vanessa’s job duties.  Clear, updated job descriptions avoids this ambiguity.

4.  Don’t insist that an employee return to work fully or 100% healed.  And even more, don’t put it in writing!  The court did not dwell on this point, but employers must move away from the notion that an employee must remain on leave unless they are 100% healed or “without restrictions.”  As I have highlighted in previous posts, the ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers enforce a ”100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process and, therefore, violated the ADA.

5.  I’m not saying that you can’t question the employee’s return or the ability to obtain more medical information.  In fact, in prior posts here and here, I outlined when you have the ability in certain situations to require a separate fitness for duty exam if you have an objectively reasonable basis for the examination independent of the FMLA leave itself. Use my guidance from these other posts to your advantage if you have concerns about an employee’s return to work.

FMLA FAQ: Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important?

Posted in Interference, Reinstatement

Maggie (8-27-14)Sorry I have been away for a bit. Of all things, I’ve been taking some FMLA bonding leave to care for this beauty to the right! I am excited to report that our daughter, Maggie, joined our family just a few weeks back. And I’ve been smitten ever since.

There are a few things that rouse me from my FMLA slumber — like when I need to warn my employer friends about a foolish mistake an employer made administering the FMLA. So, when I heard the story of Tondalaya Evans, I quickly threw down the burp cloth and charged over to my laptop to share this little tale with you.

The Facts

Evans was employed by Books-A-Million (BAM) as a payroll manager. Evans apparently became pregnant at an inopportune time — right at a time when BAM was implementing a new payroll system.  As supervisors are prone to do, Evans’ supervisor told her that BAM “really needed” her to continue to work on the new system, so much so that Evans felt she had no choice but to continue to work from home after the birth of her child.

While Evans was bonding with her new child, she kept plugging away, but her supervisor became frustrated with Evans’ lack of progress. When Evans returned to work, BAM reassigned her to a newly-created position — risk manager — in part because BAM was not pleased with her work on the payroll system implementation.

Evans rejected the risk manager position (for which she had no experience and which required travel), and BAM terminated her employment.

Then Evans found one of them employment attorneys.  What were the legal theories, you ask?  First, that BAM interfered with Evans’ FMLA rights by making her work while on FMLA leave.  Second, that BAM violated the FMLA when it reassigned her to the risk manager position based on her performance during a period of time when she should have been on unfettered FMLA leave.

Insights for Employers

After a whole lot litigation, an appellate court ruled earlier this month that Evans would be allowed to try her FMLA claims. Evans v. Books-A-Million (pdf)  At trial, BAM has some explaining to do.  Before this thing even goes to trial, there are lessons to be learned:

1.  Don’t Make an Employee Perform Substantive Work while on FMLA Leave. Not ever. Never. Does that mean you can’t ask the occasional question or consult on an issue?  Of course not.  We discussed in an earlier post where to draw the line.  Generally speaking, fielding occasional calls and e-mails that relate to your job while on leave is a “professional courtesy” that does not interfere with FMLA leave.  As one federal court in New York put it, when an employee is passing on “institutional knowledge” or providing closure on open assignments, employers do not violate the FMLA. But employers have to resist the urge to pile on work while an employee is taking FMLA leave.  Keep in mind: the FMLA exists so that employees can take job protected leave from work. I recognize that, at times, an employee’s need for FMLA leave is difficult, even incompatible, with the pressure of business and client needs, but it must be compatible, and its use should be supported by the entire organization.

Note, too, that it didn’t matter to the court that BAM paid Evans for the time they made her work while out on FMLA.   There still is the potential for FMLA interference when an employer does not allow the employee to take FMLA leave when it qualifies as such.

2.  Don’t Abandon Your Obligation to Return the Employee to the Same or Equivalent Position.  So long as she timely returned from FMLA leave, Evans was entitled to return to the same or equivalent position.  The FMLA regulations are unforgiving in defining an equivalent position.  As you may recall, an equivalent position is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. (My emphasis)

Here, BAM returned Evans to what appears to be a much different position.  Although the role was managerial in nature, it required different skills and included travel (which was not required of Evans before she took FMLA leave). In this sense, the case is similar in many respects to the JP Morgan case we discussed in a previous post.  There, the employer returned an employee to a quality control position after holding the position of project manager.  The new position required different skills, a new reporting relationship and fewer opportunities for advancement, all of which the court found difficult to justify under the FMLA regs.

Another reminder: be exceedingly careful when returning an employee to a different position upon their return from FMLA leave.  Think virtually identical skills, effort responsibility and authority.

The task is not easy, and at the risk of sounding fake, phony and a bunch of other things, I gently remind you that these are decisions that should be made with the assistance of your employment counsel.

Otherwise, you might get BAM’d.

A Game-Changing Decision? Sending FMLA Notices to Employees by U.S. Mail May Not Cut It Anymore

Posted in Notice

Junk mailWith all the FMLA paperwork that a leave administrator has to provide an employee during the FMLA process, you’d wonder whether you’re attending a real estate closing. All these documents — whether it’s the Notice of Eligibility, medical certification, or the Designation Notice — typically get sent by good old fashioned snail mail, delivered by your friendly neighborhood U.S. postal worker.

Back in the day, we could rely on that package arriving safely at its destination. And on time.  We were so sure of the U.S. mail’s accuracy and efficiency that the courts recognized the “mailbox rule,” under which we presume that a letter which is properly sent with postage reaches its destination in a timely fashion and actually is received by the individual to whom it was addressed.

This week, however, a federal appellate court took a sledgehammer to the mailbox rule, finding it to be a relatively weak indicator that the addressee actually received the correspondence sent to him.  As a result, employers and third party administrators responsible for sending these notices are left wondering whether notice by U.S. mail is acceptable anymore.

Let me explain.

The Facts

Lisa worked for Corinthian Colleges an as instructor.  During the relevant time period, she was dealing with some personal issues and, as it turns out, she was battling depression.  Her boss encouraged her to take some personal leave. Lisa agreed, and she completed a leave of absence request form seeking “personal leave.” A short time later, Lisa provided complete FMLA medical certification to the College supporting her need for leave. As a result, the College properly converted her request for “personal leave” into one for FMLA leave, and it sent by U.S. mail the appropriate FMLA notices designating her absence as such.

Lisa required leave from December through mid-March, which was 14 weeks later.  Several weeks thereafter, Lisa provided documentation from her physician fully releasing her to return to work.  By this point, however, the College told her she no longer had a job because she didn’t return to work after her 12 weeks of FMLA leave expired.

So said Lisa: “What FMLA? This is the first time I knew my absence was being classified as FMLA leave…I never received notice that this was FMLA leave.”

Lisa sued the College, alleging that it violated the FMLA when it failed to give her notice that her absence was covered by the FMLA.

The Ruling

The issue of whether Lisa received the FMLA notices was central to her FMLA lawsuit.  According to the court, if the College could show that Lisa actually received its FMLA correspondence, her FMLA claims would fail.

The court then analyzed the strength of different forms of notice.  Certified mail, for example, offers a “strong presumption” of receipt by the addressee.  Regular mail, however, assures only a “weaker presumption.”   The court determined that this “weaker” presumption is nullified whenever the addressee’s denies receipt of the mailing.

Think about that: a letter is not considered delivered by regular U.S. Mail whenever the addressee proclaims he or she did not receive it.  And here, Lisa’s denial allowed her the opportunity to submit her FMLA claims to a jury.

In its reasoning, the court explained what kind of delivery should be required in today’s day and age:

In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.  (My emphasis)

Lupyan v. Corinthian Colleges (pdf)

Insights for Employers

I fear this decision is a bit of a game changer when it comes to confirming that an employee actually has received FMLA notice.  And it poses a very real and costly problem for employers and TPAs.  Let’s face it — employees regularly claim they failed to receive a notice given to them or sent to them in the U.S. mail. In nearly every Plaintiff’s deposition I take, they deny receiving some kind of notice from their employer. Now, they can defeat summary judgment simply by denying that they failed to receive an FMLA notice sent by regular mail? Criminey!

Disagree as we might with this decision, what do we learn from it?

  1. There is no question that the federal appellate court here is insisting upon a higher threshold for FMLA notice.  As the court told us in no uncertain terms, if employers want to maximize their chances of dismissing an FMLA claim short of trial, they have to use “some form of mailing that includes verifiable receipt” when sending FMLA notices.  Therefore, in jurisdictions covered by this court (which handles appeals from Pennsylvania, New Jersey and Delaware), it is advisable to send all FMLA notices by certified mail, overnight mail or email, since these are relatively capable of verifiable receipt.  Hand delivery is good, too, so long as you obtain a signature that the employee received it.  One thing to keep in mind when it comes to email: Email communications present their own dilemma, since these communications often can be filtered right into a junk mail folder, never to be seen by the intended recipient.  If you intend to use email as a means of communication with your employees, first seek their permission and confirmation that email is an acceptable means of communication regarding FMLA notices.  (Work with your legal counsel to draft this document.)
  2. I see such a lost opportunity here.  Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave?  We’ve addressed these situations before — when you don’t communicate regularly with an employee on an extended leave of absence, you increase your problems exponentially.  This case serves as yet another good example.  If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Can I get an Amen!?! Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process.  Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee.  As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!
  3. This decision also is a reminder of what not to do when FMLA leave ends.  What else did the College do wrong?  First, it insisted that the employee return without restrictions.  We should recall from previous posts that requiring an employee to return 100% healed is an ADA problem.  Don’t do it.  Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.  I discussed this in a previous post, too.

In the meantime, I’m going to the post office to pick me up some green certified mail cards.  Anyone need some?

Now This is a Headache! Employee Terminated for Migraine Headaches Can Advance FMLA Claim

Posted in Court Decisions, Eligibility, Interference

headache -- funny dogIn the cold, sadistic world that is the FMLA, the Department of Labor tells us that ordinary, run-of-the-mill headaches (a/k/a “non-migraine” headaches) are not covered by the FMLA.  Migraine headaches, on the other hand, are covered. When I try to explain the difference in FMLA training sessions for employers, they often look at me like I have two heads.

“Yeah right,” they tell me. “Like we’re really going to track every migraine headache as FMLA leave!?! Do you realize how busy we are?”

Refrain from designating FMLA leave for this reason at your own risk.

Now, employers have yet another reminder that the FMLA offers the same protections for migraines as it does for open heart surgery.  Here’s the scenario:

The Facts

For years, Jill’s managers at Boeing knew of her migraine headaches.  For several years leading up to 2012, plaintiff telecommuted from time to time because of her migraines, and beginning in 2012, plaintiff’s migraines became more frequent.  In spring 2012, Boeing informed employees that they could no longer work partial days when they were sick — leave had to be taken in full day increments.

In June 2012, Jill was informed for the first time that she could apply for FMLA leave to cover absences caused by her migraines. So, she took intermittent FMLA leave for the remainder of 2012, but because she was no longer allowed to work partial days, her absences were far more frequent than they were before, and her reviews suffered as a result. Jill also was disciplined for “unexcused” absences.  However, the facts indicate that at least some of these absences were due to her migraine headaches.

When she took a four-day leave of absence from April 29 through May 2, 2013 — for migraine headaches — her employment was terminated.

The Court Ruling

Finding that Jill gave sufficient notice of the need for FMLA leave and then was absent for migraine headaches, the court refused to dismiss her FMLA claims, finding that a jury could determine that her employer interfered with her right to take FMLA leave on these occasions and used her migraine-related absences as a negative factor in her employment. Alexander v. Boeing Company (pdf)

Insights for Employers

Strike One:  The employer failed to recognize that migraines could be covered by FMLA.  Despite the DOL’s pronouncement that migraine headaches are covered by the FMLA, this employer failed to consider that absences taken for this medical condition are protected. 29 C.F.R. 825.113(d)

Strike Two: The employer used Jill’s absences for migraine headaches as a negative factor in her employment evaluations, which is a sure fire way to lose on summary judgment.  Here’s what her own supervisor had to say about Jill in his deposition:

It was difficult. I know in her last performance review, it was difficult to give her an adequate performance review without her being at work as much as, as often as she missed. When she was at work, she was very effective and I alluded to that in her performance review, but the fact that she did miss a lot of work did play in the fact that she wasn’t as effective as she could have been just by the fact she wasn’t there.

That’s a supervisor who was not prepared very well for his deposition.  Had he been prepared, he would have understood that FMLA-protected absences (i.e., those days when she suffered from migraine headaches) could not have been used as a negative factor in her employment evaluation.  The court picked up on the supervisor’s testimony and quoted it verbatim when it refused to dismiss Jill’s FMLA claims.

Strike Three: Jill’s supervisors learned that she had applied for “FMLA leave,” yet they still chose to terminate her employment at that time for “job abandonment.”

Why jump the gun? In a rush to judgment and assuming the worst, Jill’s supervisors created a whole lot of liability for the company. In these situations, employers are well served to: 1) find out the medical facts behind the employee’s absence (in other words, talk to the employee!); 2) if necessary, obtain medical certification so you can better understand the alleged serious health condition and the need for and length of leave; 3) give the employee time to provide the requested medical certification; and 4) avoid making termination decisions unless and until you have reviewed the medical certification and — with legal counsel — have decided that termination is warranted based on legitimate, non-discriminatory reasons.

Dear Employers: We Have to Stop Sticking It to Pregnant Moms and Expectant Dads

Posted in Caring for Family Member, Court Decisions, Pregnancy

expectant-dadAlthough I eagerly anticipate the arrival of a baby due to be born in the Nowak family within the next couple of weeks [number 4...somebody help me!], I assure you that my status as “expectant dad” is not clouding my objectivity regarding the rights of moms and dads in the workplace.

But the fact of the matter is this — a few employers apparently have made some rather foolish decisions lately when terminating the employment of an expectant parent, and it’s making the rest of us look like we don’t care much for moms and dads or, for that matter, the next generation.

Last month, I shared the story of Ena, whose employment was terminated one day before she would have been eligible for FMLA leave, which she then could have taken due to pregnancy complications.

Now, take a whiff of this one.

Ron was Vice President of Sales for an Ohio company that sold cleaning and janitorial supplies, among other things.  He also was an expectant dad.  On June 6, 2012, he requested permission to take June 11 through June 15 off because of an “unexpected appointment” for his pregnant wife.  His boss, who doesn’t come off as the FMLA-savvy type, told him he could use paid leave to cover June 11 and 12, but “if he chose to take [July 14 and 15] off, they will be unpaid.”

Ron then sought out Human Resources to obtain the necessary FMLA paperwork for his leave of absence. By June 15, however, Ron was terminated, apparently for poor performance.

Ron could not find an employment attorney fast enough.  He did, they sued, and you can guess what happened next. You can read more here: Rice v. Kellermeyer

Insights for Employers

There are a lot of takeaways here:

  1. The Timing of a Termination Decision is Important no matter what you think the courts say.  Every employment defense attorney (including yours truly) makes the argument that the timing of the employment decision alone is not sufficient to support a retaliation claim.  This argument isn’t as persuasive to the courts as it once was, as the courts are allowing far more tenuously timed decisions to support employee claims.  Take this court, for example, which said: “a close temporal proximity between the protected activity [request for leave] and the adverse employment action meets the low threshold of proof necessary to establish a prima facie case of retaliation.”   In other words, you need to have some good facts on your side.
  2. When you terminate an employee shortly after they make a request for FMLA leave, please make sure you can back it up!  Here, the employer argued that it terminated Ron because he was a poor performer.  This reason, however, was undermined by: a) Ron’s relatively positive performance review (which stated, among other things, that Ron “is a valued member of [the company] and the skill set [Ron] exudes is a benefit to the company”); and b) the company president’s decision to entrust Ron with even more responsibility in the time leading up to his termination.  Employers, let this case be a warning to you — before terminating an employee who has requested leave (whether he is an expectant dad or otherwise), it is critical that you have established some reliable level of well-documented progressive discipline prior to the decision.
  3. Be mindful of the new EEOC guidance regarding pregnancy discrimination.  As I discussed in my post last week, with the publication of the EEOC’s new guidance, employers face even more scrutiny during the EEOC investigations of pregnancy discrimination claims.  If we have not taken seriously the reasonable accommodation requests of expectant moms (and dads), including the need for leave from the job to attend to pregnancy-related issues, we must do so now.  Otherwise, a whole lot of liability awaits us right around the corner.
  4. Moms and Dads make for sympathetic plaintiffs.  If you frankly could take or leave child bearers and expectant parents, and money is your bottom line, it still makes eminent business sense to treat these employees fairly when they request time off to attend to pregnancy-related issues.  Just ask the employer here.

Please Nominate FMLA Insights for the ABA Blawg 100

Posted in Uncategorized

dog-beggingDear fellow FMLA nerds:

Please indulge me for one shameless self-promotion for the year.  Last year, for the third consecutive year, our little FMLA blog was named to the ABA Journal’s 100 best legal blogs of 2013. Voting is now open for the best legal blogs of 2014, and we would love to have your support! The deadline is a bit earlier than usual — it’s August 8, 2014.

If you find value in our FMLA Insights blog, we would be forever grateful if you took a quick minute to nominate us for the Blawg 100. Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked. You will be asked to provide your contact information and a statement as to why you’re a fan of FMLA Insights.  If you include a memorable (or even cheesy) line or two about why the blog adds value to your professional life, the ABA Journal might even highlight your quote!

The online form also asks you to provide your favorite blog entry of 2014.  Perhaps it was the post about the employer who fired a pregnant employee days before she was eligible for FMLA leave (employers, let’s not repeat that mistake); or our leading post on the continued increase in DOL on-site visits in FMLA investigations (and what to do about them); or whether an employee can decline FMLA leave. Or maybe you fancied the humorous posts — like the one where we address whether too many trips to the potty can count as FMLA leave.  Any of them work for this nomination!

If you have any feedback on our FMLA Insights blog and how we might get your vote in the future, please do not hesitate to contact me:

A sincere THANK YOU for following the blog and for your continuous support.  All of your very kind emails, tweets and calls about the blog mean a ton to me!


New EEOC Guidance Expands Protections and Requires Accommodations for Pregnant Employees (and Reaffirms Rights for Dads, Too!)

Posted in ADA, Pregnancy

PregnancyEarlier this week, the EEOC issued new enforcement guidance on pregnancy discrimination, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce pregnancy-related issues under Pregnancy Discrimination Act (PDA) in the future.

As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions.

Notably, requiring employers to provide a reasonable accommodation to all pregnant employees does not appear to find any explicit statutory reference in the text of Title VII, the ADA or the PDA.  Yet, this changes under the EEOC’s Guidance.  In light of the broad expansion of covered disabilities under the ADA Amendments Act, a number of pregnancy-related impairments arguably will be considered disabilities (e.g., gestational diabetes or preeclampsia), thereby making the employee eligible to obtain a reasonable accommodation under the ADA similar to any other individual with a disability.  The EEOC’s Guidance, however, takes this even further, requiring reasonable accommodations for pregnant employees even if their impairments do not rise to the level of a disability under the ADA.  The Guidance seems to boil down to this critical provision:

By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.

Why Has the EEOC Issued this Guidance Now?

This Guidance was last updated in 1983.  However, the EEOC recently has identified pregnancy discrimination claims as a priority in its enforcement efforts. During FY2013 alone, more than 5,300 charges were filed with the EEOC alleging pregnancy discrimination. In announcing the updated guidance, EEOC Chair Jacqueline A. Berrien affirmed that the EEOC continues to process a significant number of charges alleging pregnancy discrimination, and stated that the EEOC’s investigations have purportedly “revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” This new guidance, which was forecasted last month on our blog, is evidence of the EEOC’s priorities in this area.

The Specifics of the EEOC’s Guidance

The updated enforcement guidance begins by reaffirming the fundamental requirements under the PDA that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. The remainder of the guidance is divided into four parts:

  • Part I provides guidance on the prohibition against pregnancy discrimination, including the individuals to whom the PDA applies, the ways in which violations of the PDA can be demonstrated, and the PDA’s requirement that pregnant employees be treated the same as employees who are not pregnant but who are similar in their ability or inability to work, focusing especially on light duty and leave policies;
  • Part II addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnancy-related impairments, particularly when employees with pregnancy-related impairments would be entitled to reasonable accommodation, and describes specific accommodations for pregnant employees;
  • Part III briefly describes requirements beyond the PDA and the ADA that affect pregnant employees, including the Family and Medical Leave Act and relevant state laws; and
  • Part IV contains best practices for employers.

The updated guidance provides the EEOC’s position on a number of key issues that substantially impact employers, including:

  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
  • Lactation as a covered pregnancy-related medical condition under the ADA;
  • The circumstances under which employers may have to provide light duty for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated male and female employees on the same terms;
  • The circumstances under which employers may have a duty to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the specific types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.

In addition to its Enforcement Guidance, the EEOC also published a question and answer document about the updated Guidance and an employer fact sheet.

Highlighting the import of this new guidance, several EEOC Commissioners have issued statements of their own. In support of the guidance, Commissioner Chai Feldblum provided fairly thoughtful commentary, stating that the Enforcement Guidance “is simple and relies on a plain text reading of the PDA—the words of the statute require that employers treat pregnant employees the same as they treat other employees similar in their ability or inability to work.” You can read her full statement here. “There’s a reason we needed to update the guidelines, and that’s because this problem hasn’t gone away,” Commissioner Feldblum told the Washington Post. “This is an enduring problem in America’s workplaces – we’re not where we need to be with regard to fair, equal treatment of pregnant workers. We’re just not.”

Other EEOC Commissioners, Victoria Lipnic and Constance Barker, criticized the Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court will be taking these issues up in Young v. UPS, which will be argued before the Court next term. The Young case focuses on whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations. For more information on the case, see my colleagues’ review here.

Dads Need Lovin’ Too!

Despite its attention to pregnant employees in the Guidance, the EEOC also warned employers to avoid treating men and women differently when it comes to parental leave (i.e., leave for purposes of bonding with a child and/or providing care for a child).  The EEOC summed it up this way:

Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

Will the Supreme Court Even Consider the EEOC’s Guidance when Deciding Young v. UPS?

Good question.  In this past year alone, there is Supreme Court precedent for chucking EEOC guidance. For example, in Vance v. Ball State University, the Supreme Court rejected the EEOC’s expansive definition of “supervisor” and held that an employee is a supervisor only if the employer has empowered the employee to take tangible employment actions against the employee).  Another was Univ. of Texas Southwestern Med. Ctr. v. Nassar, in which the Court rejected the EEOC’s position that retaliation claims under Title VII were subject to the “motivating factor” causation standard.

It does not seem likely that the Court will put a whole lot of stock in the Guidance, and the parties have already indicated that it does not weigh much on their case.

Insights for Employers

The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the Guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the the ADA.

Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims.  A fellow blogger, Eric Meyer, also offers some additional takeaways for employers that are worth the read.

In the meantime, there aren’t any warm and fuzzies here.  This is serious stuff, and employers should heed the EEOC’s Guidance, unless the Supreme Court tells us otherwise — a proclamation which may come by June 2015.

* Thanks to my colleague, David Weldon, for his contributions to this blog post!

Did a Court Just Allow an Employee FMLA Leave to Care for Her Grandchild?

Posted in Caring for Family Member, Court Decisions

grandparentsGrandparents across America are celebrating this week.  And they have Suzan Gienapp to thank.  Here’s why:

The Facts

Suzan, who worked for Harbor Crest (a nursing home), informed her manager in January 2011 that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer.  Harbor Crest granted her FMLA leave.  Although she periodically touched base with her employer during her leave of absence, Suzan failed to identify when she expected to return to work.  Her daughter’s physician also made clear that the daughter would require assistance through at least July 2011.  Upon learning this, Harbor Crest assumed that Suzan would not return by the end of her twelve weeks of FMLA leave, and it hired a replacement.  When Suzan returned at the end of twelve weeks of FMLA leave, there was no job waiting for her.

The Court’s Ruling

Suzan’s request for FMLA leave was one which involved intermittent leave; therefore, according to the court, she was not required to identify an expected return date.  Section 29 C.F.R. §825.303, which governs unforeseeable leave, “does not require employees to tell employers how much leave they need, if they do not know yet themselves.”  Instead, employers can insist upon regular updates from the employee about an estimated return date. They can’t terminate the employee simply because they cannot provide a precise return.  Here’s the court’s decision:  Gienapp v. Harbor Crest (pdf)

Ok, but the court didn’t limit the reach of its ruling at that point.

Let’s talk grandmas and grandpas.

Harbor Crest argued that Suzan should not have been granted FMLA leave because she sought leave to care for her grandchild, a reason obviously not provided for under the FMLA.  But the court didn’t see that way.  Suzan looked after the kids while Suzan’s husband went to work, a “caring for” duty that the court determined benefited Suzan as she was recuperating.

Notably, the court found that it was required to:

frame the issue as whether a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as “care” under the Act.  To this the answer must be yes.  Harbor Crest has never contended that Gienapp’s assistance to other members of the family could not have given her daughter a mental boost. A person who knows that her family is well looked after has an important resource in trying to recover from a medical challenge. Doubtless some forms of familial assistance are too tangential to hold out a prospect of psychological benefits to a covered relative, but Harbor Crest does not contend that Gienapp’s aid was too slight to qualify.

So, apparently, “mental boosts” now are covered by the FMLA, and if they involve caring for grandkids, so be it.

Under the FMLA, the “caring for” duty typically has been split into two general categories — direct care and indirect care.  Direct care involves duties such as administering medication and cooking meals for the family member, or transporting them to and from the doctor for medical care.  Clearly, these functions are covered by the FMLA.  Generally speaking, the courts have frowned upon indirect care, which involves duties such as cleaning up mom’s basement after a flood, which Joe Lane had to deal with.  Do you remember Joe?  I told you about his story here.  Although he was required to care for his mom as a result of her diabetes and other medical conditions (which was legit), the court found that cleaning up his mom’s basement after a flood was not a “caring for” duty provided for under the FMLA.  Therefore, his time off to clean up the basement was not covered by the FMLA.  The Joe Lane court affirmed the principle that direct care for a family clearly is covered by the FMLA, while indirect care is not.

Suzan’s case is one that involves indirect care, so the expansive reading by the Seventh Circuit takes the FMLA to a land we really have not seen before.

Don’t get me wrong — I love grandmas and grandpas.  For what it’s worth, I always thought the song, “Grandma Got Run Over by a Reindeer” was kind of mean when you really thought about it.  I have such fond memories of my grandparents, and I mean them no harm!  But I also find it unsettling when a court — particularly one with a whole lot of influence on the interpretation of the FMLA — interprets the law in such a way that they become both the legislative and judicial branch of government.  The Seventh Circuit’s expansive reading of the “caring for” provision of the FMLA takes the statute too far. If Congress decides that the FMLA should cover leave to care for and look after grandbabies, there certainly are legitimate policy reasons for doing so.  But that’s the job of Congress, not a federal appellate court.

Insights for Employers

As my friends Marti Cardi and Megan Holstein point out, employers still are not obligated to provide FMLA leave to care for a grandchild who has a serious health condition.  As a result of this decision, however, employers may have to start erring on the side of providing FMLA leave in situations where their employees are looking after grandkids, so long as it is intertwined with providing traditional, direct care to a family member.