If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?

Posted in Abuse of FMLA leave

All the single ladies . . . all the single ladies . . . 

Now put your hands up, oh, oh, oh . . . 

Imagine marketing director, Michelle, jamming to this Beyonce song in the middle of AT&T Stadium in Dallas. On that very day, however, she’s supposed to be recuperating at home after suffering a panic attack at work.

Days earlier, Michelle had been given a performance improvement plan (PIP) to address her poor performance. By all accounts, she deserved it, since she struggled with the volume of the work required for her position. Although Michelle agreed that she could not keep up and her performance was deficient, she didn’t think she deserved a PIP.

Upon receiving the PIP, Michelle immediately left work. The next day, she called off, reporting that she was “not well to return back to work” and would be filing for short-term disability benefits. Less than one week later, however, Michelle was spotted at a Beyonce concert – in her employer’s corporate sky box.

I’m not kidding.

When word spread that Michelle was at the concert, Michelle’s boss left her a voicemail, asking to discuss why Michelle thought was appropriate to attend the concert when she was not working. Michelle responded by email that she had not been released by her doctor to meet and that as soon as she was released, she would be willing to meet.

Her boss responded by email, giving her a deadline to respond by later that day. When Michelle failed to respond, she was terminated for three reasons: poor work performance, her attendance at the concert while on leave, and her failure to respond to her boss’ inquiries. As the story goes, Michelle sued her employer, claiming it interfered with her FMLA leave and retaliated against her for taking leave.

‘Cause if you liked work, then you shouldn’t have taken leave
If you liked work, then you shouldn’t have taken leave
Don’t be mad once you get yourself canned
If you liked work, then you shouldn’t have taken leave
Oh, oh, oh
Oh, oh, oh, oh, oh, oh

Insights for Employers

With Beyonce’s “Naughty Girl” playing in the background, I’m sure, the court quickly dismissed Michelle’s FMLA claims, finding that her employer had an honest suspicion that she was abusing leave, and her failure to respond to her boss’ inquiries could only lead the employer to conclude that she was indeed taking leave for reasons having nothing to do with the FMLA. Jackson v. BNSF (pdf)

Michelle’s missteps actually provide some helpful practical pointers for employers:

1. You can require your employees to respond to your reasonable inquiries while they are on leave. Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave.  This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as she did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Yet, this court decision is an endorsement to carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.

2.  You CAN Terminate Employee Who Fail to Communicate with you while on leave. Similarly, employers feel paralyzed to take any action against an employee while they remain on leave.

Stop feeling powerless!  

What I love about this court decision is that it reaffirms the principle that the employer was well within its right to terminate Michelle’s employment after she failed to communicate with the employer. The court got it right — when an employee fails to communicate with their employer, they suffer the consequences.

Hurricanes Harvey, Irma and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?

Posted in Eligibility, Serious Health Condition

Our thoughts and prayers are with those in Texas and Louisiana whose lives have been impacted by Hurricane Harvey and those in Florida in the dangerous path of Hurricane Irma.  Join us sending a donation to those organizations performing rescue operations and providing much needed help to our fellow Americans in need.

Natural disasters like Harvey and Irma raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered?

The aftermath of a hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Several years ago, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricanes Harvey and Irma:

  • Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives. Case in point: poor Joe Lane, whose FMLA lawsuit was dismissed after he sought FMLA leave, in part, to clean up his mom’s flooded basement because her health conditions precluded her from doing so.
  • However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job. Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster. Take, for instance, an employee’s parent who suffers from diabetes. If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
  • Could the Hurricane actually cause a serious health condition requiring time away from work? See my answer here.
  • What if an Employee was already on FMLA leave when the Hurricane hit and your business now is shut down for a period of time? Here, the FMLA regulations are clear: If your business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, these days do not count against the employee’s FMLA leave entitlement.
  • Finally, do you have to pay your employee on FMLA leave while your workplace is closed down? In short, you treat them the same way you would treat another employee on non-FMLA leave.  See my previous post here for an explanation.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours from several years back covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Comprehensive Analysis of New York Paid Family Leave: What Must Employers Do Now to Comply?

Posted in Leave Law Insights, Legislation

Are you an employer located in New York? Or might you employ even one worker in New York?

If so, you need to read this.

Last year, New York State passed a Paid Family Leave (PFL) law as a part of its existing state disability law, requiring employers with one or more employees to obtain insurance that covers paid family leave. The paid family leave benefits will be phased in over time beginning on January 1, 2018. The law initially offers up to 8 weeks of paid leave to care for a covered family member with a serious health condition, to bond with a child, or in situations where a covered family member is called to active duty in the military. The benefits will be increased in 2019 and 2020, at which point eligible employees will be able to take up to 12 weeks of paid family leave in the above situations.

What Must Employers Do Immediately?

We provide a comprehensive analysis of New York PFL below.  But before we get there, there are a few critical steps employers need to take to comply with this new law:

  1. Do you maintain an employee handbook? If so, the new law requires you to edit your handbook to include “information concerning leave under PFL and employee obligations under PFL.” (Section 380-7.2(a)(1)) In other words, you need to add a new comprehensive leave policy to your handbook. We currently are drafting this policy for employers on a flat-fee basis. Contact me for details.
  2. If You Do NOT maintain a handbook, You Still Need to Do This. The state requires you to “provide written guidance to each of your employees concerning all of the employee’s rights and obligations under PFL, including information on how to file a claim for paid family leave.” (Section 380-7.2(a)(2)) We offer this notice on a flat-fee basis as well.
  3. To Self-Insure or Not.  Employers must decide by September 30, 2017 whether to provide PFL benefits to eligible employees through an insurance policy, the state insurance fund, or a self-insured plan.
  4. Collection of Premiums. As explained below, your employees will fund PFL through payroll deductions. The new law allowed employers to begin collecting premiums as early as July 1, 2017. Therefore, you must decide (if you’ve not already done so) whether to begin deducting premiums prior to January 1, 2018.

To stay on top of these and other new leave of absence laws, I encourage you to subscribe to my new service, Leave Law Insights, which provides timely and critical analysis on any new paid and unpaid leave laws enacted at the federal, state and local level. Find out more about Leave Law Insights here.

Analysis of New York PFL

Outlined below are the key aspects of New York PFL. Several weeks back, I highlighted this law in our new service, Leave Law Insights, which will keep you up to date on all recently enacted leave laws. You can access a pdf of the analysis below here.

Employers Covered

All private sector employers in New York that have one or more employees are covered. In other words, any employer covered by the New York Workers’ Compensation Law must permit eligible employees to take paid family leave. Public employers are not covered unless the particular public employer has elected to opt in to provide PFL benefits. PFL does not cover employees outside the state of New York, except as defined below.

Employees Eligible

The following employees are eligible for PFL:

  • An employee whose regular employment schedule is 20 or more hours per week for at least 26 consecutive work weeks preceding the first full day family leave begins; or
  • An employee whose regular employment schedule is less than 20 hours per week but who works 175 days within 52 consecutive weeks.

The 26 consecutive week requirement may be tolled during periods of absence that are due to the nature of that employment, such as semester breaks, and when employment is not terminated during those periods of absence. The use of scheduled vacation or personal, sick or other time away from work that has been approved by the employer; or other periods where the employee is away from work but is still considered to be an employee by the employer, should be counted as consecutive weeks or consecutive work weeks, or days worked, as long as the contributions to the cost of family leave benefits have been paid for such periods of time. However, periods of temporary disability taken pursuant to Article 9 of the New York Workers’ Compensation Law are not counted as weeks of employment or days worked for determining eligibility for PFL.

As to the question of what a “regular” schedule is, the regulations leave this question generally unanswered. The Workers’ Compensation Board notes that an employee’s regular employment schedule “depends on the facts and circumstances of the employment setting.” As such, employers should take a broad reading of this provision to the employee’s benefit until a the Board provides additional guidance in the future.

Out of state employees: If an employee works for a New York employer, but works in another state and only incidentally works in New York, the employee is not covered by PFL. If an employee does not perform his or her work in any other single state, he or she is covered by PFL if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) the employee lives in New York.

Amount of Leave

PFL benefits are phased in over a four-year period:

  • Effective January 1, 2018, an eligible employee will be entitled to receive 8 weeks of leave paid at a rate of either 50% of the employee’s average weekly wage or 50% of New York State’s average weekly wage, whichever is less.
  • Effective January 1, 2019, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 55% of the employee’s average weekly wage or 55% of New York State’s average weekly wage, whichever is less.
  • Effective January 1, 2020, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 60% of the employee’s average weekly wage or 60% of New York State’s average weekly wage, whichever is less.
  • Effective January 1, 2021, an eligible employee will be entitled to receive 12 weeks of leave paid at a rate of either 67% of the employee’s average weekly wage or 67% of New York State’s average weekly wage, whichever is less.

The NY average weekly wage is currently $1,305.92. On March 31 of each calendar year, the New York State Department of Labor will calculate the State’s average weekly wage based on statewide data from the prior calendar year. To illustrate, in 2018, an employee who earns $1,000 per week would receive a benefit of $500 per week (50% of $1,000). Another employee who makes $2,000 a week would receive a benefit of $652.96, because this employee is capped at one-half of State’s average weekly wage of $1,305.92.

Use of PTO: Under PFL, employees cannot be required to take accrued paid time off concurrently with PFL. However, employers and employees can agree to allow the employee to use PTO during PFL, which would allow the employee to receive their full wages. This time still would count against
the employee’s PFL entitlement. If the employer offers and an employee chooses to use PTO during PFL, the employer may request reimbursement of PFL benefits in the same manner as if it were seeking reimbursement for workers’ compensation benefits.

Calculating Leave

Weekly leave: Any employee taking PFL in weekly increments will be eligible for the maximum number of weeks of leave in any 52 consecutive week period. The 52 weeks are calculated on a rolling basis. Daily leave: Leave may be taken in one-day increments. Partial-day increments are not allowed. When an employee takes PFL in daily increments, the employee’s maximum period of paid family leave is calculated based on the average number of days worked per week with a maximum of 60 days per year for employees working at least five days per week.

The final regulations give the following example of the PFL an employee would receive where the employee works three days per week:

  • On January 1, 2018, the equivalent of three days per week for eight weeks, or a maximum of 24 days in any 52 consecutive week period.
  • On January 1, 2019, the equivalent of three days per week for ten weeks, or a maximum of 30 days in any 52 consecutive week period.
  • On January 1, 2021, the equivalent of three days per week for twelve weeks, or a maximum of 36 days in any 52 consecutive week period.

Computing the average daily rate for daily leave: When an employee requests family leave in daily increments (e.g., every Monday for six weeks), rather than as a weekly benefit, the daily benefit is calculated based on the employee’s average weekly wage divided by the average number of days the employee worked per week.

In arriving at the average number of days the employee worked per week for the purpose of determining the employee’s wage for one day, the employer should average the number of days the employee worked per week over the same eight weeks used in calculating the employee’s average weekly wage. The average number of days worked may be fractional in order to accurately convert the average weekly wage to an equivalent daily wage.

Payment to the employee must be completed as soon as possible, but no more than 18 days from the date of the request. If a request for PFL was previously unspecified, payment must be made within 30 days.


Paid family leave is 100% employee-funded. Employees are required to contribute, by payroll deductions, to either the premium cost associated with the employer’s attainment of PFL insurance or to the employer’s cost for self-insuring.  That said, the State has indicated that employers may voluntarily choose to fund part or all of the PFL program.

Currently, 0.126% of the employee’s weekly wage up to a maximum of 0.126% of the New York State average weekly wage can be deducted from an employee’s paycheck for PFL purposes. For example, if an employee earns $1,000 per week, (which is less than the State’s average weekly wage currently set at $1,305.92), the maximum PFL deduction for the employee is 0.126% of the $1,000 weekly earnings, or $1.26 per week.

If the employee earns more than the State’s average weekly wage, the maximum PFL deduction for the employee is 0.126% of the State average, or $1.65 per week, which is the maximum deduction. As confirmed by the final regulations, employers may, but are not required to, begin deductions as of July 1, 2017.


All employees are required to contribute to the cost of PFL, even if they have not yet been employed long enough to be entitled to PFL.

One exception: Employees, such as seasonal and temporary employees, who are hired for short periods of time than is necessary for them to be eligible to receive PFL benefits, may waive PFL.

However, there are very specific requirements for doing so. For example, an employee is only hired for a two-month period of time, the employee can waive or opt out of making payroll deductions towards the cost of PFL by filing a PFL waiver with the employer. If the employee’s term of employment then changes so that now the employee is employed for longer than the 26-week/175-day eligibility threshold, a previously filed opt-out waiver will be deemed revoked within eight weeks of the change. At that point, the employee must make PFL premiums and make a retroactive payment for the period back to the employee’s date of hire. However, the final regulations do not address how the employer is allowed to collect the back premiums.

Type of Leave

Employees can take PFL for the following reasons:

  • To provide care, including physical or psychological care, to their family members due to a family member’s serious health condition;
  • To bond with their newborn children during the first year of the child’s life, or, in the case of adoption or foster care placement, for the first year after the placement of a child with the employee;
  • For any qualifying reason as provided for under the federal Family and Medical Leave Act arising from the employee’s spouse, domestic partner, child, or parent being on active military duty, or, alternatively, being notified of an impending call or order to active military duty.

If two parents working for the same employer wish to take bonding leave for a newborn or newly placed child or to care for a family member, each employee is entitled to the maximum amount of PFL. How ver, the employer may limit the employees from taking leave at the same time for the same family member. PFL can be taken continuously or intermittently, even for bonding leave.

Definition of Family Member

A Family Member is a:

  • Spouse
  • Domestic partner
  • Child
  • Parent or parent-in-law
  • Grandparent or grandchild

“Child” means a biological, adult, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis.

“Parent” means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. Sons-in-law and daughters-in-law are not covered.

Exigency leave is not available for leave necessitated by the military service of a grandchild or grandparent.

Overlap with Disability Pay

An employee who is eligible for both state disability benefits and PFL during the same period of 52 consecutive calendar weeks shall not receive more than 26 total weeks of disability and family leave benefits during that period of time.

Note: In the case of leave taken for the purpose of bonding with a child, on or after January 1, 2018, an employee may seek PFL benefits during the first twelve months after the child’s birth, or during the first twelve months after the placement of the child for adoption or foster care with the employee, even in the event the child was born or placed prior to January 1, 2018. As a result, the employee will be entitled to up to eight weeks of PFL in 2018. For example, an employee who takes and exhausts FMLA leave for a newly placed child beginning on October 1, 2017, could then take bonding leave under NY PFL for another eight weeks from January 1, 2018 through September 30, 2018.

Other situations in which PFL benefits may not be payable include when the employee is:

  • Receiving total disability payments pursuant to a claim for workers’ compensation, volunteer firefighters’ benefits, or volunteer ambulance workers’ benefits
  • Not employed or is on administrative leave from his or her employment
  • Collecting sick pay or paid time off from the employer
  • Works at least part of that day with pay for the employer or for any other employer; and/or As noted above, using the same time for the same family member in question if spouses are employed by same employer.

In the event that a period of PFL benefits received also constitutes leave under the FMLA, the employer must notify the eligible employee of such designation and shall also provide the employee with the notice required under theFMLA. The final regulations warn that, if an employer fails to provide the requisite FMLA notice, the employer cannot exhaust FMLA leave.

If an employer designates a period of family leave to be covered by the FMLA for a reason also covered under section 201 of the Workers’ Compensation Law, and if the employer informs the employee of their eligibility for family leave benefits and the employee declines to apply for payment under PFL, the employer and its insurance carrier may count the leave against the employee’s maximum duration of PFL in a 52-week period.

The employer may elect to track hours taken for FMLA for any day in which the employee is paid, works at least part of the day, and is thus not  eligible for PFL pursuant to the New York Workers’ Compensation Law. When the total hours taken for FMLA in less than full day increments reaches the number of hours in an employee’s usual work day, the employer may deduct one day of PFL benefits from an employee’s annual available PFL benefit. The employer is not be entitled to reimbursement from its carrier for such paid FMLA hours.

The 52-week period is computed retroactively from each day leave is requested. Therefore, during the first year PFL is in effect, employers will look back into a period which may include disability benefits taken in 2017.

Employee Notice Requirements

PFL notice requirements are similar to that required under the federal FMLA.

Foreseeable leave: An employee must provide the employer with at least 30 days’ advance notice before leave is to begin if the qualifying event is foreseeable. The final regulations provide examples of foreseeable qualifying events: an expected birth, placement for adoption or foster care; planned medical treatment for a serious health condition of a family member; the planned medical treatment for a serious injury or illness of a covered service member; or other known military exigency.

If 30 days’ advance notice is not practicable for reasons such as a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. The employee must advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.

When the need for family leave is foreseeable and an employee fails to give 30 days’ advance notice, the self-insured employer or the carrier may file a partial denial of the family leave claim for a period of up to 30 days from the date notice is provided.

Unforeseeable leave: When the approximate timing of the qualifying event and need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the qualifying event.

“As soon as practicable” means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances surrounding the qualifying event.

The final regulations confirm that it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. Moreover, the regulations state that, as to intermittent leave, the employer may require the employee to provide notice as soon as is practicable before each day of intermittent leave.

Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, PFL may be delayed or denied.

Employer Notice Requirements

The employer has two specific notice obligations under  PFL:

  • Employers must display or post a typewritten or printed notice concerning PFL in a form prescribed by the State. The notice must be displayed in plain view where all employees and applicants can see it.
  • If an employer maintains written guidance for employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning PFL and employee obligations under PFL shall be included in the handbook or other written guidance.

If an employer does not have written policies, manuals, or handbooks describing employee benefits and leave provisions, the employer must provide written guidance to each employee concerning all of the employee’s rights and obligations under PFL, including information on how to file a claim for paid family leave.

Making a Claim to be Paid

An employee requesting PFL must complete the Request for Paid Family Leave in the format prescribed by the State or give notice of a claim in another format designated by the carrier or self-insured employer. A carrier or self-insured employer that designates another format for filing a request for family leave must continue to accept the Request for Paid Family Leave in the format prescribed by the State.

Once an employee requests PFL, the employer or insurance carrier must complete the employer information contained in Part B of the PFL-1 form and return it to the employee within three business days.

The employee must submit the request for PFL together with the information supplied by the employer, and with any necessary certifications or proof of claim documentation, to the carrier or designated third-party administrator.

The carrier or self-insured employer must accept certification and proof of claim forms in the format prescribed by the State, but may also accept certifications in another format that complies with the requirements of PFL. No benefits are required to be paid until the completed request for paid family leave, together with any necessary certifications or proof of claim documentation, has been submitted.

Medical Certification

For a family member: When leave is taken because of the serious health condition of a family member, the employee must obtain a medical certification from a health care provider that sets forth the following information:

  • Name, address, telephone number, email address (if available), license number and state of license of the health care provider, and the type of medical practice/specialization;
  • Approximate date on which the serious health condition commenced, and its probable duration;
  • Certification regarding the patient’s health condition for which PFL is requested. The certification must be sufficient to support the need for leave; and
  • An estimate of the frequency and duration of the leave required to care for the family member, including whether the need for care is continuing or on an intermittent basis.

Bonding time: An employee requesting PFL to bond with a newborn child or newly placement child may be required to provide the following:

  • A birth mother’s claim for paid family leave to bond with a child must be supported by documentation in the form of (1) If available, a birth certificate; or (2) If a birth certificate is unavailable, documentation of pregnancy or birth from a health care provider that includes the mother’s name and the child’s due or birth date.
  • A parent’s (other than a birth mother) claim for paid family leave to bond with a child must be supported by documentation in the form of: (1) If available, a birth certificate; (2) If no birth certificate is available, a voluntary acknowledgment of paternity or court order of filiation; (3) If the documents in (1) and (2) are not available, then the employee must provide (A) a copy of documentation of pregnancy or birth from a health care provider that includes the mother’s name and the child’s due or birth date (see section (a)(2) above), and (B) a second document verifying the parent’s relationship with the birth mother or child (i.e., marriage certificate, civil union documents, or domestic partner documents); (4) If the documents in (B) of subparagraph (3) above are not available a parent may submit other documentary evidence of parental relationship for evaluation on a case-by-case basis.
  • An adoptive parent’s claim for paid family leave to bond with a child must be supported by documentation in the form of: (1) A court document indicating that an adoption is in process or is being finalized; or (2) When leave is taken prior to completion of the adoption, a document evidencing that the adoption process is underway, including but not limited to, a signed statement from an attorney, adoption agency, or adoption-related social service provider that the employee is in the process of adopting a child; (3) If the second parent is not named in the document(s) in (1) or (2) herein, the employee must provide (A) a copy of the document evidencing the adoption, and (B) a second document verifying the relationship to the parent named in the document (i.e., marriage certificate, civil union documents, or domestic partnership documents).
  • A foster parent’s claim for paid family leave to bond with a child must be supported by documentation in the form of: (1) A letter of placement issued by the county or city department of social services or local volunteer agency; (2) If the employee is not named in the placement document, submit (A) a copy of the document evidencing the placement, and (B) a second document verifying the relationship to the parent named in the document (i.e. marriage certificate, civil union documents, or domestic partnership documents).

Acceptance or Denial of PFL Claim

Once the carrier or self-insured employer receives a completed request for paid family leave with the necessary certification, the carrier or self-insured employer must pay the claim or deny the claim within 18 days. In the event a completed request is received more than 18 days before the occurrence of a qualifying event, the carrier or self-insured employer shall send payment to the employee within five days following the qualifying event. The carrier or self-insured employer may deny the claim without prejudice because of an incomplete claim package or insufficient certification or proof of eligibility. If the claim is denied without prejudice due to an incomplete claim package, the carrier or self-insured employer must notify the employee within five business days of each piece of required information that is missing from the employee’s request for paid family leave.

The carrier or self-insured employer also must provide the employee with an explanation of how to properly complete the request for paid family leave (and information regarding arbitration should the employee have any disputes). If the claim is not refiled within 30 days from when leave was first
taken, the carrier or self-insured employer may deny the claim. A PFL denial must state the reason, repeat any relevant information filed in the Request for PFL, and include any other information considered by the carrier in making the decision.

Unless the employee requests to receive correspondence by regular mail, the carrier or self-insured employer may send the denial and accompanying information by email.

The carrier or self-insured employer may deny the claim with prejudice for the following reasons:

  • Employee has not been employed by the employer for a sufficient length of time to be eligible for benefits.
  • Employee is not an employee of the employer.
  • Employee is not an employee of a covered employer.
  • The family member that the employee is seeking leave to care for is not a covered family member under subdivision (20) of section 201 of the Workers’ Compensation Law.
  • The amount of leave requested exceeds the statutory maximum benefit period for family leave or disability benefits under Article 9 of the Workers’ Compensation Law.
  • The amount of family leave requested exceeds the statutory maximum or the family leave needed as stated in the medical certification of the employee or the qualifying event was foreseeable and the employee failed to provide the employer with notice as required. In such a case, the carrier may issue a partial denial of any excess leave or a partial denial for 30 days when the qualifying event was foreseeable and the employee failed to provide the employer with notice. All benefits requested that have not been denied must be paid within the statutory time frame.
  • The employee requesting leave is the perpetrator of domestic violence or child abuse against the care recipient.
  • The claim was not timely made.
  • The employer did not have coverage on the date family leave began.

Reinstatement Rights

A covered employee who has received PFL must be reinstated to his or her employment upon conclusion of his or her leave in accordance with section 203- b of the Workers’ Compensation Law. The final regulations do not clarify how “reinstated to his or her employment” is defined, so employers should follow the requirements of the FMLA until we receive more guidance from the State.

PFL contains a unique requirement for an employee not reinstated to his or her employment. In the event the employer declines to reinstate the eligible employee, the employee must file with the employer and the State a formal request on a form prescribed by the State that the employer come into compliance with the provisions of sections 203-b and 120 of the Workers’ Compensation Law.

Within 30 days of the date of this request, the employer must either take corrective action or file a formal response to the employee, any attorney or representative who the employee may have retained, and the State, explaining the reason that corrective action will or will not need to be taken. The failure of the employer to fully complete the formal response in a timely fashion may result in adverse findings and conclusions.

The employee must file a complaint under section 120 of the Workers’ Compensation Law within two years after the employer’s response above.

Maintenance of Health Benefits

An employee who is provided health insurance by his or her employer is entitled to the continuation of that group health insurance coverage during PFL on the same terms as if he or she had continued to work. The employee must continue to make any normal contributions to the cost of the health
insurance premiums.

PFL’s provisions for dropping coverage for the employee’s failure to pay premiums is the same as the provisions under FMLA. However, the PFL regulations do not address whether an employee will be required to repay premiums paid by the employer in the event he/she does not return from PFL, as is the case under FMLA.

Application with Collective Bargaining Agreement

Employers with employees or a class or classes of employees subject to a collective bargaining agreement are not required to supply such employees with PFL coverage when the collective bargaining agreement:

  • Provides paid family leave benefits at least as favorable as this law;
  • Does not permit an eligible employee to waive his or her rights to PFL or otherwise opt-out except as permitted by the law.

With the exception of the requirements set forth above, a collective bargaining agreement may provide rules related to PFL that differ from the requirements set forth under the law.

Effective Date

Employers may begin payroll deductions on July 1, 2017, and employees may begin using PFL benefits on January 1, 2018. Employers have quarterly and annual reporting requirements to the State about its PFL program. The State will provide additional information on this requirement later this year. You can access the statute here and final regulations here.

Poorly Implemented FMLA Policies and Procedures are Killing Employers. Don't Be That Employer.

Posted in Court Decisions, Intermittent Leave, Notice

Poorly implemented FMLA policies and procedures are in the spotlight this week.  And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.

Their mistakes, however, are golden lessons for the rest of us.

Confusion Over How Much Maternity Leave is Provided

In Sad Employer Story No. 1, Bhavani sought leave to give birth to her child and to bond with the child. No sweat, said the employer, who had surely gone through this exercise before.  The employer maintained both an FMLA policy and a standalone “maternity leave policy,” which read (in part) as follows:

Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave.

At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.

Notably, these two policies were completely silent on whether FMLA leave and maternity leave ran concurrently or consecutively.

To make matters worse, the employer failed to provide Bhavani the critical FMLA Notice of Eligibility or Designation Notice, so she didn’t have a clue what was coming or going when it came to FMLA leave.

When Bhavani later was terminated when she did not return to work on time, she cried foul, claiming that the employer’s policies and lack of notice led her to believe she was entitled to additional leave. The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether Bhavani’s employer violated the FMLA when it declined to give her additional leave.  Rengan v. FX Direct (pdf)

Confusion Over How Much Notice an Employee Should Provide When Requesting FMLA Leave

In Sad Employer Story No. 2, Lisa injured her shoulder while falling through the hatch of a catamaran boat.

Ouch. That couldn’t have felt very good.

As a result, Lisa requested and was granted FMLA leave beginning in early July. On her leave of absence form, Lisa indicated that her return date would be July 31. Her physician later cleared her to return not on July 31, but on August 4.

In Lisa’s employee handbook, it stated:

If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.

But then it also mentioned this:

If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date.  (My emphasis, not the court’s.)

A bit confusing. In Lisa’s situation, the employer considered July 31 to be her last day of FMLA leave (since that’s the date she originally indicated). Therefore, when Lisa was a no-show on August 1, it considered her to have voluntarily resigned her employment. After all, that’s what the policy says, right?

Not so fast. The policy also states that Lisa has four business days to inform the employer of the need for FMLA leave. That’s practically a lifetime. So, when the employer terminated her employment without giving her up to four business days to comply, the court found that the employer potentially violated the FMLA. Perry v. Isle of Wight County  (pdf) My friend, Eric Meyer, has a good synopsis of the case here.

Insights for Employers

A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures:

  1. Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave. The FMLA regulations allow employers to run paid leave concurrently with FMLA, so do it.  And make it crystal clear in your policy.
  2. When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, it must provide the individual notices to the employee.
  3. Draft and maintain very clear call-in procedures, and ensure they are demanding. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” What kind of useless parameters are these? Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”  If you are inclined to be a bit more generous, consider cutting it back from the four business days allowed by Lisa’s employer. These lengthy reporting grace periods frustrate your ability to properly staff your operations, lead to misuse of FMLA and, as here, they create easy opportunities for you to violate them, resulting in expensive attorney’s fees and potential liability.

Need to Stay Informed on Changes to State and Local Leave of Absence Laws? Meet Our New Resource: Leave Law Insights!

Posted in Leave Law Insights, Legislation, Paid Leave

Over the past several years, as employee leave of absence legislation has become increasingly complex, employers have asked us to create a product that provides timely analysis of all the changes in state and local leave of absence laws.

Clearly, there is a need to stay up to date on these changes, since they significantly impact the manner in which employers provide benefits to its employees. On a moment’s notice, city and county governments also are passing new leave laws, which only further complicates an employer’s compliance efforts.

We have your answer. 

Meet Leave Law Insights, which provides subscribers regular updates on any leave of absence legislation that has been signed into law. Our analysis will cover paid and unpaid leave laws and ordinances at the federal, state, city and county level.

What is Leave Law Insights and What Does It Cover?

Leave Law Insights provides a regular and complete analysis of all recently-enacted leave laws and ordinances. Our updates, which begin this month (August 2017), help you quickly digest a new law while providing the comprehensive information necessary to enhance your compliance efforts. These updates include all paid and unpaid leave laws, except those that apply only to public/municipal employees.

Each update includes an analysis about key aspects of the law, such as:

  • Covered employers and eligible employees
  • Entitlement/reasons for leave
  • Key Definitions (e.g., family members, other critical terms necessary to interpret the law)
  • How leave is accrued and, if paid leave, requirements for payment of wages and carryover
  • Employer/employee notice requirements, including links to employer postings
  • Requirements for certification and reinstatement of employment
  • Interaction with other laws
  • Links to the law and regulations

Each legal update also includes key additional guidance:

  • Insights for Employers: providing additional practical guidance on key aspects of each law
  • Quick Takes: highlighting minor amendments to current state or local leave laws

How Often Will We Provide Updates on New Leave Laws?

We will provide updates on all new leave laws as they are enacted, so we anticipate providing an update on at least a monthly basis. Within the upcoming months, we will provide updates on a web portal so that you have real-time access to these legal changes and a collection of current leave laws across the country.

Want a Sneak Peek?

Our first issue, which is immediately available, is 55 pages in length and analyzes all leave laws/ordinances enacted over the past year. Take a sneak peek at this month’s issue of Leave Law Insights:

Who Should Subscribe to Leave Law Insights?

In short, any employer, broker and third party administrator will find our leave law updates critical to their compliance efforts. More specifically, Leave Law Insights is a necessary tool for any employer with multi-state operations, HR departments which lack the resources or time to track these laws, HR teams without dedicated leave administrators, and employers with workers taking significant amounts of leave.

In a timely and cost-effective manner, this resource will relieve you of the seemingly endless task of tracking leave of absence laws so that you can turn your attention to more strategic opportunities for your organization.

How Do You Subscribe to Leave Law Insights?

We offer Leave Law Insights at three different subscription levels:

  1. Just the Updates. Our basic subscription delivers Leave Law Insights in pdf format directly to your E-Mail Inbox. For the next 30 days, we are offering our loyal blog readers an annual subscription for $1,200.  (Regular subscription = $1,500)
  2. Updates and Consultation.  If you need assistance interpreting these new laws and understanding how the nuances apply in your workplace, we offer ongoing consultation for an additional annual flat rate of $1,000. Under this option, we set up regular one-on-one telephone conferences to discuss these laws.  You receive legal updates and access to our consultation for a total annual discounted rate of $2,200.
  3. Receive Leave Law Insights for FREE.  I offer a service known as CALM — Compliance in Accommodations and Leave Management — in which I assist employers and third party administrators with day-to-day FMLA and ADA questions. Under CALM, I provide employers and third party administrators practical guidance on the most difficult leave management and accommodation questions you face for a flat $750 monthly retainer. We are offering Leave Law Insights free of charge for 12 months to our CALM clients.  Click here for more information about our CALM service.

Are you ready to get started? Email me at jsn@franczek.com or contact me by phone at (312) 786-6164 to discuss and confirm which subscription is best for you.

FMLA FAQ: Can a Chiropractor Certify FMLA Leave for the Chronic Bad Back? And Are There Limits?

Posted in FMLA FAQs

Backs across America must collectively be giving out, as my clients’ questions about medical certification from chiropractors are on the increase.

So, I’ll hit this one head on: Is a chiropractor considered a health care provider under the FMLA? And are there any special rules that apply to them? Yes and yes.

Are Chiropractors “health care providers”?

Chiropractors are considered health care providers but only to the extent that their work with the patient involves “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.” 29 C.F.R. § 825.125(b)(1)

That’s a mouthful.

Let’s break it down. Where medical certification is provided through a chiropractor, two factors must be present: 1) the chiropractor must actually have taken an x-ray of the back; and 2) the x-ray and treatment from the chiropractor must relate to subluxation (i.e., misalignment) of the spine.

If these factors are present, the chiropractor is considered a “health care provider,” and therefore the treatment and any time off due to incapacity (because of the misalignment of the spine) is covered by the FMLA. The time off work could be continuous or intermittent.

How have the Courts Interpreted Situations involving Chiropractors?

There are very few cases dealing with chiropractors, but a few recent cases give you a flavor of what courts have required where chiropractors are concerned:

  • No x-ray = No FMLA Leave!  In Olsen v. Ohio Edison Co., the employee requested FMLA leave to treat with a chiropractor, but the chiropractor didn’t take any x-rays at the time he completed medical certification. Because the chiropractor hadn’t yet taken any x-rays, the court determined that the chiropractor was not acting as a health care provider as defined by the FMLA regs, and it dismissed the FMLA claims.
  • Davison v. Roadway Express: The court found that the employee could be entitled to FMLA leave where he was able to show that the chiropractor took an x-ray, treated him for subluxation and that he needed leave on a continuous basis and for flare ups due to his back condition.

Insights for Employers

In determining whether you are required to grant FMLA leave in situations involving chiropractic care, you should confirm through medical certification:

1. Whether an x-ray of the back was taken
2. Whether the chiropractor has found and is treating for subluxation of the spine
3. Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave

Anything short of this is not protected by FMLA.

DOL Will Again Issue Opinion Letters on FMLA, FLSA, and Other Sticky Employment Law Scenarios

Posted in Regulatory Activity

Chidren-Kissing-Funny-ImageThe U.S. Department of Labor announced today that it will again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act.  The DOL has even established a new webpage to submit requests for opinion letters and to review old opinion letters.

Sweet Baby Jesus!  I’m like a kid on Christmas morning.  Oh DOL, I could plant a big, wet kiss on you right now! And that says a lot, since it’s not often I want to kiss you.

In announcing the agency’s decision, Secretary Acosta put it plain and simple:

Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes . . . The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.

As you may recall, the Obama Administration did away with opinion letters, replacing them with a mysterious, bureaucratic process in which it infrequently published “Administrator Interpretations,” which frankly, consisted of more political mumbo jumbo on mundane, tangential topics than practical guidance for employers.  Though opinion letters were limited in nature, they addressed real life situations and provided some reasonable guidance on which employers could rely in addressing day-to-day FMLA and other employment law issues.

Oh goodness, what will I choose as my first love letter to DOL?  Perhaps I’ll ask how long is a second opinion good for?  Or whether employers ask for a second medical certification where it’s clear the employee is treating with a specialist? Or maybe at what point can we terminate an employee when the employee fails to return timely medical certification? And surely this one: When recertification undermines an employee’s (mis)use of FMLA, how far back can you deny FMLA leave?  Or maybe one of my deep thoughts: Why doesn’t the DOL recognize undue hardship under FMLA?

The possibilities are endless!  Which one should I choose first?

This guy is open for business if you want to request an FMLA opinion letter from the DOL.  Catch me while I’m giddy — I might offer you a two-for-one deal.

Can an Employee take FMLA Leave to Care For a Sibling? Before You Say "No," Read This

Posted in Caring for Family Member, DOL Initiatives
My siblings, Kevin and Laura, and me. Aren't they just adorable?

My siblings, Kevin and Laura, and me. Aren’t they just adorable?

I love my brother dearly. I love my sister just as much.

And whenever we near the end of life’s journey (a long time from now, of course), I’ll be there to care for them. And they, for me, despite the many piledrivers I inflicted upon my younger brother when we both were wee lads and pretended to be WWF wrestling stars.

I will have to care for them, however, without the protection of the FMLA.  After all, the law makes clear that I can take job-protected leave from work only to care for my parents, spouse and children. It says nothing about siblings, which means they aren’t covered.

Given the clarity of the FMLA, why then are clients increasingly asking me whether their employees can take FMLA leave to care for a sibling?

Is the DOL To Blame?

Me thinks the groundswell of inquiries on this topic has something to do with the Department of Labor. In 2015, the DOL issued a fact sheet explaining that an employee would be entitled to FMLA leave to care for a child under the same circumstances as a biological or legal parent so long as the employee has assumed parental responsibilities for a child.  The DOL explained as follows:

In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child. . . Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.  (My emphasis on the term “siblings,” not the DOL’s.)

The DOL didn’t stop there. The agency also issued FAQs which, among other things, answered the question: “I am a caregiver for my brother who is not able to take care of himself. Can I take FMLA leave for his care?:” The DOL curiously responded as follows:

Maybe. FMLA leave to care for a relative is generally limited to caring for a spouse, son, daughter, or parent. An eligible employee standing in loco parentis to a sibling who is under 18, or who is 18 years of age or older and incapable of self-care because of a mental or physical disability, may take leave to care for the sibling, if the sibling has an FMLA-qualifying serious health condition.

Sibling advocacy groups have been quick to use these simple one-liners above as their golden ticket for employees to take FMLA leave to care for their sibling(s). I don’t blame them; I would, too.

But let’s tap the brake for a moment.

Courts Don’t Agree with the DOL . . . So Far

As an initial matter, courts have quickly shut the door on employees seeking FMLA protection to care for their siblings:

  • Smith v. Women’s Healthcare: “[t]he care of a sibling…is not protected under either state or federal law;” therefore, care for a sister is “a matter of [an employer’s] discretion.”
  • Gude v. Rockford Center: “caring for one’s sibling is not a guaranteed right under the FMLA.”
  • Olejarz v. Shaler Twp.: “the provisions of the FMLA make clear that the Act does not extend to leave taken to care for a sibling.”

Therefore, the courts still clearly need to be convinced that the FMLA somehow affords leave rights to employees to care for their siblings.  They don’t appear at all ready to enlarge the FMLA to cover brothers and sisters.

But Isn’t There Still a Opening for Siblings Under the FMLA?

A really tiny opening. Think eye of a needle.

Given that the specific language in the FMLA simply does not include siblings, the only sliver of hope for the employee is to shoehorn themselves into the category of “parent” (as alluded to by DOL above) by establishing that they stand in loco parentis to the adult sibling they are asking to care for.

First, the employee must show that the sibling is disabled under the ADA and incapable of self care, and that the employee will be providing physical or psychological care to the sibling. In many cases, this may not be too high a hurdle.

That’s the easy part.

Second, the employee must show that they will or intend to have day-to-day responsibility and to financially support the sibling in the same way a parent would provide for a child.  This is a big deal and tough to establish. (Btw, I don’t buy into this whole DOL position that the employee need only provide daily care or financial support. This position is ripe for a legal challenge.)

Some common scenarios come to mind:

  • When your employee, Susie, tells you she’s going to California to care for her brother who is seriously ill, she hardly establishes in loco parentis when she tells you she’ll “be back in one week” or even that she’ll “return when he’s feeling better.” This not in loco parentis. Rather, is Susie moving to California permanently, or conversely, is the brother moving in with your employee? Now, we’re getting warmer.
  • When your employee, Johnny, tells you he has a “power of attorney” over her sibling, this doesn’t establish, in itself, in loco parentis. So what if they have power of attorney? This hardly shows that they are providing day-to-day care or financially supporting the sibling.

Despite the employee-friendly language in an FAQ on the DOL website, FMLA leave for siblings should be a rare event indeed. When your employee seeks FMLA leave to care for a sibling, it’s critical that they first meet the stringent criteria above. Don’t settle for anything less.

Hat tip: To Amanda Bast, our legal intern, who assisted me with some of the research above.

Manager's Thoughtless Comment Resurrects Poor Performer's FMLA Claims

Posted in Court Decisions, Retaliation

stupid boss commentThere may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut.

The latest edition involves Debby and her boss, Jason.

I can’t tell precisely what Debby did for her employer, Wells Fargo, but it’s safe to say she interacted with a number of Wells Fargo’s clients and had a sales quota. That’s enough background for this story because it is undisputed that clients began complaining extensively about Debby, and she fell miserably short of her sales goal. Nearly half way through the sales year, Debby had only met about 11% of her entire sales goal.

That’s not good.

As these stories go, shortly after being told that she was “off track” in nearly every work category, Debby took medical leave for five weeks due to a medical procedure performed on her neck. The time off did not rejuvenate Debby. Upon her return, her performance further deteriorated to the point that termination was the only option. Wells Fargo had all the ammo it needed — more client complaints, poor sales numbers and that fact that Debby simply wasn’t trying anymore.

Unfortunately for Wells Fargo, however, Debby’s boss snatched defeat from the hands of victory. In an email recommending Debbie’s termination, he outlined her performance issues but inexplicably added that Debbie’s termination “was justified because ‘Debby submits a request for medical leave.'”


Last month, a court refused to dismiss Debby’s FMLA claims, finding that the boss’ email is evidence that she may have been terminated because she took FMLA leave. Stewart v. Wells Fargo (pdf)

Insights for Employers

Let’s not dwell on these facts any longer. Let’s move straight to the lessons learned, shall we?

1.  Employers, Your Front Line Managers Are Killing You.  For me, the most powerful line in this court case wasn’t the boss’ foolish email. Rather, it was his acknowledgment in his deposition that he was “not really familiar with FMLA leave” because he was “on the front line.”


Employers, your front line managers like the one here are ticking time bombs. Sure, they generally are very good people, and they mean well. But you also put them on the front lines with no FMLA training whatsoever. So, why are you surprised when your managers send emails like the one above?

Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

2.  Remember that similarly situated employees can sink your FMLA case. The court refused to dismiss Debby’s case for the additional reason that other employees also missed their sales goals and were not terminated like Debby. Before you hit the termination button, it is critical that you compare the employee at issue to those she will be compared to. Are others missing their sales mark or otherwise under-performing? How do you differentiate them? Call your employment counsel and strategize before you make the decision.

Can We Lawfully Terminate an Employee After He Submits a Vague Doctor's Note Seeking an Extension of Leave? In a Word, Yes.

Posted in ADA, Court Decisions

doctor's note with borderAn employee’s 12 weeks of FMLA leave has exhausted, and over the past several weeks, he’s provided you a series of vague doctor’s notes typically containing nothing more than a one-liner extending his medical leave of absence until his next appointment.

Sound familiar? Makes you want to scream, right?

What if I told you that, instead of screaming, you could lawfully terminate this employee?

Interested? Read on.


Joyce served as an Economic Support Specialist for Milwaukee County, Wisconsin. She was on a team responsible for providing public assistance to county’s citizens.  Her work included processing applications for benefits and answering phone calls. Not a terribly specialized position, and I’ll explain why that’s important below.

For several years, Joyce dealt with severe back pain and took FMLA leave from time to time as a result. In summer 2010, she began continuous FMLA leave, which exhausted on October 18.  On that day, Joyce asked for additional leave, and the County provided her another three weeks to return to work, or November 8.

Joyce did not return on November 8. She did, however, submit two doctor’s notes supporting her need for even more leave. One was dated November 3 and stated simply: “medical leave of absence until 11/17/10.” The second was dated November 12 and said only “medical leave of absence until 12/17/10.”

The notes – or even Joyce herself – said nothing more.

One week later, the County informed Joyce that it was contemplating terminating her employment, but before doing so, it invited her to a meeting to discuss her situation. It also invited her to bring “any documentation she wished to submit for consideration.” Joyce attended the meeting and again made clear she could not return to work.

The County terminated her employment about one week later. Joyce then found herself an attorney who apparently thinks vague doctor’s notes win ADA cases, and she sued.

The Ruling

The court dismissed Joyce’s case faster than it took her doctor to write a one-liner on that prescription pad doctor’s note.  Finding that attendance was an essential function of Joyce’s job, the court reaffirmed the basic principle that Joyce’s employer could expect her to report to work. Therefore, she could not enjoy the protection of the ADA [or, in this case, the Rehab Act, which is the public sector equivalent of the ADA].

In dismissing her claims, the court summed it up this way:

[Joyce] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of the treatment.  Whitaker v. Wisconsin Dept. of Health Services (pdf)

Insights for Employers

Sweet justice! What a golden nugget for all the HR and leave professionals and in-house counsel out there who feel helpless when dealing with an employee whose “ADA leave” seemingly has no end.

So, what’s the practical effect of this decision?

1. Employers can be more aggressive when they receive vague doctor’s notes.  The best part of this court’s decision was not the smack down of this would-be disability discrimination claim (thought that was rather nice). Rather, the court laid out what it expected to find (at a minimum) in a doctor’s note supporting additional ADA leave:

  • Whether the employee is receiving treatment
  • The likely effectiveness of the treatment
  • The medical likelihood that leave would enable her to return to work regularly

This is useful guidance, and it will help us address critical questions when we’re trying to determine whether our employee will be able to return to work anytime soon.  But we need not stop here. In EEOC’s resource document on leave as a reasonable accommodation, the agency makes clear that employers may specifically ask the health care provider to respond to questions drafted by the employer and designed to enable the employer to understand: 1) the need for leave; 2) the amount and type of leave required; and 3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave).

If EEOC is inviting us to do this, and we now have an insightful court decision outlining additional information you can insist upon, why aren’t you implementing this in your own accommodation process? Call your employment counsel today [ahem, I know a guy…] to prepare correspondence and forms to use on these occasions.

2.  We still have to communicate with our employees.  Let’s be clear: this employer prevailed here not because the employee turned in two pathetic doctor’s notes. It ultimately won because it gave Joyce yet another chance to explain herself after she submitted the doctor’s notes.  Engaging employees like Joyce in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave, I ask the employer about all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues. 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.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

3.  When employees submit crappy doctor’s notes, you need not consider undue hardship.  Normally, I would encourage you also to assess the hardship that the employee’s absence has on your operations before you hit the termination button. However, this court case is a reminder that, when an employee submits vague, meaningless doctor’s notes that don’t provide the key information above, the employee is not a “qualified” individual protected by the ADA.

If you had to assess the hardship Joyce’s extended absence is creating, it might be difficult, since she holds a clerical position, the duties of which could be filled by a temp or assumed by other employees. Yet, we don’t even get to this undue hardship analysis because the vague doctor’s notes save us.

H/t to Kate McGovern Tornone for highlighting this case!