Happy Thanksgiving from my Lovable FMLA Abuser, Albuquerque Turkey

Posted in Webinars

AlbeeThere is much to be thankful for this Thanksgiving, and I continue to be humbled by your support of this crazy, little FMLA blog. I am entirely grateful for your willingness to read and ponder my continued FMLA ramblings.

I offer this in honor of the season: For those who attended my FMLA webinar on November 13 on FMLA red flags and trends, you were tortured with my rendition of “Albuquerque Turkey,” which is a beloved Thanksgiving song in the Nowak household. Oddly, I have received a number of requests for the audio and lyrics to this rendition [ahem, I am in utter shock by any level of interest].

For those willing to be tortured again, you can access the audio here.  Thanks to my wife, Shannon, who was a huge help in changing up the lyrics for my FMLA version, which goes something like this:

Albuquerque is a Turkey
And he’s feathered
And he’s fine,
And he wobbles
And he hobbles
But he asks for too much leave time.

He cries his back hurts
He claims his head hurts
Oh poor Albee it’s just an act,
You love playing hooky
It’s just an excuse, and that’s a fact.

Oh, he wobbles
And he hobbles
And he texts me that same day . . .
Claiming heartache
Crying tummy ache
Staying home to rest, so he will say.

Wednesday morning
I was surfing
Facebook posts
And Twitter, too,
On my newsfeed
I spotted Albee
On the beach
Drinking a brew.

“You’re not home!
You’ve been lying!”
“No, my boss,
I’m home for sure!”
That guy on Facebook
Was my twin
He ruins my life
I just can’t win.

Oh, he wobbles
And he hobbles
And he lies to me once more
I can’t keep him
On my payroll
I shake his hand
Show him the door

Now my Albuquerque Turkey
Is legitimately home in bed
‘Cause now back at the office
We have a new employee instead.

I wish you all the very best for a Happy Thanksgiving!

Managing FMLA Red Flags and Staying Ahead of the Trends: A Recap of our Webinar

Posted in Abuse of FMLA leave, Caring for Family Member, Notice, Webinars

webinar1.jpgThanks to those who attended my webinar last week with Ellen McCann on “Managing Red Flags and Staying Ahead of the Trends.”  If you missed the program, you can access the webinar and materials here.

In a mere hour, Ellen and I covered a number of hot FMLA topics and trends, such as:

  • Conducting an effective investigation after you obtain photos or information through social media suggesting that your employee is abusing FMLA leave
  • The latest on caring for a family member where travel (with the family member) is involved
  • How Employers should send FMLA notices in light of recent cases indicating that U.S Mail and email might not be good enough
  • How Employers should handle situations where an employee needs leave but doesn’t want the absence designated as FMLA leave

I’m out of breath just thinking about all the real estate we covered!  And in a moment of pure insanity, I even sang an FMLA Thanksgiving song about a turkey named Albuquerque (which of course can be skipped over in the recording). Despite my singing, we are pleased to made the webinar recording and PPT materials available here. Feel free to pass this link along to anyone who might be interested.

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed. Feel free to post a comment here or email me at jsn@franczek.com.

"I Got Stuck in the Blood Pressure Machine at the Grocery Store and Couldn't Get Out!": How Employers Deal with the Most Outrageous Excuses for FMLA Leave

Posted in Abuse of FMLA leave

FerrisDon’t you hate it when someone glues your windows and doors shut so you cannot make it to work? Hasn’t happened to you? According to a recent CareerBuilder survey, this may very well have happened to one of your co-workers the last time he was absent from work.

Last month, CareerBuilder published the 2014 edition of its annual survey highlighting the most outrageous excuses employees have given when calling in sick. Consider some of these highlights:

  • Over the past year, 28% of employees have called in to work sick when they were feeling well, which was down from 32% last year. When asked for a reason, 30% said they simply didn’t feel like reporting to work and 29% responded that they wanted the day to kick back and relax.
  • Another 21% took the day off to attend a doctor’s appointment and 19% wanted to catch up on sleep. Meanwhile, bad weather was enough for 11% of employees to take the day off.

Instead of reporting to their supervisors that they were under the weather and couldn’t make to work, employees across the country provided the most colorful excuses in 2014. Here are some of my favorites from CareerBuilder’s list:

  • My plastic surgery needed some “tweaking” to get it just right.
  • I was sitting in the bathroom and my feet and legs fell asleep. When I stood up, I fell and broke my ankle.
  • I woke up in a good mood and didn’t want to ruin it.
  • I got stuck in the blood pressure machine at the grocery store and couldn’t get out.
  • I accidentally got on a plane. [Huh?]

Social Media Empowers Employers

Next time you want to play hooky at the beach, you may not want to post on Facebook photos and snippets of your day. Interestingly, CareerBuilder noted that one in four employers (24%) has caught an employee lying about being sick by checking social media.

This stat isn’t necessarily surprising, as we have witnessed a groundswell of litigation involving employees who are terminated because their FMLA abuse was broadcast for all to see on social media. This new frontier of FMLA litigation reminds employers that they must act carefully when investigating suspected FMLA abuse.

If you attend my *free* FMLA webinar on November 13 (register here), I will give you the recipe for lawfully conducting an investigation involving suspected FMLA abuse after it is broadcasted on social media.  Don’t miss out!

Insights for Employers

Despite our best efforts, these outrageous sick leave excuses are a mere phone call away, and CareerBuilder tells us that the holidays are the worst part of the year for fabricated stories about the need for leave.  So, in addition to attending my webinar next week, keep these suggestions in mind to ward off employee FMLA abuse:

  1. Is the Employee Requesting Leave That May Be Covered by FMLA?: First, you must determine whether the employee has even notified you of the need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary. Of course, it’s never that easy. Employees are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; or d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.
  2. Require that Employees complete a written leave request form for all absences: Require the employee to write out his/her request, or fill out a leave request form, which tends to deter them from gaming the system. And it helps you better administer leave.
  3. Enforce usual and customary call-in procedures: Not nearly enough employers utilize this tool, even though they should! Absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer’s call-in procedures. For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.
  4. Prepare a list of probative questions you ask of all employees when they call in to report an absence: As the employer, you have the right to know why your employee cannot report to work. So if you have concerns about their leave request, don’t hesitate to ask more probing questions about why they need leave! During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:
    - The specific reason for the absence [Is it just the sniffles, or is it something more?]
    - What duties of the job they cannot perform
    - Whether they will see a doctor for the injury/illness
    - Whether they have suffered from this condition before and previously taken leave for it and when?
    - When they first learned they would need to be absent
    - The expected return date (or time, if less than a day)
  5. Use medical certification and recertification to your advantage: Medical certification is one of the best tools to combat FMLA abuse. So, use it! Moreover, if this is a medical condition for which an employee has taken FMLA leave on a prior occasion, determine whether recertification is an option. Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays? Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately. If you are concerned about a Monday/Friday pattern of absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.  Work with your attorney to craft this correspondence so you can effectively combat leave abuse.
  6. Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your favorite employment counsel [cheap, shameless plug!] to ensure that your FMLA policy and procedures are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

See you on November 13 — have I told you I am hosting an FMLA webinar that day?

When an Employee Requests FMLA Leave for a Workplace Injury, Is the Employer Required to Report it as an OSHA Event?

Posted in Regulatory Activity

OSHAAn issue that implicates both the FMLA and OSHA? Normally, I’d yawn and take a cat nap along with you.

But this one is sufficiently interesting: If an employee returns FMLA medical certification confirming the need for FMLA leave because of a workplace injury or illness, is the employer required to record the event on its OSHA reporting forms?

No, according to the Occupational Safety and Health Review Commission, which reviews citations or penalties resulting from OSHA inspections of American work places.

Here was the recent scenario considered by the Commission: “Susie” provided her employer, the United States Postal Service (USPS), FMLA medical certification stating that she suffered from a “serious health condition…caused by her work environment exclusively.” USPS knew nothing about Susie’s illness other than what the medical certification indicated, and it did not inquire further of Susie.

Although this document arguably put USPS on notice that Susie’s illness was work-related, USPS never recorded the illness on its OSHA 300 or 301 forms as required by law. After an investigation, OSHA cited USPS for a record-keeping violation because USPS did not record the event.

Commission’s Ruling

USPS argued that it was required to maintain Susie’s FMLA certification in a separate system as mandated by the FMLA. As a result, USPS contended that it could and should not not disclose this information about Susie on its OSHA firms and report.  In a bit of a surprise move, the Commission agreed with USPS, finding that the confidentiality provisions of the FMLA (located at 29 C.F.R. §825.500(g)) trump OSHA rules and do not require completion of an OSHA log:

Because the provision plainly prohibits the use of FMLA documentation for non-excepted purposes, we conclude that such documentation may not be reviewed by an employer for OSHA recordkeeping purposes.  Sec’y of Labor v. USPS, OSHRC, No. 08-1547 (9/29/14)(pdf)

Insights for Employers

We have grown accustomed to government agencies taking it to the employer community, so this one is a good win for employers. Simply put, the decision stands for two essential principles: if an employer receives FMLA medical certification indicating the employee’s health condition is or could be work-related, the employer does not have any obligation to: 1) record the illness or injury on its OSHA forms, or 2) inquire whether the injury or illness is related to work.

Nuf said.

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
LexBlog