Everyone one of us has been there.

Your employee, Johnny, takes a leave of absence because he stubbed his toe at work, resulting in a lengthy worker’s compensation absence.  For one reason or another, Johnny’s one week leave of absence turns into one month, then six months.

One night, right about the time Johnny is nine months into a leave of absence, you wake up in a cold sweat, realizing for the first time that you completely forgot to designate any of Johnny’s nine month leave as FMLA leave.

First, a little pat on the back. We’ve all been there, kid.

What You Should Have Done

As I have discussed before, when an employer is put on notice that an employee needs leave for a reason that may be covered by the FMLA, the employer has an obligation to provide the employee a Notice of Eligibility and Rights & Responsibilities Notice (which usually is accompanied by a blank medical certification form).  Once you have sufficient information from your employee to determine whether the absence qualifies under FMLA, then you send your employee a Designation Notice.  If you don’t send these notices to your employees, you risk an FMLA violation.

But take some heart in a recent FMLA case, Jeanette Jergens v. Marias Medical Center.  In Jeanette’s situation, she took a leave of absence for alleged anxiety which, interestingly enough, coincided with her employer’s decision to keep Jeanette on an administrative leave of absence while it investigated her alleged workplace misconduct. However, her employer failed to provide Jeanette a Notice of Eligibility. It didn’t send her a medical certification form. And it didn’t send her a designation notice either.

Literally sent her nothing.

Jeanette was terminated a short time later for reasons not related to her leave of absence.  When she filed suit against his former employer, she claimed — among other things — that her employer violated the FMLA because it did not provide her proper or timely FMLA notices.

Employee Must Show Failure to Provide FMLA Notices Harmed Her

The court reviewing Jeanette’s claim took a rather pragmatic approach.  On one hand, the employer technically violated the FMLA when it failed to provide Jeanette proper and timely FMLA notices, but this inaction does not create a standalone FMLA claim.

On the other hand, Jeanette failed to provide any evidence that she actually was harmed by the employer’s failure to provide proper notice. For the court, nothing was lost, nor was any harm suffered, by reason of the failure to provide proper and timely notices.

Case dismissed.

Insights for Employers

The employer dodged a bullet here.  I share this case not to highlight employer best practices [clearly, the employer’s actions here are not a model for us to follow], but as a reminder that the way to go — indeed, the best practice — is to provide proper and timely FMLA notices.  When we receive notice of the need for leave that may be covered by FMLA, we provide the Notice of Eligibility and Notice of Rights and Responsibilities.  When we have enough information from medical certification as to whether FMLA applies, we provide the Designation Notice.

Let’s dig in a bit more though.

Catching The Oversight Soon Enough

If we have missed the deadlines to provide the appropriate FMLA notices, but we have no reason to believe that the employee has suffered any harm because of our oversight, it typically makes sense to retroactively designate FMLA leave. This is particularly true in worker’s compensation situations where you likely will be able to show through documentation that the employee was never released to return to work. In these situations, I’m generally comfortable with a retroactive designation.

Catching The Oversight Much Later

But what if we’re faced with a situation like Johnny’s above, where we are nine months out before we realize our miscue? Do we really revisit the FMLA?

When we are picking up the pieces some nine months after the fact, I am far more focused on whether we have an obligation under the ADA to provide additional leave than any FMLA obligation. As a practical matter, it’s nearly certain that the employee isn’t even eligible for FMLA leave (they’ve not worked 1250 hours in the previous 12 months). My focus at this point is determining whether we can obtain information from the employee’s physician regarding whether the employee will be able to return to work in the immediate future.  If not, I am looking for an exit strategy.

This one is to get the blood flowing for you hard-core FMLA nerds out there, cause it’s quickly going to get in the leave of absence weeds.

With the Labor Day holiday approaching, let’s discuss how an employer should calculate FMLA leave during a holiday week. Before you blurt out, I already know this stuff, Jeff, keep reading, as the Department of Labor recently weighed in on this issue, and I wanted to share what we learned.

Let’s consider two possible scenarios during the Labor Day week for our employee, Johnny:

In Scenario #1, Johnny is given Labor Day off as a work holiday, but then he takes FMLA leave for the rest of the workweek (Tuesday through Friday) because of his chronic bad back.

In Scenario #2, Johnny is given Labor Day off as a work holiday, takes FMLA leave Tuesday, Wednesday, and Thursday for his bad back, but in a rare moment of overachievement, he reports to work on Friday.

Let’s assume Johnny works a standard eight-hour, five-day workday, Monday through Friday, and the employer’s workweek runs Sunday to Saturday.

Answer to Scenario #1

This one is generally straightforward. If Johnny observes the Labor Day holiday and then takes the entire work week off (i.e., he is absent Tuesday through Friday), the employer should count the entire workweek as one full week of FMLA leave used. The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.

One week of FMLA used. Easy enough.

Answer to Scenario #2

By showing up for work on Friday of the Labor Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes Labor Day holiday on Monday, takes FMLA leave Tuesday through Thursday and then reports to work on Friday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday through Thursday as FMLA leave. 29 C.F.R. § 825.200(h).

Fair enough.

But now for the difficult question: Does the employer calculate FMLA use during the Labor Day workweek using a five-day workweek or a four-day workweek?

Can you see why this is significant? If the employer maintains the original five-day workweek and does not back out the holiday, then Johnny has used 3/5ths (or 60%) of a workweek of FMLA leave. However, if the employer backs out the holiday and considers it only a four-day workweek, then Johnny has used 3/4ths (or 75%) of a workweek of FMLA leave.

Insights for Employers

We posed this “calculation” issue to the DOL’s leadership, and although they declined to issue a formal opinion letter on the issue, they were kind enough to provide some guidance on this question.

First, it’s critical to understand that the term “workweek,” as defined under the FMLA, is the employee’s normal schedule (hours/days per week) prior to the start of FMLA leave.  As the DOL notes in one of its older opinion letters, the normal schedule “is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition.”

Second, we apply this normal workweek when calculating how much the FMLA leave the employee has used during the holiday week. In Johnny’s situation, for instance, DOL confirmed that the employee would be charged 3/5ths of a workweek because he missed Tuesday through Thursday of a five-day workweek.  In other words, when making the FMLA calculation, we do not back out the Labor Day holiday from our normal workweek.

Though this may only be a huge deal to those of us in the FMLA trenches, it still is a pretty big deal, as an incorrect calculation improperly burns through an employee’s FMLA more quickly. Based on the feedback above, when an employer uses a four-day instead of a five-day workweek during the Labor Day workweek, it miscalculates the percentage of FMLA leave used, and it does so to the employee’s disadvantage.  We are now at risk of an FMLA violation.

In Johnny’s case, according from the informal guidance we have from DOL, the employer should have exhausted 3/5ths (or 60%) of workweek instead of 3/4ths (or 75%).

Now, you know . . .

Matt was a correction officer for the Camden County Board of Chosen Freeholders, which as an aside, sounds like something straight out of Harry Potter and the Sorcerer’s Stone.

Before I digress further, Matt served as one of the caretakers for his mom, who suffered from dementia and required daily care. Matt sought FMLA leave, and he obtained medical certification from his mom’s doctor supporting his absence once per month for up to five days.

Fair enough. The problem, though, is that Matt took leave on January 6, and then again on January 14 and 28, exceeding his frequency by two episodes.  In response, his supervisor recommended that Matt be disciplined for excessive absences, which later led to his suspension.

Hmmmm, not good. 

In its defense, the employer reported that it requested recertification and that it disciplined Matt only after he failed to provide recertification. But it requested recertification verbally, which of course, Matt denied when he later sued his employer for FMLA violations.

The Ruling

The court summed up the two key issues in Matt’s FMLA lawsuit quite well:

If the employer properly asked Matt to recertify and he failed to do so in the provided time [that is, within 15 days], then his absences at issue are not FMLA-approved absences and the protections that the FMLA affords do not apply. See 29 C.F.R. § 825.313(c) . Likewise, if the employer never properly asked Matt to recertify, then his absences would be protected under the FMLA and it would not be able to discipline him for taking these protected absences.

When Matt denied that the employer verbally requested recertification, the court grew skeptical. Because the employer and employee disagreed on this critical issue, the court refused to dismiss Matt’s FMLA claims, sending the case to trial. Calio v. Camden County Board of Chosen Freeholders (pdf)

Ugh.

Insights for Employers

Several lessons for employers here:

  1. Clearly, Matt exceeded the frequency of absences in his initial certification by a significant number, which the employer properly recognized as a trigger for recertification. Great work, so far. No question, when an employee is absent three times when he should have been absent only once, this is cause for recertification.
  2. The initial problem, however, is that the employer requested recertification verbally. What happens when you verbally request recertification? Almost 100% of the time, your employee denies that you ever requested it. Although the FMLA regulations technically allow you to request recertification verbally, why would you ever leave this to chance? Every time, all the time, make a written request for recertification so that you have a clear paper trail proving the request.  As the court noted above, if the employer could have established that it requested recertification and that Matt failed to comply, the case was theirs for the taking. The employer failed to put the request in writing, so it will now spend another hundred grand paying a guy like me to proceed to a jury trial, where uncertainty reigns supreme.
  3. As this court decision makes clear, when an employee exceeds the frequency of absences on his certification, you cannot automatically discipline the employee. You must first seek recertification to establish whether the absences are protected by the FMLA. Only after requesting recertification and giving the the employee and physician a chance to recertify can you then take action. Friends of this blog may recall that, in a previous post, I highlighted an employer who did it the right way . . . and won.

Recertify first, then discipline if the recertification doesn’t support the absences.

Only then are you in the clear.

Ed was an autoworker who dealt with apparent bouts of depression for which he sought intermittent FMLA leave. But he also had fistfuls of unexcused absences, so much so that he stood on the precipice of termination — one attendance point away, to be exact.

Like many good employers, Ed’s employer required him to call into an attendance hotline to report his unforeseeable absences. FMLA leave also was administered by Sedgwick, a third-party administrator, so there were some extra steps in the approval process.

As a prophylactic measure, Ed submitted medical certification before any absence for his flare ups, as employees are wont to do. Easy there tiger, you actually haven’t had an absence yet, Sedgwick told Ed, conditionally approving him for FMLA leave but reminding him that he needed to follow the usual approval for calling off his absences.  [Nicely done, Sedgwick! Btw, I suspect Sedgwick didn’t actually use the term “Easy there tiger,” but if it did, that would have been absolutely precious!]

On three separate occasions over a short period of time, Ed called the attendance line right before his shifts started.  Each time, Ed cryptically requested time off in the following ways:

  • On the first occasion, Ed stated, “I’m having a flare-up. I don’t feel good at all.”
  • On the second occasion, he reported, “Um, I’ve been sick the last few days.”
  • Then, on the final occasion, he commented, “Um, I’m having a flare-up right now, and I don’t feel good at all.

The employer recorded the call-ins (with the employee’s knowledge), so it had a record of precisely what Ed said.

Nice.

Naturally, the employer did not consider any of the above to constitute notice of the need for FMLA leave, so it designated them as unexcused absences, leading to his immediate termination. When the union declined to file a grievance over the termination, Ed filed an FMLA lawsuit.

The Court Bounces Ed’s FMLA Claims

The trial court wasn’t buying what Ed was dishing out.  Noting that an employee must request leave and give the employer notice that he is requesting leave for a serious health condition that renders him unable to perform his position’s duties, the judge found that Ed hadn’t cleared this hurdle.  The court put it this way:

Just like the term “sick”—which is specifically cited by the applicable regulation as being insufficient to provide an employer notice that a leave request is based on an FMLA qualifying condition, there is no evidence showing that the term “flare-up” is tied to any particular disease or medical condition, and can apply to most chronic ailments. In common parlance it would not be unusual, for instance, for a person to say he is having a “flare-up” of seasonal allergies or acid reflux, conditions unlikely to meet the FMLA’s definition of a “serious medical condition.

This is particularly true where the employee already has been approved for leave.  Following approval, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.  (29 CFR 825.303b)

Ed did neither.  FMLA claims dismissed. (Read the decision, Render v. FCA, here.)

Insights for Employers

What’s the quick takeaway here?  Using a term like “flare-up,” which is not tied to any particular medical condition, fails to put an employer on notice of the need for FMLA leave. In this case, the denial of FMLA clearly is defensible.

But this doesn’t mean these situations are not without risk. If Ed had reported that he was having flare ups “due to his depression,” or that he “needed to take FMLA” because of his medical condition, this might very well be a different kind of case. These nuances can make or break your FMLA case.

So, a few suggestions:

  1. Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf.  If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused.  Here, the employer required a call to a dedicated attendance line, where the person on the other end presumably was well trained to recognize a request for FMLA leave. This is what you want.
  2. Revise your FMLA policies.  Include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you might also want to include expectations for completing a leave of absence request form, which I also recommend.) My “model” policy provision looks something like this:

When you contact Human Resources to report your need for leave, you must provide at least the following information:

►  The specific reason for your absence, with sufficient information to allow us to determine whether the FMLA may apply to your request;

►  When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;

►  A telephone number where you may be reached for further information

  1.  Set a deadline for the employee to report an absence. 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.” 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.”
  2. Require that your employees tell you why they couldn’t follow your policy. At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.
  3. Train any and all managers remotely involved in the FMLA process.  Whoever is picking up the call on the attendance line or receiving the call as part of your call-in procedures must be well-trained to recognize the words and behavior that triggers the employer’s obligation to inquire further to determine whether an absence is covered by FMLA leave. As noted above, if Ed had provided just a little more flavor as to why he needed FMLA leave, it would have been critical for a manager to recognize the request as a possible need for FMLA leave, and to take appropriate steps to confirm whether FMLA indeed covered the absence.

The FMLA was enacted in 1993, way back when fax machines had just begun ruling the world and we were only learning how to send an email to a friend. When the law was passed, FMLA didn’t contemplate a remote workforce, let alone one that would be hastily relegated to their homes during a global pandemic three decades later.

For well over a year, many of your employees have been working from home. Some report to a manager at the headquarters or worksite. Plenty of your remote employees, however, report to an individual who also is working remotely. And that employee is reporting to, well, you get the picture . . .

Let’s assume you have an outstanding employee, Terry, who works at your Texas-based company. He also suffers from a debilitating medical condition. Terry realizes life is far too short, so he plans to work for you full-time over the next year out of his RV. He is spending summer 2021 in sunny Florida, the fall in Massachusetts to watch the leaves turn, and then the winter with his extended family in New Jersey, beginning after Thanksgiving.

Assuming Terry needs medical leave at any point during this journey, is he eligible for FMLA leave?

What about state leave laws? Do they apply, too?

First up, FMLA

Remember, to be eligible for FMLA leave, an employee must work at a worksite where 50 employees work within a 75-mile radius. That’s fine if Terry is working out of the company HQ in Texas. But what happens when he hits the road in his RV?

The FMLA regulations give us an initial framework here:

An employee’s personal residence is not a worksite in the case of . . . employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

As an important aside, has anyone ever heard remote work being called “flexiplace”? Yeah, me neither.

In any event, for purposes of FMLA, Terry’s eligibility is determined not by the location of his RV, whether in Florida, Massachusetts or New Jersey. Rather, in a telecommuting arrangement from his RV, his worksite is the office to which he reports and from which assignments are made.

Assessing Terry’s eligibility is fairly straightforward if he reports to and receives assignments from the Company’s Texas HQ, which accounts for 65 employees. That’s easy – he is included in the Texas HQ count, and he would be eligible for FMLA leave if he otherwise has worked for the Company for 12 months and 1250 hours in the previous 12 months.

The FMLA puzzle gets fuzzy, however, if Terry’s boss is working remotely from his own home in Oklahoma (or heck, even in a different RV roaming the countryside). Is Terry still reporting to and receiving assignments from Texas? Clear as mud, right? As to this conundrum, neither the Department of Labor nor the courts have given us any guidance on how we apply the regulations in this remote work scenario.

There are good arguments on both sides of the issue, but it seems to me that “office” to which Terry reports remains in Texas, even if the assignments might be coming from the boss in Oklahoma. The spirit of the regulations suggest that we’re still looking to Texas as the work location because of the reference to the “office” in the regulations.

What About State Leave Laws?  What Laws Apply and When?

My head hurts, and I haven’t yet addressed which state leave laws apply to Terry during his jaunt across the country.  Thankfully, one of my Littler colleagues, Amber Spataro, did the heavy lifting for me.

Terry and his RV actually are Amber’s concoction, though a typical scenario that could play itself out in real life.  In analysis she provided recently in a “Dear Littler” letter, Amber analyzed the state leave law issues this way:

Terry also may be covered by state leave laws, should a covered event occur. For example, Massachusetts has a Paid Family Medical Leave Act (PFML). Unlike FMLA, to be eligible to receive paid leave under PFML, a worker only must have earned at least $5,400 in the previous 12 months. PFML eligibility is not dependent on how long an individual has worked for a current employer – it applies to all W-2 employees working in Massachusetts (which Terry may be for the part of the year that he is working in Massachusetts). If Terry falls ill after earning more than $5,400 as a Massachusetts employee, he may be covered, and you may be required to withhold pay from his paycheck to fund this benefit. Similarly, New Jersey’s Family Leave Act (NJFLA) applies to employers of 30 or more employees anywhere in the world and employees working in New Jersey who have been employed by the employer for at least one year and have worked at least 1,000 hours in the past 12 months. NJFLA allows up to 12 weeks off for an employee to, among other things, bond with a new child or care for a covered family member, but does not apply to one’s own disability or injury. Therefore, if Terry falls ill while in Massachusetts and uses his 12 weeks of FMLA leave and Massachusetts PFML for his own illness, when he arrives in New Jersey in November, he may have up to 12 weeks of time off still available to him under the NJFLA if his mother falls ill and he needs to care for her. He also may be eligible for New Jersey Family Leave insurance benefits through the state, and you may need to fund such benefits as well.

Whoa, Amber, my head is spinning!

Insights for Employers

When it comes to a remote employee’s eligibility for FMLA or state leave law, you must ensure you have policies and procedures in place to stay compliant with the law. While many employers have a remote work or telework policy already in place, these arrangements have (until now) applied only sporadically and on a smaller scale. Importantly, remote work programs of the past likely neglected to address the fundamental differences between mandatory telework (at the employer’s direction) and voluntary telework (at the employee’s request).

Additionally, it’s also critical that you require employees to notify you whenever they will be working from a different jurisdiction, as you will need to track whether they are entitled to a statutory leave of absence under the laws of the state/city in which they are performing work.

Here are a few resources to keep in mind as you are working through these issues:

  • Put Remote work policies and agreements in place.  Our Littler Remote Work Toolkit for Employers contains a Guide, Model Policy and Model Agreement for companies to use when implementing remote work and telework programs in the pandemic and post-pandemic era.  Contact me for more details.
  • This issue ain’t going away. The results of our Littler annual survey make clear: employees want remote and hybrid work, and it’s not going away.  As such, it’s critical that employers consider a structure for remote work moving forward. Among other things, these decisions will implicate leave of absence issues.
  • International remote workers. What laws apply when a wandering worker wishes to telework from abroad for personal reasons? Get our take here.

One last thing: If you’re dealing with remote employees issues, you clearly are dealing with payroll tax questions. Most states require an individual to pay state income tax if they are living in the state for more than 183 days (roughly half the year). But there are exceptions to the general rule you need to know about. For a great explanation of the payroll tax issues involved with remote employees, click here for my colleague Will Weissman’s take on the issues you should be thinking about.

Christmas in July might just exist after all!

Give yourself and your loved ones the gift of three riveting — and, more importantly, free — webinars throughout the month of July that will tackle all things FMLA, ADA and paid family and medical leave.

You want some practical strategy for fighting FMLA misuse?  I’ve got your back!  You need to get a handle on the proliferation of paid Family and Medical Leave laws and how they affect your business? Two of my Littler colleagues have you covered!  You’re curious about possible ADA accommodations you may need to provide employees as they return to the office? Don’t miss a DMEC webinar later this month!

Webinar #1: Best Practices for Managing Intermittent FMLA Leave

Managing intermittent FMLA leave is a pain point for HR teams – one that trips up even the most experienced HR professional. On Wednesday, July 21 (2pm ET), I will join Angela Ripper and Michelle Davidson from Unum to provide practical suggestions on how you can effectively manage intermittent FMLA leave in your workplace, focusing on the steps you can take to root out and minimize FMLA misuse.

In this SHRM-sponsored webinar, we will outline how to effectively use certification and recertification to manage intermittent leave and respond to FMLA misuse, document FMLA effectively to curb FMLA misuse, and implement must-have personnel policies to manage intermittent leave and prevent FMLA misuse.

We’ll laugh. We’ll cry. We likely won’t sing (that’s what my annual webinar in December is for), but we’ll definitely have fun.

Register here.

Webinar #2: An In-depth Look at Paid Family and Medical Leave Programs

As more statutory paid leave programs pass and the program designs vary, you can no longer be a true expert in leave without understanding the statutory paid family and medical leave programs. The leave landscape has changed and paid leave is no longer a rare phenomenon but is rather becoming part of every leave conversation.

And there is no one better to help you wade through these issues than two of my fabulous Littler colleagues, Ellen McCann and Deidra Nguyen.

One hour before our above webinar on July 21 (1pm ET), Ellen and Deidra will detail the history of these PFML programs, how the laws work, the details behind each of the programs, what obligations remain with employers even if the state or an insurance company is administering the program and how they integrate with other paid and unpaid leave laws.

A must attend! Register here.

Webinar #3: Return to the Workplace and ADA Considerations

Employers everywhere were impacted by the pandemic, most notably by the massive shift from in-office work environments to a work-from-home model. As offices begin to reopen, it’s critical that employers have a plan in place for employees returning to the office, especially where ADA accommodations may be required.

On July 27 (12pm ET), join my friend, Jennifer Limon from AbsenceSoft, and executives from Panera Bread and Gonzaga University (go Zags!), who will share their return-to-workplace plans and best practices for a successful return, and what employers should consider when developing a plan for returning employees to the office.

Register here. [Free to members of the Disability Management Employer Coalition.]

If this stuff won’t light an FMLA and ADA fire in your belly, nothin’ will, my friends.  See you there!

I’ve often wondered — in fact, even discussed with clients — whether an employer could safely approve an employee’s FMLA-related absence and discipline the employee because he failed to timely report the absence.

I’ve theorized that an employer could pull off both because the discipline punished the late call-in, not the FMLA leave.

But I’ve never had a case supporting my wild theory.

Till now.

Let me explain Daphne’s story.

Daphne was a flight attendant who suffered from a chronic vein issue that caused bad circulation, which led to bad swelling and a whole lot of pain. As a result, she sought intermittent FMLA leave when she had flare ups of her condition.

Year after year, Daphne would certify her FMLA leave and she’d take nearly all her leave. Like clockwork.

Then, two things happened:

  1. After Daphne sought a new period of FMLA leave , the airlines recertified her medical condition. Despite ample time to return recertification, Daphne failed to do so, resulting in denial of her FMLA leave for one of her absences.
  2. On still another occasion, Daphne sought intermittent FMLA leave for her condition. When reporting her absence, however, she failed to follow the employer’s call-in procedures requiring employees to report their need for leave at least three hours before a shift.  Despite her tardy call-in, she provided medical certification to support her need for FMLA leave.  As a result, the employer granted Daphne’s FMLA leave request, but disciplined her for failing to follow the three-hour call-in procedure.

Notably, the discipline issued for Daphne’s late call-in was a key component in her eventual termination. Daphne filed an FMLA lawsuit, which promptly was booted by the trial court.  Reed v. Delta Air Lines (pdf)

Insights for Employers

Daphne’s case is helpful to employers in multiple ways:

  • It is yet another reminder that an employee can (and should) be disciplined when they fail to return medical certification (and recertification). Here, despite plenty of time to do so, Daphne failed to return certification supporting her absences. As a result, her FMLA leave was denied, resulting in discipline.  No brainer, but it’s heartening to see a court remain steadfast the principle that FMLA absences must be supported by medical certification.  When the employee fails to meet her obligation, the absence is not protected by FMLA.
  • When an employee calls in an FMLA absence, but fails to follow the call-in procedures, the court here endorsed the employer’s right to designate the absence as FMLA leave, but also to discipline the employee for failing to timely report her absence. As the court noted, the discipline was issued for violating the call-in policy, not as a result of the FMLA leave itself.  Of course, we have to be careful in these situations to confirm that our employee did not have an unusual circumstance prohibiting a timely call-in, but if they cannot identify an emergency that did not allow them to call on time, this court green lights your discipline.
  • Additionally, when an employee utilizes FMLA over a period of time, she know full well what the darn rules are for calling in an absence.  If you face an FMLA lawsuit from a serial FMLA user who suddenly claims amnesia regarding call-in rules, call them out on this.  Indeed, the fact that Daphne took FMLA leave for years and should have known the call-in requirements was particularly persuasive to this court when dismissing her FMLA claim.

This court decision is worth filing away for future use, ey?  Henceforth, this double maneuver shall be called the Daphne defense!

Use it sometime.

While nearly all of you are reading up on the CDC’s latest guidance allowing vaccinated folks to shed their masks inside and out, we’re getting back to the basics here on the FMLA Insights blog.

A few of my clients have been grappling with how and when an employee recoups their FMLA leave entitlement in a new FMLA leave year after the employee has used FMLA leave throughout the year.

Such a common issue, and it can be confusing.

When tackling this issue, we first must confirm which of the four 12-month FMLA periods the employer is using.  Since the far majority of employers use a rolling FMLA year, let’s assume for now that we are using a rolling year.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  When calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

Ok, Jeff, but back to the question: When does FMLA leave already taken roll back on for the employee to use again in a new FMLA year?

If we first look to the FMLA regulations, we’ll find this is one of the few instances in the world of FMLA where the rules actually lead us to a clear cut answer, and it does so with a fairly straightforward example:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. 29 CFR 825.200(c)

The answer: Here, the employee begins recouping time on February 1, 2009 (a new 12-month FMLA period) in the same manner and amounts it was used the previous year.

But what if the employee is on a continuous leave at the time a new FMLA leave year begins?  Let’s use the example from above: the employee used four weeks of leave beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008.  Then, the employee takes a Company-authorized ADA leave beginning on January 15, 2009 for another six weeks.

Does the employee begin to recoup FMLA leave when the calendar turns to February 1, 2009, even though the employee was on a leave of absence at the time the new FMLA year began? In a word, yes. The employee need not be actively at work to obtain FMLA leave in a new year. The FMLA entitlement begins rolling back on as of February 1, 2009, so the period of time between February 1, 2009 and when his leave ends on February 28, 2009 is newly-recouped FMLA leave in the new FMLA year.

What about the Other Methods?

If you’re still with me, let’s turn to the other 12-month methods.

Does the analysis change if the employer uses a calendar year or fixed FMLA year? It does in the sense that the employee recoups all 12 weeks of FMLA leave at the beginning of a calendar year or fixed year. And they recoup the time even though they already may be on a leave of absence at the turn of the year.

Similarly, under the look-forward method, an employee is entitled to 12 weeks of FMLA leave during the year beginning on the first date FMLA leave is taken. After that 12-month period ends, a new one begins upon the first instance of FMLA leave in that new year.

Easy, yes? Who needs life-changing CDC guidelines when we can feast on riveting FMLA calculations all day long, amirite?

If you find yourself mired in FMLA abuse, take comfort in this real-life husband and wife leave escapade.

Location:  City of Taipei, Taiwan, which maintains a law in which eight days of paid leave is provided to newlyweds. How nice.

Johnny worked for a bank in Taiwan, and was set to wed his lovely fiancée, Susie.  According to the New York Times, the twosome first married on April 6, 2020, which unlocked eight days of paid leave for Johnny. They divorced ten days later.

With an apparent change of heart, however, they got hitched a second time just a day later, on April 17, but decided marriage wasn’t for them.  At least for the moment.  They filed for a second divorce on April 28.

They repeated this song and dance two more times — marrying on April 29 and divorcing for the third time on May 11.

The fickle couple then wed for the fourth time on May 12. This time, the marriage apparently stuck. Good for them.

The on-again, off-again couple engaged in this ruse in an attempt to milk 32 days of paid leave (4 marriages x 8 paid leave days) for Johnny. Johnny even persuaded the local Labor Department to go along with the scheme, as the agency initially fined the employer the equivalent of $20,000 for denying the paid leave to the employee. It took a highly public hue and cry before the head of the labor department overturned the fine.

“I’m stunned,” commented the mayor of the local town in which Johnny and Susie lived.

Apparently, the good mayor wasn’t familiar with FMLA leave abuse over in the good ‘ol US of A. Otherwise, this attempted caper wouldn’t have fazed him.

Insights for Employers

Stay vigilant, my friends. Although no state or city in America offers paid newlywed leave, we also know full well the lengths employees go to misuse FMLA leave for their personal benefit.

How can employers minimize the chances of getting stung by FMLA leave abuse? I’ve shared some of these ideas before, but here are a number of tools that have worked for my clients as they have fought FMLA leave abuse, especially as summer nears.  Use these tools, of course, in conjunction with my “CALM” program, which I’ve highlighted in a previous post.

With that in mind, here is my Top Ten List:

1. Prepare a list of probative questions you ask all employees when they request time off. Employers, you have the right to know why your employee can’t come to work! So, prepare a list of questions that you ask your employees when they call in an absence. These will help you better determine whether FMLA is in play and if the request might be fraudulent:

– What is the reason for the absence?

– What essential functions of the job can they not perform?

– Will the employee see a health care provider for the injury/illness?

– Have they previously taken leave for this condition? If so, when?

– [If they are calling in late in violation of the call-in policy], when did the employee first learn he/she would need to be absent? Why did they not follow the Company’s call-in policy?

– When do they expect to return to work?

2.  Enforce call-in procedures. Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.

As I referenced in a recent blog post, you should consider aligning your FMLA call-in policies with your regular PTO policies.

3.  Certify … and Recertify! Clearly, one of the best tools employers can use to fight FMLA abuse is the medical certification form. Unfortunately, all too many employers fail to obtain (or fail to do so in a timely manner) from the employee the medical information necessary to determine whether the employee suffers from a serious health condition and even is entitled to leave.  Keep your employees honest — require them to certify their absence and seek recertification at the earliest opportunity.   Require medical certification to initially verify the serious health condition, upon the first absence in a new FMLA year, and when the reason for leave changes.

4.  Use the “Cure” Process to your Advantage When Following Up on Certification.  Where the medical certification form does not sufficiently answer the questions posed on the form or the health care provider’s responses tend to raise doubts, employers should immediately communicate with the employee to cure the deficiencies and/or shed light on any suspect information provided in the form.  In your correspondence, specifically list the unanswered or incomplete questions and provide the employee with a deadline of at least seven calendar days to fix the deficiencies.  Here, you might consider asking questions that probe further into the information you find particularly suspect. Also, seek clarification whenever the employee has failed to cure and the certification remains incomplete or insufficient.  Additionally, consider using a physician or a nurse to contact the employee’s health care provider on the employer’s behalf (but remember: you must have the employee’s permission to contact the employee’s health care provider).

5. Discuss with the Employee Your Expectations During Leave. This one is quickly becoming my favorite go to tactic. When you first approve leave — particularly intermittent leave — take the time to discuss with your employee your expectations for taking FMLA leave. Ensure that your employee understands the call-in requirements (i.e., where to call into and what basic information you expect that the employee will provide about their need for leave), certification obligations, any check-in obligations, and your expectations for proper use of FMLA leave. These expectations should be summarized in a document that you provide your employee, who should sign off on it. This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave.

6.  Have Employee Complete a Personal Certification. This could have come in handy for the City of Chicago. Upon return from any leave of absence (FMLA or otherwise), ask the employee to complete a personal certification asking them to confirm that they actually took leave for the reason provided.  The benefit of using this kind of form is fairly straightforward: In the event that the employee takes leave inconsistent with the stated reason, the employer can discipline him/her for falsification of employment records. In doing so, you avoid having to make the argument that they abused FMLA leave, which comes with some tricky legal analysis. Here, you simply argue that the employee falsified a record and you took action as you would in any other situation where an employee falsified a document. My recommended form looks like this: 7. Check in on your Employee and/or Make Them Stay Put.  Want to be really aggressive but operate within the law?  I have a handful of clients who explicitly tell employees that it is their policy to check in on the employee if they are using paid sick leave, and then they actually check in on them. Taking this one step further, some clients require their employees to remain in the immediate vicinity of their home while they are recuperating.  If they don’t follow this policy, they face discipline. Think this tactic is illegal?  Think again. One court already upheld this very approach!

8. Follow up on Patterns of Absences. Monday/Friday absences. Taking days off around a holiday to extend time off. These situations smack of FMLA abuse. If you witness a pattern of absences over even a modest period of time (e.g., over a series of weeks or in back-to-back months), we arguably have the right to reach out the employee’s physician. Here, we follow the FMLA regulations (29 CFR 825.308) and ask the employee’s physician to confirm for us whether the pattern you’re witnessing is consistent with Johnny’s serious health condition and his need for leave. (If you sign up for my CALM service, you can obtain your own sample letters for these situations.)

9. Scheduling Medical treatment Around Your Operations. Require that employees make a reasonable effort to schedule medical treatment around your operations and consider temporarily transferring employees (to an equivalent position) where leave is foreseeable based on planned medical treatment. Too many employers simply give up on this requirement, allowing employees to call the shots as to when they will obtain medical treatment, and the employee’s preference is smack dab in the middle of the workday.

10. Conduct a comprehensive audit of your FMLA practices. Work with your employment counsel to ensure that your FMLA policy and forms 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.

The reality cuts like a knife: the United States of America is one of the only countries in the world that doesn’t maintain a federal paid leave program for its workers.

Last night, President Biden made clear his desire to change this reality.

In his first address to Congress since his election, President Biden unveiled an aggressive plan to provide federal paid family and medical leave to employees at workplaces across America.

What’s the Plan?

According to a White House fact sheet, the President’s proposal, dubbed the “American Families Plan,” calls for the following:

  • The program would provide for partial wage replacement for an employee to take time to bond with a new child, care for a seriously ill loved one, deal with a loved one’s military deployment, find safety from sexual assault, stalking, or domestic violence, heal from their own serious illness, or take time to deal with the death of a loved one.  Though the fact sheet does not define these terms, it appears as though the President’s plan would expand the reasons for FMLA leave and the familial relationships involved.
  • The program would phase in paid FMLA leave over a 10-year period.  It would guarantee 12 weeks of paid parental, family, and personal illness/safe leave by year 10 of the program.
  • Employees also would receive three days of bereavement leave per year starting in year one. (This has long been sought for by a growing number of Congress members, never to see the light day.)
  • The program would provide workers up to $4,000 a month, with a minimum of two-thirds of average weekly wages replaced, rising to 80 percent for the lowest wage workers.

Why is Paid FMLA Leave Necessary?

The White House puts it this way:

Nearly one in four mothers return to work within two weeks of giving birth and one in five retirees left or were forced to leave the workforce earlier than planned to care for an ill family member. Further, today nearly four of five private sector workers have no access to paid leave. 95 percent of the lowest wage workers, mostly women and workers of color, lack any access to paid family leave.

Pretty compelling.

How Would the President Pay for the New Entitlement?

The cost is breathtaking — the price tag is $225 billion.

To pay for paid FMLA leave, the President is proposing an increase in the income tax rate for the top 1 percent of American income earners (from 37 percent to 39.6 percent). He also would increase capital gains and dividend tax rates for those who earn more than $1 million a year and would close some loopholes on the estate tax.

What’s the Likelihood of Passage?

One word to keep in mind: filibuster.  Until this proposal has the support of 60 Senators (or at least 60 who won’t stand in the way and agree to end the debate), gridlock surely will ensue. It’s one thing to pass a temporary FFCRA measure on a small number of employers during a pandemic. It’s a far different story when you’re considering permanent paid leave that presumably would cover the far majority of American businesses. At a minimum, we’re far more likely to see a compromised plan than the President’s proposal.

Still.

It’s about time, America, don’t you think?   I share many folks’ concerns about the price tag, but here’s several compelling reasons that it’s time to make paid leave of some kind the law of the land:

  1. The federal bill would significantly slow down (although admittedly not eradicate) the growing number of conflicting state and local paid medical and sick leave laws.  At a minimum, we likely would see a number of these state and local paid leave laws run concurrently with a federal mandate.  Not all, but most, would fall in line.
  2. A compromise could require employees to pay their fair share into the cost of paid leave, so it would not fall exclusively on employers or the federal government.
  3. See the compelling statistics above.  At this point in time, isn’t federal paid leave simply the right thing to do?