EEOC Commissioner Gives Insight into Handling Employee Leaves of Absence After FMLA is Exhausted

Posted in ADA
EEOC-bannerLast week, I had the pleasure of co-presenting with EEOC Commissioner Chai Feldblum on the topic of "leave" as a reasonable accommodation under the ADA.  Our presentation was part of an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access BNA's coverage of our presentation here (pdf). Naturally, Cmmr. Feldblum and I aren't going to agree on everything when it comes to the ADA, since I represent employers and Cmmr. Feldblum is a sitting EEOC Commissioner. But when it comes to employer compliance with the ADA, we found much to agree on during this session. From the employer perspective, there were several key takeaways from Commissioner Feldblum's comments about an employer’s obligation to provide leave as a reasonable accommodation under the ADA:
  1. The ADA's interactive process is critical in both timing and content.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  Often, the EEOC’s decision to initiate litigation against an employer depends on whether the employer is to blame for the breakdown in the interactive process.  Cmmr. Feldblum emphasized the importance of engaging the employee early on in their leave and maintaining regular contact with and them to assess the continued need for leave or a different workplace accommodation.
  2. Employers should have an "interactive process" with supervisors, too!  Noting that employers need to "jolt the supervisor" out of an "I've always done it this way" mindset, Cmmr. Feldblum reminded employers that supervisors can create ADA liability because they often deal directly with the employee first when it comes to accommodation requests.  Where supervisors "just blow [federal laws like the ADA] off," they create liability. Yet, when the entire goal is to keep the disabled individual "attached to the labor force," she advised employers to engage supervisors about their role in the process and how the employer might offer assistance to the employee to help them perform their job.  You need not read between the lines here: supervisor training is critical in maintaining FMLA and ADA compliance.
  3. Employers can (and should) assess "undue hardship" earlier in the process.  As we know, the ADA requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless the accommodation causes an undue hardship on the employer. When it comes to leave, employers generally conduct the undue hardship analysis only after the employee has exhausted FMLA leave and is requesting additional leave as an accommodation. Cmmr. Feldblum noted that employers have the flexibility as early as "day one" of 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 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, Cmmr. Feldblum's comments helped clarify the issue.  (In my opinion, her comments are consistent with the spirit of the Enforcement Guidance, too.)
  4. There are several key factors to consider when establishing that an employee's request additional leave would pose an undue hardship, and an employer should use them.  As I have mentioned in previous blog posts on this topic, when deciding whether to grant an employee additional leave as a reasonable accommodation, it is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden.  As noted in a previous survey (pdf) conducted by Mercer, these factors often are quite helpful in guiding an employer's decision to grant or deny leave:

- 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 customer service and increased customer dissatisfaction

- Deferred projects

- Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees

- Increased stress on overburdened co-workers

Interestingly, Cmmr. Feldblum pooh-poohed the idea that lower employee morale should be a factor in the undue hardship analysis.  I slightly disagree: if an employer can establish that there is lower employee morale because several of the other above factors exist, employee morale can and should be a factor taken into account in the undue hardship analysis.   However, morale should never be advanced as the sole reason or even one of the main reasons for undue hardship.

Finally, I asked Cmmr. Feldblum during our session whether we could expect any official EEOC enforcement guidance on the issue of "leave" as a reasonable accommodation.  (As you may recall, there were rumblings EEOC would issue this guidance several years ago.)  She deferred to EEOC Chair Jacqueline Berrien, suggesting that employers should encourage the EEOC Chair to issue the guidance. Anyone up for a letter-writing campaign?   BNA article above reproduced with permission from Daily Labor Report, 64 DLR A-4 (March 3, 2014). Copyright 2014 by The Bureau of National Affairs, Inc.  

Employees Can't Take FMLA Leave for "Potential" Absences in the Future

Posted in Uncategorized
depressed.jpgDid you ever have an employee tell you that he has medical condition "x," which will require time off at some point in the future?  Normally, you tactfully tell him to come back when he actually needs time off, correct? Such is the case of Pat Hurley, who I blogged about a year ago.  You may recall that Pat told his boss that he was depressed and needed time off to deal with the condition.  In response, his boss quickly fired him.  As I reported, a jury found that the employer violated the FMLA when it denied Pat leave, and the damages and attorney's fees totaled in the range of $1.2 million. Interestingly, last week, an appellate court overturned the jury's verdict (and resulting damages award), holding that Pat did not qualify for FMLA leave because he gave his employer notice that we would need "potentially qualifying" FMLA leave at some point in the future.  Notably, the court pointed out:
"[T]he FMLA does not extend its potent protection to any leave that is medically beneficial simply because the employee has a serious health condition.  Rather, the FMLA only protects leave for 'any period of incapacity or treatment for such incapacity due to a chronic serious health condition.' (emphasis in original)
"Potent protection"?  I love that term, and I'll have to use it in the future.  [Can't you picture someone like Robert Dinero telling one of your employees, "You want some potent protection? I'll give you some potent protection..."]  I digress... Seriously though, as Pat admitted in his trial testimony, he was not seeking leave for a present incapacity. Nor was he seeking leave to obtain treatment for his chronic condition. Rather, he acknowledged he was seeking leave at various points in the future because it would be "beneficial" to deal with his depression. Under the plain reading of the FMLA, he was not entitled to FMLA leave.  As the court noted, "giving an employer notice of unqualified leave does not trigger the FMLA's protection . . . [o]therwise, the FMLA would apply to every leave request.” Put in those terms, the court's decision makes complete sense. Hurley v. Kent of Naples (pdf) Insights for Employers
  1. There is a fine line between present incapacity and future incapacity, and employers should be sure to clarify if there is any ambiguity.  For instance, had Pat told the boss, "I'm dealing with depression and I need to take some time off because I can't function."  I simply added a few words to Pat's original request such that the employer, at a minimum, should have inquired further to determine whether Pat needs leave now or in the future as a result of the condition.
  2. As I remind employers in my FMLA training sessions, just because an employee has a chronic condition doesn't necessarily mean they are incapacitated from working. Take, for instance, migraine headaches.  I deal with them from time to time, and I simply work through them. I have a chronic condition, but I am not incapacitated from working for my law firm. The same might hold true for other chronic conditions. If an employee seeks FMLA leave for reasons like these, make sure you obtain medical certification to confirm whether the employee actually is incapacitated.
  3. Despite the appellate court's ruling for the employer, FMLA training still is critical.  Take the facts here: Pat tells the boss he has depression and needs time off to deal with it. Boss says, "Hurley . . . we've 'had a great run together,' but it's 'time to part ways.'" From an HR standpoint, this is not a best practice response from the boss. Every employee in the leave management process -- whether it's a leave administrator, the HR professional, or the direct and indirect supervisor -- must be trained in this area.  Pat's employer may have ultimately prevailed here, but it spent a whole lot of dough paying their attorneys to litigate the case through the appellate court. A couple thousand bucks in effective training to thwart behaviors like these looks really good right now, doesn't it?

FMLA FAQ: Can an Employer Designate FMLA Leave When an Employee Refuses to Provide Medical Certification?

Posted in FMLA FAQs, Interference, medical certification

Kid saying NO.jpgI received a ton of feedback last week in response to my post about whether an employee can decline FMLA leave even though the absence qualifies under the Act. One question, in particular, was thrown at me repeatedly, and it went something like this:

In our workplace, when an employee doesn't want to take FMLA leave, they simply refuse to return medical certification to us.  In these instances, can we designate the absence as FMLA leave even though we do not have certification?

Here, you have two options:

  1. Deny FMLA leave. If the employee has not returned complete and adequate medical certification within 15 calendar days, and he has not engaged in any good faith efforts to return it, you have the right to deny FMLA leave and subject the employee to your attendance policy, which often will treat the absence as unexcused.    
  2. Designate the absence as FMLA leave. For some employers, denying FMLA leave above will not result in an unexcused absence because the employee simply can use accrued paid leave without any consequence. For other employers, they simply want to start the FMLA clock running so that the employee exhausts FMLA leave as quickly as possible and return to work. Here's my general take: Where an absence may trigger the FMLA, it's always advisable to obtain medical certification.  That said, it is not necessary to obtain medical certification in order to designate the absence as FMLA leave.  Look at what the regs say on this point: 

If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee's need for leave, the employer may provide the employee with the designation notice at that time.  29 C.F.R. 825.300(d)(2)

Simply put, you do not need medical certification in your hand to designate leave. As the regulations state, if you have enough facts based on the employee's notice to establish that the employee requires leave that is covered by the FMLA, you can designate it as such. No other questions asked or information needed. Notably, under 29 C.F.R. 825.305(b), you can always ask for certification later "if the employer later has reason to question the appropriateness of the leave or its duration."

Designating the absence as FMLA leave in these situations arguably is the best route to take, particularly when they have other paid leave available to them that they can utilize to avoid an unexcused absence.  

But be careful. Only designate FMLA leave without certification when you have a level of confidence that the absence qualifies as such. Incorrectly designating FMLA leave where a serious health condition is not involved could leave to an FMLA interference claim. Where it is a close call, seek legal counsel.

Can an Employee Decline FMLA Leave Even though the Absence is Covered by the Act?

Posted in Interference, Notice

funny-looking-rooster-chicken.jpgWhat do you do when one of your employees has informed you of what clearly is an FMLA-triggering event (she needs to care for her dad who is seriously ill in the hospital), but then tells you she doesn't want the absence designated as FMLA leave?  I'll share my opinion below, but in the meantime, one of the most employee-friendly courts in America just told us this past week that you can grant the employee's wish and not designate the absence as FMLA leave, even though it otherwise would be covered by the FMLA.  

Although we are barely three months into the new year, I predict this decision, Escriba v. Foster Poultry Farms (pdf), will be one of the Top 5 most influential FMLA cases of 2014.  So, for this reason alone, the analysis below might be worth the read. 

The Facts

Maria worked at a poultry processing plant owned by Foster Farms.  By any measure, Maria was a pro on the FMLA circuit: throughout her employment, she took FMLA leave on 15 different occasions.

In November 2007, Maria approached her direct supervisor, Linda, to request time off to care for her ill father in Guatemala. Maria, whose second language is English, explained to Linda that her "father is no good" and was in the hospital.  So, she stated, "Linda, for me, vacation."  Linda responded, "Okay, Maria, you vacation."  She told Maria she would approve two weeks of vacation.

Later that day, Maria approached Linda again, this time stating, "Please one week or two week free for me," which she later explained meant she was asking for unpaid leave in addition to vacation.  Linda rejected her request.

Still apparently confused, Linda returned with another supervisor who acted as an interpreter and, through a series of questions, confirmed that Maria did not want to take any more than the two weeks of vacation she had just been granted.

Afterward, Maria reached out to Ed, the facility superintendent, and explained (in Spanish, which he understood), "I'm on my way to Guatemala . . . because my dad is very ill.  I am only going with two weeks vacation [but] wanted to know if you could do me a favor and give me one or two weeks more leave."  Ed told her he could not provide any additional leave.  

Thereafter, Maria left for Guatemala.  She remained there well past her return date, and she didn't contact Foster Farms until 16 days after she was scheduled to return to work.  As a result, Maria was terminated for violating the Company's three day no-call, no-show rule.

Court Decision

After her termination, Maria filed an FMLA interference claim.  Her argument was straightforward: the reason for her leave—caring for her ill father—triggered FMLA protection, and she notified her employer of the need for leave for this purpose, so her employer was obligated to designate her absence as FMLA leave. Because of the "he said, she said" nature of the allegations, the case proceeded to a jury trial, where the employer prevailed.  Maria appealed the jury's verdict.  

At issue in the appeal was whether an employee can affirmatively decline using FMLA leave, even though the underlying reason for leave would have been FMLA protected leave.  To this question, the court answered, "yes." 

In reaching its decision, the court focused on the FMLA regulations' expectation that the employer engage in an informal process to obtain additional information about whether the employee is seeking FMLA leave.  Therefore, according to the court, the regulations suggest that "there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA" in order to preserve her FMLA leave for a later time. 

Interestingly, on no fewer than 15 previous occasions, Maria requested FMLA leave directly from Human Resources, as required by Company policy.  According to the court, her failure to do so on this particular occasion only further indicated that she did not wish to utilize FMLA leave to protect her absence. 

Judgment for employer affirmed.  

What is Wrong with the Court's Decision?

Ugh.  I don't like this decision, largely because its holding undoubtedly will leave employers unsettled as they determine whether to designate FMLA leave in the future. Don't get me wrong -- I root for employers, so I'm doing the happy dance for Foster Farms because they prevailed. But what's good for Foster Farms on this occasion is a mess for the rest of us.  

Simply put, the court's reasoning is contrary to the common understanding that employers designate an absence as FMLA leave whenever it is taken for an FMLA-qualifying reason, regardless of what the employee might want.  There are good reasons for designating these absences as FMLA leave:

  1. It actually avoids administrative nightmares for employers. To try and divine the intent of someone like Maria will lead to chaos. Contrary to what the Escriba court might suggest, it is far easier from an administrative standpoint to designate FMLA leave when the leave qualifies as such. Employees' preferences should not control the issue.   
  2. Designating an absence as FMLA leave where it qualifies as such protects the employee's job.  If the leave is not designated as FMLA leave, the employee's absences are subjected to the employer's attendance policy, which undoubtedly will lead to more employee terminations. Perhaps an unintended consequence of the Escriba decision?  
  3. If an employee has the flexibility to choose when and where FMLA applies, employers effectively provide employees more leave than they are legally entitled. Take Maria's situation, for instance. Under Foster Farms' FMLA policy, her paid leave and unpaid FMLA leave should have run concurrently.  Thus, the maximum amount of leave available to her (between her paid and unpaid time) would have been 12 weeks. However, if you allow her to control whether FMLA applies, she can exhaust all of her paid leave first (which we know was at least two weeks) and then use another 12 weeks of FMLA leave at a later date.   
  4. Building on this last point, as a practical matter, employers want FMLA leave to exhaust sooner, rather than later. So, for the far majority of employers, the Escriba holding will not be well received, since it endorses an employee's ability to stack paid leave and unpaid FMLA leave consecutively rather than concurrently.  

There were plenty of thoughtful reasons the court could have employed to affirm the jury's defense verdict here, but it chose not to.  For instance, the court could have decided that Maria did not provide adequate notice of the need for FMLA leave because she did not follow the employer's usual and customary policy for reporting leave to Human Resources.  It also could have taken the approach that Maria simply was not entitled to reinstatement to her job because she went AWOL -- indeed, the record indicates that she blew past her return date by 16 days before contacting Foster Farms.   

Insights for Employers

Of course, you're wondering: This is all fine and good, but Jeff, would you just tell me how I handle leave requests in the future where the employee informs me that he doesn't want FMLA leave to apply?

To be candid, my recommendation is to ignore the Escriba decision and designate the absence as FMLA leave if it indeed qualifies as such.  For me, the FMLA regulations are clear.  At 29 C.F.R. 825.301(a), the DOL tells us, "Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave]." There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.  

For ages, I've counseled my clients in these situations to designate the absence as FMLA leave and remind the employee of two things: 1) the employer has no choice in the matter -- once the absence qualifies under the FMLA, the regulations require the employer to designate the time as FMLA leave (under Section 825.301(a)); and 2) it actually works to the employee's benefit to designate the time as FMLA leave, since it ensures that their job is protected during leave.  I explained this in a blog post last year, if you want further guidance on this situation.

Despite the Escriba decision, and with all respect to the Ninth Circuit Court of Appeals, I'm not changing my tune now.  And neither should you.

Yes! Regular, Reliable Attendance at Work IS Important under the ADA After All!

Posted in ADA, Court Decisions

mad-doctor-nerd.jpgNo matter what position the EEOC might take, I'll always take the position that an employee's regular, reliable attendance is an essential function of the job.  So, when an employee wants to arrive at work at any time, without any repercussions, it's not a reasonable accommodation under the ADA. And I have a recent court case to prove it.

First, let me set the stage: as you'll recall from my post last week, the EEOC will be allowed to advance an ADA lawsuit against UPS, in which the agency claims that UPS' 12-month automatic termination policy does not provide an outlet for UPS to engage its employees in the ADA's interactive process to determine whether a reasonable accommodation can help them return to work.

I used the case to urge employers to engage in the interactive process to do good by its employees and better defend itself against ADA claims.

Mecca v. Florida Health Services Center (pdf) is an example of how good things happen to employers when they actually engage in the ADA's interactive process.  

The Facts and Court Ruling

Dan was a PICC nurse who inserted intravenous catheters into a patient's arm.  During his employment, Dan also suffered panic attacks and anxiety, and regularly sought FMLA leave for these medical conditions.  On one occasion in 2010, he took several weeks off due to stress/anxiety.  Upon his return, his doctor limited him to working three days per week, which required the Hospital to alter his schedule. As Dan would later acknowledge, he generally wanted to come and go as he needed whenever his anxiety or panic attacks flared up.  

To be clear, the Hospital worked with Dan on his schedule -- it provided FMLA leave where his absences were covered by the Act, and on several occasions, it changed his schedule to accommodate his restrictions.  But it also was clear that his condition was not improving and that his irregular attendance would likely be the norm.  

Shortly after his return to work, he resigned after he failed to respond to several calls to insert PICC lines for various patients.  Inexplicably, he turned around and sued the hospital, claiming (among other things) that it did not accommodate his leave requests.  

Bad move.  

In dismissing Dan's ADA and FMLA claims, the court quickly pointed out that a nurse's regular attendance at work is an essential function of the job.  Notably, the Court neatly wrapped up the issue this way:

An employer does not have to wait indefinitely for an employee's medical condition to be corrected, especially when it is uncertain whether the condition will improve . . . despite [Mecca's] having taken leave on numerous occasions, the leave had not improved Mecca's ability to have regular attendance, nor was there any indication that it would do so at any point in the near future.  Therefore, leave was not a reasonable accommodation.

Key in on my italics above.  Let's not forget -- the interactive process also requires that the employee (and his/her doctor, as applicable) communicate how long the accommodation is necessary and whether we can count on regular, reliable attendance in the near future.  

Insights for Employers

In light of the court's decision, a couple of thoughts come to mind:

  1. First off, don't interfere with FMLA rights: if the employee suffers from a serious health condition that renders him unable to work, he has a right to FMLA leave.  ADA and FMLA issues often get intertwined, so let's not assume we can hit the termination button simply because the employee can't do the job and there is no accommodation available. FMLA compliance is mission critical.
  2. Follow the Hospital's lead and engage in the interactive process early and often.  The simple question, "How can we help you?" can go a long way.  Here, the employer's decision to grant Dan's multiple leave requests and its flexibility in scheduling him was persuasive to the Court in ultimately rejecting Dan's ADA claims.  
  3. Where you are faced with an employee whose attendance is unreliable as a result of an apparent medical condition, you have the right to know from his/her physician whether the requested accommodation (here, it was leave) will help the employee perform their job duties in the present or immediate future. Courts are using this terminology now with some regularity, so let's be sure to use it in our communications with the employee's physician. Work with your employment counsel to develop model correspondence with an employee and his physician in these situations. 
  4. Don't forget about progressive discipline where it is unrelated to the leave request.  Here, Dan returned from leave and immediately ignored several requests for PICC lines.  He failed to do his job.  So long as you have disciplined others for the same shortfalls, disciplining Dan on this occasion is perfectly defensible. 

The Lesson of EEOC v. UPS and Automatic Termination Provisions: Engage in the ADA Interactive Process

Posted in ADA

Empty chair.jpgLet me share a story about UPS, although in the end, this story has nothing to do with UPS.  

For about the past 10 years, UPS has maintained a policy of terminating any employees who are unable to return to work after 12 months of leave. This policy has disproportionately impacted employees whose medical conditions prevent them from returning to work during this otherwise eminently reasonable time period. UPS has defended the policy, arguing that the 12-month requirement is an "attendance policy" that is permissible under the ADA, since attendance is an essential job function for any employee.

As it has been known to do over the past few years, the EEOC filed suit against UPS and its 12-month automatic termination policy.  Interestingly, the EEOC does not frame its case as one of attendance, so as to circumvent UPS' argument above.  Rather, the agency claims that the automatic termination policy amounts to a "100 percent healed" policy.  Thus, it is an impermissible qualification standard because it screens out individuals with disabilities in violation of the ADA.  

Last week, a federal trial court refused to dismiss EEOC's ADA claims against UPS, effectively allowing the EEOC to advance its case through the discovery phase.

The one thing that intrigues me about this decision actually has nothing to do with the decision itself, which is a rather dry, four-page analysis (pdf).  Rather, the comments of the EEOC's Regional Attorney John Hendrickson, who is heading up the case for the agency, caught my attention. Employers, take heed of Hendrickson's comments:

The key to avoiding trouble under the Americans with Disabilities Act, is to be constantly asking the question 'Can we get this employee back on the job with a reasonable accommodation?' and certainly not to be asking only 'Has this employee been on leave long enough for us to get rid of him?'

Before we dismiss Hendrickson's comments as a bunch of poppycock, can I offer what might be considered an uncomfortable suggestion: rather than pooh-pooh them, why not take Hendrickson's comments to heart and implement them in your own workplace?  

For those of you striving to be an employer of choice, it seems obvious that your focus should be on the former question (How can we figure out how to help this employee return to work?) than the latter (Can we get rid of him now?). Ordering the questions in this fashion, however, doesn't always come easy. Instead, the employer often simply focuses on whether we have provided enough leave and, after one or two or three extensions of leave, whether it's acceptable to move forward with the employee's termination.  

This approach is understandable -- we have businesses to run, and we need to rely on our employees to make them run. But in doing so, we occasionally lose sight of our obligations under the ADA to engage our employee in the interactive process to determine whether and how we can provide assistance to help them return to work. And where the employee's continued absence truly is a hardship on our workplace and its operations, we must do a better job articulating why and how the absence negatively impacts our business.  Don't get me wrong: 12 months of leave that is provided for under a policy like UPS' above is a ton of time.  In fact, I think it's more than generous.  But if we engage in the interactive process and articulate undue hardship from day one, we'll be in a far more defensible position if we decide to terminate employment -- whether it's after one month or twelve months.

Like you, I long for the day when the EEOC actually provides us guidance on leave as a reasonable accommdation.  Employers deserve it.  And the EEOC has been promising this guidance since at least 2011 when it held hearings on the topic.  But in the meantime, if our workplaces are to be the well-oiled machines we strive for, compliance in the reasonable accommodation process is critical to our future success.  For those of us not up to par, let's get our heads in the game.

ABA's Summary of 2013 FMLA Cases a Critical Resource for Employers, Attorneys

Posted in Uncategorized

ABA logo 2.jpgCalling all FMLA nerds!  You'll want to read this.

Every February, the American Bar Association's Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year. This report literally includes every FMLA decision from 2013. This year's report is as comprehensive as always -- it summarizes 2013 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. Although my FR colleagues and I played a small role in the publication by summarizing a few cases, all the credit goes to attorneys Jim Paul and Bill Bush, who head up the ABA's FMLA subcommittee.


Can an Employee Insist That the Employer Pay for FMLA Medical Certification?

Posted in medical certification

physician payment for cert.jpgLet's put our heads together on this one. You see, it appears as though far too many employees have bought into the notion that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. Case in point: just last week, a client called me for help after one of her employees simply refused to return medical certification because she didn't want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.

Your employee is wrong.  Dead wrong.  

Let's start with the FMLA regulations, which make clear that the employee is solely responsible for obtaining medical certification.  If you don't believe me, here is the language:

It is the employee's responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee's family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee's FMLA request.

29 C.F.R. § 825.305(d)

Going further, the regulations even state explicitly that "any recertification requested by the employer shall be at the employee's expense unless the employer provides otherwise." 29 C.F.R. § 825.308(f)

Other DOL publications are just as explicit about the employee's obligation to pay for his/her own medical certification.  In its Employee Guide to the Family and Medical Leave Act (pdf), the DOL reminds employees that they alone are “responsible for the cost of getting the certification . . . and for making sure that the certification is provided to your employer.”

Notably, this requirement also is outlined by the DOL in DOL Fact Sheet #28G (pdf), the relevant portion of which I've highlighted in yellow.

The DOL Guide and Fact Sheet can be extremely helpful to employers in impressing upon employees the obligations they have under the FMLA to cooperate with the medical certification process.

That said, employers, let's not get too cocky.  The above applies to FMLA medical certification.  If the employer requires the employee to be examined by a physician chosen by the employer, the EEOC cautions that it is the employer's responsibility to pay all costs associated with the examination. Keep in mind, too, that a number of states also have very specific statutes that require the employer to pay the cost of a medical examination where the exam is required as a condition of employment.  In short, where FMLA is not involved, tread very carefully.  And call your favorite employment attorney before making the decision.   

FMLA FAQ: Can General Aches and Pains Support the Need for FMLA Leave?

Posted in FMLA FAQs

kid on back.jpgI just returned from Disney World, a trip that had me chasing my kids (ages 8, 6 and 4) for days on end. So, I'm tired.  And I ache.  My feet ache.  My back aches from my four year old riding on my shoulders. My head aches from thinking about my back.  Even my aches have aches.  

Don't get me wrong -- we had a wonderful time.  I've fully bought into the magic of Disney, and I'm drinking the Tinkerbell kool aid.

But back to my feet.  And back. What if my pains were sufficient enough (in my own mind) to keep me off work for four consecutive days? Would this be enough to trigger the FMLA?

Before you tell me to jump in a lake, let's take a closer look at the FMLA regulations.  The DOL has told us: 

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. 825.113(d).

Additionally, simply staying at home, drinking fluids, and staying the day in bed are activities which can be initiated without a visit to a health care provider and do not constitute “continuing treatment” necessary to establish a serious health condition.  29 C.F.R. 825.113(c)  

Sounds pretty good so far.  This regulatory language seems to support Congress's own deliberations when it passed the FMLA, as the legislative history makes clear that FMLA should not cover short-term conditions for which treatment and recovery are very brief.

But before you slap me with discipline for my four-day hiatus, be mindful of a thorough 1996 opinion letter from the DOL, which explains that a several-day absence could be covered by the FMLA:

If . . . any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA. For example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying “serious health condition” for purposes of FMLA.

As for my minor aches and pains, I am likely out of luck.  And for good reason, as the FMLA was not meant to cover these minor conditions.  The DOL opinion letter above is instructive, however, so it's important for us as employers to inquire, where necessary, to ensure we have sufficient facts to determine whether a multi-day absence has triggered the FMLA.  If you forgot how to go about that, consider my guidance from a prior post here, which includes various questions you can ask your employee to determine whether an absence may be covered by the FMLA.

In the meantime, I'll be singing Supercalifragilisticexpialidocious in the background...

FMLA FAQ: Can Excess Trips to the Potty Be Counted as FMLA Leave?

Posted in Intermittent Leave

kid on toilet.jpgQ: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day.  As a result, she uses far more than her normal breaks allow.  She has provided documentation that a severe medical condition in her kidneys causes this predicament. Do we have to allow this? And if we do, can we at least count the additional trips to the bathroom as FMLA leave?

A: Before you wonder whether this actually is a serious question, it is! In fact, last month, a court allowed a jury to consider an employee's claim that her employer retaliated against her in violation of the ADA after she requested to take frequent bathroom breaks.

In this situation, Bonnie suffered from “interstitial cystitis," which is an inflammatory bladder condition causing frequent trips to the bathroom -- as often as every 20 minutes.  Bonnie claimed that, while she was in the bathroom, her supervisor would intentionally call her at her desk, and when she wouldn't answer, he would send another employee into the bathroom looking for her. Upon Bonnie's return to her desk, her boss allegedly would “shake his head disapprovingly." After a short leave of absence, Bonnie’s desk was moved and her duties reassigned. Days later, she was terminated.

The court declined to flush Bonnie's ADA retaliation and reasonable accommodation claims, finding that she could establish that she had a disability and that there was ample evidence for a jury to decide that her request for an accommodation was a deciding factor in her termination. Akerson v. Pritzker (pdf) 

Bonnie's claim got me thinking (in a nerdy FMLA kind of way): could the employer have assessed FMLA leave for these bathroom trips?  It seems the answer is yes, since the FMLA regulations do not limit the size of intermittent FMLA leave, and it appears that the employee could show that these bathroom trips are medically necessary.  This situation is similar to the facts in Collins v. U.S. Playing Card Co., where the court determined that a diabetic employee's requests for breaks of a few minutes at various points during the work day to get something to eat could qualify as intermittent leave under the FMLA.

I don't want to encourage employees' unfettered access to the loo, but in light of the Akerson and Collins decisions, the employee's bathroom time in these circumstances arguably would be protected by the FMLA.  

Insights for Employers

  1. When counting bathroom time against an employee's FMLA entitlement, only do so if the frequency and duration extends beyond the employee's normal lunch and break periods.
  2. Don't be fooled by the lazy employee. If an employee has notified you of a medical condition causing their unusually frequent or lengthy trips to the bathroom, that's one thing.  But if not, treat it first as a performance-related issue, and communicate with the employee about your expectations and how they're missing the mark.  Suzanne Lucas (aka the "Evil HR Lady") has some great guidance on how to deal with an employee who makes too many trips to the bathroom, including a suggested dialogue with your employee.
  3. But Don't be Pee Brained! I have a tough time with some of the facts in Bonnie's case. Here's why: 1) What's illegal about asking an employee to check on another if the former has been away from her work station? 2) I'd be interested to know what a "disapproving" head shake looks like when the boss uses it to communicate his disappointment for using the the bathroom too long.  Is there a definition somewhere?  And how does that differ from "you're playing your music too loud in your cubicle" head shake, or "your lunch smells" head shake.  All kidding aside, though, this court decision reminds employers of how easy it is to get tripped up by a retaliation claim, especially where a termination decision is temporally related to the request for accommodation. Here, even though the employer claimed it had taken steps to terminate Bonnie's employment prior to her request for bathroom breaks, it lacked documentation proving so.  This was particularly difficult for the court, as it noted “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.”  When it comes to an employee's medical condition, employers must take every request seriously, and it's best to keep our comments (and mannerisms) to ourselves!