FMLA FAQ: If an Employee Racks Up Both FMLA and Unexcused Absences, Can He Be Terminated?

Posted in Abuse of FMLA leave, Intermittent Leave

Here’s a puzzle for you.  How would you handle it?

Mary Beth is a nurse for a local hospital and has been diagnosed with cancer and asthma.  Over the course of about one year:

1. She is certified for FMLA leave for her cancer and asthma;

2. She incurs a total of 13 intermittent absences in a 12-month period;

3. A handful of these absences relate to her cancer and asthma; and

4. Plenty more absences are for various other reasons, including foot pain, a stress fracture in her foot, sore throat, dizziness, common cold, stomach cramps, an upset GI,  and diarrhea.

Sheesh! Some of this stuff is TMI.

In any event, under the hospital’s policies, an employee is subject to termination when they accrue seven absences in a rolling 12-month period.  When Mary Beth reached this grand milestone (and then some), the hospital terminated her employment.

But what about the FMLA absences? Can Mary Beth lawfully be terminated for the non-FMLA absences even though others are FMLA-related?

Many of my clients are paralyzed by this situation. Among other things, they are concerned that: 1) the employee cannot be terminated because it comes during a time period when the employee is using FMLA leave; or 2) the employee will claim after-the-fact that they reported an FMLA-reason for some or all of the absences and that they should not have been considered for the termination.

The Ruling

In Mary Beth’s situation, she was properly terminated, and the court said so.  The court summed up its reasoning quite simply:

Plaintiff was entitled to take leave for [cancer and asthma] under the FMLA, as she had done in 2012 for a brief time period. However, by plaintiff’s own admission, most of her absences between April 2013 and April 2014 were unrelated to her asthma and were unrelated to her bladder cancer . . . FMLA qualified absences aside, plaintiff still missed ten days of work for miscellaneous reasons—three absences more than allowed by defendants prior to termination.

A just result. As the court pointed out, by Mary Beth’s own admission, most of her absences during the time period identified by the employer were unrelated to her asthma and bladder cancer, so they could not have been protected by the FMLA. Bertig v. Julia Ribaudo Healthcare Group (pdf)

Insights for Employers

The Court’s decision to dismiss Mary Beth’s FMLA claims was made easy because the employer did a fabulous job documenting all of Mary Beth’s absences. If employers want the same level of success, two steps are critical:

  1. Document each absence: The Hospital documented each absence and the reasons for the absence on an “Absence or Tardy” report (see copy on the right).  In this report, the employee’s supervisor documented the reason for each absence/tardy along with additional details about the absence.  These reports later are golden when the employer is considering termination, as we now have an actual document explaining why an employee was absent on a particular occasion.  It takes some work, of course, but it’s highly effective. Let’s face it: Some of you “log” all your call-ins for in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which sufficient information about the absence and a review by an HR or a leave administrator so that the employer follows up with the employee on potential FMLA-related absences.
  2. Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.
  3. Don’t forget progressive discipline and the interactive process. As Mary Beth accrues unexcused absences, are you talking to her about your attendance expectations and how she is falling short? Are you also using it as an opportunity to ask her if there is anything you can do to help her meet your expectations? Unfortunately, some of my clients call me well down the road in this process, and I learn that they have not had sufficient dialogue with the employee to set expectations and offer assistance. Engaging in progressive discipline and showing that you did all you could to help the employee succeed leading up to termination adds yet another strong layer to guard against an FMLA or ADA claim.

How Do Employers Calculate FMLA Leave Around the Holidays?

Posted in Uncategorized

It’s that time of year — my kids are already making changes to the fourth draft of their Christmas wish list, holiday music has been playing on my local radio station for four weeks now, and I’m just about ready to claim the couch where I will spend most of Thanksgiving week in my PJs watching football and eating leftover turkey!

Another sign of the holiday season? An uptick in client calls asking me to confirm how they calculate FMLA leave during the holiday season.

I’m sure your employees never take FMLA leave during the holidays, right?  But if in the unlikely chance they do [cough, cough], here is a quick compliance reminder about how you account for FMLA leave as we head into Thanksgiving, Christmas, winter break and the New Year:

Calculating FMLA Leave During A Holiday Week

Let’s use Thanksgiving Day as an example.  If the employee gets Thanksgiving Day off as an employer holiday and then takes the entire rest of work week off for an FMLA reason, the employer should count the entire workweek as one full week of FMLA leave used. The same reasoning would apply if the holiday occurred on any other day of the workweek and the employee was otherwise absent for the remaining work days that week.

However, if the employee works any part of the workweek (e.g., he works Monday then is gone the rest of Thanksgiving week on FMLA leave), the employer cannot count the holiday as FMLA leave.  Here, the employer can only count Tuesday, Wednesday and Friday.  29 C.F.R. § 825.200(h).

Calculating FMLA Leave During a Plant Shut Down or School Break

What if the employer shuts down operations for the entire week of Thanksgiving or at the end of the year or if a school/university closes down for winter break?  Here, the regulations are clear:

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g. , a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. [My emphasis]

In these situations, you cannot count the time against the employee’s FMLA allotment, even if it is obvious the employee would not have been able to perform the duties of the job during this break.

Calculating FMLA Leave Where the Employee Works Part of a Holiday Week

Just to confirm calculating intermittent FMLA leave during a holiday week: Let’s go back to our employee who works Monday of Thanksgiving week and is absent the rest of the week.  There are only four workdays in this particular workweek, and he’s missed Tuesday, Wednesday and Friday.  So, he has used 3/4ths of a workweek of FMLA leave.

Contrast this with a non-holiday week: If there was no holiday this particular week, and he worked only Monday, he would have used 4/5ths of workweek of FMLA leave.

Still Can’t Get Enough of this Scintillating Topic?

We talk even more about FMLA calculations during a holiday week on a old podcast “Bah, Humbug! What Do I Do When My Employees Are Home for the Holidays?”

Happy Thanksgiving!

Join Me for a Complimentary Webinar: Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition

Posted in ADA, Chronic serious health condition, Webinars

When: Wednesday, December 13 (12:00 – 1:15 p.m. central time)

Online registration:  Click Here

Employers are increasingly managing employees who suffer from mental health conditions such as depression, stress, and panic attacks. Studies show that these mental health conditions are leading to increased use of FMLA leave. Administering FMLA leave and ADA accommodations in these situations can be particularly frustrating. Unlike an easy-to-notice need for maternity leave or even a knee replacement, mental health conditions often are silent and manifest themselves on a moment’s notice. As a result, these situations lend themselves to FMLA abuse and increase the risk of FMLA and ADA violations if they are not handled properly.

Please join me on Wednesday, December 13 (12:00 – 1:15 p.m. central time) for “Complying with the FMLA and ADA When Your Employee is Dealing with a Mental Health Condition.”  I will be joined by my friend and fellow FMLA nerd, Matt Morris, Vice President at ComPsych.

In this complimentary webinar, Matt and I will cover a series of difficult FMLA scenarios involving mental health conditions and offer practical strategies to address them, all in an effort to increase your FMLA compliance. We will cover topics such as:

  • At what point has an employee put you on notice of the need for FMLA leave because of a mental health condition?
  • Best practices for employers when an employee fails to return medical certification or turns it in late – and it may be due to their mental health condition
  • What ADA considerations must you keep in mind when considering additional leave or other accommodations for a mental health condition?
  • Does the ADA provide a “Get out of Jail Free” card when an employee’s mental health condition affects work performance?
  • What, if anything, should HR/legal tell the employee’s managers about the employee’s medical condition?

This session will be practical and fun, and back by popular demand, I already have my FMLA-themed song picked out to serenade our guests!

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

This program has been submitted to the HR Certification Institute and SHRM for review and credit. Illinois Continuing Legal Education 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.

At last! Not One, But TWO Court Decisions That Scale Back an Employee's Right to Take Additional Leave After FMLA is Exhausted

Posted in ADA

Cheers to the Seventh Circuit!

There may not be an issue that strikes more fear in the land of HR than how to deal with an employee who cannot return to work after FMLA leave expires. Is some additional leave beyond 12 weeks required? The answer is almost always ‘yes.’

But how much leave are we obligated to provide?

For ages, I’ve carefully counseled my clients on this issue, recognizing that the courts (and EEOC) have declined to offer any meaningful guidance on how much leave beyond FMLA employers are required to provide. Is it two months? Four? How ’bout six?

There has been no plausible answer. Until now.

In the matter of weeks, one rather influential federal appellate court has issued not one, but two decisions that set a far clearer path for employers to follow when deciding whether and how much additional leave they need to provide as a reasonable accommodation under the ADA. Let me quickly explain these cases and offer practical steps you should consider when analyzing an employee’s request for leave.

First Came the Severson case

Unless you’ve been securely wedged under a Human Resources rock over the past several weeks, you’ve been bombarded with alerts about the Severson case.

The facts of this case are fairly straightforward. Ray was employed at Heartland Woodcraft, and he suffered from a chronic back condition, which occasionally flared up and limited his ability to walk, bend, lift, sit stand, move and work. One such flare up caused Sugar Ray to take a continuous leave from work.  He asked for and was granted 12 weeks of FMLA leave.

Two weeks before his FMLA leave expired, Ray informed Heartland that his condition had not improved and that he would need surgery.  Heartland notified Ray the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day. However, it encouraged him to reapply for employment when he was able to return. As the story goes, he was ready to return several months later, but instead of reapplying, Ray filed an ADA lawsuit claiming, among other things, that his employer failed to provide a reasonable accommodation by granting him an extended leave of absence.

The ADA is Not a Leave of Absence Statute

In analyzing Ray’s ADA claim, the Seventh Circuit Court of Appeals acknowledged that a “brief” period of leave to deal with a medical condition could be an accommodation in some situations. But, the court also made clear that long-term leaves of absence fit securely within the “domain” of the FMLA, not the ADA. And in doing so, it set out a fairly bright-line rule:

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule. . . But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes a person from the class protected by the ADA.

Wow.  There is the new rule. A leave of couple of days or weeks may very well be required under the ADA. But a couple months?  No soup for you!  Severson v. Heartland Woodcraft (pdf)

As I shared with Law360 and Bloomberg BNA, it’s as if employers have been given a piece of the Holy Grail! For ages, we’ve searched for a more defined limit on how much leave an employer is obligated to provide under the ADA as a reasonable accommodation. This influential circuit court, at least, has defined this boundary for us.

Then Came the Golden case

Notably, weeks after the Severson case above was decided, the same appellate court doubled down on its position that the ADA was not a leave of absence statute and that leave beyond a couple of weeks simply is not required under the ADA.

Marytza’s case also is simple fact pattern.  She suffered from breast cancer, requiring surgery and an extended leave. As her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, which could have lasted as much as six months.  Her employer, the Indianapolis Housing Agency, declined to grant more than four additional weeks of leave. When Marytza could not return from work after 16 weeks off (12 weeks of FMLA leave and 4 additional weeks), her employer terminated her employment.

Again, the court went right back to its Severson decision issued weeks earlier, finding that

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA . . .[and that such a request] removes an employee from the protected class under the ADA.  Golden v. IHA (pdf)

Insights for Employers

These two cases are, in many respects, a game changer.  But what are the practical takeaways?

1. Where Can I Get Aggressive?  For my clients in Illinois, Wisconsin and Indiana (states covered by the 7th Circuit Court of Appeals), I clearly am being more aggressive in the manner in which I handle ADA leave requests. This court’s guidance is golden [no pun intended]: A few days or weeks of leave is likely required under the ADA. But one that is open-ended and spans multiple months simply is not.

2. For clients in other states, I’m using these cases as strong authority, but I’m not slamming the gas pedal.  Let’s remember: Engaging the Employee in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!

When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (after FMLA has expired), I ask the client for feedback on all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues.  The EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.

3. Approach the Undue Hardship Analysis Carefully.  In an earlier post, I highlighted a presentation I gave some time back with EEOC Commissioner Chai Feldblum that analyzes the approach employers should take when determining whether a leave request poses an undue hardship.  In that post, I offer a number of criteria you should consider when making this determination.  I encourage you to use this analysis when determining whether a leave of absence is negatively impacting your operations.

4. A Quick Word of Caution about Intermittent Leave.  Notably, in both the Severson and Golden cases, the employee’s return to work date was unclear, which often is the case.  The court in Severson left open the possibility that a shorter leave period — indeed, intermittent leave — might actually be more palatable as a reasonable accommodation under the ADA.  All the more reason to tread carefully and conduct an individualized assessment of each leave request to determine whether a leave of absence is reasonable and effective in helping the employee return to work.

Credit: PDF of article reproduced with permission from Daily Labor Report (October 19, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

Photo credit: Warner Bros.

When You Don't Train Your Managers on the FMLA, You're Begging for This Kind of Smackdown

Posted in Court Decisions, Notice

When a manager learns that one of his employees is in the hospital for several days, that’s almost always enough information for the employer to have an inkling that the employee may need FMLA leave.

But one employer didn’t think so. And the penalty for its mistake was costly. Let me explain.

The Facts

Grace worked for the Center for Human Development (CHD). On a moment’s notice, she became hospitalized due to a mental health condition. Upon her admission to the hospital, Grace asked her son, Jim, to call CHD to report that she was in the hospital and unable to report to work.

Being the good son he was, Jim called CHD that same day.

And the next day.

And the day after that.

Not only did Jim talk to her mom’s direct supervisor . . . but his boss . . . and the boss’s boss. Each time, he made clear that his mom was ill, in the hospital and could not come to work.  After a few days, Jim shared that his mom could speak, though she was “unintelligible.”

When all was said and done, Jim had called in to report and provide updates on his mom no fewer than four times over the course of one week. At the same time, however, Candy, a supervisor who had taken one of his calls, got angry with Jim, telling him that it was “not acceptable for him to call CHD instead of his mother” and told him “not to call again.” Despite her admonition, Candy asked Jim no questions about Grace’s condition.

The next day, Candy informed CHD’s vice president of Human Resources, Carol, that Grace was hospitalized and unable to work. A few days later, Candy reported to Carol that Grace was a “no call/no show” when she failed to personally notify CHD of her continued absences.  Carol asked Candy no questions, not even something like, “Ummm, Candy, isn’t that the employee you mentioned was in the freaking hospital?” Nope. None of these questions apparently came to mind.

Despite knowing that Grace had been hospitalized, Carol [mind you, she’s the VP of HR, the grand poobah of all things HR] prepared a draft termination letter for signature by one of CHD’s executives. Notably, neither Candy nor Carol told the executive that Grace had been hospitalized, and that she very well still could be there.

As the story goes, when Grace came back a few days later looking for her job and with her doctor’s medical certification in hand, CHD told Grace that her employment had been terminated because she abandoned her job.

The Ruling

Whack!  That’s the sound of a swift smack down the jury gave the employer at trial. No doubt, the jury made quick work of Grace’s FMLA claims, finding that the employer grossly violated the FMLA when it refused to allow Grace’s son to report her absences on her behalf and then terminated Grace immediately after her time in the hospital and without inquiring further. It awarded her nearly $150,000 in back pay and benefits, plus her attorney’s fees. Boadi v. Center for Human Development (pdf)

The loss itself was only part of it. Because the court found that the employer willfully violated the FMLA, it awarded Grace liquidated damages, which doubled Grace’s back pay award. So, Grace gets another $150K.

Insights for Employers

There are plenty of golden nuggets in today’s lesson:

1.  Hey Employers, Your Managers Are Killing You. And there is one, simply reason why this is happening: You are not training your managers on their responsibilities under the FMLA.

I’ve never seen a case like this one call out — indeed, practically beg — employers to train managers on the FMLA. Interestingly, every time the court introduced a new manager in its sad story about Grace, it specifically commented that the manager was “not trained on the FMLA.” The court then used the lack of FMLA training to award double damages to the plaintiff. Why? The court put it simply:

The fact that [the decisionmaker and other managers] had little FMLA training is further evidence of CHD’s lack of good faith.

Heck, even the VP of HR was in clear need of FMLA training, since: 1) she was aware Grace had been in the hospital; and 2) still chose not to inquire further to determine whether Grace’s inpatient stay was the reason for her extended absence.

Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

2. Family members can report employee absences in limited situations like this one.  When an employee’s family member reports that your employee is in the hospital and “unintelligible” when communicating, first have some empathy. Then, recognize this situation as an unusual circumstance because the employee’s inpatient stay at the hospital was the reason they couldn’t reach you. This comes right out of the regulations at 29 CFR 825.303(a):

Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally.

Of course, the employee is obligated to contact the employer when they are able to do so after the family member has provided notice. Here, Grace was hospitalized for an extended period of time due to a mental health condition. In these situations, it’s far better to exercise patience than to hit the termination button. Clearly, the jury thought so.

Also keep in mind: Where you have any doubt as to whether the FMLA may cover an absence, the regulations require the employer to inquire further to determine whether the FMLA covers the absence. Surely, this was the case here. The employer knew Grace had been hospitalized, so it can’t stick its head in the sand and presume that FMLA didn’t apply or that it had no obligation to ask some questions.  Candy should have asked questions of the son, and Carol should have asked Candy just as many. If Candy didn’t know,  she could have returned to the son and started over again until they were satisfied whether FMLA did or didn’t apply.  [Ahem, it did. ]

3.  Re-consider Your Termination Decision when You Realize You Have Fudged Up. The Court awarded double damages, in part, because the employer failed to reconsider its termination decision when the decisionmaker learned that Grace had been in the hospital, making it unlikely that she could have called in a timely manner from her hospital bed.

Sometimes, we simply have to swallow our pride and realize we made a mistake. Had the employer done so here, it would have drastically reduced its damages.

In fact, it likely would have avoided a lawsuit.

If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?

Posted in Abuse of FMLA leave

All the single ladies . . . all the single ladies . . . 

Now put your hands up, oh, oh, oh . . . 

Imagine marketing director, Michelle, jamming to this Beyonce song in the middle of AT&T Stadium in Dallas. On that very day, however, she’s supposed to be recuperating at home after suffering a panic attack at work.

Days earlier, Michelle had been given a performance improvement plan (PIP) to address her poor performance. By all accounts, she deserved it, since she struggled with the volume of the work required for her position. Although Michelle agreed that she could not keep up and her performance was deficient, she didn’t think she deserved a PIP.

Upon receiving the PIP, Michelle immediately left work. The next day, she called off, reporting that she was “not well to return back to work” and would be filing for short-term disability benefits. Less than one week later, however, Michelle was spotted at a Beyonce concert – in her employer’s corporate sky box.

I’m not kidding.

When word spread that Michelle was at the concert, Michelle’s boss left her a voicemail, asking to discuss why Michelle thought was appropriate to attend the concert when she was not working. Michelle responded by email that she had not been released by her doctor to meet and that as soon as she was released, she would be willing to meet.

Her boss responded by email, giving her a deadline to respond by later that day. When Michelle failed to respond, she was terminated for three reasons: poor work performance, her attendance at the concert while on leave, and her failure to respond to her boss’ inquiries. As the story goes, Michelle sued her employer, claiming it interfered with her FMLA leave and retaliated against her for taking leave.

‘Cause if you liked work, then you shouldn’t have taken leave
If you liked work, then you shouldn’t have taken leave
Don’t be mad once you get yourself canned
If you liked work, then you shouldn’t have taken leave
Oh, oh, oh
Oh, oh, oh, oh, oh, oh

Insights for Employers

With Beyonce’s “Naughty Girl” playing in the background, I’m sure, the court quickly dismissed Michelle’s FMLA claims, finding that her employer had an honest suspicion that she was abusing leave, and her failure to respond to her boss’ inquiries could only lead the employer to conclude that she was indeed taking leave for reasons having nothing to do with the FMLA. Jackson v. BNSF (pdf)

Michelle’s missteps actually provide some helpful practical pointers for employers:

1. You can require your employees to respond to your reasonable inquiries while they are on leave. Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave.  This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as she did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Yet, this court decision is an endorsement to carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.

2.  You CAN Terminate Employee Who Fail to Communicate with you while on leave. Similarly, employers feel paralyzed to take any action against an employee while they remain on leave.

Stop feeling powerless!  

What I love about this court decision is that it reaffirms the principle that the employer was well within its right to terminate Michelle’s employment after she failed to communicate with the employer. The court got it right — when an employee fails to communicate with their employer, they suffer the consequences.

Hurricanes Harvey, Irma and the FMLA: Are Your Employees Eligible for Leave During a Natural Disaster?

Posted in Eligibility, Serious Health Condition

Our thoughts and prayers are with those in Texas and Louisiana whose lives have been impacted by Hurricane Harvey and those in Florida in the dangerous path of Hurricane Irma.  Join us sending a donation to those organizations performing rescue operations and providing much needed help to our fellow Americans in need.

Natural disasters like Harvey and Irma raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered?

The aftermath of a hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Several years ago, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricanes Harvey and Irma:

  • Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives. Case in point: poor Joe Lane, whose FMLA lawsuit was dismissed after he sought FMLA leave, in part, to clean up his mom’s flooded basement because her health conditions precluded her from doing so.
  • However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job. Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster. Take, for instance, an employee’s parent who suffers from diabetes. If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
  • Could the Hurricane actually cause a serious health condition requiring time away from work? See my answer here.
  • What if an Employee was already on FMLA leave when the Hurricane hit and your business now is shut down for a period of time? Here, the FMLA regulations are clear: If your business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, these days do not count against the employee’s FMLA leave entitlement.
  • Finally, do you have to pay your employee on FMLA leave while your workplace is closed down? In short, you treat them the same way you would treat another employee on non-FMLA leave.  See my previous post here for an explanation.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours from several years back covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Comprehensive Analysis of New York Paid Family Leave: What Must Employers Do Now to Comply?

Posted in Leave Law Insights, Legislation

Are you an employer located in New York? Or might you employ even one worker in New York?

If so, you need to read this.

Last year, New York State passed a Paid Family Leave (PFL) law as a part of its existing state disability law, requiring employers with one or more employees to obtain insurance that covers paid family leave. The paid family leave benefits will be phased in over time beginning on January 1, 2018. The law initially offers up to 8 weeks of paid leave to care for a covered family member with a serious health condition, to bond with a child, or in situations where a covered family member is called to active duty in the military. The benefits will be increased in 2019 and 2020, at which point eligible employees will be able to take up to 12 weeks of paid family leave in the above situations.

What Must Employers Do Immediately?

We provide a comprehensive analysis of New York PFL below.  But before we get there, there are a few critical steps employers need to take to comply with this new law:

  1. Do you maintain an employee handbook? If so, the new law requires you to edit your handbook to include “information concerning leave under PFL and employee obligations under PFL.” (Section 380-7.2(a)(1)) In other words, you need to add a new comprehensive leave policy to your handbook. We currently are drafting this policy for employers on a flat-fee basis. Contact me for details.
  2. If You Do NOT maintain a handbook, You Still Need to Do This. The state requires you to “provide written guidance to each of your employees concerning all of the employee’s rights and obligations under PFL, including information on how to file a claim for paid family leave.” (Section 380-7.2(a)(2)) We offer this notice on a flat-fee basis as well.
  3. To Self-Insure or Not.  Employers must decide by September 30, 2017 whether to provide PFL benefits to eligible employees through an insurance policy, the state insurance fund, or a self-insured plan.
  4. Collection of Premiums. As explained below, your employees will fund PFL through payroll deductions. The new law allowed employers to begin collecting premiums as early as July 1, 2017. Therefore, you must decide (if you’ve not already done so) whether to begin deducting premiums prior to January 1, 2018.

To stay on top of these and other new leave of absence laws, I encourage you to subscribe to my new service, Leave Law Insights, which provides timely and critical analysis on any new paid and unpaid leave laws enacted at the federal, state and local level. Find out more about Leave Law Insights here.

Analysis of New York PFL

Outlined below are the key aspects of New York PFL. Several weeks back, I highlighted this law in our new service, Leave Law Insights, which will keep you up to date on all recently enacted leave laws. You can access a pdf of the analysis below here.

Employers Covered

All private sector employers in New York that have one or more employees are covered. In other words, any employer covered by the New York Workers’ Compensation Law must permit eligible employees to take paid family leave. Public employers are not covered unless the particular public employer has elected to opt in to provide PFL benefits. PFL does not cover employees outside the state of New York, except as defined below.

Employees Eligible

The following employees are eligible for PFL:

  • An employee whose regular employment schedule is 20 or more hours per week for at least 26 consecutive work weeks preceding the first full day family leave begins; or
  • An employee whose regular employment schedule is less than 20 hours per week but who works 175 days within 52 consecutive weeks.

The 26 consecutive week requirement may be tolled during periods of absence that are due to the nature of that employment, such as semester breaks, and when employment is not terminated during those periods of absence. The use of scheduled vacation or personal, sick or other time away from work that has been approved by the employer; or other periods where the employee is away from work but is still considered to be an employee by the employer, should be counted as consecutive weeks or consecutive work weeks, or days worked, as long as the contributions to the cost of family leave benefits have been paid for such periods of time. However, periods of temporary disability taken pursuant to Article 9 of the New York Workers’ Compensation Law are not counted as weeks of employment or days worked for determining eligibility for PFL.

As to the question of what a “regular” schedule is, the regulations leave this question generally unanswered. The Workers’ Compensation Board notes that an employee’s regular employment schedule “depends on the facts and circumstances of the employment setting.” As such, employers should take a broad reading of this provision to the employee’s benefit until a the Board provides additional guidance in the future.

Out of state employees: If an employee works for a New York employer, but works in another state and only incidentally works in New York, the employee is not covered by PFL. If an employee does not perform his or her work in any other single state, he or she is covered by PFL if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) the employee lives in New York.

Amount of Leave

PFL benefits are phased in over a four-year period:

  • Effective January 1, 2018, an eligible employee will be entitled to receive 8 weeks of leave paid at a rate of either 50% of the employee’s average weekly wage or 50% of New York State’s average weekly wage, whichever is less.
  • Effective January 1, 2019, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 55% of the employee’s average weekly wage or 55% of New York State’s average weekly wage, whichever is less.
  • Effective January 1, 2020, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 60% of the employee’s average weekly wage or 60% of New York State’s average weekly wage, whichever is less.
  • Effective January 1, 2021, an eligible employee will be entitled to receive 12 weeks of leave paid at a rate of either 67% of the employee’s average weekly wage or 67% of New York State’s average weekly wage, whichever is less.

The NY average weekly wage is currently $1,305.92. On March 31 of each calendar year, the New York State Department of Labor will calculate the State’s average weekly wage based on statewide data from the prior calendar year. To illustrate, in 2018, an employee who earns $1,000 per week would receive a benefit of $500 per week (50% of $1,000). Another employee who makes $2,000 a week would receive a benefit of $652.96, because this employee is capped at one-half of State’s average weekly wage of $1,305.92.

Use of PTO: Under PFL, employees cannot be required to take accrued paid time off concurrently with PFL. However, employers and employees can agree to allow the employee to use PTO during PFL, which would allow the employee to receive their full wages. This time still would count against
the employee’s PFL entitlement. If the employer offers and an employee chooses to use PTO during PFL, the employer may request reimbursement of PFL benefits in the same manner as if it were seeking reimbursement for workers’ compensation benefits.

Calculating Leave

Weekly leave: Any employee taking PFL in weekly increments will be eligible for the maximum number of weeks of leave in any 52 consecutive week period. The 52 weeks are calculated on a rolling basis. Daily leave: Leave may be taken in one-day increments. Partial-day increments are not allowed. When an employee takes PFL in daily increments, the employee’s maximum period of paid family leave is calculated based on the average number of days worked per week with a maximum of 60 days per year for employees working at least five days per week.

The final regulations give the following example of the PFL an employee would receive where the employee works three days per week:

  • On January 1, 2018, the equivalent of three days per week for eight weeks, or a maximum of 24 days in any 52 consecutive week period.
  • On January 1, 2019, the equivalent of three days per week for ten weeks, or a maximum of 30 days in any 52 consecutive week period.
  • On January 1, 2021, the equivalent of three days per week for twelve weeks, or a maximum of 36 days in any 52 consecutive week period.

Computing the average daily rate for daily leave: When an employee requests family leave in daily increments (e.g., every Monday for six weeks), rather than as a weekly benefit, the daily benefit is calculated based on the employee’s average weekly wage divided by the average number of days the employee worked per week.

In arriving at the average number of days the employee worked per week for the purpose of determining the employee’s wage for one day, the employer should average the number of days the employee worked per week over the same eight weeks used in calculating the employee’s average weekly wage. The average number of days worked may be fractional in order to accurately convert the average weekly wage to an equivalent daily wage.

Payment to the employee must be completed as soon as possible, but no more than 18 days from the date of the request. If a request for PFL was previously unspecified, payment must be made within 30 days.

Funding

Paid family leave is 100% employee-funded. Employees are required to contribute, by payroll deductions, to either the premium cost associated with the employer’s attainment of PFL insurance or to the employer’s cost for self-insuring.  That said, the State has indicated that employers may voluntarily choose to fund part or all of the PFL program.

Currently, 0.126% of the employee’s weekly wage up to a maximum of 0.126% of the New York State average weekly wage can be deducted from an employee’s paycheck for PFL purposes. For example, if an employee earns $1,000 per week, (which is less than the State’s average weekly wage currently set at $1,305.92), the maximum PFL deduction for the employee is 0.126% of the $1,000 weekly earnings, or $1.26 per week.

If the employee earns more than the State’s average weekly wage, the maximum PFL deduction for the employee is 0.126% of the State average, or $1.65 per week, which is the maximum deduction. As confirmed by the final regulations, employers may, but are not required to, begin deductions as of July 1, 2017.

Opting-Out

All employees are required to contribute to the cost of PFL, even if they have not yet been employed long enough to be entitled to PFL.

One exception: Employees, such as seasonal and temporary employees, who are hired for short periods of time than is necessary for them to be eligible to receive PFL benefits, may waive PFL.

However, there are very specific requirements for doing so. For example, an employee is only hired for a two-month period of time, the employee can waive or opt out of making payroll deductions towards the cost of PFL by filing a PFL waiver with the employer. If the employee’s term of employment then changes so that now the employee is employed for longer than the 26-week/175-day eligibility threshold, a previously filed opt-out waiver will be deemed revoked within eight weeks of the change. At that point, the employee must make PFL premiums and make a retroactive payment for the period back to the employee’s date of hire. However, the final regulations do not address how the employer is allowed to collect the back premiums.

Type of Leave

Employees can take PFL for the following reasons:

  • To provide care, including physical or psychological care, to their family members due to a family member’s serious health condition;
  • To bond with their newborn children during the first year of the child’s life, or, in the case of adoption or foster care placement, for the first year after the placement of a child with the employee;
  • For any qualifying reason as provided for under the federal Family and Medical Leave Act arising from the employee’s spouse, domestic partner, child, or parent being on active military duty, or, alternatively, being notified of an impending call or order to active military duty.

If two parents working for the same employer wish to take bonding leave for a newborn or newly placed child or to care for a family member, each employee is entitled to the maximum amount of PFL. How ver, the employer may limit the employees from taking leave at the same time for the same family member. PFL can be taken continuously or intermittently, even for bonding leave.

Definition of Family Member

A Family Member is a:

  • Spouse
  • Domestic partner
  • Child
  • Parent or parent-in-law
  • Grandparent or grandchild

“Child” means a biological, adult, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis.

“Parent” means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. Sons-in-law and daughters-in-law are not covered.

Exigency leave is not available for leave necessitated by the military service of a grandchild or grandparent.

Overlap with Disability Pay

An employee who is eligible for both state disability benefits and PFL during the same period of 52 consecutive calendar weeks shall not receive more than 26 total weeks of disability and family leave benefits during that period of time.

Note: In the case of leave taken for the purpose of bonding with a child, on or after January 1, 2018, an employee may seek PFL benefits during the first twelve months after the child’s birth, or during the first twelve months after the placement of the child for adoption or foster care with the employee, even in the event the child was born or placed prior to January 1, 2018. As a result, the employee will be entitled to up to eight weeks of PFL in 2018. For example, an employee who takes and exhausts FMLA leave for a newly placed child beginning on October 1, 2017, could then take bonding leave under NY PFL for another eight weeks from January 1, 2018 through September 30, 2018.

Other situations in which PFL benefits may not be payable include when the employee is:

  • Receiving total disability payments pursuant to a claim for workers’ compensation, volunteer firefighters’ benefits, or volunteer ambulance workers’ benefits
  • Not employed or is on administrative leave from his or her employment
  • Collecting sick pay or paid time off from the employer
  • Works at least part of that day with pay for the employer or for any other employer; and/or As noted above, using the same time for the same family member in question if spouses are employed by same employer.

In the event that a period of PFL benefits received also constitutes leave under the FMLA, the employer must notify the eligible employee of such designation and shall also provide the employee with the notice required under theFMLA. The final regulations warn that, if an employer fails to provide the requisite FMLA notice, the employer cannot exhaust FMLA leave.

If an employer designates a period of family leave to be covered by the FMLA for a reason also covered under section 201 of the Workers’ Compensation Law, and if the employer informs the employee of their eligibility for family leave benefits and the employee declines to apply for payment under PFL, the employer and its insurance carrier may count the leave against the employee’s maximum duration of PFL in a 52-week period.

The employer may elect to track hours taken for FMLA for any day in which the employee is paid, works at least part of the day, and is thus not  eligible for PFL pursuant to the New York Workers’ Compensation Law. When the total hours taken for FMLA in less than full day increments reaches the number of hours in an employee’s usual work day, the employer may deduct one day of PFL benefits from an employee’s annual available PFL benefit. The employer is not be entitled to reimbursement from its carrier for such paid FMLA hours.

The 52-week period is computed retroactively from each day leave is requested. Therefore, during the first year PFL is in effect, employers will look back into a period which may include disability benefits taken in 2017.

Employee Notice Requirements

PFL notice requirements are similar to that required under the federal FMLA.

Foreseeable leave: An employee must provide the employer with at least 30 days’ advance notice before leave is to begin if the qualifying event is foreseeable. The final regulations provide examples of foreseeable qualifying events: an expected birth, placement for adoption or foster care; planned medical treatment for a serious health condition of a family member; the planned medical treatment for a serious injury or illness of a covered service member; or other known military exigency.

If 30 days’ advance notice is not practicable for reasons such as a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. The employee must advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.

When the need for family leave is foreseeable and an employee fails to give 30 days’ advance notice, the self-insured employer or the carrier may file a partial denial of the family leave claim for a period of up to 30 days from the date notice is provided.

Unforeseeable leave: When the approximate timing of the qualifying event and need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the qualifying event.

“As soon as practicable” means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances surrounding the qualifying event.

The final regulations confirm that it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. Moreover, the regulations state that, as to intermittent leave, the employer may require the employee to provide notice as soon as is practicable before each day of intermittent leave.

Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, PFL may be delayed or denied.

Employer Notice Requirements

The employer has two specific notice obligations under  PFL:

  • Employers must display or post a typewritten or printed notice concerning PFL in a form prescribed by the State. The notice must be displayed in plain view where all employees and applicants can see it.
  • If an employer maintains written guidance for employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning PFL and employee obligations under PFL shall be included in the handbook or other written guidance.

If an employer does not have written policies, manuals, or handbooks describing employee benefits and leave provisions, the employer must provide written guidance to each employee concerning all of the employee’s rights and obligations under PFL, including information on how to file a claim for paid family leave.

Making a Claim to be Paid

An employee requesting PFL must complete the Request for Paid Family Leave in the format prescribed by the State or give notice of a claim in another format designated by the carrier or self-insured employer. A carrier or self-insured employer that designates another format for filing a request for family leave must continue to accept the Request for Paid Family Leave in the format prescribed by the State.

Once an employee requests PFL, the employer or insurance carrier must complete the employer information contained in Part B of the PFL-1 form and return it to the employee within three business days.

The employee must submit the request for PFL together with the information supplied by the employer, and with any necessary certifications or proof of claim documentation, to the carrier or designated third-party administrator.

The carrier or self-insured employer must accept certification and proof of claim forms in the format prescribed by the State, but may also accept certifications in another format that complies with the requirements of PFL. No benefits are required to be paid until the completed request for paid family leave, together with any necessary certifications or proof of claim documentation, has been submitted.

Medical Certification

For a family member: When leave is taken because of the serious health condition of a family member, the employee must obtain a medical certification from a health care provider that sets forth the following information:

  • Name, address, telephone number, email address (if available), license number and state of license of the health care provider, and the type of medical practice/specialization;
  • Approximate date on which the serious health condition commenced, and its probable duration;
  • Certification regarding the patient’s health condition for which PFL is requested. The certification must be sufficient to support the need for leave; and
  • An estimate of the frequency and duration of the leave required to care for the family member, including whether the need for care is continuing or on an intermittent basis.

Bonding time: An employee requesting PFL to bond with a newborn child or newly placement child may be required to provide the following:

  • A birth mother’s claim for paid family leave to bond with a child must be supported by documentation in the form of (1) If available, a birth certificate; or (2) If a birth certificate is unavailable, documentation of pregnancy or birth from a health care provider that includes the mother’s name and the child’s due or birth date.
  • A parent’s (other than a birth mother) claim for paid family leave to bond with a child must be supported by documentation in the form of: (1) If available, a birth certificate; (2) If no birth certificate is available, a voluntary acknowledgment of paternity or court order of filiation; (3) If the documents in (1) and (2) are not available, then the employee must provide (A) a copy of documentation of pregnancy or birth from a health care provider that includes the mother’s name and the child’s due or birth date (see section (a)(2) above), and (B) a second document verifying the parent’s relationship with the birth mother or child (i.e., marriage certificate, civil union documents, or domestic partner documents); (4) If the documents in (B) of subparagraph (3) above are not available a parent may submit other documentary evidence of parental relationship for evaluation on a case-by-case basis.
  • An adoptive parent’s claim for paid family leave to bond with a child must be supported by documentation in the form of: (1) A court document indicating that an adoption is in process or is being finalized; or (2) When leave is taken prior to completion of the adoption, a document evidencing that the adoption process is underway, including but not limited to, a signed statement from an attorney, adoption agency, or adoption-related social service provider that the employee is in the process of adopting a child; (3) If the second parent is not named in the document(s) in (1) or (2) herein, the employee must provide (A) a copy of the document evidencing the adoption, and (B) a second document verifying the relationship to the parent named in the document (i.e., marriage certificate, civil union documents, or domestic partnership documents).
  • A foster parent’s claim for paid family leave to bond with a child must be supported by documentation in the form of: (1) A letter of placement issued by the county or city department of social services or local volunteer agency; (2) If the employee is not named in the placement document, submit (A) a copy of the document evidencing the placement, and (B) a second document verifying the relationship to the parent named in the document (i.e. marriage certificate, civil union documents, or domestic partnership documents).

Acceptance or Denial of PFL Claim

Once the carrier or self-insured employer receives a completed request for paid family leave with the necessary certification, the carrier or self-insured employer must pay the claim or deny the claim within 18 days. In the event a completed request is received more than 18 days before the occurrence of a qualifying event, the carrier or self-insured employer shall send payment to the employee within five days following the qualifying event. The carrier or self-insured employer may deny the claim without prejudice because of an incomplete claim package or insufficient certification or proof of eligibility. If the claim is denied without prejudice due to an incomplete claim package, the carrier or self-insured employer must notify the employee within five business days of each piece of required information that is missing from the employee’s request for paid family leave.

The carrier or self-insured employer also must provide the employee with an explanation of how to properly complete the request for paid family leave (and information regarding arbitration should the employee have any disputes). If the claim is not refiled within 30 days from when leave was first
taken, the carrier or self-insured employer may deny the claim. A PFL denial must state the reason, repeat any relevant information filed in the Request for PFL, and include any other information considered by the carrier in making the decision.

Unless the employee requests to receive correspondence by regular mail, the carrier or self-insured employer may send the denial and accompanying information by email.

The carrier or self-insured employer may deny the claim with prejudice for the following reasons:

  • Employee has not been employed by the employer for a sufficient length of time to be eligible for benefits.
  • Employee is not an employee of the employer.
  • Employee is not an employee of a covered employer.
  • The family member that the employee is seeking leave to care for is not a covered family member under subdivision (20) of section 201 of the Workers’ Compensation Law.
  • The amount of leave requested exceeds the statutory maximum benefit period for family leave or disability benefits under Article 9 of the Workers’ Compensation Law.
  • The amount of family leave requested exceeds the statutory maximum or the family leave needed as stated in the medical certification of the employee or the qualifying event was foreseeable and the employee failed to provide the employer with notice as required. In such a case, the carrier may issue a partial denial of any excess leave or a partial denial for 30 days when the qualifying event was foreseeable and the employee failed to provide the employer with notice. All benefits requested that have not been denied must be paid within the statutory time frame.
  • The employee requesting leave is the perpetrator of domestic violence or child abuse against the care recipient.
  • The claim was not timely made.
  • The employer did not have coverage on the date family leave began.

Reinstatement Rights

A covered employee who has received PFL must be reinstated to his or her employment upon conclusion of his or her leave in accordance with section 203- b of the Workers’ Compensation Law. The final regulations do not clarify how “reinstated to his or her employment” is defined, so employers should follow the requirements of the FMLA until we receive more guidance from the State.

PFL contains a unique requirement for an employee not reinstated to his or her employment. In the event the employer declines to reinstate the eligible employee, the employee must file with the employer and the State a formal request on a form prescribed by the State that the employer come into compliance with the provisions of sections 203-b and 120 of the Workers’ Compensation Law.

Within 30 days of the date of this request, the employer must either take corrective action or file a formal response to the employee, any attorney or representative who the employee may have retained, and the State, explaining the reason that corrective action will or will not need to be taken. The failure of the employer to fully complete the formal response in a timely fashion may result in adverse findings and conclusions.

The employee must file a complaint under section 120 of the Workers’ Compensation Law within two years after the employer’s response above.

Maintenance of Health Benefits

An employee who is provided health insurance by his or her employer is entitled to the continuation of that group health insurance coverage during PFL on the same terms as if he or she had continued to work. The employee must continue to make any normal contributions to the cost of the health
insurance premiums.

PFL’s provisions for dropping coverage for the employee’s failure to pay premiums is the same as the provisions under FMLA. However, the PFL regulations do not address whether an employee will be required to repay premiums paid by the employer in the event he/she does not return from PFL, as is the case under FMLA.

Application with Collective Bargaining Agreement

Employers with employees or a class or classes of employees subject to a collective bargaining agreement are not required to supply such employees with PFL coverage when the collective bargaining agreement:

  • Provides paid family leave benefits at least as favorable as this law;
  • Does not permit an eligible employee to waive his or her rights to PFL or otherwise opt-out except as permitted by the law.

With the exception of the requirements set forth above, a collective bargaining agreement may provide rules related to PFL that differ from the requirements set forth under the law.

Effective Date

Employers may begin payroll deductions on July 1, 2017, and employees may begin using PFL benefits on January 1, 2018. Employers have quarterly and annual reporting requirements to the State about its PFL program. The State will provide additional information on this requirement later this year. You can access the statute here and final regulations here.

Poorly Implemented FMLA Policies and Procedures are Killing Employers. Don't Be That Employer.

Posted in Court Decisions, Intermittent Leave, Notice

Poorly implemented FMLA policies and procedures are in the spotlight this week.  And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.

Their mistakes, however, are golden lessons for the rest of us.

Confusion Over How Much Maternity Leave is Provided

In Sad Employer Story No. 1, Bhavani sought leave to give birth to her child and to bond with the child. No sweat, said the employer, who had surely gone through this exercise before.  The employer maintained both an FMLA policy and a standalone “maternity leave policy,” which read (in part) as follows:

Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave.

At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.

Notably, these two policies were completely silent on whether FMLA leave and maternity leave ran concurrently or consecutively.

To make matters worse, the employer failed to provide Bhavani the critical FMLA Notice of Eligibility or Designation Notice, so she didn’t have a clue what was coming or going when it came to FMLA leave.

When Bhavani later was terminated when she did not return to work on time, she cried foul, claiming that the employer’s policies and lack of notice led her to believe she was entitled to additional leave. The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether Bhavani’s employer violated the FMLA when it declined to give her additional leave.  Rengan v. FX Direct (pdf)

Confusion Over How Much Notice an Employee Should Provide When Requesting FMLA Leave

In Sad Employer Story No. 2, Lisa injured her shoulder while falling through the hatch of a catamaran boat.

Ouch. That couldn’t have felt very good.

As a result, Lisa requested and was granted FMLA leave beginning in early July. On her leave of absence form, Lisa indicated that her return date would be July 31. Her physician later cleared her to return not on July 31, but on August 4.

In Lisa’s employee handbook, it stated:

If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.

But then it also mentioned this:

If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date.  (My emphasis, not the court’s.)

A bit confusing. In Lisa’s situation, the employer considered July 31 to be her last day of FMLA leave (since that’s the date she originally indicated). Therefore, when Lisa was a no-show on August 1, it considered her to have voluntarily resigned her employment. After all, that’s what the policy says, right?

Not so fast. The policy also states that Lisa has four business days to inform the employer of the need for FMLA leave. That’s practically a lifetime. So, when the employer terminated her employment without giving her up to four business days to comply, the court found that the employer potentially violated the FMLA. Perry v. Isle of Wight County  (pdf) My friend, Eric Meyer, has a good synopsis of the case here.

Insights for Employers

A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures:

  1. Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave. The FMLA regulations allow employers to run paid leave concurrently with FMLA, so do it.  And make it crystal clear in your policy.
  2. When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, it must provide the individual notices to the employee.
  3. Draft and maintain very clear call-in procedures, and ensure they are demanding. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” What kind of useless parameters are these? Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.”  If you are inclined to be a bit more generous, consider cutting it back from the four business days allowed by Lisa’s employer. These lengthy reporting grace periods frustrate your ability to properly staff your operations, lead to misuse of FMLA and, as here, they create easy opportunities for you to violate them, resulting in expensive attorney’s fees and potential liability.

Need to Stay Informed on Changes to State and Local Leave of Absence Laws? Meet Our New Resource: Leave Law Insights!

Posted in Leave Law Insights, Legislation, Paid Leave

Over the past several years, as employee leave of absence legislation has become increasingly complex, employers have asked us to create a product that provides timely analysis of all the changes in state and local leave of absence laws.

Clearly, there is a need to stay up to date on these changes, since they significantly impact the manner in which employers provide benefits to its employees. On a moment’s notice, city and county governments also are passing new leave laws, which only further complicates an employer’s compliance efforts.

We have your answer. 

Meet Leave Law Insights, which provides subscribers regular updates on any leave of absence legislation that has been signed into law. Our analysis will cover paid and unpaid leave laws and ordinances at the federal, state, city and county level.

What is Leave Law Insights and What Does It Cover?

Leave Law Insights provides a regular and complete analysis of all recently-enacted leave laws and ordinances. Our updates, which begin this month (August 2017), help you quickly digest a new law while providing the comprehensive information necessary to enhance your compliance efforts. These updates include all paid and unpaid leave laws, except those that apply only to public/municipal employees.

Each update includes an analysis about key aspects of the law, such as:

  • Covered employers and eligible employees
  • Entitlement/reasons for leave
  • Key Definitions (e.g., family members, other critical terms necessary to interpret the law)
  • How leave is accrued and, if paid leave, requirements for payment of wages and carryover
  • Employer/employee notice requirements, including links to employer postings
  • Requirements for certification and reinstatement of employment
  • Interaction with other laws
  • Links to the law and regulations

Each legal update also includes key additional guidance:

  • Insights for Employers: providing additional practical guidance on key aspects of each law
  • Quick Takes: highlighting minor amendments to current state or local leave laws

How Often Will We Provide Updates on New Leave Laws?

We will provide updates on all new leave laws as they are enacted, so we anticipate providing an update on at least a monthly basis. Within the upcoming months, we will provide updates on a web portal so that you have real-time access to these legal changes and a collection of current leave laws across the country.

Want a Sneak Peek?

Our first issue, which is immediately available, is 55 pages in length and analyzes all leave laws/ordinances enacted over the past year. Take a sneak peek at this month’s issue of Leave Law Insights:

Who Should Subscribe to Leave Law Insights?

In short, any employer, broker and third party administrator will find our leave law updates critical to their compliance efforts. More specifically, Leave Law Insights is a necessary tool for any employer with multi-state operations, HR departments which lack the resources or time to track these laws, HR teams without dedicated leave administrators, and employers with workers taking significant amounts of leave.

In a timely and cost-effective manner, this resource will relieve you of the seemingly endless task of tracking leave of absence laws so that you can turn your attention to more strategic opportunities for your organization.

How Do You Subscribe to Leave Law Insights?

We offer Leave Law Insights at three different subscription levels:

  1. Just the Updates. Our basic subscription delivers Leave Law Insights in pdf format directly to your E-Mail Inbox. For the next 30 days, we are offering our loyal blog readers an annual subscription for $1,200.  (Regular subscription = $1,500)
  2. Updates and Consultation.  If you need assistance interpreting these new laws and understanding how the nuances apply in your workplace, we offer ongoing consultation for an additional annual flat rate of $1,000. Under this option, we set up regular one-on-one telephone conferences to discuss these laws.  You receive legal updates and access to our consultation for a total annual discounted rate of $2,200.
  3. Receive Leave Law Insights for FREE.  I offer a service known as CALM — Compliance in Accommodations and Leave Management — in which I assist employers and third party administrators with day-to-day FMLA and ADA questions. Under CALM, I provide employers and third party administrators practical guidance on the most difficult leave management and accommodation questions you face for a flat $750 monthly retainer. We are offering Leave Law Insights free of charge for 12 months to our CALM clients.  Click here for more information about our CALM service.

Are you ready to get started? Email me at jsn@franczek.com or contact me by phone at (312) 786-6164 to discuss and confirm which subscription is best for you.

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