world_cup_soccer_ball_2014If you’re anything like me, you’ve been swept up in the excitement of the World Cup over the past couple of weeks.  However, now that we have entered the Round of 16, one thing leaves me both fascinated and unsettled about the game: how the art of penalty kicks can decide which team advances and which one goes home.

Think about it: a soccer player kicks a ball from 12 yards out towards a goal that is 24 feet wide by 8 feet tall.  The ball typically travels about 70 miles per hour. As ESPN’s Sport Science reports, if a goalkeeper waits to move until the instant the ball is kicked, stopping a penalty kick that arrives in roughly 400 milliseconds is physically impossible to stop. This is why a goalie literally has to guess which way a player is shooting and head in that direction.

As I watched Brazil defeat Chile and Costa Rica defeat Greece this past weekend in penalty shots after regulation and overtime couldn’t settle the score, my mind wandered to the goalie.  What if I were in his shoes?  Would I lunge right or left?  How often would I leap left or right?  And how high would I jump?  Or even worse, would I remain a pathetic soul stuck in the middle, paralyzed by the odds?  Indeed, as ESPN again reports, professional goalies stop a mere 22% of penalty kicks.  That percentage would be a dismal showing in almost any other sport.

But if I remained paralyzed in the middle, my chances of stopping that brazuca would be next to nil.

So, What Does a World Cup Goalie Have to do with the FMLA?

When it comes to combating FMLA abuse and staying compliant with the FMLA, do you remain stuck in the middle, paralyzed within your own goal?

  1. Target intermittent leave abuse. At every conference I attend and in the feedback during every presentation I give, the woes of intermittent leave abuse top the list.  Employers want to do something to fight FMLA abuse, but many remain paralyzed at the thought of fighting it.  Let’s keep the goalie’s success rate in mind and catch 22% of FMLA abuse, which is far more often than the zero you may be catching now.   Start now by following up on incomplete and inadequate medical certification, using second/third opinions and re-certification, and use lawful means to engage the employee’s health care provider about the employee’s serious health condition and need for leave. We have provided tips for doing so in previous webinars we’ve conducted (click here and here).
  2. Maintain effective call-in procedures and obtain critical information during the intake process. 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. In your FMLA policy, also make clear how you expect your employees to communicate with you regarding the need for leave of any kind, and ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play.  When you improve your intake process, you are in a better position to assess the need for leave and ward off FMLA abuse.
  3. Conduct an FMLA audit to improve your ability to combat FMLA abuse and to comply with the law. How many times have you committed yourself to actually updating your FMLA policy, forms and practices to ensure they are legally compliant? Now, do it!  As we have reported, DOL on-site audits are becoming the norm in the FMLA world, and the DOL branch chief heading up FMLA compliance already has called 2014 a pivotal year for audits and enforcement. I speak from personal experience that our DOL friends are looking for (and expecting) compliant policies, forms and practices. A small investment now will save you even more money down the road. Promise.

Don’t be the goalie stuck in the middle of your FMLA goal.  Set a good foundation, carefully study your employee as they try to kick one past you, and take a leap.  Whether left or right, take a leap.  You’re not going to ferret out FMLA abuse every time.  But you will soon enough.  And it will be rewarding.

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The Department of Labor announced today a proposed rule that would allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  As expected, the DOL has adopted a “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married.  For example, if the employee was married in New York, but now resides with his same-sex spouse in Indiana, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York.

DOL’s Interpretation of FMLA after U.S. v. Windsor

As we know, the FMLA allows employees to take leave from work to care for a family member with a serious health condition.  Before U.S. v. Windsor abolished certain portions of the Defense of Marriage Act (DOMA), same-sex couples were not allowed to take FMLA leave to care for a same-sex spouse, since DOMA did not recognize the relationship. After the Windsor decision but before today’s announcement, employees were eligible to take FMLA leave to care for a same-sex spouse only if they have resided in a state in which same-sex marriage is legal.

According to the DOL’s notification today, the proposed new FMLA regulation includes the following highlights:

  • The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).
  • The proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
  • The Department proposes to define spouse as follows:
      • Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

The proposed rule would mean that eligible employees, regardless of where they live, would be able to:

  • Take FMLA leave to care for their same-sex spouse with a serious health condition
  • Take qualifying exigency leave due to their same sex spouse’s covered military service
  • Take military caregiver leave for their same-sex spouse

Access the DOL’s Notice of Proposed Rule Making here (pdf).  The DOL fact sheet also can be accessed here and frequently asked questions can be accessed here.

DOL secretary Thomas Perez announced the proposed changes this morning in a press release, stating, “The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver . . . Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

The Notice is Not Unexpected

It was only a matter of time before this regulatory announcement became reality.  In fact, the DOL foreshadowed the move when it issued Technical Release 2013-04 in September 2013, at which time the agency took the position that — at least with respect to employee benefit plans — the terms “spouse” and “marriage” in Title I of ERISA and its implementing regulations “should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.”

Today, the Obama Administration also is expected to issue the findings of its year-long review of how the Windsor decision impacts other federal benefits.  It is anticipated that same-sex married couples will enjoy the same federal benefits and obligations as other married couples, regardless of where they live.

Next Steps

As with other proposed regulatory changes, the public will be given the chance to provide comment directly to the DOL on the proposed change before the agency issues a final rule on the issue.

After the final rule is adopted, employers should review and amend their FMLA policy and procedures, as well as all FMLA-related forms and notices.  As the rule comes into effect, let’s not forget about the application of state law.  In some states, employees who are in a same-sex marriages or in a domestic partner relationship already may enjoy certain leave protections under the law.

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Ena Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp.  She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of complications caused by her pregnancy.  Instead of working her usual 30 hours per week, her doctor limited her to 20.  Leading up to that day, she had limited restrictions (i.e., she couldn’t remove snow, vacuum or mop floors).

Ena was fired on her next scheduled workday, November 16, merely one day — 24 hours — before her anniversary date, at which point she could have taken FMLA leave.  The employer took the position that, although it was “getting by” with her earlier restrictions, the hours restriction was “untenable.”  Notably, the employer did not choose to terminate Ena’s employment based on her earlier restrictions.  But the request to reduce hours apparently tipped the balance.

Not surprisingly, after her termination, Ena filed FMLA interference and retaliation claims against her former employer.

Court Ruling

You can guess how this one turns out.  This one clearly just didn’t feel right to the court.  And frankly, as employers, we should have some pause over this personnel decision, too.  As an initial matter, the court turned aside the employer’s argument that Ena could not raise an FMLA claim because she was not eligible for FMLA leave (i.e., because she had not worked for the employer for 12 months).  The court reminded us that we look at an employee’s eligibility as of the date leave is to begin.  Here, the court effectively counseled that Ena’s employer could (and should) have allowed her to use sick leave, personal leave, or vacation leave to cover her reduced work schedule until she became eligible for FMLA leave on November 17.  As a result, the court determined that the employer’s decision to terminate Ena’s employment instead of allowing her to use her paid leave (to bridge the eligibility gap) interfered with her FMLA rights.

The Court didn’t even send these claims to a jury.  It summarily decided that the employer violated the FMLA, and it entered judgment in Ena’s favor on both her FMLA interference AND retaliation claims.  As to the retaliation claim, the court also determined that there was “no dispute that Defendant terminated [Ena] solely because she requested a reduced schedule under the FMLA. Under these circumstances, there is a direct causal connection between [Ena’s] assertion of rights under the FMLA and her termination.”

That’s what I call a judicial smack down.  Wages v. Stuart Management Corp. (pdf)

Insights for Employers

The lessons learned here could go for several pages, but before I lose your interest, here are the key takeaways for me:

  1. I’ve said it before and I’ll share it again: when you are sued by plaintiffs with the names Dollar (see previous post) and, in this case, “Wages,” be very very afraid.  The great judicial gods have just smoked strike one past you.
  2. Show moms some love.  Well, not in a “violate Title VII” kind of way, but you know what I mean.  The far majority of employers I counsel don’t act like the employer did here.  They engage in the interactive process with the expectant mom, reasonably accommodate requests that reflect the spirit of the law and maintain employee morale, and are willing to provide leave as a reasonable accommodation.  And they don’t terminate the employee one day before she is eligible for FMLA leave!  I don’t want to pile on the employer here — the judgment entered against the company is a lesson it won’t soon forget — but keep in mind that we are in the human relations business, too.  As such, for an employee like Ena, who the court referred to as a “good employee with an unblemished record,” we should be looking for ways to maintain her employment, rather than finding a way to end it.  Tough message for employers to hear, but for those of you who know me, I’m not in the business of sugarcoating things for you.  (See a related, previous post here.)
  3. If we don’t show moms some love, the EEOC will.  And it’s ready to do so.  In a pregnancy discrimination case before the U.S. Supreme Court entitled Young v. UPS, the federal government filed a “friend of the court” brief (pdf) indicating that the EEOC is planning to adopt new enforcement guidance on pregnancy discrimination and accommodation that would address a range of issues related to pregnancy under the Pregnancy Discrimination Act and the ADA. Based on extremely reliable information I have received from some folks at the EEOC, the agency is likely to take the position that even “normal” pregnancies can (and often do) have accompanying medical impairments that significantly affect one of a woman’s bodily functions (e.g., circulatory system). According to the EEOC, in light of the fact that ADA regulations no longer require a specific durational requirement for an impairment to meet the definition of a “disability” under the ADA, it is expected that greater numbers of pregnant women will be able to seek protection under the ADA.  As a result, all employers should consider that many pregnant employees soon will have access to the protections and accommodations and interactive process of the ADA.

when-is-enough-plenty-orange.jpgWhen it comes to leave as a reasonable accommodation after FMLA leave is exhausted, employers have been conditioned to simply believe: inflexible leave policies bad, flexible leave policies good.  In fact, many of us have become so good at this conditioning it would make Ivan Pavlov proud [you know, the guy who conditioned his dog to salivate when food was presented].  

Now, a court is telling us that inflexible leave policies might actually protect disabled individuals in the workplace?  Tell me more.

The Facts

Grace, an assistant professor at Kansas State University, was a good instructor who was having quite a difficult year.  After signing a one-year contract to teach but before fall classes started, she received news that she had cancer and required treatment.    She requested and was granted a six-month leave of absence.  As that leave period drew to a close and spring semester was about to begin, she asked for more time off, promising to return by the summer term.

One hurdle stood in Grace’s way: the University’s inflexible leave policy limiting employees to no more than six months of leave.  When Grace could not return, KSU terminated her employment.  Grace sued, complaining that denying her more than six months’ leave violated the Rehabilitation Act (a statute identical in all respects to the ADA).

The Ruling

The trial court quickly dismissed Grace’s legal claims and a federal appellate court reviewing the decision agreed with the dismissal.  Why?  The appellate court explained it this way.  If an employee needs a “brief” absence from work, it may be “legally required” so that the employee can perform their essential job duties.  However, anything longer likely is not defensible:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

So, how do you draw a line between a “brief” respite and a leave period that is “so long”?  Initially, it depends on the essential duties in question, the nature and length of the leave sought, and the impact on fellow employees. For example, “taking extensive time off may be more problematic, say, for a medical professional who must be accessible in an emergency than a tax preparer who’s just survived April 15.”

This case is chock-full of so many juicy one-liners that it might be the ADA’s version of The Godfather. [Well, not really, but you know how excited I can get about this stuff.]  

Judge for yourself the court’s musings:

It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

Or this one:

[Grace’s] is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying
reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.

And it even found a way to turn the EEOC’s own words on itself:

The [EEOC] expressly states [in its enforcement guidance on reasonable accommodations] that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time” . . .  Here then the EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels. (My emphasis)

Dang!  Glad I was not on the other side of that smack down.  Read the opinion here (pdf): Hwang v. Kansas State Univ.

Inflexible Leave Policies Actually Protect the Disabled?

The court didn’t stop there, suggesting that an “inflexible” six month leave policy actually tends to protect the rights of the disabled, reasoning that these policies ensure that “disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion and less transparency.”

As a result, the court opined that a six-month leave policy is “more than sufficient to comply with the Act in nearly any case.”

Insights for Employers

Before employers start breaking out Marlon Brando’s whiskey and amaretto, let’s not crown this decision just yet.  On one hand, its reasoning is of tremendous value to employers, who collectively have been yearning for guidance on how much leave they have to provide their employees before termination becomes an option.  In short, what we learn from this decision is that a six-month leave of absence will almost always satisfy the requirements of the ADA/Rehabilitation Act.  That’s good news.

On the other hand, this is the opinion of one appellate court (covering the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming).  If you placed this issue in front of a handful of other appellate courts, an employer could end up with a far different result — or one that was not nearly as precise as this court’s guidance.  Even this Corleone-like court hedged its bets a bit, finding that some leave is usually required, and employers must avoid sham leave policies that are not consistently applied.  And the decision may cause us to lose sight of an important principle — to individually assess the situation of every employee so as to help return them to work.

Here are my takeaways from this latest court decision:

  1. Remain committed to the ADA’s interactive process.  As this court pointed out, a lengthy six-month absence is a generous one, but when that time is up, we still have an obligation to the ADA’s interactive process. Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence or an alternative leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.
  2. Consistently apply your “no-fault” leave policies.  The employer won here because there was no evidence that it treated employees differently when it came to extended leaves of absence.  In your own situation, are you granting one employee an extended leave of absence, but denying similar leave to another without any basis?  If so, that’s a problem, and this kind of evidence likely would have influenced the court differently here.
  3. Me thinks the EEOC better issue some guidance in this area.  Employers have been waiting years for reasonable guidance from the EEOC on leave as a reasonable accommodation.  If we get more court decisions like this one, they will render whatever guidance the EEOC  issues meaningless, as the EEOC’s take will have been trumped by far more meaningful (and better-reasoned) guidance from the courts.
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There must be something in the water, but several clients have asked me this week whether they are required to pay an employee for the Memorial Day holiday even though the employee was out on FMLA leave. Interesting question, and the answer is fairly straightforward: treat them the same way you would treat another employee on non-FMLA leave.  This issue is governed by 29 C.F.R. § 825.209(h), which states:

An employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).

Put in simple terms, you first look to treat the leave in the same manner you treat other forms of non-FMLA leave.  If FMLA is being taken in conjunction with paid leave, look to the manner in which you treat employees on paid leave.

In her firm’s blog, Sara Jodka illustrates the point with a common scenario:

Suppose you have an employee who is taking vacation time during the holiday week and your policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday. Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee’s paid vacation leave, or whether it is simply an unpaid leave under the FMLA. If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow that for the employee on FMLA leave. On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the employee on FMLA leave. Employers just have to be sure they are treating employee consistently with similar forms of non-FMLA leave under your policies.

The Department of Labor addressed this issue head on in one of its first FMLA opinion letters in 1993. There, the employer did not provide holiday pay to any employee on personal leave or educational leave, which were unpaid forms of leave.  Because FMLA by its very nature is unpaid, the DOL opined that the employer was not required to pay holiday pay in this instance because it did not provide holiday pay to those employees on unpaid leave.  However, if the employee was entitled to obtain holiday pay while on paid leave, “the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave.”

Insights for Employers

To pay or not to pay for the holidays rests largely on the language in your personnel policies.  In my model FMLA policy, when addressing non-group health benefits, I make clear the expectations with respect to payment of holidays that occur during FMLA leave.  Consider adopting this language in your own FMLA policies:

Consistent with Company policy for all types of leave, you will not accrue vacation or other benefits while you are on unpaid FMLA leave. Additionally, you will not be paid for holidays that occur during the leave. However, the leave period will be treated as continuous service (i.e., no break-in-service) for purposes of vesting and eligibility to participate in the Company’s retirement plan.

Bottom line: Treat employees on comparable leaves in the same fashion.   It will help insulate you from an FMLA claim.

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.

 

Here’s a shout out to all you employers out there who forget to send your employees the proper FMLA notices when they seek leave for a reason covered by the FMLA. Occasionally, the courts have your back, despite your lack of attention to detail.

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.  Ask Wackenhut, which was held liable in an an FMLA interference lawsuit simply because it failed to provide these standard FMLA notices.

But then comes Scott Bellone v.  Southwick-Tolland Regional School District (pdf).  In Scott’s situation, he didn’t receive a proper Notice of Eligibility.  In fact, when he sought a leave of absence, the “Notice” he received with his blank medical certification form could not remotely be considered a Notice of Eligibility, since the document essentially said nothing more than, “Hey, Scott, fill this [medical certification] form out and get it back to us in 15 days.”  [Well, it didn’t really say that, but I’m not far off. Here’s an original copy of it.]

When Scott returned the medical certification completed by his health care provider, the employer did not send him a designation notice right away.  In fact, it waited until his 12 weeks of FMLA leave were exhausted, and then waited another four weeks.  At that point, it sent him the Designation notice, which retroactively designated the previously exhausted 12-week period as FMLA leave.

Scott was terminated a short time later for reasons not directly related to his leave of absence.  When he filed suit against his former employer, he claimed — among other things — that his employer violated the FMLA because it did not provide him proper or timely FMLA notices.  Had he known that the absence was being classified as FMLA leave, so he argued, he would have planned out his leave of absence in a manner which would have allowed him to use some leave time later.

Employee Must Show Failure to Provide FMLA Notices Harmed Him

Had Scott brought this case before Wackenhut court (see case reference and link above), his FMLA claim might have had some legs to run.  But the court reviewing Scott’s claim took a far more pragmatic approach (and one I wish the DOL would endorse).  On one hand, the employer technically violated the FMLA when it failed to provide Scott proper and timely FMLA notices.  On the other hand, however, Scott took about 16 weeks of leave, which outstripped the 12 weeks provided for under the FMLA.  Thus, the deciding factor for the court was that Scott failed to provide any evidence that he actually could return before his leave ended or that he would have structured his leave differently had he been provided appropriate notice.  The Court put it this way:

the School District came forward with affirmative evidence demonstrating that [Scott] was unable to return to work before the end of the academic year. At that point, it was up to [Scott] to establish a genuine issue for trial by presenting more than just a bare allegation that he could have done things differently if he had known that his leave would count toward his FMLA entitlement.

For the court, “nothing was lost, nor was any harm suffered, by reason of the [failure to provide proper and timely notices].”   In short, the court adopted the approach taken by the U.S. Supreme Court in Ragsdale v. Wolverine Trading (ultimately adopted in the changes to the 2009 FMLA regulations), which held that late or inadequate notices are not actionable unless they harm the employee.

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.

If there are no exceptions to this practice, we stay compliant.  And we avoid results like the one I highlighted in Wackenhut.  This makes your risk managers happy.  And you will pay your employment attorneys far less.  [We’ll get by…sob, sob…]

medical exam

On a number of occasions, we have discussed whether an employer can keep an employee out on FMLA leave even though they want to return, or whether an employer can require an employee to undergo a full medical examination before returning from FMLA leave.  This scenario often arises where the employer has concerns about whether the employee is mentally fit to return to work, although the concern is properly raised whenever there are legitimate reservations about whether the employee can perform the duties of the job.

In these situations, I have counseled employers to require the employee returning from FMLA leave to undergo a medical examination (pursuant to the ADA) if the employer has a reasonable belief that the employee’s ability to perform essential job functions are impaired by a medical condition or that he or she will pose a direct threat due to a medical condition.

Now, we have a real-life court case to back up my suggestions.  [Phew!  And here I’ve been flying by the seat of my pants this entire time!]

The Facts

Here are the quick facts:  Susan was a district attorney investigator for the Los Angeles County District Attorney’s Office.  In her role, she served arrest warrants, made arrests, interrogated suspects, and booked prisoners. After the death of her brother-in-law, Susan began experiencing bouts of depression, which she attempted to control with medication.  Her behavior still was quite erratic at times, as she suffered from high highs and low lows.  On two separate occasions, her superiors questioned her judgment when executing various search warrants and performing other safety-sensitive work.  She also appeared nervous when performing her work and had recently pointed her fake weapon at other team members during a tactical training session, which was a no-no.

Susan later approached her boss and informed him that she would need to take one month off work.  She began crying and stated that she “needed to get better.”  She anticipated being in the hospital for two weeks, followed by two weeks of outpatient treatment.  Afterward, the DA’s office granted her leave.  On her FMLA medical certification form, in response to the question, “Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions?”  her psychiatrist wrote, “Unknown.”

Upon expiration of Susan’s FMLA leave, the DA’s office returned Susan to work — but it immediately placed her on a leave of absence pending a medical examination to confirm that Susan could “perform the duties of [her] job satisfactorily and without undue hazard” to her or others.  Susan refused to appear twice for an evaluation because she believed it violated her FMLA rights, since she felt she should have been restored solely on the basis of her own doctor’s fitness for duty determination.  She later sought a court injunction to halt the medical examination.

The Ruling

Finding that Susan had been provided all rights afforded to her under the FMLA, a California state court dismissed her FMLA claims.  The court determined that Susan had been provided all 12 weeks of leave and restored to work.  Thus, the employer didn’t interfere with any FMLA rights, since Susan’s FMLA protections ended once she returned to work.  At that point, the ADA took over, and the employer had the right to require a medical examination under the ADA (at the employer’s expense) by the employer’s health care provider because the examination was job-related and consistent with business necessity.

As the court pointed out, even the Department of Labor takes the position that the employer can require a medical examination under the ADA once the employee has returned from FMLA leave.  Notably, in the preamble to the 2008 changes to the FMLA regulations, the DOL stated in no uncertain terms:

the Department intends to make clear that, once an employee returns to work and is no longer on FMLA leave, an employer may require a medical exam under the guidelines and restrictions imposed by the ADA. At that point, the FMLA’s fitness-for-duty regulation no longer applies.  (73 Fed. Reg. 67934-01, 68036.)

Insights for Employers

The court’s guidance gives employers a road map we clearly can follow: before the employee’s return to work from FMLA leave, the employer must accept the employee’s health care provider’s certification and return the employee to the same or equivalent position; after the return to work (and I mean immediately upon return), FMLA protections no longer apply, and the employer may immediately place the employee on a leave of absence and require a medical examination pursuant to the ADA.  In doing so, the employer need not ignore pre-FMLA leave events when assessing the fitness for duty of an employee who has returned from an FMLA leave.  As stated above, the employer need only have some objectively reasonable basis for the examination independent of the FMLA leave itself.  White v. County of Los Angeles (pdf)

But beware: independent medical examinations will not be appropriate in every case.  In fact, they won’t be necessary in the far run of situations.  But if it is, the employer should be ready to demonstrate that the employee’s condition “impacted, or posed a risk to, the employee’s work.”  Here, the inquiry was straightforward, since Susan’s job required her to carry a gun and the court found that her depression itself was sufficient to justify the additional medical examination.

Finally, for our California friends: although the court decision addressed only issues arising under the FMLA and ADA, the court’s reasoning seemingly would apply to similar issues covered under the California Family Rights Act (CFRA) and the fitness for duty obligations under the California Fair Employment and Housing Act.  (However, beware of these acts’ prohibitions against unlawful medical inquiries.)

Neighbor door matThis past December, the Department of Labor quietly turned its FMLA enforcement over to a new leader. After the retirement of FMLA Branch Chief Diane Dawson, who led the DOL’s FMLA enforcement for several years, the DOL turned to longtime DOL FMLA policy guru Helen Applewhaite to head up the agency’s FMLA efforts.  (DOL doesn’t publicize these personnel moves, nor does it make available a bio on the new FMLA branch chief.)  In her role, Ms. Applewhaite oversees the development of regulations and other guidance regarding the FMLA and gives direction to DOL investigators on FMLA matters. Working her way up from a wage and hour investigator nearly 25 years ago, Ms. Applewhaite played a key role in the changes to the 2009 FMLA regulations and 2013 regs.

Earlier this month at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition, Ms. Applewhaite gave employers a snapshot of what the DOL’s FMLA enforcement efforts will look like under her leadership.

Calling 2014 a “pivotal” year for FMLA enforcement, Ms. Applewhaite focused much of her presentation on the DOL’s renewed emphasis on conducting compliance investigations with an emphasis on-site FMLA visits to ensure compliance. We were the first to report on this DOL initiative last year under previous FMLA Branch Chief Dawson.  Some of what Ms. Applewhaite shared was more of what we have heard before: that DOL has the authority to come on-site whenever it deems it appropriate, and that the agency’s focus is to bring employers into compliance with the law and remedy any FMLA violations.  That said, Ms. Applewhaite shared a few nuggets that employers should be aware of:

  • On-site investigations are the new norm.  As I referenced in my blog post last year, the DOL announced in April 2013 that it would increase the occasions when it comes on site for an FMLA investigation.  At that time, however, DOL appeared as though it would pick and choose when it would come on site, focusing on situations where an employer has accumulated a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.  Ms. Applewhaite signaled that we should be prepared for DOL to come on site far more often in the future.  In practice, this approach seems to be true.  I have been involved in a number of DOL investigations over the past year, and in nearly all of them, the investigator initially indicated that DOL would come on-site to interview employees and review FMLA records.  Some actually occurred, others didn’t.  Nevertheless, on-site FMLA investigations are the reality. Here. Now.
  • The DOL is focusing its attention on systemic FMLA issues.  Sound familiar?  If you’ve been involved in any EEOC investigations over the past few years, you know what’s coming.  Whether a single or multi-employee charge of discrimination, the EEOC has become known for broad and burdensome requests for information that cover multiple years and locations and a wide range of personnel actions.  EEOC investigations effectively have become mini-trials, requiring production of tons of information as the agency searches for violations far beyond the one complained of in a single charge. Might the DOL follow suit?  My sense so far is “yes,” since some of the same information recently has been requested of my clients.  As confirmed this month by Ms. Applewhaite, DOL’s standard request will seek information for a two-year period.
  • According to Applewhaite, DOL will give particular attention to those areas within your organization where leaves of absence tend to be more frequent.  In these areas, there is a greater chance that the employer has not complied with FMLA notice and/or certification requirements.  DOL also finds that front-line managers in these areas tend not to be familiar with the FMLA and its obligations.
  • Employee interviews will become standard practice in an on-site visit.   Why?  DOL wants to know that your managers and individuals in the leave process are familiar with your FMLA policy, and it seeks to double-check your leave procedures by requiring multiple individuals to attest to them. Managers will be expected to walk a DOL investigator through an employee’s leave request, where various FMLA touch points will be tested.  [Read: begin your manager training now!]

Insights for Employers

Don’t cry.  We’ll get through this.  With flying colors, as they say.  I repeat below the same suggestions I have shared before.  Given DOL’s enforcement activity in this area, you need to be prepared for your inevitable FMLA investigation.  So, grab your favorite employment attorney and start conducting a self-audit.   Such an audit should include the following:

  1. Conduct a thorough review of your FMLA policy. Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents. As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)? Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster ”prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)
  3. Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. Again, your forms must incorporate the recent regulatory changes. A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
  4. Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions. These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures. A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation? f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave? h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave? Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)? All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate? Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave. These documents should be maintained for at least three years, and they should be kept separate from the personnel file.
  7. Train your employees! If Applewhaite said it once, she said it several times during her presentation: your managers do not know your FMLA policy and leave procedures, so you better get a handle on this because they are creating a liability for you.  I agree with Ms. Applewhaite on this one. There are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations. Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Don’t become the latest DOL press release when it comes to FMLA.  Heed the DOL’s warning that 2014 is a pivotal year and get your house in order now.

Q: This week, one of our employees professed her love to one of her co-workers (who is married) and announced to everyone that they had been dating.  The problem is — it’s not true.  When questioned about it, she continued to insist that she and her colleague had been dating despite clear evidence to the contrary.  The employee’s comments left her co-worker a bit shaken.  As a result of our observations, we were concerned whether the employee was mentally fit for duty, and we placed her on a leave of absence.  However, she insists that she can work and wants to return.  In the meantime, she has called the co-worker at work and references their “relationship.” Can we force the employee to remain on leave until she is fit to return to work?

A: Dealing with sensitive employee mental health issues can be among the most difficult for HR professionals and in-house counsel.  Under these circumstances, something clearly is awry, and the employer has the right to keep an employee off work until it can be certain the employee has addressed her apparent mental health issues and is fit to return to work.

Not surprisingly, the courts back up employers on this issue.  Take, for example, Carris, who worked for Hyatt Regency Chicago as a banquet steward, a position which required him to lift and move objects around the banquet area. He had vision issues, which Hyatt accommodated by increasing the print size of his work assignments and schedules. In March 2007, he injured his eye and was forced to miss work. In April, James gave Hyatt a doctor’s note stating that he could return to “light duty” a short time later, but provided nothing more. As a result, Hyatt kept him on FMLA leave, presumably because there were no “light duty” positions available. He later submitted a release stating he was allowed to return to work. However, Hyatt kept him on leave because he also provided separate medical paperwork indicating some level of restrictions.

Carris later filed an FMLA lawsuit, claiming he was forced to remain on FMLA leave too long. In short, he argued that Hyatt inappropriately kept him on FMLA leave.  The district court dismissed his claims and a federal appellate court agreed.  James v. Hyatt (pdf) The appellate court succinctly summed up the issue:

Employers are under no obligation to restore an employee to his . . . position if [he] is unable to perform the essential functions of the job.

So, there you go: when you have a reasonable belief that your employee cannot perform the essential functions of the job (including when you are faced with mental health issues of the kind raised in the question above), you can keep the employee off work until you have that confirmation.

Technical point alert!  Technical point alert! 

On this blog, I attempt to stay away from the legal mumbo jumbo for fear I will only further embarrass the legal profession. But for those tried and true FMLA legal wonks out there, here’s another way to bounce an employee’s FMLA lawsuit in situations like those highlighted above.  As I explain below, even if an employer wrongfully forces an employee to take FMLA leave (and we know that virtually never happens!), the employee cannot successfully raise an FMLA interference claim unless the employee seeks FMLA leave at a later date and the leave is not available because the employee was wrongfully forced to use FMLA leave in the past.

Let me explain with a real life example:  Tracy was a welder for Trinity Marine Products.  Trinity informed her that she was being placed on FMLA leave because it believed she suffered from a medical condition that rendered her unable to work.  (In an evil twist, the court never specified what the condition actually was.)   Tracy promptly obtained her doctor’s clearance to work, but her employer didn’t accept it.  It didn’t accept clearance from a second doctor either. Or a third doc. After Tracy presented the third clearance, her employer told her she had exhausted her FMLA leave, and her employment was terminated.

Really.  I’m not making this up.

What’s more is that the court agreed with the employer and dismissed her FMLA interference claim. Why? Tracy admitted that she did not have a serious health condition. After all, she wanted to return to work! Right? So, she could not successfully raise an FMLA interference claim until she later sought FMLA leave for an actual serious health condition and then was denied leave. The Court summed it up this way:

if forced leave can amount to interference with a right provided under the FMLA, it can do so only if the employer’s action prevents the employee from using benefits to which she is entitled under the Act.

In Tracy’s case, because Trinity did not (yet) interfere with her right to FMLA leave, the court properly dismissed the claim.  Walker v. Trinity Marine Products (pdf)

If this stuff ain’t fun, I don’t know what is!  Right?