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.

Facts

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!

These Three Key FMLA and ADA Resources Will Help You Conquer the World

Posted in Uncategorized

If you have any interest in vastly improving your FMLA and ADA mojo, here are three can’t miss resources you need to make part of your professional reading and education each spring:

aba_logo_01.jpg1.  Review the ABA’s Report of 2016 FMLA Cases.  Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Could you imagine anything more scintillating?  Although our little FMLA blog catches some of the key FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision from 2016. Seriously, every one of them.

This year’s report was just released and can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to Jim Paul and Maria Audero, who spearhead the annual summary.

2.  Attend 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’s two-day ADA and FMLA Compliance Update is an event you should not miss.  Really, I cannot say enough about NELI — they are the best of the best in hosting employment-related seminars for employers and management side attorneys.

neli.JPGThe ADA & FMLA Compliance seminars are held in April in San Francisco (April 6-7), Washington, DC (April 13-14) and Chicago (April 20-21).  This year’s seminar information can be accessed on NELI’s website here or in its seminar brochure (pdf). Not to scare you away, but I will be presenting on the ADA at the Washington, DC session.  More importantly, I will be performing on stage with David Fram, who (in my humble opinion) is the single best presenter on ADA issues in the history of the universe. Don’t believe me? Come find out. You won’t be disappointed.

NELI attendees also receive a binder of the very best substantive materials in the ADA and FMLA areas. There is no resource I keep closer to my side throughout the year.

3.  Head on Over to DMEC’s ADA & FMLA Compliance Conference:  You can’t do one without the other. Each year, the Disability Management Employer Coalition sponsors three days of FMLA and ADA goodness!  You leave there eating, drinking and sleeping these two very special laws, and let me tell you — that thought is enough to give me goosebumps.

DMECDMEC has put together another gem of a compliance conference this spring.  At this year’s conference, which will be held May 1-3 in Minneapolis, I am delighted to co-present with my good friend, Marti Cardi, Vice President, Product Compliance at Matrix Absence Management.  Marti and I will in one hour highlight the key FMLA cases over the previous year and offer our insight on how they will impact employers.

See you in April. And May.

Got an Employee Who Doesn't Follow Your FMLA Call-in Policy? Apparently, You Now Have to Ask Him Why He Couldn't

Posted in Notice, Regulatory Activity

FarleyI recently had an interesting call with a DOL investigator, and I wanted to share it with you.

First, let me set the background. I represent a large national employer with multi-state locations, including several on the east coast. One of these east coast locations employed Johnny [name changed to protect the guilty], a serial FMLA abuser. Johnny never passed up an opportunity to use a Monday or Friday for FMLA leave.

This FMLA whiz kid also knew precisely when he needed to call in before his shift to avoid penalty — his employer’s policy required him to report any absence due to illness at least two hours before his shift.  Johnny regularly followed this policy to report his intermittent conditions involving anxiety and depression.

But even the best FMLA abusers slip up.  And Johnny did.

Every once in awhile, for any reason or no reason at all, Johnny failed to call off two hours before his shift started. Sometimes, he would use the letters F-M-L-A to explain his absence; on other occasions, he would cobble together some vague explanation for his health condition.

But here’s the problem – he failed to follow the employer’s call-in policy. In these situations, my client would rely heavily on the changes made to the 2009 FMLA regulations, which now require employees to follow the call-in policy or suffer the consequences:

(c) Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances . . . If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

29 CFR 825.303(c).

Because Johnny offered no unusual circumstance for his failure to call in his absence two hours before his shift started, the employer counted these as unexcused absences. Makes perfect sense to me. Moreover, when Johnny was issued discipline for these unexcused absences, he again offered no unusual circumstance as to why he failed to call in two hours before his shift.

Here’s Where the DOL Comes In

Rather than explaining to the employer why he failed to follow the call-in policy, he ran to the DOL and complained instead.  And then the DOL called me.

Even though Johnny failed to comply with the employer’s call-in policy, the DOL took the position that his absences were nevertheless FMLA protected simply because he invoked the FMLA when he finally did make contact with the Company.

Why is this so? The DOL investigator explained that the DOL reads into the cited regulation above a requirement that the employer must affirmatively ask the employee why he could not follow the employer’s call-in procedures. Yet, this so-called obligation can be found nowhere in the FMLA regulations. To the contrary, in its changes to the 2009 regulations, the DOL wholly endorsed the employer’s ability to manage its workforce through call-in procedures where unforeseeable leave is at issue, commenting that call-in procedures “are a routine part of many workplaces and are critical to an employer’s ability to manage its work force . . . [and] adherence to such policies is even more critical when the need for [FMLA] leave is unforeseen. “ 73 Fed. Reg. 68009 (Nov. 17, 2008).

As the DOL itself pointed out in the above preamble to its regulatory changes, an employer must be allowed to enforce usual and customary call-in procedures (absent an extremely rare circumstance) so that it can properly run its operations.

Insights for Employers

The DOL ultimately decided to stand down on the issue. But in this age of the helicopter parent, an era when everyone gets a participation trophy, I guess I shouldn’t be surprised that the DOL takes the position that the employer has a duty to find out why little Johnny couldn’t follow a long-established call-in policy every time he calls in late. Instead of requiring personal responsibility on the employee’s part, the DOL has opted to heap another regulatory burden on the employer.

Perhaps this simply is a new reality for employers.  If that’s the case, what are the best practices moving forward?  Several critical compliance pointers come to mind:

  1. Where an employee seeks leave that may be covered by the FMLA but has failed to follow call-in procedures, the employer should engage the employee in a discussion about the reason why he or she could not follow these procedures.
  2. In my situation, the DOL investigator took the position that we should have included in our FMLA policy a provision warning employees that they would be required to provide a reason why they failed to follow the call-in policy.  As a result of this apparently new (paternalistic) DOL requirement, employers should consider adding language to their FMLA policies warning employees (who fail to follow the call-in policy) that they are expected to provide an unusual circumstance as to why they could not follow the call-in policy.
  3. Establish and Enforce call-in procedures! Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  This is an excellent tool to combat FMLA misuse.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at best opportunity possible.

Disclosing an Employee's Medical Condition May Result in an Automatic FMLA Violation

Posted in ADA, Confidentiality

sharing-secrets_main-imageThis is a story about Scott. He has a medical condition affecting his genito-urinary system. In the words of my two-year old, Maggie, this condition sounds yucky.

Like other employees with a genito-urinary disorder, Scott didn’t want his medical condition broadcast.

To. Anyone.

In requesting FMLA leave for his condition, Scott submitted medical certification containing “sensitive and detailed” information about the ailment.   Thereafter, Scott claimed:

  • A manager blabbed about Scott’s medical condition at a meeting involving eight other employees (Scott apparently was not present); and
  • Coworkers approached him, asking about the condition and making jokes and obscene gestures about his condition in front of him.

Really?  The naive kid in me wonders, “Does this really happen in today’s workplace?

Notably, Scott wasn’t complaining that the employer denied him FMLA leave. In fact, Scott took all the FMLA leave his little heart desired. Rather, Scott argued that his employer violated the FMLA when his managers disclosed his medical condition to those without a need-to-know and when his coworkers ridiculed him for it.

To the court, the issue was a straightforward one. Under the FMLA, confidentiality of medical information is an employee right, and the allegation here is that the employer violated that right. Therefore, even if the employer granted to Scott all the FMLA leave he was entitled, the court found it possible that the employer still “materially affected” Scott’s working conditions when it allegedly breached confidentiality and other employees mocked Scott for his condition.  Holtrey v. Collier County Bd. of Commissioners

Insights for Employers

What are the takeaways from this sad case? Let me count the ways:

  1. Need I remind you? Employers, please train your managers about their obligations under the FMLA! Prohibiting disclosure of sensitive medical information must be covered in that FMLA 101 course you should convene every year. When you don’t train, you end up with lawsuits like this one.
  2. While you’re at it, don’t forget anti-harassment training, too.  When you apparently have employees joking about another employee’s medical condition and making obscene gestures in front of him (whaaat!?!), you have a problem.
  3. Under what circumstances can medical information be shared with others? In its ADA guidance, the EEOC warns that this information can be shared only for extremely limited purposes:
    •  to supervisors and managers where they need medical information in order to provide a reasonable accommodation
    •  to first aid and safety personnel if an employee would need emergency treatment
    •  to individuals investigating compliance with the ADA and with similar state and local laws
    •  pursuant to worker’s compensation laws (e.g., to a state worker’s compensation office in order to evaluate a claim) or for insurance purposes.
  4. Me thinks the employer missed a critical legal argument here — that the FMLA affords no private right of action only for a violation of confidentiality. I don’t want to get my readers bogged down in the legal morass here, but it’s hardly clear that the FMLA allows an employee to sue for this alleged violation. So, we’ll save this argument for another, more appropriate case.

Should Employers Make Paid Parental Leave a Basic Employee Benefit? Considerations for Drafting a Parental Leave Policy

Posted in Pregnancy

parental 4Netflix. Google. Proctor & Gamble. Accenture. IKEA. Greensboro, North Carolina. What do these have in common?

They are employers.

And they offer their employees paid parental leave.

As I reflect upon the year 2016 (picture me meditating in my hyperbaric FMLA chamber I retreat to every evening), I’ve been poked and prodded about one question seemingly more than any other these past 12 months: “Jeff, how many of your other clients are offering paid parental leave?”  Of course, the second question closely follows (in a hushed voice):  “Ummmm . . . can you help us draft a parental leave policy?”

I’m no gumshoe, but the evidence is mounting. By the hundreds, even thousands, American employers in 2016 have added paid parental leave to their overall benefits package. I can tell this is true simply by the number of questions my clients pose about parental leave.  (See above.)  To be clear, there is plenty to be gained by adopting a parental leave policy — boosting employee morale, showing a commitment to work/life balance, improving your recruitment of the best candidates. More importantly, maybe it’s simply the right thing to do. But this is just a blog post. It’s not meant to be some lengthy political statement, though I admit that I look forward to a day when I can laugh with my sons and daughters about the fact that our country actually haggled over paid parental leave at one point in its history.

Put politics aside for the moment (in all candor, there are arguments to be made on either side), the reality is that parental leave is picking up steam, and if I might humbly add my two cents to my dear employers: Don’t be left behind.  

I now dispose of any additional political rants, and simply offer a few nuggets you might consider (by no means exhaustive) to ensure your parental leave policies are up to snuff:

  • You choose Eligibility Requirements, not some Federal agency. Employers have the right to set eligibility for parental leave benefits. You don’t need to provide these benefits on day one of employment. You can require some period of service before accrual, as you likely do with other employment benefits.
  • Moms vs. Dads. You can treat women who give birth better than men. Really, you can. And you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn’t it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery? Me thinks so. Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees.  (See example 14 in the guidance.)
  • But let’s not get too crazy about Moms vs. Dads. Although the EEOC makes clear that you can treat mom better than dad when it comes to recovery from childbirth, employers cannot treat the sexes differently when it comes to bonding leave.  In its pregnancy discrimination guidance, the EEOC makes clear: “for purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.” If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), it must provide the same leave to men or risk a gender discrimination claim. The logic behind the EEOC’s position is clear—dads need lovin’ too.
  • “Busy” parents don’t get extra! Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period?  Crazier things have happened, and you have every legal right to limit the benefit over a period of time.
  • Exhausting other paid leave prior to parental leave is legal. Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay.  The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions.  That said, consider employee morale here and think about allowing employees to “hold back” a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).
  • Run FMLA leave concurrently with parental leave. Just do it. You have a legal right to do so. ‘Nuff said.
  • Primary caregiver provisions, anyone?  Ay de mi — the plot thickens! Some policies I’ve drafted include additional leave for the “primary” caregiver in the family. These provisions are fine, too, but I strongly encourage you to work with employment counsel to ensure you’re covering all the angles. [If you need an employment attorney, ahem, I know one.]

No disrespect to the above considerations, but there is one rule that trumps all the others.  Make parental leave more than mere lip service. After you draft the parental leave policy, and your attorneys give it the final blessing, your employees need to know parental leave is a benefit they actually can take and still move up within your organization. Senior leaders should set the example to ensure that employees feel comfortable taking leave and understand that doing so will not affect their careers.

Otherwise, this goodness above is all for naught.

__________________________________________________________________________________

Final editorial comment: If you need assistance with creating a support system for your employees and their families as they welcome new children into their family, I encourage you to consider LeaveLogic, a company that empowers employers to navigate and plan the best leave options for their employees. Founded by Anna Steffeney, LeaveLogic has helped employers ranging from small family-owned operations to Fortune 500 companies find creative and thoughtful solutions all in the name of work/life balance.

FMLA Insights Selected to Join the Hall of Fame!

Posted in Uncategorized

HallofFame200pxV3As a young tyke growing up on the South Side of Chicago, I regularly reminded my mom and dad that when I grew up, I planned to be the editor of the Chicago Tribune and a second baseman for a major league baseball team, right before I became the first American Pope.

Foolish as I was, I didn’t lack confidence. Can you tell?

As you might have predicted, I fell woefully short of my three rather ambitious goals above.  No sweat, cause little did I know at the time that I would reach even greater heights — some 30 years later, in 2016, I would be named to the ABA Journal‘s Blogger’s Hall of Fame!

Seriously, did you even know something like the Blogger’s Hall of Fame actually existed? Surely not my mom who, with an authentic Catholic soul, is still holding out hope I might rekindle that ambition for the Papacy!

That was far too long an intro to announce that, for the 6th straight year, our FMLA Insights blog has been selected as one of the Top 100 Legal Blogs of 2016 by the ABA Journal! In its 10th Annual ABA Journal Blawg 100, we were only one of seven employment blogs to receive the honor.

I’m even more excited to announce (as forecasted above) that our blog was named to ABA Journal’s Hall of Fame!  Though the honor includes no plaque in Cooperstown and no rambling acceptance speech, I am humbled by the fact that this tiny little FMLA blog has caught the attention of the finest attorneys and HR and leave professionals over the years, and that so many of you have come to rely on my advice when it comes to all things FMLA. I am extremely grateful for your support.

Despite this really cool Hall of Fame honor, we ain’t going anywhere — our FMLA blog posts will still come fast and furious!  So, if you are not already subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox.

ABA blawg 2016About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

Does Paid Leave Become Reality in a Trump Administration? And Who is His Likely Choice to Head the Department of Labor?

Posted in Regulatory Activity

TrumpEvery other employment attorney has been offering their opinion on how the election of Donald Trump will impact employment law. So, I’d feel left out of this riveting discussion if I didn’t offer my two cents about how a Trump presidency might impact by far the most exciting area of employment law — employee medical leave, of course!

How likely is employee paid leave to become reality in a Trump administration?  In short, don’t bank on it.

Trump’s Position on Employee Paid Leave

On the campaign trail, Mr. Trump did not offer a detailed position on federally-mandated paid leave for employees, though it certainly is notable that he was the first Republican presidential nominee to propose paid maternity leave for employees across the country.  Under his proposal as highlighted on his campaign website, Mr. Trump would provide six weeks of paid maternity leave to new moms, and he would pay for it by funds recovered in fighting unemployment compensation fraud.  Mr. Trump would not offer any paid leave to a father after the birth of a child, nor any paid time off (for either) for the adoption of a child.

If Mr. Trump carries through on his campaign promise and continues to endorse such a proposal, which has been pushed publicly by his daughter, Ivanka Trump, it faces a rocky road in a Republican-controlled Congress.  It’s hardly clear whether the Republican Congressional leadership would advance any of Mr. Trump’s priorities, but if the past is any indication, the GOP Congressional leadership has long been opposed to paid leave. There is little chance this position will change with Mr. Trump taking office.  Shout out to SHRM for providing a thorough analysis on this topic, too.

How Might Trump Administration Affect other areas of employment law, such as the impending FLSA regulations and Immigration?  My colleagues Bill Pokorny, Tejas Shah, and Karlie Dunsky provide some excellent insight.  View their thoughts on FLSA here and immigration here.

Who Will Become the New Secretary of the U.S. Department of Labor (aka the new “Head FMLA Nerd”)?

Speculation has been swirling that current EEOC Commissioner Victoria Lipnic, who holds one of the two Republican spots on the Commission, is the leading candidate to become Secretary of Labor. If her name rings a bell, Ms. Lipnic was the leading author of the changes to the (more employer-friendly) 2009 FMLA regulations.  From 2002 to 2009, she served as an assistant secretary of labor for employment standards, a role which allowed her to oversee the Wage and Hour Division, including FMLA enforcement.  Since 2010, she has served as an EEOC Commissioner, delicately advocating that the agency take a more moderate position on some of its most publicized priorities.

During her time as an EEOC Commissioner, she has become known for working collaboratively with her Democratic counterparts.  Notably, however, she criticized the EEOC’s decision to issue the 2015 Pregnancy Discrimination Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court was taking pregnancy and accommodations issues up at the time in Young v. UPS. She also has expressed concern for the gap in pay for men and women, but also opposed the EEOC’s push to try and fix it, again voting against a proposal that would require certain employers to disclose their pay data to the government.

Personally, I have found Commissioner Lipnic to be delightful and down-to-earth, not to mention realistic and thoughtful about the burdensome nature of government regulations on employers. Her appointment would be a benefit to the employer community.  As a related aside, I also can say “I knew her back when . . .” when she and I co-presented about pregnancy accommodations at a DMEC conference last year.

Can an Employer Require That an Employee Submit FMLA Certification from a Specialist to Support the Need for FMLA Leave?

Posted in Medical Certification

mad-doctor-nerd.jpgWhen it comes to FMLA medical certification, my clients have many complaints.

One beef, in particular, is vague medical information they receive on a certification completed by the employee’s primary care physician. This is particularly true where the employee’s mental health is at issue. Employers (rightfully) complain that they deserve medical information from a specialist who is far more knowledgeable about the employee’s specific medical condition. As a result, my clients ask me whether they can require that the employee return initial certification or fitness-for-duty certification from a specialist.

I have been a bit reluctant to give the green light. Until now.

Facts

Take the case of Erica, a community outreach worker for the City of Milford. Erica had a knack for taking a leave of absence after she was disciplined or coached about her performance. Coincidence, I’m sure.  On one such occasion, Erica requested a continuous leave of absence due to “severe anxiety.” In support of her leave, Erica submitted certification from her primary care doctor, who indicated that Erica was “under care of psychiatrist and therapist.”

Given the psychiatric nature of the problems that led to Erica’s leave of absence, the City’s HR Director required that Erica submit a “new” certification from her “treating psychiatrist.”  Even more, she told Erica that she also would be required to provide fitness-for-duty certification from the same psychiatrist to confirm that she is able to perform the duties of her job at the conclusion of her leave.

Erica complied. After she submitted certification from her psychiatrist, her leave was approved.

Upon return to work, Erica provided certification again from her psychiatrist stating that she was “cleared medically to return to work.” Concerned about whether she could safely perform her duties at work, the HR Director required that Erica provide additional details about her ability to return to work. Specifically, the City wanted Erica’s psychiatrist to review Erica’s job description and confirm that she could safely perform the job.

Notably, the City delayed Erica’s return to work for six days until she provided the additional information. Erica provided another letter from her psychiatrist explaining his observations of her condition and stating the following: “Having reviewed [Erica’s] job description and observed her demeanor in-person, it is my conclusion that [Erica] is medically cleared to return to work.”

In a twist to thicken the plot, Erica then resigned. And as former employees are inclined to do, she sued. Among other things, she claimed that the City interfered with her FMLA rights when it required her to provide a second initial certification and when it delayed her return to work and ordered her to provide additional information from psychiatrist about her ability to return to work.

Initial Certification

The Court soundly rejected Erica’s argument that the employer violated the FMLA when it required initial certification from her psychiatrist. Noting that Erica’s primary care doctor “repeatedly” referenced her treating psychiatrist when describing the basis for FMLA leave, the court determined that it was perfectly acceptable for the employer to request that the treating psychiatrist cure the ambiguities in the medical certification.

The court also found compelling the fact that the City clearly laid out for Erica the specific actions needed to cure the deficiencies in her original certification and gave Erica ample time to obtain the information.

Fitness-For-Duty Certification

The court also found that the employer had the right to delay Erica’s return for six days and require a more specific fitness-for-duty certification. Score!

When it comes to fitness-for-duty certifications, employers can require that the health care provider address two important criteria in the documentation:

  1. Confirm that the employee is able to resume work
  2. Specifically address the employee’s ability to perform the essential functions of the employee’s job

Therefore, a generic note even from the psychiatrist stating that the employee can return to work is not good enough. As the court also affirmed here, the employer has the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties. And, according to this court, the employer can require that this information be provided by the psychiatrist, as opposed to a primary care doctor. Bento v. City of Milford

Insights for Employers

This is good stuff, isn’t it?

A couple thoughts before we break open the bubbly:

  1. Does this court decision give employers carte blanche to require that two doctors certify an FMLA leave? Not quite. However, it does give us fairly clear guidance in situations where the primary care physician completing the certification appears to have had little to no role in the actual treatment of the employee’s underlying medical condition. This is particularly helpful where we are dealing with a mental health condition. Therefore, in those instances where it is clear that the primary care doc is relying on (and refers to) treatment provided by a specialist, this court decision tells us that we can safely require that the employee obtain medical certification from the specialist treating the employee before we can grant or deny the FMLA leave request.  This is good stuff!
  2. This decision also is helpful in delaying a return to work where the employee provides a simple prescription pad note clearing her return to work. As this court decision makes clear, we can require that the health care provider confirm that the employee can return to work and that (upon review of the job description) the employee can safely perform the duties of her position.
  3. Keep in mind, however, that the FMLA regulations have very specific requirements for seeking fitness-for-duty (FFD) certification upon return to work:
  • The employer must provide written notice to an employee of the need to provide a FFD certification prior to returning to work.
  • This notice must be provided with the FMLA designation notice and include the essential job functions to be reviewed by the doctor.
  • The employer must have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same medical condition) who take leave for such a condition to provide FFD certification.
  1. Some employers have genuine concerns about whether the employee is actually fit to return to work, even after receiving an otherwise compliant FFD certification. Can employers require that an independent medical examination be completed before the return to work? Maybe. But you have to follow very specific procedures, which I previously outlined for employers here.
  2. Where you have any concerns about whether you can push back on initial or FFD certification, be sure to discuss first with your employment counsel. Although this court decision is a welcome confirmation for employers, we’re still venturing into unchartered territory here, as I don’t know of another court addressing these issues as specifically as this one has done. So, we must tread carefully – and in a compliant manner.

Sounds like a topic I will need to discuss at my upcoming webinar on using medical certification to combat FMLA abuse.  Have you signed up for it yet?  Click here!

Photo credit: Dreamstime.com

Join Me for a Free Webinar: "FMLA Abuse Got You Down? Best Practices for Using FMLA Medical Certification as a Tool to Deter FMLA Misuse"

Posted in Medical Certification

Webinar2When: Tuesday, November 15, 2016 (12:00 – 1:15 p.m. central time)

Online registration: Click here

FMLA Medical certification can be the most effective tool to help employers confirm an employee’s medical condition and their need for time off from work. So, why does such a critical tool tend to create angst, confusion and frustration for employers when administering FMLA leave?

Not any more. Please join Megan Holstein, Vice President of Compliance at Reed Group, and me for a complimentary webinar that will once and for all conquer difficult FMLA medical certification issues employers face. Megan and I will cover certification in detail to help employers deal with the most confusing and maddening medical certification issues.

This is not an FMLA basics presentation, and it’s not for the faint of heart. Using real life situations from our own experiences in dealing with the FMLA, we will cover topics such as:

  • Analyzing the key parts of the medical certification form, and what sections you should focus on to ensure you have the information you need?
  • Best practices for employers when an employee fails to return medical certification or turns it in late – can you deny some or all of the leave?
  • Contacting the employee’s physician – can you get permission in advance to contact the doc?
  • What can employers do when they notice a pattern of misuse or suspect FMLA abuse? How best to use recertification
  • Is a second/third opinion really worth the cost and time?

This session promises to be practical and fun. Click here to register for this complimentary webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions that you would like us to address.

This program has been submitted to the HR Certification Institute and SHRM for review. Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

When Employers Don't Recognize an Employee's Notice of the Need for FMLA Leave, They Pay the Price

Posted in Notice

sick-day.jpgAs employers, we face a sobering reality: at every turn, the FMLA sets us up to fail.

Whether it’s deciphering medical certification, assessing fitness for duty upon return to work, or dealing with the always frustrating intermittent leave, the FMLA is full of booby traps ready to nail us the instant we slip up.

Chief among these traps is trying to determine precisely the moment when an employee has put the employer on notice of the need for FMLA leave. To those not familiar with the FMLA, it seems easy enough — after all, FMLA isn’t triggered until the employee informs the employer they need leave covered by the FMLA.  The FMLA regulations provide only the following guidance when it comes to employee notice:

An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. 29 CFR 825.303(b)

Sufficient information, huh? Don’t we wish it were that easy! How do we know when the employee has provided information sufficient enough for us to realize they are asking for leave that may be covered by the FMLA? There is no magic formula to get it right. Yet, when we don’t get it right, the liability can be tremendous.

Take, for instance, a real-life situation I recently encountered. My client employed a custodian who, by any measure, had a deplorable attendance record. You name the excuse for not showing up for work, and she used it.

She also had a bad back — a chronic bad back that she didn’t report until her deposition with me.  In that deposition, instead of acknowledging that she simply called in “sick” on the night that later led to her termination, she manufactured a reason, claiming she reported to her manager that she would miss work because of her “bad back.” The problem for my client was that it did not properly log her call and the reason for her absence, which opened the door for this former employee to put her own spin on the excuse she gave that day.

Insights for Employers

Employers, when it comes to employee notice, it is critical that we formulate specific call-in procedures for reporting leave and set up a compliant system for handling and memorializing the reason(s) employees give us when they miss work. When we don’t do so, we take on way too much risk. Implement the following to substantially minimize your liability:

1. Maintain effective call-in procedures.  Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), the person to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse, help you address staffing issues at the earliest time possible, and establish a strong defense if litigation ensues.

2. Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe further to determine the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies:

• First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you’ll also want to include expectations for completing a leave of absence request form, which I also recommend.) My model policy provision looks something like this:

When you contact Human Resources to report your need for leave, you must provide at least the following information:

o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;

o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

o A telephone number where you may be reached for further information.

• Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.

3.  Use a Uniform Approach to Documenting Absences. Many of you “log” all the call-ins for a particular shift in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which requires as much information as possible and a review by HR or a leave administrator so that the employer follows up on potential FMLA-related absences.

4.  Use a Leave Request Form for all absences.  Where possible, require your employees to submit a leave request form for all absences so you know — on paper — the reasons for their need for leave. If they have an unforeseeable absence, require that they fill out a form upon their return to work. Having the reason in writing helps you better determine whether FMLA might be in play.

5.  Use Personal certification. For those who can pull this from an administrative standpoint, require all your employees to provide personal certification after every absence (FMLA or otherwise) confirming that they look leave for the reasons provided.  See my previous post that addresses personal certification in greater detail.

6.  Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, please please please conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.

7.  Train any and all managers remotely involved in the FMLA process.  Employers, I love you dearly, but many of you are guilty of this FMLA 101 principle — you require that your manager play some role in the attendance or call-in process (e.g., they pick up the phone to take the employee’s call when they can’t come to work), but you do nothing to train them about the FMLA and how to recognize a potential FMLA absence.  Simply put, the average manager doesn’t have a clue as to their responsibilities in the FMLA/leave of absence process.  As a result, because you save a few pennies now in not training them now, you exponentially increase the potential for litigation (and a judgment against you).

Don’t waste another minute. Train. Them. Now.

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