Texas Court Puts a Halt on DOL Enforcement of the New FMLA Rule Extending Leave Rights to Same-Sex Couples

Posted in Court Decisions, Regulatory Activity

gay_cityhall_gavelA federal judge in Texas granted an injunction on Thursday that (for the time being) has stopped enforcement of the DOL’s final rule regarding the definition of spouse.  Under the new rule, which was scheduled to take effect today, the FMLA would cover same-sex spouses if the marriage occurred in a state that recognizes same-sex marriage and allow those spouses to receive FMLA benefits even in states that do not recognize same-sex marriage. According to the court, the public has “an abiding interest” in protecting state laws from “federal encroachment.”

Earlier this month, Texas Attorney General Ken Paxton, along with the Attorneys General from the states of Arkansas, Louisiana and Nebraska, filed suit in federal court in Texas asking that the court strike down the DOL’s final rule. “The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Texas AG Paxton said in a statement Thursday.

In issuing its order, Judge Reed O’Connor barred the DOL from enforcing the rule pending a final ruling on the merits of the Texas AG’s claim.  The ruling raises doubts about whether the DOL will enforce the new rule in the other states not covered by the court’s injunction.  My fellow employment blogger, Jon Hyman, thinks the DOL will stand down until a definitive ruling is issued.  While I can’t disagree with him, I am not so sure what the DOL will do.  I have a call into the DOL now about how it will administer the new rule in light of this ruling and will update when/if I receive official word from the agency.

As another blogging friend, Robin Shea, points out, this entire issue might become moot once the Supreme Court renders a decision in the four same-sex marriage cases it has agreed to decide this term.

For more information on the DOL’s final rule, access my post here.

Supreme Court Gives Pregnant Employees a Path Toward Securing Workplace Accommodations

Posted in ADA, Pregnancy

jumping-for-joyAll across America this morning, pregnant employees are screaming out in muted shouts of joy and giving each other belly bumps.

Last year, I reported on the EEOC’s recent pregnancy discrimination guidance, which interpreted the Pregnancy Discrimination Act as requiring workplace accommodations for pregnant employees even if impairments suffered during pregnancy do not rise to the level of a disability under the Americans with Disabilities Act.  In that post, I encouraged you to keep an eye on Young v. UPS, a case pending before the Supreme Court, which had the potential to turn this EEOC guidance on its head.

Yesterday, the Supreme Court issued a decision in the Young case, offering a mixed bag to employers and pregnant employees alike.  But in the end, the Court expanded the potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.

Oh yeah, the court also gave the EEOC a bit of a thumping, too.  I explain below.

The Facts

Peggy Young was unable to perform her job as a delivery driver for UPS during her pregnancy because her doctor imposed a lifting restriction. Young requested a temporary light duty assignment, but UPS denied her request. Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only for drivers who: 1) were injured on the job; 2) suffered from a disability as defined by the ADA; or 3) lost their Department of Transportation certifications. As a result, Young went on an extended, unpaid leave of absence.

At issue in the case was the interpretation of the language of the Pregnancy Discrimination Act, which provides that, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . . ” In this case, UPS treated Young like employees who suffered off-the-job injuries and were not entitled to accommodations.

Young argued that the statutory language should be interpreted literally — in other words, that an employer must provide the same accommodations to pregnant employees as it does to non-pregnant employees who are similar in their ability or inability to work.  On the other hand, UPS urged that as long as an employer provided accommodations to pregnant women in the same way it provided accommodations to others in a facially neutral category (e.g., no accommodations for off-the-job injuries), the employer could not be liable for pregnancy discrimination.

The Court rejected both interpretations. It found that Young’s views – supported by the Obama administration – granted pregnant workers a “most-favored-nation” status, under which an employer would have to provide similar accommodations to all pregnant workers, regardless of the nature of their jobs, the employer’s requirements, or any other criteria, anytime the employer made an accommodation for any employee. The Court didn’t care much for UPS’ argument either, which the Court feared would permit employers to treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work.

The Decision

In reaching its decision, the Court determined that the commonly used balancing test (known as the McDonnell Douglas burden shift) should be used to determine whether a pregnant employee has suffered employment discrimination as a result of her pregnancy.

First, she must clear an initial hurdle (known as a prima facie case) by showing that: 1) she belongs to the protected class (i.e., she is or was pregnant);  2) she sought an accommodation; 3) the employer did not accommodate her; and 4) the employer accommodated others similar in their ability or inability to work. If the employer justifies its refusal to accommodate by providing a legitimate, non-discriminatory reason for its refusal – which normally cannot simply be that it is more expensive or less convenient to add pregnant women to the category of employees whom the employer accommodates – then the plaintiff may proceed to trial only by demonstrating that the employer’s reason is a pretext for discrimination. She may do this by showing that an employer’s policies impose a significant burden on pregnant workers and that the justification for not accommodating pregnant employees is not sufficiently strong, giving rise to an inference of intentional discrimination.

The Court determined that Ms. Young created an issue of fact (and thus potentially requiring a trial on the merits of her case) as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished to hers.  However, it sent the case back to the federal appellate court (the 4th Circuit Court of Appeals) to determine whether UPS’ reasons for having treated Young less favorably than other non-pregnant employees were pretextual.  So, although Young’s case may very well be dismissed yet again, the Court gave Young — and other pregnant employees — a path to victory.

Finally, as my fellow blogger, Walt Olson, points out, we can’t help but be amused by the Court’s smackdown of the EEOC’s decision to issue its Pregnancy Discrimination guidance while the case was pending in front of the high court.  As Olson points out:

the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, [Supreme Court Justice] Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.

Ouch.  So, the score after 7 innings = Young: 1, UPS: 0, EEOC: 0.

Insights for Employers

The Court’s decision made clear that an accommodation policy that is technically “pregnancy blind” will generally not, in itself, be enough to protect an employer from a pregnancy-related sex discrimination claim. Additionally, as the Court noted, its holding may be of limited significance in light of the ADA Amendments Act of 2008, which were enacted after this case began and therefore did not govern the case. The EEOC has interpreted the expanded definition of disability under the ADAAA to require employers to accommodate employees whose temporary lifting restrictions originate off-the-job, and courts have applied this requirement to pregnant employees.

The decision unwittingly extends to pregnant employees a “most favored nation” status among employees who may have workplace restrictions (even though the Court specifically reasoned that the PDA rejected such a notion).  Therefore, to minimize liability for either a PDA or an ADAAA claim, employers should evaluate their accommodations and light duty policies and the effects of those policies on pregnant employees.  Employers also must take seriously and review thoughtfully all employee requests for pregnancy-related accommodations to minimize liability to pregnancy discrimination claims.

Hat tip: My heartfelt thanks to my colleague, Lindsey Marcus, who drafted much of this post (with the caveat that the crass “belly bump” opening comment is not hers!).

Employer's Lack of FMLA Compliance in Handling FMLA Leave Request is a Lesson for the Rest of Us

Posted in Interference, Medical Certification, Retaliation

050312_clown_092.jpgWant a glimpse into a world where an employer fails to maintain a legally compliant leave management process?  Let me warn you — what you are about to read is not pretty and not for the faint of heart.

The Facts

Rachna was a resident physician at St. Vincent Health Center.  She also had a chronic heart condition known as superventricular tachycardia (SVT) which caused a rapid heart beat, light-headedness and dizziness.  It also caused her to lose consciousness on several occasions.  Serious health condition?  Ummm, yes.

On June 1, Rachna requested a leave of absence to undergo surgery to address the SVT.  When Rachna met with HR to discuss her need for leave, the HR representative arbitrarily assigned her a return to work date of June 24.  When Rachna told her that she’d likely need a little more time to recover, the HR rep agreed to push the return back two days — to June 26.   The medical certification from Rachna’s physician did not contain an anticipated return to work date or an explanation of the duties Rachna could not perform.  However, HR did not follow up with Rachna to ensure she cured the certification and it did not provide her an FMLA designation notice.

Rachna had surgery and, on June 27, she called HR (and later, her boss) to extend her medical leave. Again, her return date remained up in the air while she awaited clearance from her physician.  At that time, HR did not ask Rachna to provide recertification of her need for leave.  Instead, on July 11, a new HR representative overseeing Rachna’s leave of absence sent Rachna a letter asking her to provide a “receipt of an extension [of her leave of absence] from her physician” and to provide it by the end of that same week.  One week later, on July 18, when she did not hear from Rachna, the HR rep sent an email to Rachna asking her physician to “fax a statement extending your medical leave” through the end of July.

Beginning on July 18, Rachna left a series of voicemails for her physician seeking to obtain documentation supporting her extended leave.  According to Rachna, her physician would not speak with her and did not respond to her voicemails.  In late July, Rachna contacted her direct supervisor to report that she was having difficulty reaching her physician to obtain the appropriate medical documentation.

Just a few days later, on August 1, the Health Center terminated Rachna as a resident physician.

Insights for Employers

Where did the employer go wrong?  Let us count the ways, so said the court.  In a sobering court opinion, the trial court refused to dismiss Rachna’s FMLA interference and retaliation claims, sending them instead to a jury trial.  Patel v. St. Vincent Health Center (pdf)  Of course, these facts explain the employee/plaintiff’s side of the story, and the employer will have an opportunity to present evidence in support of its case at trial.  But let’s identify in the meantime where the Health Center apparently fell short on compliance:

1.  When Rachna sought a leave of absence, the HR rep assigned an arbitrary return to work date instead of obtaining the information directly from the certification.

2.  When Rachna’s physician did not provide a complete and adequate certification, the employer did not seek to cure the certification and obtain the information necessary to make a determination about whether the absence was covered by the FMLA.

3.  Instead, the employer compounded the problem by failing to issue a recertification request when the employee requested an extension of leave.  Who knew if Rachna even required any additional leave?  We’ll never know, since the employer issued a vague request seeking a note from the employee’s physician supporting an extension, and it gave her fewer than five days to provide it.  In these instances, the regulations are clear: when the employee seeks an extension of leave, the employer should issue a request for recertification and provide the consequences for failing to provide recertification.  It also must give the employee up to 15 days to return the certification (fewer than five days just won’t do).  When the employer fails to issue a recertification request in these instances, its leave management processes are not compliant, and they create liability for the employer.

4.  When the employer had enough information to determine whether FMLA applied, it was obligated to provide the employee a Designation Notice.  It didn’t do so here, which is yet another compliance error.

5.  Under the FMLA,  the employee must provide recertification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  Here, the employee provided enough evidence that she was engaging in good faith efforts to communicate with her physician to obtain an updated recertification.  Yet, the employer declined to engage her further.  Recall a previous post here where I outlined what an employer can do to determine whether the employee has done all she can to provide certification.

In the end, there apparently were so many holes in the employer’s FMLA administration that the court refused to dismiss not only the employee’s FMLA interference claim, but the FMLA retaliation claim, since the employee could provide evidence that that the employer’s reason for termination was mere pretext for firing her.

Leave management compliance is essential.  Tough lesson for this employer.

Check Out ABA's Summary of 2014 FMLA Court Decisions -- An Excellent Resource for Employers

Posted in Uncategorized

aba_logo_01.jpgWant to read about nearly FMLA case that was either dismissed or allowed to advance toward trial?  Want a snapshot of what employers got right and what they got wrong in the land of FMLA?  Look no further:

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  This year’s report is another excellent summary of 2014 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA reference for HR professionals and employment attorneys. Kudos to attorneys Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee and led the drafting of this report.

It's March 2015. The DOL's Model FMLA Forms Expired Just Days Ago. Now What?

Posted in Medical Certification, Regulatory Activity

expiration dateOn February 28, 2015, the DOL’s recommended FMLA forms expired. And on March 1, the sun still rose in the east.  Life, as we know it, forged on.

It’s anyone’s guess as to when new FMLA forms will be issued, so in the meantime, I’ll hold off on belting out, in true Steve Martin fashion from the movie, “The Jerk“: “The New FMLA Forms Are Here! The New FMLA Forms Are Here!

Why Do the DOL’s FMLA forms expire anyway?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms every three years to the Office of Management and Budget (OMB) for approval, so that OMB can review the DOL’s information requests and the time employers spend responding to the requests.  OMB approved the DOL’s FMLA forms in early 2012 for the maximum period of three years.  Upon expiration of the forms (in this case, this past Saturday, February 28, 2015), the DOL may continue to use the forms while it seeks renewal of OMB’s approval.

Should Employers Continue to Use the Expired FMLA Forms?

Yes, for two reasons: 1) This past week, OMB extended the FMLA forms’ expiration date by 30 days to March 31, 2015 (so, I guess you could say that the forms are no longer expired, right?); and 2) in my discussions with the agency, the DOL has advised me that the best approach is for employers to continue to use the forms even after the expiration date and until further notice. Of course, this makes a whole lot of (common) sense.

The DOL’s forms–with the March 31, 2015 expiration date–can be accessed here:

Do We Have Any Say in What’s Included in the New FMLA Forms?

From now until March 27, 2015, the public is invited to submit comments about the FMLA forms, including any changes we’d like included in any new FMLA forms that eventually will be issued. Specifics on the comment period can be accessed here, but public comments can be directed to the DOL by U.S. mail or by email at OIRA_submission@omb.eop.gov.

Count the Equal Employment Opportunity Commission among the first to propose changes to the FMLA forms. A few months back, in November 2014, the EEOC sent a missive to the DOL asking that the DOL add: 1) a disclaimer in its model medical certification (for an employee’s serious health condition) instructing health care providers not to collect or provide any genetic information, as this information is prohibited under the Genetic Information Non-Discrimination Act (GINA); and 2) stronger language in WH-380-E (employee medical certification) and WH-380-F (family member medical certification) regarding the employer’s obligation to keep medical genetic information strictly confidential.

Employers should work with their employment counsel to review and amend their FMLA forms to include the suggestions above and to streamline forms to fit your operational needs.

As always, email me if you have questions about the expiration of current forms or are interested in submitting comments to the DOL on behalf of your company or industry: jsn@franczek.com.

DOL Issues Final Rule Extending FMLA Leave Rights to Same-Sex Couples: Here's Everything Employers Need to Know

Posted in Eligibility, Regulatory Activity

same-sex-marriage----DOMA.jpgThe Department of Labor has issued a final rule that will allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  This rule change will impact the manner in which employers administer FMLA leave, so I’ll quickly get down to the details:

Where We Were

The FMLA regulations have guided us since their inception that the term “spouse” was to be defined according to the law of the state in which an employee resides, as opposed to the jurisdiction where the marriage was entered.  This distinction became particularly significant after the U.S. Supreme Court’s decision in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional. Before Windsor, that section restricted the definition of marriage for purposes of federal law to opposite-sex marriages. Consequently, federal FMLA leave was generally not available to same-sex married couples even in states that recognized gay marriage. Windsor effectively extended FMLA rights to same-sex married couples, but only if they resided in a state that recognized same-sex marriages, even if they were legally married in another state.

After the Windsor decision, President Obama instructed federal agencies such as the DOL to review all relevant federal statutes to implement the decision and, as expected, the DOL took it as an opportunity to apply Windsor to the FMLA regulations. In June 2014, the DOL adopted a proposed “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married. Thus, if two individuals of the same sex get married in a state that recognizes same-sex marriage, they are considered to be married for federal FMLA purposes even if the state in which they live and work does not currently recognize same-sex marriage. For example, if the employee was married in New York, but now resides with his same-sex spouse in Texas, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York, since they were married in New York and that state recognizes the right of same-sex couples to marry.

Where We Are Now

After issuing its proposed rule in 2014, the agency now has announced that, on February 25, 2015, it will issue a new final rule (to take effect March 27, 2015) providing that the definition of “spouse” indeed is determined by the state in which a marriage is entered (i.e., the “state of celebration”). As the DOL points out, a place of celebration rule “allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.”  The DOL notes that, as of February 13, 2015, 32 states and the District of Columbia (as well as 18 countries) extend the right to marry to both same- and opposite-sex partners.

In the age of social media, the DOL secretary, Thomas Perez made the agency’s announcement through its own blog post.  That’s kinda neat, so says this FMLA nerd.

A copy of the DOL’s final rule and comments to the final rule can be accessed here (pdf).  A copy of the DOL’s fact sheet on the final rule can be accessed here.

What Does This Mean for Employers?

All well and good, Jeff.  Of course, I know all of this.  Tell me how this new rule impacts my life.  

Here’s what employers need to know and do:

1.  As an initial matter, determine whether the FMLA applies to you.  If so, you should:

  • Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.
  • Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.
  • Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

2.  Whether or not FMLA applies to you, you should determine whether any state leave law applies to you.  These laws may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

3.  Keep in mind two particular FAQs on This New DOL Rule (which I have taken, in part, from of the DOL Final Rule FAQs):

Q. Can employers require documentation to verify that a same-sex or common law marriage is valid?

A. The Final Rule makes no changes to the manner in which employers may require employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship. An employee may satisfy this requirement either by providing documentation such as a marriage license or a court document, or by providing a simple statement asserting that the requisite family relationship exists. 29 C.F.R. § 825.122(k)

Here’s the catch, employers: It is the employee’s choice to provide a simple statement or another type of document. And DOL has us in a trick bag as to when we can and should ask for reasonable documentation.  On one hand, the agency tells us in the final rule, “Employers have the option to request documentation of a family relationship but are not required to do so in all instances.” (My emphasis) It also rejected calls for instituting a standard in which employers would be required to show that they requested this documentation in a consistent, non-discriminatory manner.  Yet, on the other hand, the DOL is quick to point out that employers “may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise his or her FMLA rights.”

Thus, from a practical standpoint, shouldn’t employers institute a consistently-applied, non-discriminatory policy when asking for confirmation that a family relationship exists?  In a word, yes. Otherwise, employers risk a claim that they are treating certain employees in a discriminatory manner, thereby interfering with their FMLA rights. I leave that compliance piece carefully in your hands, but I encourage you to tread carefully.

One thing is clear:  If an employee has already submitted proof of marriage to the employer for another purpose, such as in electing health care benefits for the employee’s spouse, the DOL finds that “such proof is sufficient to confirm the family relationship for purposes of FMLA leave.”  So, employers, no second bites at the apple if you already have this information!

Q. Does the Final Rule Change the Manner in Which Employees Take FMLA leave to care for a child to whom they stand in loco parentis?

A.  No.  In June 2010, the DOL recognized that eligible employees may take leave to care for the child of the employee’s same-sex partner (married or unmarried) or unmarried opposite-sex partner, provided that the employee meets the in loco parentis requirement of providing day-to-day care or financial support for the child. (You can find more on the in loco parentis rule in DOL Fact Sheet #28B.) In other words, this new rule has no impact on the standards for determining the existence of an in loco parentis relationship.

EEOC Regional Attorney John Hendrickson Offers Key Insights on EEOC's Pregnancy Discrimination Guidance

Posted in ADA, Pregnancy

EEOC-bannerLast week, I had the pleasure of presenting with EEOC Regional Attorney in the Chicago District John Hendrickson on the EEOC’s recently drafted Pregnancy Discrimination Enforcement Guidance and how these guidelines will impact the manner in which employers will be required to provide accommodations to its pregnant employees.  The session was part of my law firm’s annual employment law conference.  If you missed the program, you can access the PowerPoint and audio form our presentation here.  It was a great opportunity to discuss the intersection of the Pregnancy Discrimination Act and the American’s with Disabilities Act.

There were a number of key takeaways from our session for employers :

1.  Engaging the Employee in the Interactive Process is Essential.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  When a pregnant employee reports complications with her pregnancy and provides documented work restrictions, employers must avoid the temptation to automatically place the employee on a leave of absence, or worse, to terminate her employment.  Employers create liability when they jump to these conclusions without first engaging the employee in a discussion about her limitations and what the employer might be able to offer to help the employee remain on the job.

By engaging in the interactive process, the employer (lawfully) forces the employee to identify workplace accommodation while she remains on work restrictions during her pregnancy.  The back and forth communication also allows you an opportunity to determine whether there are alternative options to keep the employee on the job instead of shuffling her off on a leave of absence, a personnel decision that likely will raise EEOC’s scrutiny. To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

2.  Be practical when it comes to light duty.  To be clear, the EEOC’s pregnancy discrimination guidance does not mandate light duty programs for employers who don’t maintain such a program. However, if you offer light duty work to employees with work restrictions, the EEOC takes the position that you must offer light duty work to a pregnant employee with similar work restrictions.

One of our case studies focused on a hypothetical employer who offers a 60-day light duty program to all employees who are unable to perform the essential duties of their position due to disability or pregnancy. At the end of 60 days in our hypo, the pregnant employee still cannot return to work.  Is the employer free to put the employee on leave at that point? Sure, there may be an argument to do so, but might it be more practical to allow a modest extension of light duty beyond 60 days?  As Mr. Hendrickson pointed out, there is no magic answer here, but the interactive process is critical to determine whether alternatives are available.

3.  When It comes to telecommuting, even the EEOC sees value in physical attendance at the office.  Historically, courts have afforded employers a great deal of deference in making the argument that the employee must be physically present at work to perform her job.  Yet, as we have witnessed recently, that tide may be turning.  In EEOC v. Ford Motor Company, a federal appellate court found that “advancing technology has diminished the necessity of in-person contact to facilitate group conversations,” and that the employer’s business judgment that physical presence at the workplace is an essential function is but one of several factors that the court will take into account in determining whether telecommuting must be offered as a reasonable accommodation.  The Ford Motor Co. case has been reconsidered by this same appellate court, and an en banc decision is expected soon.  When it is released, it surely will be the leading case on an employer’s obligation to provide telecommuting as a reasonable accommodation.

In a moment of candor, Mr. Hendrickson recognized the value of having an employee physically present at work to perform their job. Acknowledging his management role vis-a-vis other employees in his own EEOC office, Mr. Hendrickson agreed that there is “an argument to be made” that telecommuting is not the functional equivalent of being present in the office.  For instance, in industries such as advertising, the arts and the law, and in engineering, where there is an element of “imagination and creativity,” and Mr. Hendrickson recognized that an employer could effectively argue that face-to-face communication is critical.  I appreciated Mr. Hendrickson’s sincerity on this point, and I know my clients in the audience did, too.

4.  EEOC is Not Prohibiting Mediation on New Pregnancy Discrimination/Accommodation claims. For those litigators out there, Mr. Hendrickson confirmed that the EEOC is not automatically sending all newly filed pregnancy discrimination and accommodation charges directly to investigation.  To the contrary, like other charges, the EEOC will determine on a case-by-case basis whether mediation will be offered.  (Of course, the EEOC’s criteria for offering mediation often is a bit murky, but at least Mr. Hendrickson confirmed that there is no blanket policy by EEOC in Chicago against mediation in pregnancy discrimination and accommodation cases.)

Listen to our presentation and Q&A here.  I also previously reported on the EEOC’s Pregnancy Discrimination Guidance here.

Want to Drastically Improve Your FMLA and ADA Expertise? My Recommendations on the Top FMLA/ADA Conferences to Attend

Posted in Uncategorized

presentation1Throughout the year, HR professionals and attorneys ask for my recommendations on the very best conferences to learn more about the FMLA and ADA.  The “best,” of course, is in the eye of the beholder.  In my humble opinion, however, the conferences highlighted below are can’t miss seminars if you want to expand your knowledge of the FMLA and ADA or if you spend much of your professional lives in these areas:

Two Can’t Miss Seminars

NELI’s ADA & FMLA Compliance Update: For nearly 40 years, the National Employment Law Institute (NELI) has been the national leader in training professionals of all kinds in the ADA and FMLA (and in employment law generally).  NELI caters to management side folks – you’re not going to find many plaintiff-side attorneys in the this room, which allows us to cover topics near and dear to us. To be clear, NELI is not going to knock your socks off with a flashy brochure or some frilly web site. Instead, NELI spends its resources on convening the very best two-day seminar on all things ADA and FMLA.

These seminars typically are held in April in Chicago (April 16-17), San Francisco (April 2-3) and Washington, DC (April 30-May 1).  This year’s information can be accessed here.  On day one, you’ll get your fill of David Fram, who is perhaps the most engaging speaker you’ll encounter on the ADA circuit.  A former EEOC trial attorney, David follows every ADA decision issued in the Union and offers his invaluable insight to help you deal with the most sensitive ADA issues.  His excitement about the ADA is contagious, and he offers plenty for everyone – whether you are an HR representative fighting on the front lines or the seasoned litigator looking for a new legal angle to advance.  If Fram’s excitment doesn’t rub off upon leaving NELI, you haven’t paid attention. On day two, NELI turns to the FMLA. If you’re attending NELI in Chicago, you have the misfortune of hearing me present on the latest in the world of FMLA.  (However, I’m appropriately balanced by FMLA fashionista, Ellen McLaughlin, so all is not lost.)

Pushing my own conferences, you say?  Before you start using my name in the same sentence with Tom Brady and deflatable footballs, keep in mind that I attended this annual seminar for over ten years before I was fortunate enough to join the faculty.  After attending the first seminar, I was hooked and wouldn’t miss again.  Neither should you.  Whether you are on the east or west coast, or somewhere in between near the windy city, sign up now.  Information about the seminar can be accessed here and the brochure is downloadable here (pdf).

If you cannot make the conference, NELI provides an excellent binder of materials that I keep by my side and reference throughout the year.  Consider this as a back up if you cannot attend the conference itself. (If you attend, you’ll receive it as part of your admission.)

DMEC’s ADA & FMLA Compliance Conference:  You’re not seeing double. Because you cannot get enough of the FMLA and ADA, you also should make time for the ADA & FMLA Compliance Conference sponsored in April each year by the Disability Management Employer Coalition. DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers.  Any employer should join if they want to improve their integration of disability/absence management.

Over the past few years, DMEC has put together an absolute gem of a compliance conference focusing exclusively on FMLA and ADA.  This conference brings together the finest of FMLA and ADA nerds (which I wear as a badge of honor), and every attendee leaves with practical approaches on properly administering FMLA, fighting FMLA abuse, understanding various FMLA and ADA processes, learning key skills to identify reasonable accommodations in the workplace, and so much more.

At this year’s conference, which will be held April 20-22 just outside Washington, DC, I am delighted to co-present with EEOC Commissioner Victoria Lipnic on the EEOC’s recent pregnancy discrimination guidance and how employers should best manage accommodations for pregnant employees. I’ll also be addressing confusing state leave laws with Megan Holstein of Reed Group, and will be part of a panel of experts (or so they call us) answering your FMLA and ADA questions for free.  [Ahem, how often do you find an attorney offering free advice? Take it while you can!]

Access the conference program here (pdf), and tell me this three-day conference isn’t everything you’ve been searching for in a comprehensive compliance conference!

See you in April.

Other Reliable Resources

What else can I offer you in terms of FMLA and ADA resources?  You mean other than this blog?  <<smirk>>

  • One (more) shameless plug: Access my FMLA webinars that cover topics ranging from FMLA abuse to medical certification to the latest FMLA trends.  All of my webinars (and the Power Points from these presentations) can be accessed here.  [You didn’t think I’d go without endorsing my own products, right?  After all, I do have four young kids I eventually have to put through college!]
  • If you’re interested in a monthly FMLA and ADA update (and even more regular updates online), try Thompson’s FMLA Handbook.  Its monthly newsletters are excellent, and it keeps me up to date on the latest FMLA and ADA court decisions that I should worry about.  Very professional and well done.  It’s worth the expense.

Employer's Poorly Drafted FMLA Policy Allows Employee to Advance FMLA Claim (That Should Have Never Seen the Light of Day)

Posted in Eligibility

policyIf this story won’t cause you bring your FMLA policy up to snuff, then I’ve lost all hope.

FMLA’s Basic Premise

An employee is eligible for FMLA leave if he meets three basic criteria:

  1. He has been employed by a covered employer for 12 months;
  2. He has worked 1,250 hours worked during the 12-month period before his requested leave begins; and
  3. He works at a location where his employer employs 50 or more employees within a 75-mile radius of that location.

With this backdrop in mind, here comes Terry, who works for the Kalamazoo County Road Commission. (Yes, there is indeed a place called Kalamazoo, and it’s one of the most beautiful areas in Western Michigan.)

When it comes to taking FMLA leave from his job at the Road Commission, Terry ordinarily would be out of luck.  Although Terry has been working for the Road Commission for over 12 months and has worked more than 1,250 hours within the past year, he misses the third prong in that he cannot count 50 Road Commission employees within a 75-mile radius around him.

Yet, here’s where the Road Commission let him off the hook: the agency maintained an FMLA policy in which”eligibility” to take FMLA leave was satisfied if you met the first two criteria above (12 months and 1,250 hours).  The Road Commission’s FMLA policy made absolutely no reference to the requirement that 50 employees work within 75 miles.   Here’s the eligibility provision, word for word:

Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.

In Terry’s case, he was under final warning from the Road Commission for failing to complete his work assignments.  So, when he took a leave of absence after experiencing chest pain, he was terminated because he still had not completed his work to the employer’s expectations. Later, when Terry filed an FMLA lawsuit, the Road Commission claimed he was not an eligible employee under the FMLA, since he did not work at a location where his employer employs 50 or more employees within a 75-mile radius.

Typically, this would be a winning argument. However, Terry “pointed to evidence — his sworn affidavit — that he sought medical treatment prior to completing his assignment because the unqualified and unambiguous statements in the [Employee Handbook] led him to believe that he was covered under the FMLA.”  Tilley v. Kalamazoo County Road Commission (pdf)  [I find it hard to believe that Terry had such an enlightening moment at the time he read the FMLA policy, in the unlikely chance he even put eyes on the policy. Rather, it likely was a clever fact that his attorney later memorialized in an affidavit. But I digress…]

Court Ruling

Because the Road Commission left out the third prong of what the court considered an “unambiguous and unqualified” FMLA eligibility provision, a “reasonable person in [Terry’s] position could fairly have believed that he was protected by the FMLA.”  As a result, the court allowed Terry to put his FMLA claims on in front of a jury, even though the protections of the FMLA otherwise would have not applied to him.

Insights for Employers

A tough lesson for the Road Commission. And an expensive one. Instead of paying their employment attorney ~$150 for a mere half hour of time to ensure their policy was compliant with the law, the Road Commission now is likely on the hook for $100,000 more in attorney’s fees and costs. If the Road Commission loses at trial, the expenditure will be even higher.

This decision should be a wake up call to the rest of us: let’s not go another week without conducting a legal review of our FMLA policies.  Since 2009, our policy should have been updated a minimum of two times — to account for the 2009 regulatory changes and in 2010 to account for military family leave changes. With additional changes to the definition of “spouse” under the FMLA to be finalized at some point this year, we should use it as an opportunity to get current with the FMLA.

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?