dog-beggingDear fellow FMLA nerds:

Please indulge me for one shameless self-promotion for the year.  Last year, for the third consecutive year, our little FMLA blog was named to the ABA Journal’s 100 best legal blogs of 2013. Voting is now open for the best legal blogs of 2014, and we would love to have your support! The deadline is a bit earlier than usual — it’s August 8, 2014.

If you find value in our FMLA Insights blog, we would be forever grateful if you took a quick minute to nominate us for the Blawg 100. Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked. You will be asked to provide your contact information and a statement as to why you’re a fan of FMLA Insights.  If you include a memorable (or even cheesy) line or two about why the blog adds value to your professional life, the ABA Journal might even highlight your quote!

The online form also asks you to provide your favorite blog entry of 2014.  Perhaps it was the post about the employer who fired a pregnant employee days before she was eligible for FMLA leave (employers, let’s not repeat that mistake); or our leading post on the continued increase in DOL on-site visits in FMLA investigations (and what to do about them); or whether an employee can decline FMLA leave. Or maybe you fancied the humorous posts — like the one where we address whether too many trips to the potty can count as FMLA leave.  Any of them work for this nomination!

A sincere THANK YOU for following the blog and for your continuous support.  All of your very kind emails, tweets and calls about the blog mean a ton to me!

Jeff

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Earlier this week, the EEOC issued new enforcement guidance on pregnancy discrimination, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce pregnancy-related issues under Pregnancy Discrimination Act (PDA) in the future.

As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions.

Notably, requiring employers to provide a reasonable accommodation to all pregnant employees does not appear to find any explicit statutory reference in the text of Title VII, the ADA or the PDA.  Yet, this changes under the EEOC’s Guidance.  In light of the broad expansion of covered disabilities under the ADA Amendments Act, a number of pregnancy-related impairments arguably will be considered disabilities (e.g., gestational diabetes or preeclampsia), thereby making the employee eligible to obtain a reasonable accommodation under the ADA similar to any other individual with a disability.  The EEOC’s Guidance, however, takes this even further, requiring reasonable accommodations for pregnant employees even if their impairments do not rise to the level of a disability under the ADA.  The Guidance seems to boil down to this critical provision:

By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.

Why Has the EEOC Issued this Guidance Now?

This Guidance was last updated in 1983.  However, the EEOC recently has identified pregnancy discrimination claims as a priority in its enforcement efforts. During FY2013 alone, more than 5,300 charges were filed with the EEOC alleging pregnancy discrimination. In announcing the updated guidance, EEOC Chair Jacqueline A. Berrien affirmed that the EEOC continues to process a significant number of charges alleging pregnancy discrimination, and stated that the EEOC’s investigations have purportedly “revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” This new guidance, which was forecasted last month on our blog, is evidence of the EEOC’s priorities in this area.

The Specifics of the EEOC’s Guidance

The updated enforcement guidance begins by reaffirming the fundamental requirements under the PDA that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. The remainder of the guidance is divided into four parts:

  • Part I provides guidance on the prohibition against pregnancy discrimination, including the individuals to whom the PDA applies, the ways in which violations of the PDA can be demonstrated, and the PDA’s requirement that pregnant employees be treated the same as employees who are not pregnant but who are similar in their ability or inability to work, focusing especially on light duty and leave policies;
  • Part II addresses the impact of the ADA’s expanded definition of “disability” on employees with pregnancy-related impairments, particularly when employees with pregnancy-related impairments would be entitled to reasonable accommodation, and describes specific accommodations for pregnant employees;
  • Part III briefly describes requirements beyond the PDA and the ADA that affect pregnant employees, including the Family and Medical Leave Act and relevant state laws; and
  • Part IV contains best practices for employers.

The updated guidance provides the EEOC’s position on a number of key issues that substantially impact employers, including:

  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
  • Lactation as a covered pregnancy-related medical condition under the ADA;
  • The circumstances under which employers may have to provide light duty for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated male and female employees on the same terms;
  • The circumstances under which employers may have a duty to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the specific types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.

In addition to its Enforcement Guidance, the EEOC also published a question and answer document about the updated Guidance and an employer fact sheet.

Highlighting the import of this new guidance, several EEOC Commissioners have issued statements of their own. In support of the guidance, Commissioner Chai Feldblum provided fairly thoughtful commentary, stating that the Enforcement Guidance “is simple and relies on a plain text reading of the PDA—the words of the statute require that employers treat pregnant employees the same as they treat other employees similar in their ability or inability to work.” You can read her full statement here. “There’s a reason we needed to update the guidelines, and that’s because this problem hasn’t gone away,” Commissioner Feldblum told the Washington Post. “This is an enduring problem in America’s workplaces – we’re not where we need to be with regard to fair, equal treatment of pregnant workers. We’re just not.”

Other EEOC Commissioners, Victoria Lipnic and Constance Barker, criticized the Guidance, arguing that it was issued without public comment and review and that it was published prematurely given that the Supreme Court will be taking these issues up in Young v. UPS, which will be argued before the Court next term. The Young case focuses on whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations.

Dads Need Lovin’ Too!

Despite its attention to pregnant employees in the Guidance, the EEOC also warned employers to avoid treating men and women differently when it comes to parental leave (i.e., leave for purposes of bonding with a child and/or providing care for a child).  The EEOC summed it up this way:

Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

Will the Supreme Court Even Consider the EEOC’s Guidance when Deciding Young v. UPS?

Good question.  In this past year alone, there is Supreme Court precedent for chucking EEOC guidance. For example, in Vance v. Ball State University, the Supreme Court rejected the EEOC’s expansive definition of “supervisor” and held that an employee is a supervisor only if the employer has empowered the employee to take tangible employment actions against the employee).  Another was Univ. of Texas Southwestern Med. Ctr. v. Nassar, in which the Court rejected the EEOC’s position that retaliation claims under Title VII were subject to the “motivating factor” causation standard.

It does not seem likely that the Court will put a whole lot of stock in the Guidance, and the parties have already indicated that it does not weigh much on their case.

Insights for Employers

The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the Guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the the ADA.

Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims.  A fellow blogger, Eric Meyer, also offers some additional takeaways for employers that are worth the read.

In the meantime, there aren’t any warm and fuzzies here.  This is serious stuff, and employers should heed the EEOC’s Guidance, unless the Supreme Court tells us otherwise — a proclamation which may come by June 2015.

grandma

Grandparents across America are celebrating this week.  And they have Suzan Gienapp to thank.  Here’s why:

The Facts

Suzan, who worked for Harbor Crest (a nursing home), informed her manager in January 2011 that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer.  Harbor Crest granted her FMLA leave.  Although she periodically touched base with her employer during her leave of absence, Suzan failed to identify when she expected to return to work.  Her daughter’s physician also made clear that the daughter would require assistance through at least July 2011.  Upon learning this, Harbor Crest assumed that Suzan would not return by the end of her twelve weeks of FMLA leave, and it hired a replacement.  When Suzan returned at the end of twelve weeks of FMLA leave, there was no job waiting for her.

The Court’s Ruling

Suzan’s request for FMLA leave was one which involved intermittent leave; therefore, according to the court, she was not required to identify an expected return date.  Section 29 C.F.R. §825.303, which governs unforeseeable leave, “does not require employees to tell employers how much leave they need, if they do not know yet themselves.”  Instead, employers can insist upon regular updates from the employee about an estimated return date. They can’t terminate the employee simply because they cannot provide a precise return.  Here’s the court’s decision:  Gienapp v. Harbor Crest (pdf)

Ok, but the court didn’t limit the reach of its ruling at that point.

Let’s talk grandmas and grandpas.

Harbor Crest argued that Suzan should not have been granted FMLA leave because she sought leave to care for her grandchild, a reason obviously not provided for under the FMLA.  But the court didn’t see that way.  Suzan looked after the kids while Suzan’s husband went to work, a “caring for” duty that the court determined benefited Suzan as she was recuperating.

Notably, the court found that it was required to:

frame the issue as whether a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as “care” under the Act.  To this the answer must be yes.  Harbor Crest has never contended that Gienapp’s assistance to other members of the family could not have given her daughter a mental boost. A person who knows that her family is well looked after has an important resource in trying to recover from a medical challenge. Doubtless some forms of familial assistance are too tangential to hold out a prospect of psychological benefits to a covered relative, but Harbor Crest does not contend that Gienapp’s aid was too slight to qualify.

So, apparently, “mental boosts” now are covered by the FMLA, and if they involve caring for grandkids, so be it.

Under the FMLA, the “caring for” duty typically has been split into two general categories — direct care and indirect care.  Direct care involves duties such as administering medication and cooking meals for the family member, or transporting them to and from the doctor for medical care.  Clearly, these functions are covered by the FMLA.  Generally speaking, the courts have frowned upon indirect care, which involves duties such as cleaning up mom’s basement after a flood, which Joe Lane had to deal with.  Do you remember Joe?  I told you about his story here.  Although he was required to care for his mom as a result of her diabetes and other medical conditions (which was legit), the court found that cleaning up his mom’s basement after a flood was not a “caring for” duty provided for under the FMLA.  Therefore, his time off to clean up the basement was not covered by the FMLA.  The Joe Lane court affirmed the principle that direct care for a family clearly is covered by the FMLA, while indirect care is not.

Suzan’s case is one that involves indirect care, so the expansive reading by the Seventh Circuit takes the FMLA to a land we really have not seen before.

Don’t get me wrong — I love grandmas and grandpas.  For what it’s worth, I always thought the song, “Grandma Got Run Over by a Reindeer” was kind of mean when you really thought about it.  I have such fond memories of my grandparents, and I mean them no harm!  But I also find it unsettling when a court — particularly one with a whole lot of influence on the interpretation of the FMLA — interprets the law in such a way that they become both the legislative and judicial branch of government.  The Seventh Circuit’s expansive reading of the “caring for” provision of the FMLA takes the statute too far. If Congress decides that the FMLA should cover leave to care for and look after grandbabies, there certainly are legitimate policy reasons for doing so.  But that’s the job of Congress, not a federal appellate court.

Insights for Employers

As my friends Marti Cardi and Megan Holstein point out, employers still are not obligated to provide FMLA leave to care for a grandchild who has a serious health condition.  As a result of this decision, however, employers may have to start erring on the side of providing FMLA leave in situations where their employees are looking after grandkids, so long as it is intertwined with providing traditional, direct care to a family member.

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…]