It’s the final week of the year, so while everyone else in the world is playing with their latest version of iPhone and other new electronic gadgets, I spend my time analyzing this year’s FMLA blog posts and agonizing over how I can deliver the FMLA to your virtual door in an even more efficient and effective way in 2015. [In light of this revelation, I trust you all would jump at the chance to spend time with me during holiday break. Right?]

Based on the stats, a number of my FMLA posts apparently caught your interest in 2014, but two stood out when dissecting the numbers. Earning the award for most visits in a single day in 2014 (nearly 5,000 visitors), my post about the risks in sending FMLA notices by email earned top honors. Sending notice by regular U.S. mail and email is an interesting conundrum, but I hope this post (along with another one I drafted earlier this year) helped address your compliance efforts.

That single-day tally aside, the most popular post of 2014 (which tallied 12,000 visitors) was my musing about whether an employer can require an employee to submit a doctor’s note for each intermittent FMLA absence. Although the post can be viewed here, I’ve copied it below for your (bedtime: think drowsy) reading pleasure.

In the meantime, I offer my very best wishes for a peaceful New Year and an extraordinarily successful 2015!

FMLA FAQ: Can an Employer Require a Doctor’s Note for Each Intermittent FMLA Absence? (May 20, 2014) 

doctor's noteOver the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Can an employer request that an employee submit a doctor’s note for each of their intermittent FMLA absences?

At the time, I didn’t give a terribly thoughtful answer, so I figured I would address it head on here for the benefit of my fellow FMLA peeps.  [My apologies to the woman in the audience dressed in red with shoulder length brown hair who asked the question…would someone be sure to pass this onto her?]

I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic.  I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand.  This would be entirely helpful, as it ensures that the employee actually attended the appointment and was absent from work for a legitimate reason.

Much to my chagrin, the courts don’t agree with me.

The latest example is Oak Harbor, an employer which understandably was sick and tired of its employees taking off on Fridays and Mondays.  To clamp down on suspected FMLA abuse, the company’s Human Resources Director sent a letter to employees containing language along the following lines:

In order for me to know when to apply FMLA to an absence, a medical note will be required from your provider for that absence. The note will need to indicate you were seen by a provider during the absence and how the absence relates to the FMLA qualifying condition. Without this information, I would be unable to apply FMLA to any specific absence.

Robert was one of Oak Harbor’s employees and requested leave for back pain.  He submitted complete and adequate medical certification indicating a need for intermittent leave for flare ups and ongoing monthly water therapy with his physician.  Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend.  Harumph!

When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined.

The Court Ruling

In an unusual twist, Oak Harbor filed suit against Robert and another employee in a similar situation, asking the court to declare that its practice of requiring a doctor’s note for these above absences was perfectly legitimate under the FMLA.  The Court, however, gave Oak Harbor a legal smack down.  Finding the FMLA regulations clear with respect to obtaining an employee’s medical information, the court reminded the parties:

The employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave, the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave . . . If an employer disagrees with the initial medical certification, a specific statutory process authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.”

But once an employee provides “complete and sufficient” certification signed by the health care provider, the court opined, the employer “may not request additional information from the health care provider.” 29 C.F.R. § 825.307(a).  For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again.  Given the very specific rules about seeking recertification, Oak Harbor’s practice was deemed illegal.  Oak Harbor Freight Lines, Inc. v. Antti (pdf)

Insights for Employers

So what do we do now?  Here are a few thoughts:

  1. Manage the medical certification process with all the skill and grace you have within you!  Get the information you need, seek clarification and verification if the opportunity presents itself. Moreover, initial medical certification is an employer’s opportunity to seek second and third opinions, so be sure to advocate for your rights at this stage if you have reason to doubt the validity of the certification.
  2. Similarly, seek recertification if and when you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
  3. The far majority of Robert’s water therapy sessions (typically scheduled on Fridays and Mondays) could have been held on Saturday, which was his day off.  Why? Because the doctor’s office was open on Saturdays! Keep in mind that the FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact your operations. So, when your employee needs time off for therapy or medical appointments, push back a bit on your employee to determine whether these appointments can be scheduled during non-work hours in the evening or on weekends.
  4. I believe the Oak Harbor decision still leaves the door open for employers to establish a policy that requires any employee to provide a doctor’s note in exchange for paid leave under the employer’s normal paid leave policy. So long as the policy is applied consistently, the employer would not be singling out those employees on FMLA leave, nor would you be denying one’s FMLA leave. I’ve opined on this topic before in a previous FMLA podcast you can access here.

It’s the end of the year.  And with the end of the year comes questions from my clients about whether they need to account for an employee’s FMLA leave when doling out year-end bonuses. In other words, is an employer obligated to pay a bonus based on a “goal” when the employee missed the goal because he took FMLA leave during the year?

The answer typically is NO.  The FMLA regulations put it this way:

if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. 29 C.F.R. § 825.215(c). (My emphasis)

Simply put, the regulations require employers to treat FMLA absences in the same manner they account for non-FMLA absences. Employees cannot be treated worse for taking FMLA leave than they would have been had the absences not qualified under the FMLA.

Interestingly, the regulations talk of an employer’s ability to deny “goal-based” bonuses. The regulations define “goal-based” quite broadly, and only bonuses awarded to all employees – such as holiday bonuses – are not considered goal-based. Therefore, attendance bonuses, safety bonuses, production bonuses, and sales bonuses would be considered goal-based bonuses. 

The regulations do not address whether an employer must pay a prorated portion of bonuses when an employee’s FMLA leave impacts receipt of the bonus. But the same logic above would apply. Here, you must careful: from time to time, I find that employers give employees a credit to account for time missed due to an absence. Such a practice is acceptable (although a slippery slope), but for this purpose, you must then treat employees who have taken FMLA leave the same as employees who have taken other types of non-FMLA leave. 

Other Holiday Pay Issues

  • For those with questions about whether you pay an employee holiday pay when they missed the day before or the day after the holiday because of FMLA leave, see my previous post here for the answer.
  • If you’re wondering how you calculate FMLA leave time when the employee is absent on the holiday or during a plant shutdown for the holiday, you must adhere to very specific FMLA regulations on point.  I answer that question here.
  • For tips on fighting FMLA abuse around the holidays, either dial (800) HELP-ME-JEFF or see my post here.

For all other holiday FMLA questions, hit me with your best shot.  Comment here or email me!

I wish all my readers a wonderful holiday season and peaceful New Year!  Looking forward to a fabulous 2015!

part_time_jobsThis one is a real headache.

Sam oversees a storage area for the Connecticut Department of Transportation (ConnDOT) and during certain times of the year, his position requires a fairly extensive amount of overtime. For years, Sam has suffered from “cluster headaches,” which are far worse than migraines and can last for days.  Sam’s physician tinkered with medication over the years, but nothing helped.

Sam’s doctor later determined that Sam’s excessive work schedule during periods in which he worked overtime was one of the main factors that triggered his headaches. Therefore, he limited Sam’s work to no more than eight hours per day, and he also prohibited overtime. Permanently. These restrictions were provided on an FMLA certification form.

What do you think ConnDOT did here?  Did it: a) agree to allow him to take FMLA leave whenever overtime would be required?; or b) tell Sam overtime is an essential function of the job, and if he could not work OT, he either needs to resign or seek disability retirement?

Here, ConnDOT chose the latter, reminding Sam that overtime was an essential function of his position and that under the union contract, if he couldn’t perform all the essential functions of his position, ConnDOT would need to try and transfer him to another position. ConnDOT also told him that he needed to submit medical certificate in order to take FMLA leave, but it made one thing clear: if the certification confirmed Sam could not work overtime, he would have to resign or seek disability retirement. As the story goes, Sam’s certification confirmed that he could not work OT.  Not a single hour of it.  Sam later resigned after ConnDOT could not locate another position for him. He later filed an FMLA lawsuit.

The Court Ruling

In response to Sam’s FMLA claim, ConnDOT made a rather sound argument, and one that other courts have bought into: an employee cannot seek leave for incapacity that may (or may not) occur at some point in the future.  In other words, the employee can take FMLA leave only if he is presently incapacitated because of a serious health condition. Recall my old post about Pat Hurley, the CEO who asked his company to approve leave in advance for various dates over an upcoming two-year period because he needed to address his stress?  There, a federal appellate court turned Pat and his FMLA claims away, finding that FMLA did not cover periods of time that “potentially” qualified as FMLA leave at some point in the future.

Wasn’t Sam effectively making the same argument here, and shouldn’t he suffer the same fate as Pat above?

Sam’s situation was different, said the court, and here’s why:  The FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary.”  Moreover, ConnDOT’s position that the employee must be incapacitated from working in order to obtain FMLA leave actually is belied by the FMLA regulations, which interestingly state as follows:

Absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report . . . because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. 29 CFR 825.115(f)

As a result, the court determined that Sam could take “prophylactic” FMLA leave because his doctor opined that he could come to work when he is required to work certain excess hours [kind of like the excess pollen count].

Does the FMLA Turn a Full-Time Position into a Part-Time Position?

The court also addressed a larger issue that it acknowledged was a novel question: Could Sam use his annual FMLA allotment to effectively convert his full-time position into one that no longer required overtime?  Or taken further, could an employee use FMLA leave also to convert a full-time position into a part-time version of the same?  In short, the court said “Yes,” and reminded us that the FMLA does what the ADA cannot.  Specifically, the ADA does not require an employer to eliminate an essential function (such as overtime) or provide an accommodation that would cause an undue hardship.  However, the same is not true for the FMLA. Notably, the FMLA directly applies to situations where the employee cannot perform essential job functions, and as we know, there also is no undue hardship defense under the FMLA.

Tough FMLA luck for employers, so says this court.  Santiago v. Connecticut Department of Transportation, et al.

Insights for Employers

There are several takeaways here:

1.  If you want to hear more about this case and its practical impact on employers, access my recent FMLA webinar on the topic.  For those of you paying really close attention, you will remember that I highlighted Sam’s case as a contrast to the Pat Hurley case above.  So, access this webinar for extra FMLA nerd points.

2.  There is NO undue hardship argument available under the FMLA. ConnDOT’s loss in this case is a reminder that the FMLA can have brutally harsh results for employers. As we see above, the FMLA presumes that it will cause employers hardship — as in Sam’s situation, when an employee is excused from essential functions of the job, these tasks fall directly to other employees and can wreck havoc on an employer’s operations.  That’s the unfortunate reality of the FMLA. If we were in an ADA situation [for instance, if Sam had exhausted FMLA leave and was seeking additional leave under the ADA], we could make a case for undue hardship: other employees have been required to take on the duties of the absent employee; even more overtime will need to be paid out; managers have been required to cover certain tasks, leaving voids elsewhere; projects have been deferred because of inadequate staffing; and morale has been adversely impacted.

However, we are unable to make the same undue hardship argument under the FMLA. Why should that be?  If the Department of Labor ever asked for my opinion [which, of course, it won’t] on how to improve the FMLA regs, adding the “undue hardship” provision is one suggestion I’d offer.  Of course, we would need to balance such a defense between the rights of employees and employers, but the concept should be in play, even in FMLA situations.

3. Don’t Forget that the FMLA and ADA may BOTH apply to a request for leave or reduced work schedule. When an employee requests FMLA leave for his own alleged serious health condition, an employer is well advised to initiate the ADA’s interactive process to evaluate whether the employee may require a reasonable accommodation in addition to FMLA leave. If an employee’s leave request implicates both the FMLA and the ADA, the employer must analyze its obligations under each act. Keep in mind: the employee is entitled to the benefits of whichever law provides the employee with the greater protection. For the reasons stated above, the FMLA offers more protection in this instance.

4. For those who really want to delve deeply into the legal morass here, I believe ConnDOT could advance a strong argument on appeal in this case. Specifically, as to the question of whether intermittent FMLA leave can effectively turn a full-time position into a permanent part-time position, the court seemingly overstates (at pages 16-17) the DOL’s guidance in this area.  Citing a 2006 DOL report, the court found persuasive the DOL’s alleged position that an employee should be entitled to FMLA leave even though the employee’s condition is permanent and will prohibit the employee from ever working full-time.  However, the DOL has not officially taken this extreme a position.  In the DOL opinion letter cited by the court at page 17, the DOL states that FMLA is available to an employee even though the employee’s condition is permanent and the employee “will more than likely not be able to return to full employment in the near future.” (My emphasis) Not being to return to full employment in the near future is a far cry from not ever being able to return full-time.  The court in this case took the DOL’s stated position too far, thereby undermining its reasoning on a very critical issue in this case.

Note to self: When one of my employees:

  1. falls off a ladder at work,
  2. is taken to urgent care by the company’s HR Director,
  3. asks whether the FMLA would apply to his absence,
  4. then, as a result of his doctor’s orders, takes a multi-week absence after the fall from the ladder…

I’m going to side the with the 99% of Americans who believe this fact pattern has put me on notice of the employee’s likely need for FMLA leave.

Yet, when this scenario actually occurred with an Indiana employer, the employer decided these series of events did not constitute proper notice from the employee of the need for FMLA Leave.  Years later, this company is paying the price.

The Facts

Mark worked in the parts department for Utility Trailers, and during one of his shifts in late March 2010, he fell off a ladder, re-aggravating a preexisting back injury. The HR Director was alerted to the accident, and she determined that Mark needed to go to the local urgent care immediately. She even took Mark to the urgent care and waited while he was treated.

Within days after the incident, Mark sought treatment from his personal physician, who ordered him to stop working for the time being (because of the fall). Within two days following the ladder accident, Mark delivered his doctor’s restrictions to the HR Director. When Mark met with HR, he claims to have asked the HR Director if he “should have FMLA leave.” She thought FMLA leave would not be necessary, telling him, “Because you’re only going to be gone a few weeks, you should be fine.”

Two weeks into his leave of absence in early April 2010, Mark called the company to determine whether he could return to his former position if he returned to work by early June 2010.  The HR Director told him that he could return, but only to the second shift [his original position was on the first shift].  A few weeks later, however, the company contacted Mark to let him know that they needed to fill his position because it did not have enough employees to cover for him while he was out.

As the story goes, the company told Mark that if he was “completely released from [his] doctor wherein [he] could do manual labor . . . Mark could reapply for a position . . . if one is available.”

Mark never reapplied for a position. Instead, he filed a lawsuit.

The Ruling

You might have guessed it — this judge sided with the 99% of Americans in determining that the nature of the employee’s injury and his subsequent inquiry about whether FMLA leave would apply clearly put the employer on notice that his absence might be covered by the FMLA.  As a result, the court determined that a jury would have to decide whether the employer violated the FMLA. George v. Utility Trailers of Indianapolis  The case recently settled short of trial.

Insights for Employers

Plenty of lessons to learn from this employer’s trip up:

  1. Employers must do a better job of identifying when employees put them on notice of the need for FMLA leave.  The employee need not use the letters F-M-L-A to request leave under the Act, but context and content count. Look at what happened here: a fall from a ladder, a trip to the urgent care, a lengthy leave of absence that a physician determined was necessary as a result of the fall, and an employee’s inquiry as to whether the absence should be covered by FMLA.  There was little ambiguity — the employer got whacked over the head with the requisite notice.  At that point, it had an obligation to determine whether the absence was covered by FMLA and designate appropriately. It did not, and it was a costly mistake.
  2. Notice the ultimate the company gave the employee: When you’re “completely released” from your physician, then you can reapply for employment.  Employers need to distance themselves from this kind of terminology.  When we communicate to an employee that they must be fully healed or completely released, we fail under the ADA to engage in an independent assessment as to whether the employee might need a reasonable accommodation to return to work.  Check your model correspondence now and rid yourself of this kind of language.
  3. Remember the restoration rights of employee’s returning from FMLA leave.  Without question, the FMLA burdens the manner in which employers staff their operations.  The FMLA was passed knowing that it very well would create a hell of a time for employers like Utility Trailers to properly staff their parts department when an employee is off on leave for weeks on end.  Unlike the ADA, there is no “undue hardship” argument under the FMLA, so we must live with the reality that FMLA absences often hamper our ability to properly staff our operations.  We may not like it, but have to accept it.
  4. Also as to restoration, the FMLA regulations presume that the employer will return the employee to the same shift, since a return to a different shift (particularly when it’s a move from 1st to 2nd shift) is not an equivalent position.  See 29 CFR 825.215e

BasicIllustratorFileLetter—CSForget Cyber Monday…today is my Procrastination Monday!  I explain why below.

I am pleased to announce that our FMLA Insights blog has been selected for the fourth consecutive year as one of the Top 100 Legal Blogs of 2014 by the ABA Journal! In its 8th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name FMLA Insights among only eight labor and employment blogs receiving this honor.

We are honored and humbled by the many attorneys, HR and leave professionals and other friends of the blog who nominated our blog for this honor. In naming FMLA Insights as a top blog, the ABA Journal quoted from one of our fabulous nominators:

I work on consulting teams that help large clients with their FMLA and disability administration,” writes Liz Miller, a health and benefits analyst at Mercer in Washington, D.C. She says Chicago lawyer Jeff Nowak’s “consistent updates not only make me look smart on the job; they are also entertaining and fascinating. Reading his posts feels like a form of procrastination because of the instant gratification factor, but they actually help me in my career. If that’s not a win-win, I don’t know what is.

Liz, thanks a ton for your very kind words. And thanks for procrastinating long enough to read my FMLA ramblings!

So, on this Monday, would you procrastinate with Liz and me and vote for FMLA Insights as the very TOP blog of the Top 100? Complete a simple registration form and vote for us here. You’ll find our blog located in the labor and employment section.  Voting takes mere seconds.

If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

Congrats to the other employment blogs who made the list – they are worth the read: Molly DiBianca’s Delaware Employment Law Blog (who was named to the Blawg 100’s Hall of Fame), Fox Rothchild’s Employment Discrimination Report, Jon Hyman’s Ohio Employer’s Law Blog, Eric Meyer’s The Employer Handbook, Seyfarth Shaw’s California Peculiarities Employment Law Blog, Robin Shea’s Employer and Labor Insider, and Donna Ballman’s Screw You Guys, I’m Going Home,

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

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

Thanks to my wife, Shannon, who was a huge help in changing up the lyrics for my FMLA version, which goes something like this:

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

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

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

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

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

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

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

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

webinar1.jpgThanks to those who attended my webinar last week with Ellen McCann on “Managing Red Flags and Staying Ahead of the Trends.”

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

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

I’m out of breath just thinking about all the real estate we covered!  And in a moment of pure insanity, I even sang an FMLA Thanksgiving song about a turkey named Albuquerque (which of course can be skipped over in the recording).

Thanks again to those who attended the webinar. I look forward to your feedback on the issues we discussed.

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

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

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

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

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

Social Media Empowers Employers

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

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

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

Insights for Employers

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

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

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

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

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

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

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

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

Commission’s Ruling

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

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

Insights for Employers

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

Nuf said.

email

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

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

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

The Facts

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

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

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

The Ruling

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

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

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

Insights for Employers

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

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

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

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

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

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

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

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

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

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

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