Court Determines that Employer's FMLA Notice Sent by Email is Not Reliable (Sending Employer World into Tizzy)

Posted in Notice

ygmlogo.gifWe have a mini-FMLA crisis on our hands this week, and the courts are to blame.  This issue involves the FMLA notices that employers send to employees, but more importantly, the delivery route in which they send them.

You may recall that, a couple months back, I analyzed a decision by a federal appellate court which found that an FMLA notice sent to an employee by U.S. mail cannot be trusted because the employer cannot confirm whether the employee actually received it.

Get a whiff of this — this past week, a different federal court has determined that notice sent by email is not reliable either.

The Facts

Summer worked for MotorCity Casino, and over the course of many years, she had taken FMLA leave due to a degenerative spinal disorder, which made it difficult for her to work on her feet several days in a row. In September 2011 alone, Summer took intermittent FMLA leave nine times, which was five more than anticipated by her physician, and she also had called off work every Sunday that month.

As any reasonable employer would, the casino sought recertification of the condition due to the increased frequency and her Sunday absence pattern. It sent its FMLA notices to Summer by email, instead of U.S. mail as it had done in the past.

As the story goes, the employee claimed that she did not receive the emailed FMLA notices. Whoa, what a shock!  About as shocking as my 7-yr old saying that he didn’t hear me when I asked him to clean his room. We knew the answer before we asked the question. Caught in spam filter . . . must have been a server problem . . . simply vanished into thin air. In any event, when Summer failed to return the recertification (despite an initial and subsequent request to do so by the casino), her absences were considered unexcused, and she later was terminated.  Summer lawyered up and sued.

The Ruling

As an initial matter, the court noted that the FMLA regulations only require that the employer provide the employee oral notice of the need to provide recertification. The court apparently found this method to be the most desirable, since it guarantees person-to-person communication. (Of course, the court glosses over the fact that this method sets up a he said-she said situation virtually every time.)  As to FMLA notice sent by email, the court framed it up this way:

Defendant had the right to require Plaintiff to recertify her FMLA leave … Specifically, the issue is whether Defendant [through its TPA], by informing Plaintiff of the recertification requirement via email, gave Plaintiff proper notice of that requirement … The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice.

And with that quick stroke, the court refused to dismiss Summer’s FMLA claims, finding that the dispute over whether she actually received the FMLA notices by email precluded a dismissal of her FMLA claims. As a result, the court determined that only a jury could decide whether the casino violated the law. Gardner v. Detroit Entertainment LLC dba MotorCity Casino

Insights for Employers

Let me get this straight — one court just told us snail mail is unreliable for sending FMLA notices.  Now, another tells us electronic mail is unreliable for sending notices?  Someone please explain to me: How exactly does an employer ensure that an employee has received FMLA notice?  Is our only option to deliver it directly to the employee’s front door, with balloons and an entourage, ala Publishers Clearing House? [Never mind - Ed McMahon passed away several years ago, so the employee surely would deny having received delivery of that notice, too.]

Corporate communications are increasingly being sent electronically, so this court’s insistence in this day and age that the employer show that the email actually was delivered (despite the clear email trail) is ludicrous.  Moreover, as to the employee’s denial that she “approved” communication by email, it rings hollow. The TPA handling the casino’s FMLA administration obtained Summer’s email from Summer herself. When she provided her email address to the TPA, should she not have some expectation that the TPA would then use the email address to communicate with her?  Never mind — that makes too much sense.

What’s ultimately troubling here is that, in a matter of two months, a couple of courts have given employees a platform (whenever it’s convenient to them) to unabashedly deny having received FMLA notices that come through the most reliable means of communication today. In turn, courts are inappropriately placing far too heavy a burden on employers and their TPAs to establish that the FMLA notice delivered through the mail slot or directly into the Yahoo or Gmail inbox actually made it to them, even though we should have every confidence that the notice arrived exactly as expected.

Forgive my rant. But now that we’ve calmed down a bit, what do we do about this mess?

1.  There seems to be an increased value in providing the FMLA notices and required certification to the employee in person and having the employee sign a confirmation of receipt.  If the employee is on site when the notices are to be sent, I recommend providing them in hand to the employee and obtaining written confirmation.

2.  Occasionally, in-person delivery is not feasible, and of course, it’s never an option for TPAs. So, then what? Employers are well advised in these instances to send notices in a manner that requires proof of receipt, such as certified mail or overnight mail.  No question this is costly, especially for TPAs, but it’s seemingly the only method of delivery courts will accept if employers want to prevail on summary judgment and avoid a trial.

3.  What about requiring employees to confirm up front that email communications are an acceptable means of communication for FMLA notices?  I encouraged this option in my previous post on the topic, and it may have saved the casino in this instance, particularly where it was transitioning from snail mail to email for its communications with Summer. Keep in mind, though, that this confirmation option still has some gaps, as you undoubtedly will encounter employees who fail or refuse to sign a document confirming their agreement to email communications.

4.  I hold my nose as I offer this suggestion: in instances where the employee claims to have not received the FMLA notices, employers should reconsider whether termination is the appropriate option. At a minimum, we now must closely review the situation to determine whether it is plausible [holding nose] that the employee did not receive the notices. Afterward, we should carefully assess the risk in terminating the employee, particularly where (as we had here) the employee promptly turned in certification after she informed the TPA that she had not received the requisite notices. I hate giving employees this cop out, but I also don’t like subjecting my employer clients to the liability incurred here and in the case referenced in my previous post.

As a related aside: Upon reading the court’s decision, did anyone notice yet another error made by the court? At the end of the opinion, the court further explained that the casino should have given the employee the opportunity to “cure” the “incomplete” certification. When the employer failed to do so, the court found another issue for trial. As a matter of law, the court got it wrong. The employer’s beef here was not that the employee turned in an incomplete or insufficient certification.  To the contrary, the problem (as we know) is that she didn’t return the darn certification within 15 days after having received it.  Indeed, there was nothing to “cure.”  Another issue for the appeal, I suppose.

Excuse me now.  I’m going to try and get that Publishers Clearing House tour going again, as I think I might have just found a second calling…

(HT to my fellow blogger Eric Meyer, who tipped me off to this case)

What Employers Can Learn from Physicians When It Comes to Administering the FMLA

Posted in Medical Certification

Earlier this month, I took one for the team.  And I survived. boxing doctor

I had the privilege of presenting to a number of employers and health care providers at the annual “Impairment Without Disability” conference, an event sponsored by Mayo Clinic which brings physicians and employers together to share their common knowledge, experiences and goals, and work together to improve and eliminate unnecessary disability.

I had the wildly *easy* task of explaining to health care providers what employers believe they are doing wrong when it comes to handling and completing FMLA medical certification. Before we had finished, we arm wrestled to a draw, traded head locks, and overturned half the tables in the seminar room.

Rest assured, I got my licks in about how doctors need to do better completing the form, clearly spelling out the medical facts behind a serious health condition and the frequency and duration of such a condition; that they need to timely complete the form (which all too many of them are charging for); and how they need to better communicate with employers where information is required.

But when all was said and done, and all kidding aside, I realized that health care providers have a perspective worth appreciating when it comes to the FMLA. Here’s what I learned in my session with these HCPs:

1.  Despite our cynical employer viewpoint otherwise, health care providers are open to communicating more often with employers (at least more than I had anticipated). During my presentation, I emphasized that reasonable communication with employers about the medical condition, its frequency and duration, and the extent to which the condition impacts the job can go a long way to helping an employer understand what’s going on with the employee. Consequently, employers will be more inclined to work with the employee regarding necessary time off. As a related aside, HCPs also seem to appreciate that a modest amount of time on the phone with the employer sooner rather than later will result in fewer requests for clarification in the future (well, at least the near future!).

2.  HCPs don’t fully understand when they can and can’t talk to an employer about their patient, so employers should be more understanding of the obligation to follow HIPAA. In other words, if the HCP thinks HIPAA applies, we should be prepared to obtain a release from our employee to discuss the matter directly with the physician.   We also must be mindful of the FMLA regulations, which remind us that we are not entitled to information beyond that which is addressed in the medical certification form.

3.  Employers need to do a better job of explaining: a) why they are seeking recertification; and b) the patterns of absenteeism they are observing. You’ve dealt with the Monday/Friday pattern of absences, right? Under the FMLA regulations, employers have the right to submit this pattern to the HCP and ask her/him to confirm whether this pattern is consistent with the employee’s alleged serious health condition and the need for leave. The HCPs complain that, all too often, the employer’s correspondence is incoherent or is ambiguous as to what information it actually is seeking.

My employer friends, this correspondence should be a straightforward piece of cake. And I have noticed that employers and TPAs do not do an adequate job in communicating patterns and asking for information.  I have prepared model letters for employers in precisely these situations, and I trust your employment counsel has done the same. So, if I am not your employment counsel [ahem, why not?], seek out your employment counsel and get a copy of this model. If your attorney doesn’t have model correspondence, find a new one.

4.  Don’t assume that the HCP simply rubber stamps recertification or a “pattern” of absences without having a candid conversation with the patient. Again, our cynical side tells us that the HCP will simply attest to whatever tale the employee concocts. That may very well be the case. But don’t underestimate the candid conversation the HCP is having with their patient about their absence pattern(s).  Although we think it unlikely, a fair number of HCPs are cautioning their employees that their employer is “on to them” and advising them to mind themselves accordingly.  [For those HCPs who are not engaging in these candid conversations with their patients, I strongly encouraged them to do so.]

5.  Remember that HCPs are human and, as a result, they often can’t be precise when it comes to frequency and duration. As employers, we live and breath the frequency and duration noted by the HCP on the certification form. When the employee blows past either frequency or duration, we are eager to blame the employee and their HCP for the injustice.

Keep in mind – the HCP owns no crystal ball, so frequency and duration is a product of the HCP’s best estimate based on his/her medical judgment at that time. Although we’d be willing to beg HCPs to be more specific and accurate on frequency and duration, they often cannot, as the threshold for pain and the timing of a recovery differs for every individual.  Really, when it comes down to it, can any medical professional predict precisely how many migraines his/her patient will suffer from in one month? My friends, we’re talking best educated guess.  Not every HCP is the wise guy who completed this medical certification for one of my clients a few years back, which I share now for a chuckle on hump day.  Note the “probable duration” of the condition:

Picture1

Thanks to Jane Ryan and Mayo Clinic and Essentia Health for the invite and the opportunity to understand HCPs’ perspective. All kidding aside, the continued dialogue benefits employers and HCPs alike.

Join Me for a Complimentary FMLA Webinar: Managing FMLA Red Flags and Staying Ahead of the Trends

Posted in Abuse of FMLA leave, Webinars

red flagsIt’s Webinar Time!

The year 2014 has ushered in a host of fascinating developments involving the FMLA. Courts across the country have issued critical decisions on an employee’s notice of the need for FMLA leave; whether an employee can affirmatively decline FMLA leave; combating FMLA abuse; and caring for a family member.

Please join us on Thursday, November 13 (12:00 – 1:15 p.m. central time) for “Managing FMLA Red Flags and Staying Ahead of the Trends.”  I will be joined by Ellen McCann, Assistant Vice President and Senior Counsel for Unum.

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?!  Click here to register for this complimentary webinar. When you register, please take a moment to tell us your most burning FMLA questions within our topics below — we’ll weave the best you have to offer into our presentation.

Ellen and I will highlight the latest FMLA trends and identify practical solutions to help employers stay compliant.  Among other topics, we will address:

  • Recognizing an employee’s need for FMLA leave
  • Whether an employer should designate FMLA leave on occasions when an employee does not want FMLA to apply
  • How to nab an employee when you are provided Facebook or other social media posts showing them acting inconsistently with their need for FMLA leave
  • Handling an employee’s request for FMLA leave where the employee will care for a family member while on vacation or during out of state travel
  • The latest on managing FMLA intermittent leave

This session promises to be practical and fun. And I might even throw in a Thanksgiving tune to finish things off. Click here to register for this webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

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.

Don't Be Tripped Up by Light Duty Obligations under the FMLA and ADA: A Discussion of Employer Best Practices

Posted in ADA, Pregnancy

light duty - put feet upEarlier this week, I had the privilege of presenting on the FMLA and ADA reasonable accommodations at CUPA-HR‘s annual conference with my friend, Stan Kulesa from The Standard.

We spent much of our time discussing the delicate topic of light duty and how it intersects with — and creates employer obligations under — both the FMLA and ADA. Now that the EEOC has instructed in its July 2014 pregnancy discrimination guidance that employers must offer light duty opportunities to pregnant employees in a wide range of circumstances, the concept of light duty presents new and additional risks for employer liability.

As we discussed with higher ed professionals during our presentation, employers should keep the following best practices in mind about light duty:

1.  Light Duty and the FMLA: When an employee seeks FMLA leave, an employer can offer a light duty assignment as an alternative (to keep the employee working), but the employee has the right to take FMLA leave instead.  The right take FMLA leave is absolute — if the employee cannot perform the current job because of a serious health condition, the employee has the right to take leave.  Conversely, if the employee elects a light duty job in lieu of FMLA leave, the time in this light duty position cannot count against the employee’s FMLA allotment.  29 C.F.R. 825.207(e)

2.  Light Duty and the ADA (Part I): An employer is not required to create light duty work, but if it does, it can create this position on a temporary basis. (EEOC Guidance, question 29) After all, the aim of light duty work is to gradually transition an employee back into his/her position, or to allow the employee a modest amount of time to heal until they are ready to perform their job duties again.

But how long is “temporary”?  Of course, there is no magic number here. That said, I don’t have any concerns with a policy that gives guidance as to the length of a light duty role but clearly leaves the door open to the ADA’s interactive process so that the employer meets its obligations under the law.  Such a policy might state, for example: “Temporary work does not normally extend beyond “x” days. If the employee has not sufficiently recovered to return to the usual and customary position within this period, then we will review the employee’s restrictions and engage the employee in a discussion about how we might help them perform their job.”

3.  Light Duty and the ADA (Part II): There is a bit of an ongoing debate between EEOC and the rest of the world over whether employers can limit light duty to those who have suffered on the job injuries. EEOC has taken the position (in EEOC v. Supervalu and in similar ADA cases) that an employer cannot restrict light duty in such a way because it has the effect of discriminating against individuals with disabilities. Many employers traditionally have offered light duty exclusively to workplace injuries (especially where there are longtime collective bargaining agreements in place), and I see no reason to change now, so long as employers keep in mind your obligations to otherwise provide reasonable accommodations under the ADA.  Just beware of the risk that EEOC will take an adverse position to yours and you may be required to defend the practice.

4.  Light Duty and Pregnancy: In its July 2014 guidance on pregnancy discrimination, the EEOC takes the position (for the first time) that the Pregnancy Discrimination Act (PDA) requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions. The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the Guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the the ADA.

Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their light duty practices — as well as their accommodation policies — as soon as possible to minimize exposure to pregnancy discrimination claims.

Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly

Posted in Eligibility

joint employerI’ve discussed far sexier topics than “joint employers” on this blog.  After all, it’s not every day an employee gets drunk at a Polish festival at the very time she’s supposed to be on FMLA leave.

But even the rather mundane portions of the FMLA [ahem, is there such a thing?] require us to stay on our toes, as a federal court made clear this past week.

To be covered by the FMLA, a private employer must employ at least 50 employees within a 75-mile area. If the employer doesn’t meet this threshold, it is not obligated to provide FMLA leave to its employees. However, an employee can enjoy the protections of the FMLA if he is jointly employed by multiple companies that together have 50 or more employees.

So, how is an employee *jointly employed* by two employers such that he is eligible for FMLA leave?

Let me explain the story:  Trans States Airlines and GoJet Airlines provided regional air service for United Airlines.  Darren was a manager for and on the payroll of Trans States, which employed a mere 33 employees.  He later requested and was denied FMLA leave.  Instead, he was terminated.  Trans States argued that Darren could not make out an FMLA claim because Trans States was not covered by the FMLA — it simply didn’t have enough employees to meet the 50-employee threshold.  Easy enough, right?

Not so fast, Darren’s attorneys argued.  They contended — and convinced a trial and appellate court — that GoJet (which employed 340+ employees) was a joint employer because Trans States and GoJet shared Darren’s services and because the two companies acted in each other’s interests with respect to Darren.

The trial and appellate court agreed, pointing to evidence that: 1) Darren represented Trans States and GoJet in their negotiations and meetings with United Airlines and O’Hare Airport; 2) the logos of all three companies appeared on his business card; and 3) internal directories and a supervisor identified Darren as the contact person for operations questions regarding Trans States and GoJet.  Cuff v. Trans States Holdings, Inc. (pdf)

The trial court had gone even further, finding that the two entities retained common ownership, operated under the same trade name, shared headquarters and administrative staff, employed supervisors to manage the employees of the companies, centrally maintained personnel records, and maintained common operations in the same recruiting department.

Insights for Employers

Maintaining temporary employees or sharing employees with a related company is a risky endeavor and, as we learned here, sets up at least the initial building blocks for an FMLA claim.  Regardless of the employment arrangement, however, employers do not lose at trial simply because they are considered joint employers. Employers lose FMLA suits when they interfere with employee’s FMLA rights or retaliate against them for taking protected leave.

Related question: Click here for my guidance on whether the period of time worked as a temp employee counts toward an employee’s eligibility for FMLA leave.

FMLA FAQ: Can We Terminate an Employee for Working a Second Job While on FMLA Leave?

Posted in Abuse of FMLA leave

moonlightingQ:  One of our employees has taken FMLA leave for anxiety attacks.  Recently, we found out that she is working a similar job for another employer at precisely the same time she should be working for us.  Can we deny her the right to return and terminate her employment because of this leave abuse?

A: Your ability to take disciplinary action — including termination — likely will hinge upon one critical detail: Do you have a policy that prohibits outside employment and do you apply it consistently for anyone on a leave of absence?

The FMLA regulations contemplate this precise scenario:

If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained. . . . 29 CFR 825.216(e) (my emphasis).

The courts generally have followed this regulation.  For example, in Howard v. Millard Refrigerated Servs., the employer learned that the plaintiff was working at another company during the time he was on FMLA leave, a detail that was confirmed after an internal investigation.  The court dismissed the employee’s FMLA claims, largely because the employer maintained a consistently-applied policy prohibiting employees from working while they were on a leave of absence.

The same held true in Pharakhone v. Nissan North America, where an employee took FMLA leave and immediately began working at his wife’s restaurant [he must have really liked the food?].  At the time, the employer enforced a policy prohibiting “unauthorized work for personal gain while on leave,” and his supervisor advised him that he was not allowed to work there during his FMLA leave.  Because of this employer’s precautions, the employee’s FMLA claims were dismissed here, too.

Where there is no policy in place, however, an employee on FMLA leave arguably can maintain a second job, even if the work is similar to her current position. Take, for example, the employee in Stekloff v. St. John’s Mercy Health Sys., where the court determined that the employee only had to show that she was unable to work in her current job because of a serious health condition in order to qualify for FMLA leave. The fact that she worked a very similar position elsewhere and was able to to attend orientation within one day of taking FMLA leave did not matter to this court.

Insights for Employers

A couple of points to keep in mind:

1.  If you want to prohibit an employee from working a second job and tighten up your FMLA compliance, it is critical that you maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. Additionally, the policy should be distributed and available to all employees, and they should be reminded of it when leave begins.

2.  Secondly, if you learn that an employee is working another job while on FMLA leave, you should:

  • Confirm these facts and inform the employee that you are aware of the second job
  • Confirm the employee’s acknowledgement and agreement that your policies prohibit moonlighting
  • Determine the duties of the other job and compare to his regular job
  • Compare the job duties with any medical restrictions as outlined on the medical certification form. Particularly where you do not have a no-moonlighting policy, be sure to investigate the relationship between the two jobs.  In the case of anxiety, for example (as in the question above), might the employee have an argument that he/she cannot perform the work of a particularly stressful job (e.g., emergency room doc) but can work a desk job in an office where split second decisions do not have to be made?
  • Investigate fully and discuss with your *favorite* employment attorney before taking action

Employer Rejects Employee's Fitness for Duty Certification, Faces FMLA Liability

Posted in Uncategorized

cat typingThe story is for all you hunt and peck typists out there.  But its message is a lesson for all employers when it comes to returning your employee from FMLA leave.

Vanessa worked for Reading Hospital as a credentialing assistant, a position that required her to be typing approximately 60 percent of the time.  After breaking a bone in her hand (unrelated to her job, although it would have made for an interesting twist in this case), Vanessa took a leave of absence.   She returned several weeks later wearing a splint on her hand.  However, because the hospital believed she could not work “full duty” (because of the splint), it forced her back on leave until she could work full duty. Vanessa returned to her physician, who taped up her fingers and returned her to work, in large part because Vanessa told him she could perform the job.

Vanessa again returned to work with a doctor’s note, which stated, “No restrictions in splint.” When the hospital noticed her tape job, however, it again questioned her ability to work without restrictions. The hospital told her that “she needed to perform at the ‘same capacity’ as she did prior to going on leave” with “full use of all her digits in order to be considered full duty.” As a result, Vanessa took additional FMLA leave. She was out for an extended period of time, and upon expiration of 12 weeks of FMLA leave, the hospital filled her position with another employee.

Vanessa’s FMLA interference and retaliation suit followed.

The Ruling

In defending the lawsuit, the hospital argued that Vanessa’s FMLA claims should be dismissed because she could not perform an essential function of her job. In theory, the hospital had a good point — refusing to restore an employee to her position at the conclusion of her leave does not violate the FMLA if the employee remains unable to perform an essential function of her position.

Yet, a federal appellate court refused to dismiss Vanessa’s FMLA claims because she provided enough evidence to indicate that the hospital did not properly follow the FMLA when restoring her to her previous position.

Prior to permitting an employee to return to work, an employer may request that an employee provide [a fitness for duty] certification . . . as Reading required of [Vanessa] here. In it, an employee’s healthcare provider must merely certify that the employee is able to resume work . . . an employer may require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. 29 C.F.R. § 825.312(b). It is undisputed that Reading did not provide [Vanessa] a list of essential functions for her to present to [her doctor]. Because Reading did not provide [Vanessa] with such a list, the fitness-for-duty certification was based only on the description of the job that [Vanessa] would have supplied him.

Because the hospital did not provide Vanessa and her doctor a job description or list of essential duties, guess who got to decide what her duties were?  Yep — Vanessa!  So, when Vanessa’s doctor asked her if she felt able to type, and she responded “yes,” Vanessa’s opinion carried the day.  Frightening, indeed! But the employer had no say in the matter because its return to work certification process was not compliant.

As the court noted, Vanessa’s fitness for duty certification clearly stated that she could return to work with “no restrictions.”  If the employer had any concerns about the certification, it should have sought clarification with her health care provider (as long as the employee gives the employer permission to do so, which Vanessa did here).  It did not do so here, choosing instead to overrule her doctor and deny her return her to work.  That creates an FMLA problem, as the court pointed out here.  Budhun v. Reading Hosp. & Medical Cntr. (pdf)

Insights for Employers

A few takeaways here:

1.  Ensure your fitness for duty certification process is compliant.  The FMLA regulations contain very specific rules about how you return an employee to work, what notices you must provide, and the extent to which you can require certain medical information. Some key points to remember in this process: 1) you must notify your employee in the FMLA designation notice that you will require a FFD certification; 2) you should [read: must!] include an accurate job description or list of essential job duties; and 3) upon return of the FFD cert., you can seek clarification of the cert., but you cannot delay the employee’s return to work while you’re seeking clarification. (See my point directly above.)

2.  When you don’t provide the health care provider with essential job functions, you potentially create problems for yourself, as the hospital learned here.  When you fail to do so, the employee’s opinion and explanation of her job duties carry the day. Let’s not go there, so just provide these duties up front.  Enough said.

3.  Update job descriptions/essential job duties before you provide them to the health care provider. As my friend Eric Meyer points out in his post on this case, your descriptions are likely old and filthy (my words, not his), so work with your managers to update them so they reflect actual job functions.  There was some debate in this case over Vanessa’s job duties.  Clear, updated job descriptions avoids this ambiguity.

4.  Don’t insist that an employee return to work fully or 100% healed.  And even more, don’t put it in writing!  The court did not dwell on this point, but employers must move away from the notion that an employee must remain on leave unless they are 100% healed or “without restrictions.”  As I have highlighted in previous posts, the ADA requires employers to make an individualized assessment when deciding whether an employee can return. When employers enforce a ”100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process and, therefore, violated the ADA.

5.  I’m not saying that you can’t question the employee’s return or the ability to obtain more medical information.  In fact, in prior posts here and here, I outlined when you have the ability in certain situations to require a separate fitness for duty exam if you have an objectively reasonable basis for the examination independent of the FMLA leave itself. Use my guidance from these other posts to your advantage if you have concerns about an employee’s return to work.

FMLA FAQ: Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important?

Posted in Interference, Reinstatement

Maggie (8-27-14)Sorry I have been away for a bit. Of all things, I’ve been taking some FMLA bonding leave to care for this beauty to the right! I am excited to report that our daughter, Maggie, joined our family just a few weeks back. And I’ve been smitten ever since.

There are a few things that rouse me from my FMLA slumber — like when I need to warn my employer friends about a foolish mistake an employer made administering the FMLA. So, when I heard the story of Tondalaya Evans, I quickly threw down the burp cloth and charged over to my laptop to share this little tale with you.

The Facts

Evans was employed by Books-A-Million (BAM) as a payroll manager. Evans apparently became pregnant at an inopportune time — right at a time when BAM was implementing a new payroll system.  As supervisors are prone to do, Evans’ supervisor told her that BAM “really needed” her to continue to work on the new system, so much so that Evans felt she had no choice but to continue to work from home after the birth of her child.

While Evans was bonding with her new child, she kept plugging away, but her supervisor became frustrated with Evans’ lack of progress. When Evans returned to work, BAM reassigned her to a newly-created position — risk manager — in part because BAM was not pleased with her work on the payroll system implementation.

Evans rejected the risk manager position (for which she had no experience and which required travel), and BAM terminated her employment.

Then Evans found one of them employment attorneys.  What were the legal theories, you ask?  First, that BAM interfered with Evans’ FMLA rights by making her work while on FMLA leave.  Second, that BAM violated the FMLA when it reassigned her to the risk manager position based on her performance during a period of time when she should have been on unfettered FMLA leave.

Insights for Employers

After a whole lot litigation, an appellate court ruled earlier this month that Evans would be allowed to try her FMLA claims. Evans v. Books-A-Million (pdf)  At trial, BAM has some explaining to do.  Before this thing even goes to trial, there are lessons to be learned:

1.  Don’t Make an Employee Perform Substantive Work while on FMLA Leave. Not ever. Never. Does that mean you can’t ask the occasional question or consult on an issue?  Of course not.  We discussed in an earlier post where to draw the line.  Generally speaking, fielding occasional calls and e-mails that relate to your job while on leave is a “professional courtesy” that does not interfere with FMLA leave.  As one federal court in New York put it, when an employee is passing on “institutional knowledge” or providing closure on open assignments, employers do not violate the FMLA. But employers have to resist the urge to pile on work while an employee is taking FMLA leave.  Keep in mind: the FMLA exists so that employees can take job protected leave from work. I recognize that, at times, an employee’s need for FMLA leave is difficult, even incompatible, with the pressure of business and client needs, but it must be compatible, and its use should be supported by the entire organization.

Note, too, that it didn’t matter to the court that BAM paid Evans for the time they made her work while out on FMLA.   There still is the potential for FMLA interference when an employer does not allow the employee to take FMLA leave when it qualifies as such.

2.  Don’t Abandon Your Obligation to Return the Employee to the Same or Equivalent Position.  So long as she timely returned from FMLA leave, Evans was entitled to return to the same or equivalent position.  The FMLA regulations are unforgiving in defining an equivalent position.  As you may recall, an equivalent position is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. (My emphasis)

Here, BAM returned Evans to what appears to be a much different position.  Although the role was managerial in nature, it required different skills and included travel (which was not required of Evans before she took FMLA leave). In this sense, the case is similar in many respects to the JP Morgan case we discussed in a previous post.  There, the employer returned an employee to a quality control position after holding the position of project manager.  The new position required different skills, a new reporting relationship and fewer opportunities for advancement, all of which the court found difficult to justify under the FMLA regs.

Another reminder: be exceedingly careful when returning an employee to a different position upon their return from FMLA leave.  Think virtually identical skills, effort responsibility and authority.

The task is not easy, and at the risk of sounding fake, phony and a bunch of other things, I gently remind you that these are decisions that should be made with the assistance of your employment counsel.

Otherwise, you might get BAM’d.

A Game-Changing Decision? Sending FMLA Notices to Employees by U.S. Mail May Not Cut It Anymore

Posted in Notice

Junk mailWith all the FMLA paperwork that a leave administrator has to provide an employee during the FMLA process, you’d wonder whether you’re attending a real estate closing. All these documents — whether it’s the Notice of Eligibility, medical certification, or the Designation Notice — typically get sent by good old fashioned snail mail, delivered by your friendly neighborhood U.S. postal worker.

Back in the day, we could rely on that package arriving safely at its destination. And on time.  We were so sure of the U.S. mail’s accuracy and efficiency that the courts recognized the “mailbox rule,” under which we presume that a letter which is properly sent with postage reaches its destination in a timely fashion and actually is received by the individual to whom it was addressed.

This week, however, a federal appellate court took a sledgehammer to the mailbox rule, finding it to be a relatively weak indicator that the addressee actually received the correspondence sent to him.  As a result, employers and third party administrators responsible for sending these notices are left wondering whether notice by U.S. mail is acceptable anymore.

Let me explain.

The Facts

Lisa worked for Corinthian Colleges an as instructor.  During the relevant time period, she was dealing with some personal issues and, as it turns out, she was battling depression.  Her boss encouraged her to take some personal leave. Lisa agreed, and she completed a leave of absence request form seeking “personal leave.” A short time later, Lisa provided complete FMLA medical certification to the College supporting her need for leave. As a result, the College properly converted her request for “personal leave” into one for FMLA leave, and it sent by U.S. mail the appropriate FMLA notices designating her absence as such.

Lisa required leave from December through mid-March, which was 14 weeks later.  Several weeks thereafter, Lisa provided documentation from her physician fully releasing her to return to work.  By this point, however, the College told her she no longer had a job because she didn’t return to work after her 12 weeks of FMLA leave expired.

So said Lisa: “What FMLA? This is the first time I knew my absence was being classified as FMLA leave…I never received notice that this was FMLA leave.”

Lisa sued the College, alleging that it violated the FMLA when it failed to give her notice that her absence was covered by the FMLA.

The Ruling

The issue of whether Lisa received the FMLA notices was central to her FMLA lawsuit.  According to the court, if the College could show that Lisa actually received its FMLA correspondence, her FMLA claims would fail.

The court then analyzed the strength of different forms of notice.  Certified mail, for example, offers a “strong presumption” of receipt by the addressee.  Regular mail, however, assures only a “weaker presumption.”   The court determined that this “weaker” presumption is nullified whenever the addressee’s denies receipt of the mailing.

Think about that: a letter is not considered delivered by regular U.S. Mail whenever the addressee proclaims he or she did not receive it.  And here, Lisa’s denial allowed her the opportunity to submit her FMLA claims to a jury.

In its reasoning, the court explained what kind of delivery should be required in today’s day and age:

In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.  (My emphasis)

Lupyan v. Corinthian Colleges (pdf)

Insights for Employers

I fear this decision is a bit of a game changer when it comes to confirming that an employee actually has received FMLA notice.  And it poses a very real and costly problem for employers and TPAs.  Let’s face it — employees regularly claim they failed to receive a notice given to them or sent to them in the U.S. mail. In nearly every Plaintiff’s deposition I take, they deny receiving some kind of notice from their employer. Now, they can defeat summary judgment simply by denying that they failed to receive an FMLA notice sent by regular mail? Criminey!

Disagree as we might with this decision, what do we learn from it?

  1. There is no question that the federal appellate court here is insisting upon a higher threshold for FMLA notice.  As the court told us in no uncertain terms, if employers want to maximize their chances of dismissing an FMLA claim short of trial, they have to use “some form of mailing that includes verifiable receipt” when sending FMLA notices.  Therefore, in jurisdictions covered by this court (which handles appeals from Pennsylvania, New Jersey and Delaware), it is advisable to send all FMLA notices by certified mail, overnight mail or email, since these are relatively capable of verifiable receipt.  Hand delivery is good, too, so long as you obtain a signature that the employee received it.  One thing to keep in mind when it comes to email: Email communications present their own dilemma, since these communications often can be filtered right into a junk mail folder, never to be seen by the intended recipient.  If you intend to use email as a means of communication with your employees, first seek their permission and confirmation that email is an acceptable means of communication regarding FMLA notices.  (Work with your legal counsel to draft this document.)
  2. I see such a lost opportunity here.  Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave?  We’ve addressed these situations before — when you don’t communicate regularly with an employee on an extended leave of absence, you increase your problems exponentially.  This case serves as yet another good example.  If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Can I get an Amen!?! Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process.  Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee.  As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!
  3. This decision also is a reminder of what not to do when FMLA leave ends.  What else did the College do wrong?  First, it insisted that the employee return without restrictions.  We should recall from previous posts that requiring an employee to return 100% healed is an ADA problem.  Don’t do it.  Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.  I discussed this in a previous post, too.

In the meantime, I’m going to the post office to pick me up some green certified mail cards.  Anyone need some?

Now This is a Headache! Employee Terminated for Migraine Headaches Can Advance FMLA Claim

Posted in Court Decisions, Eligibility, Interference

headache -- funny dogIn the cold, sadistic world that is the FMLA, the Department of Labor tells us that ordinary, run-of-the-mill headaches (a/k/a “non-migraine” headaches) are not covered by the FMLA.  Migraine headaches, on the other hand, are covered. When I try to explain the difference in FMLA training sessions for employers, they often look at me like I have two heads.

“Yeah right,” they tell me. “Like we’re really going to track every migraine headache as FMLA leave!?! Do you realize how busy we are?”

Refrain from designating FMLA leave for this reason at your own risk.

Now, employers have yet another reminder that the FMLA offers the same protections for migraines as it does for open heart surgery.  Here’s the scenario:

The Facts

For years, Jill’s managers at Boeing knew of her migraine headaches.  For several years leading up to 2012, plaintiff telecommuted from time to time because of her migraines, and beginning in 2012, plaintiff’s migraines became more frequent.  In spring 2012, Boeing informed employees that they could no longer work partial days when they were sick — leave had to be taken in full day increments.

In June 2012, Jill was informed for the first time that she could apply for FMLA leave to cover absences caused by her migraines. So, she took intermittent FMLA leave for the remainder of 2012, but because she was no longer allowed to work partial days, her absences were far more frequent than they were before, and her reviews suffered as a result. Jill also was disciplined for “unexcused” absences.  However, the facts indicate that at least some of these absences were due to her migraine headaches.

When she took a four-day leave of absence from April 29 through May 2, 2013 — for migraine headaches — her employment was terminated.

The Court Ruling

Finding that Jill gave sufficient notice of the need for FMLA leave and then was absent for migraine headaches, the court refused to dismiss her FMLA claims, finding that a jury could determine that her employer interfered with her right to take FMLA leave on these occasions and used her migraine-related absences as a negative factor in her employment. Alexander v. Boeing Company (pdf)

Insights for Employers

Strike One:  The employer failed to recognize that migraines could be covered by FMLA.  Despite the DOL’s pronouncement that migraine headaches are covered by the FMLA, this employer failed to consider that absences taken for this medical condition are protected. 29 C.F.R. 825.113(d)

Strike Two: The employer used Jill’s absences for migraine headaches as a negative factor in her employment evaluations, which is a sure fire way to lose on summary judgment.  Here’s what her own supervisor had to say about Jill in his deposition:

It was difficult. I know in her last performance review, it was difficult to give her an adequate performance review without her being at work as much as, as often as she missed. When she was at work, she was very effective and I alluded to that in her performance review, but the fact that she did miss a lot of work did play in the fact that she wasn’t as effective as she could have been just by the fact she wasn’t there.

That’s a supervisor who was not prepared very well for his deposition.  Had he been prepared, he would have understood that FMLA-protected absences (i.e., those days when she suffered from migraine headaches) could not have been used as a negative factor in her employment evaluation.  The court picked up on the supervisor’s testimony and quoted it verbatim when it refused to dismiss Jill’s FMLA claims.

Strike Three: Jill’s supervisors learned that she had applied for “FMLA leave,” yet they still chose to terminate her employment at that time for “job abandonment.”

Why jump the gun? In a rush to judgment and assuming the worst, Jill’s supervisors created a whole lot of liability for the company. In these situations, employers are well served to: 1) find out the medical facts behind the employee’s absence (in other words, talk to the employee!); 2) if necessary, obtain medical certification so you can better understand the alleged serious health condition and the need for and length of leave; 3) give the employee time to provide the requested medical certification; and 4) avoid making termination decisions unless and until you have reviewed the medical certification and — with legal counsel — have decided that termination is warranted based on legitimate, non-discriminatory reasons.

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