recognize

Employers, can we have a heart to heart?  I need to get something off my chest.  You see, I’ve witnessed a disturbing trend lately in the court cases I’m reading and in your FMLA practices: too many of you are not recognizing when an employee’s leave request may be covered by the FMLA.

Let me share a real life situation that illustrates my point.

Christine Dollar supervised a bunch of truck drivers at Smithway Motor Xpress. Dollar also suffered from depression.  In March, she missed several workdays for some rather ambiguous reasons.  By June, her depression apparently worsened, and she suffered periods of anxiety and insomnia severe enough that a friend took her to the emergency room for treatment.

Dollar called her supervisor before her shift the following day to inform her employer that she would not be reporting to work that day.  The following day, she called her supervisor again to inform him that she was seeking treatment at a mental health center and had received a doctor’s note keeping her off work for another week.  Dollar provided her employer this note, which clearly indicated she was being treated for depression.

Two days later, however, Dollar’s supervisor informed her that she no longer would be working in her current position and that the VP of Human Resources would tell her where she would transfer when he returned from vacation — two weeks later.  Thereafter, Dollar sought several extensions of her leave of absence and provided medical documentation supporting her continued absence. When she could not return to work immediately, Dollar was terminated.

Thud.  That’s the sound of the employer smack down after a trial court later found that the employer had interfered with Dollar’s FMLA rights when it provided her no FMLA certification form and no notice of her FMLA rights following her request for leave.  Dollar v. Smithway Motor Xpress (pdf)

Insights for Employers

The Dollar case serves as a valuable reminder that we must do a better job recognizing when an employee has put us on notice that the requested absence might be covered by the FMLA.  A few reminders are worth noting:

  1. As an initial matter, when an employee with the last name “Dollar” sues you, be very, very afraid. This is not good karma.
  2. On a more serious note, as we know (or should know), employees are not required to cite specifically to the “FMLA” as a reason for their absence; a bullhorn also is not necessary. The employee need only provide enough information to indicate that the leave of absence might be covered by the FMLA. If the employee has provided this information, the employer then has an obligation to either inquire further to determine whether the FMLA is in play or provide the employee a notice of her FMLA rights and a certification form.
  3. No. 2 immediately above surely is ambiguous.  I wish the regulations provided more guidance to employers on this point.  But when there is any doubt as to whether FMLA applies, ask questions of your employees!  I’ve shared before many of the questions you can ask your employees to help you determine whether the absence might constitute FMLA leave.  Access those questions here.
  4. Beware of employees who tell you they are in the emergency room for their own or a family member’s medical issue.  Courts differ on whether this alone is enough notice of the need for FMLA leave.  Just last month, for example, a court found in Lanier v. Univ. of Texas Sw. Med. Ctr that an employee’s text message indicating that she was in the emergency room with her father was not enough to notify the employer of the need for FMLA leave.  Lanier was a great decision for employers, but I’m afraid it gave employers a false sense of security that will result in lax FMLA compliance.  Notably, just last year, I wrote about another court that found that a similar “emergency room” notification from an employee was enough to put the employer on notice of the possible need for FMLA leave! (Lichtenstein v. University of Pittsburgh Medical Ctr.). So, how a court would handle these “emergency room” situations is as clear as mud.
  5. Training your managers about their obligations under the FMLA is imperative.  As we see from the Dollar case, even the VP of HR could have used some FMLA training.  The cost of not training your managers in this area of the law is far more severe — among others, you risk losing a great deal of money in litigation (just ask Dollar!).  Take these obligations seriously and spend the money now to train your managers.

Unless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Yesterday, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act. Right?

But let’s not leave this to chance.  In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:

How FMLA is Impacted after the Fall of DOMA

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  29 C.F.R. 825.102

Initially, this seems to suggest that the DOL would look to state law to define “spouse.”  Not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife.  Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes.  As result, FMLA leave has not been made available to same-sex spouses.

That changed yesterday, at least in part.

What’s Clear about FMLA After the Court’s Ruling

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.”  Thus, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What’s Unclear about FMLA After the Court’s Ruling

But what about employees who live in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?

As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA.  Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).

Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled.  My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.

Here, employers clearly need some help from the DOL.  Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law?  If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.

Without more guidance, it still is too early to tell where this question is heading.  Nevertheless, the employer community looks forward to helping shape these rules.

Other Key Benefits Affected by the DOMA Decision

FMLA is not the only federal law impacted by the fall of DOMA.  If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do.  For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
  • Affordable Care Act and COBRA: NPR reports that the Court’s decision will impact how the Affordable Care Act (affectionately referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
  • Citizenship:  According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.

For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free to follow me on Twitter or Linkedin.  I’ll be posting more there.  You also can subcribe to this FMLA Insights blog on the right hand side of this page.  Just enter your address and I’ll email you my updates directly.

Have you ever made a rash decision that you wish you could take back the second you made it? One employer must feel that way right about now. Last week, a federal court refused to dismiss FMLA claims made against the employer by an employee who was terminated for exceeding the number of “episodes” of depression his doctor estimated he would have. This sad story is a lesson for all employers, because it raises such a common circumstance all employers face.

Facts

Fincantieri Marine Group (FMG), which builds ships, employed Jim Hansen, a shipbuilder, who suffered from depression.  Jim provided medical certification documenting his depression as a serious health condition and indicating that he would have episodic flare-ups that would periodically prevent him from working.  Jim’s doc estimated that he would have about four flare-ups during a six-month period with a duration of incapacity of two to five days per episode.

That’s easy enough, I suppose.  Until Jim had 10 episodes of depression in about half that time.  The employer clearly had reason for concern.  But what followed was a costly misstep. The employer (through its third party administrator) sent a rather cryptic note directly to Jim’s doctor, stating simply:

“[Jim]’s 7/1 absence is out of his frequency and duration. Please confirm item #7.”  [Author Note: #7 mistakenly referred to the wrong question on the medical certification.  Nevertheless, the court presumed that the employer was referring to the frequency and duration of the serious heath condition.]

Jim’s health care provider, Dr. Post, replied with an equally cryptic response:

“7/6/11: Item #7 confirmed. P.”

Garbage in, garbage out, it seems to me.

Based on Dr. Post’s response, FMG denied Jim’s request for FMLA leave for his July 1 absence and sent him a letter informing him that his request was denied because his approved leave under the medical certification was exhausted.  Jim was absent thereafter on several occasions and all were denied in reliance on the doctor’s notation above.

When Jim blew past the number of absences allowed under FMG’s attendance program, FMG terminated Jim’s employment.  Although he had been granted FMLA leave, FMG explained that he had exceeded the frequency his doctor certified.  After his termination, Jim filed a lawsuit alleging FMLA interference and retaliation claims.

Ruling

In seeking to dismiss Jim’s lawsuit, FMG argued that Jim’s termination was proper because his absences “significantly exceeded the estimated frequency set forth in the certification provided by Dr. Post.”

Agreed that they exceeded the estimate by a long shot.  But did exceeding the doctor’s estimate mean that Jim was not entitled to leave and could be terminated for these absences?  As an initial matter, there was no evidence that Jim was engaging in FMLA abuse or fraud.  Similarly, everyone agreed that Jim provided adequate notice of his need for FMLA leave on each occasion he had a flare-up. Because Jim already had an initial medical certification on file with FMG regarding his depression, the employer’s only recourse under the regulations was to seek recertification of the serious health condition.

Under the FMLA regulations, an employer may request recertification if:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). . . .

29 C.F.R. § 825.308(c)(2) (emphasis added).  Clearly, circumstances changed significantly here when Jim took leave on 10 occasions even though his certification estimated it should only be four.

Rather than request recertification, however, FMG took an entirely different approach: 1) it didn’t send Jim a notice that recertification was required; 2) instead, it inappropriately contacted Jim’s doctor directly to seek certification; and 3) it did not ask the doctor to certify that the additional absences were due to Jim’s serious medical condition.  In fact, FMG didn’t seek recertification at all.  It merely asked that the doctor confirm his previous certification.  Based on the doctor’s ambiguous response, it is unclear whether the doctor even understood the employer’s request.

Consequently, the court determined that there was enough evidence for a jury to decide whether FMG interfered with Jim’s FMLA rights.  Hansen v. Fincantieri Marine Group (pdf)

Insights for Employers

What should FMG have done here?  Several items are worth noting:

  1. When the frequency or duration of the employee’s absence(s) change substantially, the regulations give the employer the right to seek recertification.  Here, however, FMG simply asked the doctor to confirm the previous certification, but without any context.  As the court properly pointed out, FMG should have provided Dr. Post with a record of Jim’s pattern of absences and asked whether Jim’s serious health condition and need for leave was consistent with such a pattern. 29 C.F.R. § 825.308(e).  It also should have provided Dr. Post with an entirely new certification form to complete.
  2. Employers can contact the health care provider directly without the employee’s permission in the very limited circumstance where the employer is concerned that the employee submitted a falsified certification.  Only then can an employer send a copy of the certification to the health care provider to confirm that he/she actually completed the form.  29 C.F.R. § 825.307(a)  Otherwise, the employer’s communications to the doc should go through the employee.
  3. Do not terminate employment until you have all the relevant documentation back from the employee and his/her health care provider.  In this case, the court seemed irked by the employer’s rush to terminate Jim without having all the information clarified by his doctor.
  4. Be careful about seeking recertification too early.  To quote the court, “an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule.” The change in frequency here was significant, so recertification was warranted.  However, be careful of seeking recertification when the employee simply ticks past the absence estimate.  According to the regulations, the change in frequency or duration must be significant before doing so.
  5. Remember employers!  You are on the hook for the mistakes of your third party administrator. Where, as here, a TPA is involved in your leave management, it is critical that you have the highest confidence in their ability to administer FMLA leave. Take the time now for your employment attorney to review your leave procedures, including those established by the TPA. Based on facts identified by the court, the TPA’s actions in this case created risk for the employer, ultimately leaving it exposed heading into trial.

group of ees on leave.jpgFor ages, the employer community has awaited guidance from the EEOC regarding how much additional leave, if any, an employer is required to provide an employee as an ADA reasonable accommodation when an employee is unable to return to work after exhausting FMLA leave. (Depending on what the EEOC says in that eventual guidance, however, employers may regret asking for it in the first place.)  

In the meantime, courts occasionally provide us with a few nuggets of wisdom about what employers should and shouldn’t do when an employee asks for more leave than the FMLA permits.  We regularly discuss this topic on our blog, most recently here and here.  

In a recent ADA lawsuit filed by the EEOC, an employer shows us how it shouldn’t be done.  And its actions serve to educate the rest of us.

Facts

Crystal Wirstiuk worked as a Human Resources Coordinator for a company that monitors electricity in the Midwest.  In 2009, she took 12 weeks of FMLA leave to bond with her newborn baby, but shortly after returning to work, she suffered from bouts of “high anxiety and depression” as a result of post-partum complications.  Although Crystal had no additional FMLA leave available, her employer granted a 30 day leave of absence after she requested it.  

After a few weeks, Crystal asked for more time off and provided medical documentation from her treating physician indicating that her “post-partum complications had not yet been resolved and that she could return to work” in 30 another days.  In total, Crystal would be off work for about 60 days.

The employer denied the second extension because Crystal’s absence created “work flow issues” within the HR department.  In any event, the employers was not sure she’d return to work, since she was not able to return after the last extension of leave it gave her.  

Well, ok.  I’ve seen employers give far worse rationale when faced with similar situations.  But here’s where Crystal’s employer really went wrong: An entire two months after it terminated Crystal’s employment, her employer offered Crystal’s position on a permanent basis to the individual who had temporarily been performing her duties while she was absent.  

The temporary employee’s response? Sure, but only if I can start in three months.

The employer’s response?  Sure, we’ll just hire a temp to cover the position until you can start.

“Whaaaaat!?!” said the court, who refused to dismiss the EEOC’s ADA failure to accommodate claim.  EEOC v. MISO (pdf)

Insights for Employers

This is a head scratcher if you root for employers.  On one hand, Crystal’s employer stated that her continued absence was creating work flow issues within her department, suggesting that her continued absence had created an undue hardship on the company.  On the other hand, the employer did not seek to permanently fill her position for two months after her termination, a time period that later was extended to five months when it accommodated the new employee’s request to start later.  This delay alone called into question the employer’s basis for denying Crystal’s leave request.  

As we know, there are no hard and fast rules when deciding how much additional leave you must provide an employee under the ADA.  Each case stands on its own, and rightfully so.  In a previous post and webinar, I explain the factors employers should consider when determining whether their employee’s continued absence creates an undue hardship.  However, the case above reminds us of a few points to keep in mind:

  1. If it’s going to take you two months to offer the position to a candidate (let alone the one who has been performing the job!), it will be difficult to show that it is an undue hardship to grant the two month leave of absence.  Keep in mind that courts will consider the recruiting time period when deciding whether your decision was reasonable or not.
  2. The easier it is for a temp employee to fill the position, the longer the leave typically needs to be. Here, the employer suggested that its work flow was being disrupted by Crystal’s continued absence.  However, its reasoning was belied by its actions, as it filled her position with a temp employee for another five months.
  3. By no means is an HR coordinator normally a fungible position, but generally speaking, the more fungible the position, the longer the leave needs to be.  If a position can be filled with a temporary employee for long periods of time, it usually means the employer will have a more difficult time showing that it is an undue hardship to provide additional leave.
  4. If you’re skeptical about whether the employee will come back after she asks a third, fourth or fifth time for additional leave, don’t be afraid to ask the employee’s physician to explain why the additional leave did not allow the employee to come back to work when he/she said the employee would.  You may not get a satisfactory answer, but in doing so, you send a message to the employee and physician that you’re onto their cat-and-mouse games, and you mean business. Like the umpire who gives you the next close call after you legitimately complain about the previous one, the doctor just might do the same for you. 

Hat tip: Eric Meyer, who first covered this case last week on his blog

kid doctor

Have you ever doubted whether one of your employees actually was fit to return to work from a leave of absence?

Take this situation I counseled a client through a few months back: one of their employees texted a suicide note — to about 40 of his co-workers.  Not surprisingly, it turned the workplace upside down.  Thankfully, the employee did not go through with it, but after a short leave of absence, he claimed he was ready to return to work.  My client rightfully was concerned whether it had an obligation to return him to work with little more than a conclusory prescription pad note stating, “Johnny can return to work now.”

It’s not uncommon for circumstances to suggest that an employee may not be mentally or physically capable of performing their job duties even after they have had some time off.  In these instances, can the employer require the employee to submit to a medical examination as a condition of returning to work?

In a word, yes.

The FMLA offers no help, as it simply requires the employee to present certification from his health care provider that he is able to resume work. 29 C.F.R. § 825.312(a)  In most cases, this will not provide the employer sufficient information to ease its concerns about the employee’s medical condition.  But where the FMLA fails us, the ADA saves the day!

Under the Americans with Disabilities Act, an employer may require the employee returning from FMLA leave to undergo a medical examination if the employer has a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired by a medical condition or that he or she will pose a direct threat due to a medical condition.  In its enforcement guidance, the EEOC gives us an example:

As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined.  Shortly thereafter, he was hospitalized for six weeks for treatment related to the condition.  Two days after his release, the employee returns to work with a note from his doctor indicating only that he is “cleared to return to work.” Because the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat [to his co-workers or himself] due to a medical condition, it may ask the employee for additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination. (Question No. 17).

The courts generally support an employer’s right to require a medical examination in these instances. Just recently, in fact, in Owusu-Ansah v. Coca-Cola Co., a federal appellate court upheld an employer’s right to require a medical examination from an employee returning from leave after he made threatening comments in a meeting with his supervisor.

Insights for Employers

As Abizer points out, employers need not take a “wait-and-see” approach to medical examinations. If you have a reasonable belief that the employee’s medical condition may render him unable to perform the job, or that he may be a threat to himself or a co-worker, courts will enforce your right to obtain a medical examination so that you have the confidence you need to make a fitness-for-duty determination. However, employers should tread carefully. Work with employment counsel to ensure that a mandated medical examination is not viewed as retaliatory simply because the employee took leave.

I received a ton of feedback on last week’s blog post, which discussed Yahoo’s new parental leave policy and its FMLA implications.  Much of the feedback related to Yahoo’s decision to provide 16 weeks of paid maternity leave to female employees and 8 weeks of paid paternity leave to male employees.  Some wondered whether such a policy is discriminatory on the basis of gender because different leave benefits would be offered to moms vs. dads.

In fact, this discussion carried over to a number of Linkedin groups: FMLA Nation (where the vote was split), FMLA, Employment Practices Risk Management and ABA Labor and Employment litigation (all are groups definitely worth joining on Linkedin).

I had the opportunity to speak with Colin O’Keefe of LXBN on this issue.  In the brief interview, which you can access here, I explain Yahoo’s paid parental leave policy and whether it discriminates on the basis of gender [short answer is “no,” but employers must tread carefully for reasons I explain to Colin].  I also share my thoughts on some related FMLA questions this situation raises. [As an aside, in the era of skype, the imperfect recording (my fault, not Colin’s) once again proves I have a face made for radio.]

I welcome your continued feedback on this parental leave issue so that we maximize the chances of crafting leave policies in a way to provide our employees a benefit without running afoul of the law.

yahoo-2815928_1280

It seems that what Yahoo CEO Marissa Mayer taketh, she giveth back.  Or something like that.

As you will recall, Mayer made waves several months back when she banned all Yahoo employees from working from home, a rather controversial move seen by some as unfriendly to working parents. Now, in an interesting twist, Yahoo has announced a sweetened parental leave policy that will provide 16 weeks of paid maternity leave for moms and eight weeks of paid paternity leave for dads (not to mention $500 in spending money to help after baby comes home).

As all things in life naturally find their way back to the glorious subject of FMLA [how does my poor family live with me, right!?!], Yahoo/Mayer’s evolving story lines lead me to ponder a number of FMLA family bonding leave issues.  Two in particular stand out simply because several of my clients have raised them recently: 1) Can an employer like Yahoo require medical certification supporting a mother’s (or father’s) request for bonding time after childbirth?; and 2) Before mom returns to work from maternity leave, can an employer require her to submit a fitness for duty certification? Let’s discuss…

Can an Employer Require Mom or Dad to Provide Medical Certification to Support Bonding Leave?

Keep in mind the purpose of medical certification: to determine whether the employee or a family member has a serious health condition that requires leave from work.  Thus, it’s not surprising that the U.S. Department of Labor very clearly warns employers in its FMLA guidance (pdf) that an “employer may not request a certification for leave to bond with a newborn child or a child placed for adoption or foster care.”

But can an employer require some sort of documentation from mom or dad confirming the need for bonding leave?  Yes, indeed!  In the Rights & Responsibilities Notice (pdf) provided to the employee at the time they request bonding leave, the employer can (and should): 1) check the Box in Part B indicating that “other information [is] needed;” and 2) inform the employee that documentation from the health care provider is necessary to confirm the pregnancy and due date of the child (to support the need for bonding leave).  In the case of adoption or foster care, similar documentation from the adoption or foster agency involved would suffice.

Can an Employer Require Mom to Submit Fitness for Duty Certification when Returning from Maternity Leave?

If mom simply is returning from bonding leave, the employer cannot require a fitness for duty certification as a condition of her return to work.  Again, there is no serious health condition at issue, so there is nothing to test through certification.  (Keep in mind, however: if mom also suffers from a serious health condition during bonding leave, the employer may require fitness for duty certification in this instance.)

There is one caveat to this general rule.  At times (and Marissa Mayer is a good example), a mom chooses to return to work before the entire 12 weeks of FMLA bonding time is exhausted. In this instance, can an employer obtain documentation that mom is fit to return to work?  To answer the question, I would adopt the generally recognized period of recovery from childbirth — six weeks for a normal childbirth and eight weeks for a Cesarean section.  Therefore, if mom wants to return before Week six or eight (depending on the circumstance), an employer arguably can require documentation from her physician confirming that she is able to perform the essential functions of her job.

That said, I would not seek this documentation under the guise of an FMLA fitness for duty certification, since there still seems to be no support in the FMLA or its regulations for such a condition upon return to work.  (Thus, you may want to communicate such a requirement separate an apart from your FMLA communications with the employee.)

However, if it’s after the recovery period, I am hard pressed to come up with any (legal) reasoning for insisting on fitness for duty documentation.  So, don’t do it!

Photo credit: Fortune Live Media/Flickr

Oh No - Not you again 2.jpgFor employers who have been involved in an FMLA investigation conducted by the U.S. Department of Labor, the process can be a bit of a head-scratcher because no two investigations look the same.

The FMLA investigation often starts with a somewhat mysterious phone call from a DOL investigator identifying him or herself as such. What follows, though, is far from certain. Occasionally, the employer is informed why it’s being investigated.  Other times, it’s not. Occasionally, the matter is assigned a case number.  Other times, it’s not.  At times, the DOL uses what appears to be a standard request for information – like this one.  Other times, a request for information looks much different – like this other one.  [Employer names redacted to protect the innocent.]

Last week, DOL Branch Chief for FMLA Diane Dawson sought to clarify the DOL’s investigation process. Speaking at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition (DMEC), Ms. Dawson explained (from the DOL’s standpoint) how a DOL FMLA investigation is initiated and what it looks like.  Although the presentation provided some valuable insight into the DOL’s approach in an FMLA investigation, one nugget of information stood out:

The DOL expects to increase the frequency in which 

 it comes on-site during an FMLA investigation.  

Before we all start panicking, let me remind employers: the DOL always has had the right to conduct on-site investigations — both announced and unannounced.  However, at least in the FMLA context, this approach has been virtually non-existent in my experience and based on anecdotal evidence shared by employers generally.  EEOC has increased this practice in recent years, but not the DOL.  

Given the infrequency of on-site visits to date, however, the change in the DOL’s approach here is noteworthy.  In her DMEC presentation, Ms. Dawson reported that the DOL’s national office has instructed its regional offices to identify occasions when it would “make sense” to conduct an on-site visit during an FMLA investigation.  Examples might include situations where an employer has racked up 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.  

So, why is the DOL changing its approach?  

The DOL reports that on-site visits are easier for its investigators largely because: 1) it tends to make the investigation less time consuming for the agency; 2) investigators have ready access to records, data, FMLA policies and FMLA forms; and 3) investigators can interview employees face-to-face while reviewing documents on-site.    

How Do Employers Prepare for an FMLA Investigation, including an on-site visit?

Given the DOL’s new approach to FMLA investigations, Ms. Dawson advises employers to be proactive in their approach to FMLA compliance before the DOL even knocks on the door.  I couldn’t agree more.  It makes good business sense for employers to engage in a self-audit their FMLA policies, forms and practices so they can substantially reduce their risk of FMLA liability in a DOL FMLA investigation or FMLA-related lawsuit.

Whether we agree or disagree with the DOL’s new strategy, let’s move past that.  We need to prepare for the inevitable.  So, grab your favorite employment counsel (if there is such a thing!?!) and start conducting that review!  A self-audit should include the following:

  1. Conduct a thorough review of your FMLA policy.  Important compliance alert: Ms. Dawson pointed out that 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.  This is no small task.  In the DOL’s model forms, for example, the DOL failed to include the GINA safe harbor language.  What!?!  View this post so you know the specific GINA language to add to your certification forms.
  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!  Call me a resounding gong (of course, in the most endearing kind of way!), but why aren’t more employers training their managers about FMLA compliance and their role in administering FMLA and following your FMLA policy?  There are way 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.

Did I overwhelm you?  This was not my intention, so if you’re rattled, I beg a thousand pardons! In an era of rigorous enforcement by the DOL and increased FMLA litigation, we need to take the time now to ensure we are FMLA compliant. The alternative is far too costly.  

I welcome your feedback on anything you believe is critical to the self-audit process above and which I missed.  Let’s make this a continuing conversation…

(Hat tip to Marti Carti, Chief Compliance Officer at Reed Group, who did a great job outlining many of these self-audit principles during the DMEC presentation with Ms. Dawson.)

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When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe.

A water bottling company recently learned this the hard way.

Peter Lyle was a route driver for “O Premium Waters,” a company that provided bottled water.  In December 2009, Peter took FMLA leave, which was approved by the Company.  During his leave of absence, Peter’s employer was acquired by D.S. Waters (d/b/a “Sparkletts”), also a water bottling company.  According to the Department of Labor, Sparkletts was a nearly identical company to its predecessor for purposes of the FMLA, so there should have been no break in FMLA coverage for Peter and any of his co-workers.

Rather than return Peter to work upon conclusion of his FMLA leave, Sparkletts sent Peter down the raging rapids of termination.  What did the DOL find to be a big part of the problem here?  The new water bottling company retained 87 percent of the drivers from the previous company.  So, something was fishy here.  According to a DOL investigation, it determined that Sparkletts had a legal obligation to allow Peter to complete his FMLA leave and to restore him to the same or equivalent position, as required by the FMLA.

The Court Case and Decision

In one of just a handful of FMLA cases recently filed by the DOL, it brought suit on behalf of Peter.  (Access the complaint here (pdf).)  After discovery between the parties, the DOL and the employer agreed to a consent judgment, which essentially is a type of settlement that ends the litigation with a judgment that is enforceable against the employer.  (Access the consent judgment here (pdf).)

Take note of the penalties involved: the consent judgment required Peter to be reinstated to his position, paid back wages and reimbursed for his medical expenses, which otherwise would have been covered had he remained employed.

Insights for Employers

This lawsuit and consent judgment provide several pearls of wisdom for employers:

  1. Come on employers, we can get this right!  Whether it’s an acquisition or reduction-in-force, employers should seek legal counsel where terminations are at issue.  Although we don’t know all the facts here, this doesn’t seem to be a close call.  Of course, FMLA leave itself does not act as a shield against any adverse action, but employers should have a darn good reason (with supporting documentation) for terminating an employee while he or she is on FMLA leave.
  2. Is this a sign of things to come for the DOL?  The DOL’s FY 2014 budget calls for more resources dedicated for FMLA enforcement, and the DOL’s solicitor’s office already has indicated we will see an increased number of FMLA lawsuits filed by the government in the time ahead.  Moreover, as we see in this case, the DOL will not hesitate to seek a broad range of damages — even reinstatement — where appropriate.  This reality makes it critical that employers self audit their FMLA policies, practices, and forms to ensure compliance with the FMLA and its regulations.  The regulatory and enforcement environment is only going to get more difficult in the time ahead, so money budgeted now for self-audits and training is money well spent.
  3. Where acquisitions occur, pay attention to the “successor employer” regulations.  The FMLA regulations have very specific rules regarding whether a successor employer is bound by the FMLA obligations of the previous company.  Therefore, the acquiring company is well served to conduct the appropriate due diligence and seek legal counsel on their obligations as a successor employer under the FMLA and other employment laws.  For reference, the FMLA’s “successor employer” regulations are as follows:

§ 825.107   Successor in interest coverage

(a) For purposes of FMLA, in determining whether an employer is covered because it is a “successor in interest” to a covered employer, the factors used under Title VII of the Civil Rights Act and the Vietnam Era Veterans’ Adjustment Act will be considered. However, unlike Title VII, whether the successor has notice of the employee’s claim is not a consideration. Notice may be relevant, however, in determining successor liability for violations of the predecessor. The factors to be considered include:

(1) Substantial continuity of the same business operations;

(2) Use of the same plant;

(3) Continuity of the work force;

(4) Similarity of jobs and working conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment, and production methods;

(7) Similarity of products or services; and

(8) The ability of the predecessor to provide relief.

(b) A determination of whether or not a successor in interest exists is not determined by the application of any single criterion, but rather the entire circumstances are to be viewed in their totality.

(c) When an employer is a successor in interest, employees’ entitlements are the same as if the employment by the predecessor and successor were continuous employment by a single employer. For example, the successor, whether or not it meets FMLA coverage criteria, must grant leave for eligible employees who had provided appropriate notice to the predecessor, or continue leave begun while employed by the predecessor, including maintenance of group health benefits during the leave and job restoration at the conclusion of the leave. A successor which meets FMLA’s coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave.

DOL employee guide.jpgThis week, I had the privilege of presenting on the “Nuts and Bolts” of the FMLA with Department of Labor Branch Chief for FMLA, Diane Dawson.  Our presentation was part of an FMLA/ADAAA compliance conference hosted by the Disability Management Employers’ Coalition (DMEC).  [My unsolicited opinion: DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers.  Any employer should consider joining if they want to improve their integration of disability/absence management.]

Our “nuts and bolts” presentation materials were closely modeled after an FMLA PowerPoint that the DOL just published and posted on its web site for the public’s use.  The DOL’s PowerPoint can be accessed here (PPT).  (Access the pdf version)

For what it’s worth, I’ve found the DOL’s PowerPoint to be very even-handed in providing an overview of the FMLA, and I’d recommend that employers incorporate portions of the PowerPoint into their own FMLA training materials.  

Of course, when using the DOL’s PowerPoint to create training materials, it should be tweaked a bit to add emphasis on an employer’s rights — things like employee notice requirements, enforcing call-in procedures, and more background on requiring timely, complete and sufficient medical certification and re-certification — but this PPT is a really good start.  Good enough of a start that I thought I would call to all of your attention.

Happy FMLA training!