Can Hillary Clinton Take FMLA Leave for Pneumonia? And Can Her Campaign Give Her the Boot Because She's a Key Employee?

Posted in Key employee, Serious Health Condition

Clinton pneumoniaDisclaimer! Disclaimer! This is not a political post. This is meant to be good, clean fun. But where current events meet the FMLA, I’m as giddy as a five-year old boy coming eye-to-eye with his first dump truck!

Unless you’ve been living under a rock the past week, or you plug your ears and go “la-la-la-la . . . I can’t hear you” every time 2016 presidential news echos over the airwaves, you know that Democratic presidential candidate Hillary Clinton is battling pneumonia.

Naturally, Hillary’s predicament raises some curious questions in this one-track FMLA mind:

First, can Hillary take FMLA leave for her pneumonia, and does it matter that she still keeps showing up to work? [Frankly, I found myself more fascinated by the John Lennon sunglasses she was sporting when she fell ill on Sunday.]

Second, is Hillary a “key employee” under the FMLA who does not need to be returned to her position?

Is Hillary’s Pneumonia a Serious Health Condition?

Assuming Hillary is otherwise qualified to take FMLA leave and her campaign a covered employer, she can take job-protected leave so long as her medical condition involves either:

  • Inpatient care (i.e., an overnight stay in a health care facility); OR
  • An absence from work for more than three consecutive calendar days and either
    • two or more in-person visits to the health care provider within 30 days of the date of incapacity or
    • one in-person visit to the health care provider with a regimen of continuing treatment, such as prescription medication or physical therapy.

Keep in mind: simply staying at home, drinking fluids, and staying in bed (even if exposed to decades old hits sung by longtime Clinton supporter Barbara Streisand) are activities which can be initiated without a visit to a health care provider and do not establish a serious health condition.

What about the fact that Hillary keeps coming to work? Aside from a quick visit to recuperate on Sunday at daughter Chelsea’s home, Hillary has continued her full campaign schedule, despite her illness. Having received medical documentation confirming her serious health condition, any other employer (besides, of course, a presidential campaign two months out from the election) would designate the FMLA leave and require Hillary to remain off work until she provided a fitness for duty certification.  After all, she has pneumonia!

Is Hillary a “Key Employee” Who Can Be Denied Reinstatement to Her Position After FMLA Leave?

First off, Hillary ain’t going no where on her own campaign.  But let’s suppose for a nanosecond that we lived in some bizarro world (which is not all that far-fetched this election season), and in an 11th-hour attempt to gain the nomination, Bernie Sanders convinced the Clinton camp to invoke the “key employee” exception and not return Hillary to her position. Would it work?

Under the FMLA’s “key employee” exception, the campaign could give her the boot so long as it could show that:

1. Hillary is among the highest paid 10 percent of all the employees on the campaign. (Ummmm . . . Is that really in doubt?)

2. Having to reinstate Hillary would cause substantial and grievous economic injury to the campaign’s operations.  This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA. In other words, an employer has to show it would be in a world of hurt because of a key employee’s reinstatement after FMLA leave. Given that she is the whole show herself, I *think* the campaign just might be able to show such an injury here.

Notice to “Key Employee” is Critical. Even if the campaign could satisfy the above factors, it still must provide Hillary written notice at the start of her FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits.  If the campaign fails to do so, it cannot deny her reinstatement.  Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the campaign must provide notice to Hillary, including the determination that her reinstatement will cause such injury, and the basis for the determination.  If Hillary already has begun FMLA leave, the campaign still must provide FMLA leave but allow her a reasonable period to return to work in lieu of additional FMLA leave (again, so long as she is fit to return).

If Hillary does not return after receiving this notice, she still is entitled to take FMLA leave. If the campaign continues to find that this substantial and grievous economic injury still will occur, the campaign can deny reinstatement in writing and, like before, provide the basis for the determination.  Keep in mind: the “key employee” provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.

Hmmm, after all that, I’m no longer feeling like that five-year old with his new dump truck . . . .

Sweet Justice! Dismissal of Bully's FMLA Claim Proves Employers Can Safely Terminate an Employee on the Heels of FMLA Leave

Posted in Court Decisions, Retaliation

bullyI hate bullies.

Back in 4th grade, Sister Mary Demetria, OSF, told us that “hating” someone was a sin.

I’m convinced Sister never met a bully.

Forgive me, Father, for I have sinned. Cause, you see, whenever I read about a bully getting a good smack down, I get all warm and fuzzy inside.

Such is the story of Tim, a manager for Tyson Foods. Over the course of several years, Tim had all the makings of a bully: in 2010, he was disciplined for intimidating a subordinate; in 2011, he was disciplined for openly harassing another employee; in 2012, he again was admonished for threatening an employee with termination for their (legitimate) use of overtime.

What followed in 2013 was the last straw: according to multiple employees, Tim intimidated and was condescending toward others around him, he undermined a supervisor by calling him out in front of others, and otherwise acted unprofessionally toward his co-workers.

Upon considering Tim’s latest conduct, Tyson had enough and quickly terminated his employment. In this era where individuals tend not to take accountability for their actions, Tim filed suit, alleging that Tyson terminated him, in part, because he had just taken FMLA leave a few weeks earlier.

Not so fast, bully,” said the court. Well, it didn’t really say that, but it would have been way cool if it had. Still, the court dismissed Tim’s FMLA retaliation claim in a New York minute, finding that there wasn’t a scintilla of evidence that Tyson was motivated by Tim’s FMLA use when it terminated his employment.  Shell v. Tyson Foods, Inc. (pdf)

Sweet justice!  As with every bully smack down, there always are lessons to be learned:

Insights for Employers

1. Don’t shy away from terminating an employee who has recently requested or taken FMLA leave. Employers often are gun shy about disciplining an employee while the employee is on FMLA leave and/or after they have requested leave. This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as he did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Employees facing discipline or termination regularly use laws such as the FMLA in an effort to shield themselves from the consequences of their poor performance or misconduct. But don’t let their would-be FMLA shield cause you to act differently. In other words, carry on with disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave. In doing so, it often will be critical to show that you have engaged in progressive discipline with the employee before and after the employee requested and/or took FMLA leave.

Here, Tyson’s reasoning was sound.  For some length of time, Tim simply was awful to his co-workers and failed to meet Tyson’s reasonable expectations. This conduct continued through his eventual termination, despite the employer’s continued patience. In the end, this employee (and others like him) simply cannot show that the FMLA had anything whatsoever to do with the termination.

2. But Don’t Rush to Judgment. Where investigations into alleged misconduct are necessary, conduct them! Employers lose when the evidence shows a rush to judgment. See my other posts here and here on conducting lawful investigations where alleged misconduct is at issue.

3.  Similarly, don’t short circuit performance improvement plans (PIPs). If you utilize a PIP for an employee’s deficient performance, don’t accelerate the termination process simply because the employee has taken FMLA leave. Take the case of Sherena, a financial analyst, who was placed on a 60-day performance improvement plan and was told that her continued performance issues could result in termination. After being provided a mid-term review of her PIP at the 30-day mark, Sherena requested FMLA leave.  Rather than giving her a chance to take leave and then finish the PIP, the employer short-circuited the situation, deciding to terminate Sherena’s employment instead.  Not good, as it was clear that the employer did not intend to terminate her employment for her failure to meet the demands of the PIP prior to her taking leave.  Turner v. Florida Prepaid College Board

Are Foreign Nationals on H-1B Work Visas Eligible for FMLA Leave?

Posted in ADA, Eligibility

Photograph of a U.S. Department of Homeland Security logo.

Over the past few months, I’ve been asked by clients whether foreign nationals who are in the United States on work visas are eligible for FMLA leave.

Honestly, I didn’t know the answer to the question when I was first asked. So, I took this question to the one and only person I entrust with all my immigration questions: my colleague Tejas Shah.

As a General Matter, an H-1B Worker Must Be Paid (with some exceptions)

Tejas is quick to point out that a U.S. employer hiring an H-1B worker is required to pay the worker while he/she is working for the employer.  In other words, an employer is not permitted to “bench” an H-1B worker, or otherwise give an H-1B worker an unpaid leave, except in rare instances. Placing an H-1B worker on an unpaid leave without authorization creates substantial risk, as an employer becomes susceptible to a back wage and/or front pay award by the Department of Labor.

The FMLA and ADA Exceptions

What are those rare instances when an H-1B worker can take an unpaid leave?  The Immigration and Naturalization Services (INS) and DOL have made it clear that H-1B workers are entitled to FMLA leave on the same terms as U.S. citizens, whether the leave is paid or unpaid under the employer’s policies. So, an H-1B worker can request and be approved for an unpaid FMLA leave on the same terms as the employer’s U.S. workers.  Of course, whether the leave is paid depends on the employer’s policies for paid leave.

The same individual also is protected by the Americans with Disabilities Act, so leave as a reasonable accommodation under the ADA must be considered in the same way it would for a U.S. national.

Documentation is Critical

Because of the risks associated with a DOL finding that an unpaid leave was not authorized, Tejas reminds us that it is critical for employers to properly document the FMLA leave.  Whenever possible, an employee leave request form should be used, and the employer must provide the requisite FMLA notices and secure medical certification so it can provide DOL and/or INS with all the information necessary to establish that the employee was appropriately on an FMLA-protected leave of absence.

What About U.S. Citizens Working Abroad?  Are They Protected by the FMLA?

Nope.  With the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company.  So, a U.S. national loses FMLA protection once he steps off U.S. soil.

Fascinating. Who knew?

[Special hat tip to my colleague Tejas Shah, who not only is a phenomenal immigration attorney you should entrust with all of your foreign national visa work but, more importantly, one of the most sincere and honorable guys you’ll meet in our line of work.]

Why Should Employers Take Pregnancy Discrimination and Accommodation Seriously? Here Are More Than 500,000 Reasons Why.

Posted in Pregnancy

AA6JDB memo note on notebook I m pregnant

Doris worked for the Chipotle restaurant chain. And she was pregnant. After she announced her pregnancy to her supervisor, Doris claimed her boss began monitoring her bathroom breaks (then berated her for taking too long), required her to “announce” her bathroom breaks to others, prohibited her from taking shift breaks, denied access to water, and eventually terminated her employment in front of other employees because she attended a prenatal doctor’s appointment.

I have no idea whether these facts are true, but a jury believed them. And earlier this month, it hammered Chipotle to the tune of $550,000, plus attorneys fees.

Chipotle’s bad day reminds me of another case just like it from this past year.

This one involved Anne. As the story goes, Anne happily announced to her boss that she was pregnant and expected his support and approval of her maternity leave. Instead, her supervisor expressed irritation that Anne would be on leave during the busiest part of the year. Days later, Anne’s work-from-home privileges were revoked, and her supervisor made her take paid time off to attend doctor’s appointments that had already been approved. Shortly following the revocation of her work-at-home rights, Anne had to leave work unexpectedly due to a family emergency, which she reported to the employer. However, her supervisor terminated her employment the following day, citing her failure to return to work. See Anne’s case here: Karanja v. BKB Data Systems

This is a problem.

Don’t get me wrong. I’m cynical about nearly any FMLA lawsuit, but these all can’t be untrue. Am I correct? Thankfully, employers are in an ideal position to do something about it.

So, what can we do?

  1. As a very simple, initial gesture, dare we show some excitement for the mother-to-be? This is a life-changing event for your employee. Indeed, one of the sure joys in life. Affirm this! At the same time, recognize that mom-to-be is very worried about your reaction to her pregnancy and whether she’ll still have a job upon her return. So, resist any foolish urge to admonish her for taking leave at one of the busiest times of the year. Duh!
  2. The Timing of a Termination Decision is Important no matter what you think the courts say.  Every employment defense attorney (including yours truly) makes the argument that the timing of the employment decision alone is not sufficient to support a retaliation claim.  This argument isn’t as persuasive to the courts as it once was, as courts are allowing far more tenuously timed decisions to support employee claims.
  3. When you terminate an employee shortly after they make a request for FMLA leave, please make sure you can back it up!  Here, Chipotle argued that it terminated Doris because she left work without permission (to attend a prenatal visit). Employers, let this case be a warning to you — before terminating an employee who has requested leave, it is critical that you have established some reliable level of well-documented progressive discipline prior to the decision. Going into the decision without documentation is a recipe for disaster.  And when you terminate her employment because she needs to attend a prenatal visit, you’re asking for a $500K verdict.
  4. Be mindful of state pregnancy accommodation laws and EEOC Guidance regarding pregnancy discrimination.  With a growing number of pregnancy accommodation laws at the state level, employers face even more scrutiny when pregnancy discrimination claims arise.  These local laws now shift the burden of proof from the employee, who previously had to prove she was entitled to an accommodation, to the employer, who now has to prove that it would be an undue burden. Also keep in mind the EEOC’s Guidance on Pregnancy Discrimination, which makes clear the obligation to provide workplace accommodations to pregnant employees.  So, if we have not taken seriously the reasonable accommodation requests of expectant moms, including the need for leave from the job to attend to pregnancy-related issues, we must do so now.
  5. Keep in Mind: Moms and Dads make for sympathetic plaintiffs.  If I still have not convinced you, and you frankly could take or leave child bearers and expectant parents (and money is your bottom line), it still makes eminent business sense to treat these employees fairly when they request time off to attend to pregnancy-related issues.  Just ask Chipotle.

FMLA FAQ: Must an Employer Accept FMLA Medical Certification from an Online Health Care Provider? And What If It's an LCPC?

Posted in FMLA FAQs, Medical Certification

Online HCPQ: Our employee is trying to support his need for FMLA leave with medical certification from an online health care provider. Is this valid under the FMLA?  And What if It’s a Licensed Clinical Professional Counselor? 

A: Tackling the online doctor issue first, my knee-jerk reaction is NO WAY! After all, the FMLA regulations make clear that treatment by a health care provider means an “in-person” visit to the doc.

Case closed, right?

No so fast.

Before you slam the door on this FMLA request, reacquaint yourself with the definition of “health care provider” in the FMLA regulations. You may not have spent much time with it since it’s among the most boring provisions in the bunch. 29 CFR 825.125. There, the DOL has inserted a rather weasly, catch-all provision for health care provider.  Way down there, in subsection 125(b)(4), the regulations state that there are “others” capable of providing health care services, specifically:

Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Drat! So, the regulations go to some length to define “who” a health care provider is, only to open the door to virtually anyone your health plan is willing to cover. The DOL acknowledges as much in the preamble to the regulations (see discussion of this issue at page 67954).  Mind yourself accordingly. In short, if your group health plan accepts the physician, you are in a tough spot to argue that this professional is not a health care provider for purposes of FMLA.

What About Licensed Clinical Professional Counselors (LCPCs)?  Are They Considered a Health Care Provider?

I am asked this question often enough. If you take a close look at the regulations, although clinical social workers are covered by the FMLA regulations, Licensed Clinical Professional Counselors are not. That said, the same issue above applies here. If your group health plan covers LCPCs, the regulations indicate that you have to accept medical certification from these professionals on behalf of your employee.

Please Nominate FMLA Insights for the ABA Blawg 100!

Posted in Uncategorized

images.jpgDear fellow FMLA nerds:

Can I get your vote?  What if I promised that it would only take 30 seconds out of your day, or less than the time it would take to read one of my rambling blog posts?

Last year, for the 5th consecutive year, our little FMLA blog was named one of the top 100 legal blogs by the ABA Journal. Voting is now open for the best legal blogs of 2016, and I would love to have your support!

If our FMLA Insights blog has been helpful to you in navigating the FMLA (or if you find it practically useless but nevertheless humorous in a cheesy kind of way), we would be forever grateful if you took a moment to nominate us for this year’s Blawg 100. Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked. You will be asked to provide your contact information and a simple statement about why you’re a fan of FMLA Insights.

The online form also asks you to identify your favorite blog entry over the past year. What was your favorite? Perhaps it was the guidance on how you conduct an investigation into suspected FMLA abuse after your employee posts photos of his beach vacation on social media; or maybe the post about whether cosmetic surgery is covered by FMLA (along with my “cheeky” pepper photo); how snow days affect FMLA leave; or perhaps my practical recap of my June 23 webinar with EEOC Commissioner Chai Feldblum on leave as an ADA reasonable accommodation (Part I and Part II).

Any of these blog posts (and plenty of others!) work for this nomination, which can be made here. Nominations must be submitted by this Sunday, August 7, 2016.

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

Of course, I welcome your nomination. But more importantly, I am humbled by the feedback you provide nearly every day — whether it’s an email, social media shout out, or simply saying hello at a conference, I am humbled by your support of the blog.

I am indeed grateful.

Jeff

Does an FMLA Leave Request Double as a Request for a Reasonable Accommodation? Should Employers Care?

Posted in ADA, Notice

ConfusedThere is a hot debate brewing over the tantalizing question, “Does a request for FMLA leave also constitute a request for a reasonable accommodation under the ADA?” The worlds of FMLA and ADA clash!

Surely, this question ranks up there with life’s unanswered questions.  You know, questions like: When does it stop being partly cloudy and start becoming partly sunny? Or why is sandwich meat round when bread is square?

This FMLA/ADA conundrum apparently means a lot to Fredrick Capps. Fred was a mixing technician for Mondelez International, the company which brings us Oreo cookies and other yummy treats.  Fred had a degenerative bone disease that required intermittent leave for flare-ups that affected his ability to walk, sit and stand.  He was certified for intermittent leave, but the Oreo cookie company became skeptical after it learned that Fred had been arrested for driving under the influence on one of the days he called in sick.  A logical concern, of course.

The company fired Fred, and he sued.  He filed a slew of claims, including an allegation that the employer violated the ADA when it did not consider Fred’s leave request as a plea for a reasonable accommodation. The trial court quickly rejected Fred’s ADA claim, finding that a request for FMLA leave is not alternatively a request for a reasonable accommodation under the ADA.  Capps v. Mondelez Global

HR professionals across the country must be breathing a sigh of relief.

But are they?  

As I noted in Bloomberg BNA’s Daily Labor Report earlier this week (pdf accessed here), employee requests for medical leave may or may not double as requests for an ADA reasonable accommodation. But it really is a distinction without a difference, and employers should not get caught up in the legal mumbo jumbo.  In all my time representing employers, an HR Director or in-house counsel has never asked me to help them decide whether a leave request should double as an accommodation request. In the real world, it doesn’t matter!  

From a practical standpoint, when an employee requests leave from the job, the employer should use it as an opportunity to learn the basics about the employee’s medical condition and how it affects his/her ability to do the job. Armed with this information, we can then engage the employee in a more informed dialogue about temporary adjustments we might be able to make to keep the employee on the job. Conversely, if we determine adjustments can’t be made, a leave of absence may very well be the only option.

Let the attorneys argue over whether a request for FMLA leave doubles as a reasonable accommodation. In the meantime, we need not be afraid of the interactive process. In working diligently at creative, workable solutions to help keep employees on the job, employers will maintain the healthiest and most productive workplaces.

Credits: PDF of article reproduced with permission from Daily Labor Report, 137 DLR C-1, (July 18, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

Chronic Conditions: Can an Employer Deny FMLA Leave When an Employee Does Not Attend Two Doctor Visits in One Year?

Posted in Chronic serious health condition, Intermittent Leave, Serious Health Condition

Children Play DoctorFrank, your night custodian, reports that he suffers from Crohn’s disease, a chronic condition that will cause him to miss work when the condition flares up from time to time, including his absence yesterday. Cleaning floors causes him a great deal of stress, which in turn exacerbates his medical condition, and yesterday was one of those days.

On Frank’s FMLA medical certification, his doctor confirms that he will need to have treatment twice per year for the condition, but he also lists only one occasion within the past year when he treated Frank for the condition.

Can you deny Frank’s FMLA leave because he only has treated one time over the past year?  After all, a chronic serious health condition is one which:

Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider. 29 C.F.R. 825.115(c)(1) (my emphasis).

Frank has not racked up two doctor’s visits, so he’s out of luck, right?

What Are the Most Common Approaches?

In my experience, employers and third party administrators tend to handle Frank’s situation in one of two ways, both of which are defensible:

  1.  The conservative approach: A favorite for most employers and TPAs, the conservative approach gives the employee as much time as possible to attend that second visit with the doc.  So, they typically approve FMLA leave in this instance, so long as the employee has another visit with the health care provider within the 12 months ahead.
  2. The moderate approach: Another approach employers take (albeit a less common one) is to wait and see whether the employee has a second visit within the year before granting or denying the FMLA leave. Potentially an administrative mess, the thought behind this approach is that the employer does not yet want to treat the absence as covered or not covered by the FMLA until the employee does or does not have another visit with the doc.

But Can Employers Take An Aggressive Approach?

Here’s a wild idea. Why not take the regulation at face value and enforce it — to obtain FMLA leave, the employee must have visited with a health care provider twice within the year leading up to the certification. Therefore, if the employee’s doc does not list two treatment dates within the previous 12-month period, and the employee is otherwise unable to provide documentation of two visits, FMLA leave is denied.

In taking this approach, employers can rely on the Department of Labor’s own words in the preamble of the 2009 regulations when it endorsed a change to today’s “two visit” rule:

The Department recognizes employers’ concerns regarding requiring only two treatment visits per year, and their desire for some clearer way to assess the seriousness of a chronic health condition, but is concerned that imposing some greater standard could effectively render ineligible many employees who are entitled to the protections of the law.  On the other hand, the Department does not agree with comments from employee groups that because many chronic conditions are stable and require limited treatment, the twice per year standard is unreasonable since that effectively ignores the requirement for ‘periodic’ visits in the current regulations.  The need for two treatment visits per year is a reasonable indicator that the chronic condition is a serious health condition.  The Department believes the requirement for two visits per year thus strikes a reasonable balance between no minimum frequency at all, as supported by many employee groups, or four or more times per year, as suggested by many employer groups, for employees who use FMLA leave for chronic serious health conditions.  Federal Register Volume 73, No. 222 / Monday, November 17, 2008 at page 67948, column 3 (pdf)(my emphasis)

But Jeff, Can You Find Me a Court Case I Can Cite?

I’ve got your back on this one, too. Employers can rely on Lusk v. Virginia Panel Corp., which established that the window you consider for the two visits is the one year period prior to the time the employee needs FMLA leave for the chronic condition.  In Lusk, the plaintiff, Leslie, had not visited with a physician at all in the year leading up to her request for leave for a mental health condition. She argued that, as we might expect she would, the two-visit requirement could be met by treatment that occurred after she took FMLA leave.

The court didn’t buy Leslie’s argument, finding that the critical time period for determining whether a particular condition qualifies for FMLA purposes is the time at which the FMLA leave is requested. Because she did not accumulate two visits in the year leading up to that request, it was no soup for Leslie.

Consider this another tool you can use to confirm an employee’s chronic condition and combat FMLA misuse.

Hat tip: Jeff Fraser

Handling Intermittent, Unpredictable Leave Requests after FMLA Ends: Additional Analysis of My Webinar with EEOC Commissioner Feldblum (Part II)

Posted in ADA

absent-workersThanks again to those who attended my June 23 webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here.

This is the second part of a two-part blog post in which I recap the issues Commissioner Feldblum and I discussed during the webinar.  Yesterday, I provided guidance on how an employer should address an employee’s requests for multiple extensions of continuous leave, which we covered at some length during the webinar.

During the webinar, we also covered how an employer should address an employee’s intermittent and unpredictable absences after FMLA leave has exhausted. I address these issues below.

Intermittent, Unpredictable Leave After FMLA Ends

As I noted for Commissioner Feldblum, one of the most frustrating issues for employers in this area is an employee’s continued sporadic, unpredictable absences (after FMLA has ended) that wreak havoc on an employer’s operations. Employers rightfully complain that an employee’s repeated intermittent absences after FMLA ends effectively transform a full-time position into a part-time position, giving the employee just enough time to gain back FMLA hours only to start the cycle again.

Keep in mind that EEOC takes the position that employers are obligated to provide leave in these situations unless it can show the continued absence constitutes an undue hardship.  (See yesterday’s blog post for more analysis on this point.)

Because intermittent leave is irregular and unpredictable, however, an undue hardship defense will be easier to advance in these situations.  Here, you are more likely to show that these continued intermittent absences adversely impact your operations and the ability to serve your customers/clients.

To illustrate, take John, our hypothetical employee who has been absent for depression and fibromyalgia. After exhausting FMLA leave, he continues to take, on average, one day off per week both for medical and undisclosed reasons. John effectively has turned the full-time position into a part-time endeavor, which allows you to make a case for undue hardship:

  • Temporary employees filling in for John are not as effective in the role and are prone to more errors
  • You are incurring overtime costs for other employees who have to cover for John
  • Lower quality of work from replacement(s) and not completed in a timely manner
  • You are taking on additional costs because John cannot attend to his full-time duties
  • Vendors are complaining about late or incorrect payments because your accounting department can’t keep up
  • Projects are being pushed off during John’s absence
  • Management employees are being pulled away from their work to attend to John’s duties
  • Employee morale results in demonstrably lower productivity

The EEOC’s resource document backs up our ability to establish undue hardship in these situations, as it makes clear that we can consider the following factors in establishing undue hardship:

  • The amount and/or length of leave required (John’s sporadic absences have continued for several months after FMLA had exhausted)
  • The frequency of the leave (John averages one day off each week)
  • Whether there is any flexibility with respect to the days on which leave is taken (his leave is completely unforeseeable)
  • Whether the need for intermittent leave on specific dates is predictable or unpredictable (if John’s absences are not woefully unpredictable, I am not sure what is!)

As I addressed in yesterday’s blog post, employers can obtain information from the employee’s physician regarding the continued need for leave, asking questions to help determine the undue hardship factors identified above.  In intermittent leave situations, it also is critical for the employer to continue to engage in the interactive process with the employee so that it can best determine whether any assistance can be provided to help them improve their attendance and return to work.

In addition to the thorny topic above, we also covered the following topics during the webinar:

Indefinite Leave

Commissioner Feldblum confirmed that “indefinite leave” is not a reasonable accommodation, echoing the resource document’s guidance in this area:

Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so it does not have to be provided as a reasonable accommodation.

100% Healed Policies

All too many employers require that employees be “100% healed” or “without restrictions” before returning to work.  According to EEOC, this approach violates the ADA.  We reminded attendees to re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.

Reassignment

Although we did not have much time to cover the topic of reassignment as a reasonable accommodation, the EEOC makes clear — and Commissioner Feldblum reiterated — that employers have an obligation under the ADA to reassign an employee if his disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship.”  Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.

Finally . . . Where Do You Find All These EEOC Documents?

Throughout our session, Commissioner Feldblum and I referred to the new EEOC resource in addition to other guidance provided by EEOC over the years on ADA reasonable accommodation.  Here are the links to these resources:

Managing Repeated Requests for Leave as an ADA Reasonable Accommodation: Takeaways from My Webinar with EEOC Commissioner Feldblum (Part I)

Posted in ADA, Regulatory Activity

eeocLast Thursday, I had the pleasure of conducting a webinar with EEOC Commissioner Chai Feldblum on the topic of “leave” as an ADA reasonable accommodation in light of the EEOC’s new technical resource issued on this topic in early May 2016. If you missed the program, you can access the webinar and materials here. In addition to covering information contained in the EEOC’s new resource document, we also identified some practical approaches in determining whether and how much leave employers are obligated to provide when it comes to the ADA.

Since we covered so much information on leave as a reasonable accommodation, for the first time ever (I think), I am splitting this blog post into two parts:

  1. Today, I will recap our guidance in the webinar on how an employer should address an employee’s requests for multiple extensions of continuous leave (Part I).
  2. Tomorrow, I will recap our guidance on how an employer should address an employee’s intermittent absences and unreliable attendance after FMLA leave has exhausted. I’ll also cover issues such as indefinite leave, 100% healed policies and automatic termination policies (Part II).

Here are my takeaways:

Undue Hardship: Learn it, Live it, Love it

As confirmed in the EEOC’s new resource and by Commissioner Feldblum, if an employee requires leave from work because of a disability, the employer must provide leave as a reasonable accommodation unless the employer can show that the leave of absence creates an undue hardship. EEOC appears to presume that any request for leave — no matter the length — is an effective accommodation. Before we even get to the undue hardship analysis, however, an employee should be required to establish that his request for additional leave is effective in helping him return to work in the near future.  If it’s not effective, then why do through the undue hardship analysis, right?

But let’s put that argument aside for the moment. At this point, it should be clear to us that neither the EEOC nor any court will create a bright line rule identifying how many extensions of leave we are required to provide an employee prior to termination. Therefore, I suggest that employers move away from the focus on the number of extensions they are required to provide. There is no answer. Rather, employers must focus on engaging the employee in a robust interactive process and examining how the employee’s continued absence is creating a hardship on its operations.

Let’s apply this concept to a scenario you likely have faced: As I explained during the webinar, your employee, John, suffers from depression and fibromyalgia. He exhausts FMLA leave, at which point he requests three consecutive extensions of leave lasting about one month each. I pitched to Commissioner Feldblum a process in which the employer would provide the employee up to three extensions of leave, at which point it would either fill his position or terminate employment. Of course, the Commissioner could not endorse a particular method, nor could I ask her to speak on behalf of the EEOC, but she found my recommended process below to be reasonable.

First Extension

Before John’s FMLA leave is exhausted, we send the employee our “Stevie Wonder” letter (see slide 17 of the PPT and my explanation during the webinar to understand the connection) reminding the employee that FMLA leave is ending, that you expect him to return to work, and inviting him to contact you if he needs assistance to return to work or if he cannot return to work. If the employee requests additional leave beyond FMLA, then we have the right to obtain information from his physician about the medical condition and need for additional leave. These questions are spelled out in the EEOC’s resource document and in previous EEOC guidance. As made clear in the EEOC’s resource document, we can require the physician to answer the following questions:

  1. What are the basic facts regarding the impairment? (No diagnosis!)
  2. What are the activities that the impairment limits (and the extent to which)?
  3. How does impairment affect the employee’s ability to perform essential job functions and what job functions?
  4. Can the doctor identify any accommodations that would help the employee perform the essential job functions?
  5. If leave is necessary, what is the expected date upon which the employee can perform essential job functions?

Second Extension

When the employee makes the second request for leave, we use correspondence at this phase to outline how his absence is impacting our operations. Here, we use the undue hardship factors at slides 22 and 23 of my webinar PPT to provide John specifics on how this amounts to a hardship. For instance, can we show:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive client service & increased client dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers
  • Lower morale that results in demonstrably lower productivity (Be careful! Employee morale should never be the sole reason for undue hardship, and EEOC will not buy this excuse standing on its own.)

When do we conduct this undue hardship analysis?  As a general matter, employers typically conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an ADA accommodation. That’s often too late. To her credit, Commissioner Feldblum noted that employers have the flexibility during an employee’s FMLA leave to assess whether the absence constitutes an undue hardship. Although FMLA would protect that employee’s job for up to 12 weeks, the employer now has an argument that an undue hardship — if properly supported, of course — occurs shortly after FMLA is exhausted. Since the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship doesn’t precisely address the timing of when an employer should assess undue hardship, Commissioner Feldblum’s comments help clarify the issue.

Let me be clear on this critical step, since it’s so important: Assessing and documenting how an employee’s absence creates an undue hardship is critical, so I recommend that you work with your employment counsel to identify a compliant ADA process in which you lawfully consider the undue hardship criteria and apply them to an employee’s specific situation.

Third Extension

Because you have identified the month before how John’s continued absence is impacting your operations, you now are in a good position to communicate that a third extension of his leave constitutes an undue hardship on your operations. Although you must remain flexible to consider changed circumstances and other accommodations John might need to return to work, it is reasonable at this stage to inform John that you will need to fill his position (and/or terminate his employment) if he is unable to return to work after another extension.

At this stage, you may also consider requesting updated information from John’s physician about his ability to return to work.  In this correspondence, you can pose the following questions

  1.  What amount of additional leave needed?
  2.  Why is additional leave necessary?
  3.  Why did the physician’s initial estimate prove inaccurate?

Insights for Employers

So, you might ask, am I endorsing a “three strikes and your out” approach? Not exactly, but pretty darn close. Remember that the interactive process is not rigid — it must remain flexible so you can conduct an individualized assessment of what assistance may be necessary to help the employee return to work. However, if you engage your employee in a meaningful interactive discussion early on in the leave process and you document how the employee’s leave is creating a hardship on your operations, you are in the best position to take action when the employee asks for that third extension request.

But what if employee continues to mess with our operations by missing work intermittently and without notice after FMLA ends?  Or what if the employee’s physician cannot provide an estimate as to when the employee can return to work? Can we establish an automatic termination date? May we require our employee to return to work with no restrictions?  And how does reassignment fit into all of this?

I answer these questions in Part II.

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