giddy.jpgAs a management side attorney, I love when FMLA cases provide real, practical takeaways for employers that help them better administer FMLA leave.  Yesterday was one of those days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith effort to turn the certification in on time.  In its decision, the court explained for employers the various ways the employee could have shown that she was attempting in good faith to return medical certification. 

The Facts

Ronita Brookins was employed by Staples Contract & Commercial, Inc. to review customer orders for credit card fraud.  Sadly, she also grappled with breast cancer.  She beat the cancer the first time, but it returned several years later.  During this later period, Brookins had a serious of suspect, unexcused absences that put her on the verge of termination.  When Staples called the attendance problems to Brookins’ attention, she informed the Company for the first time about the recurrence of the cancer and insisted that many of the absences were related to her treatment.  Giving her the benefit of the doubt, Staples asked Brookins to provide medical certification, which was due back to Staples with 15 calendar days.

When Brookins didn’t return the certification on time, Staples gave her another seven days.  And another extension after that.  About one month after Brookins should have returned the certification, Staples decided to convert her absences to unexcused leave and, as a result, it terminated her employment.  Brookins later filed FMLA interference and retaliation claims.

The Ruling & Insights for Employers

Under the FMLA regulations, employers have the right to request and obtain complete and sufficient medical certification to support an absence due to an employee’s alleged serious health condition.  The employee’s obligation to return this medical certification is fairly clear:

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  29 C.F.R. § 825.305(b)

If the employee does not provide certification, the FMLA regulations allow the employer to deny FMLA coverage to the employee until the certification is provided.  Thus, any absences in the interim are unexcused and could subject the employee to termination.

Here, Brookins blew the 15 day turnaround.  So, she could save her FMLA claim only if she could establish that she was engaging in diligent, good faith efforts to return the certification on time.

Employers regularly ask me — what precisely are diligent, good faith efforts?  Let’s start with what Brookins did here to obtain certification: she called her two primary physicians and asked them to complete the certification.  When they flat out refused to complete the form, Brookins did nothing further to obtain certification.  Literally nothing.  Nada.  This was hardly impressive to the court.

The Brookins court suggests what the employee could have done to show that she was engaging in diligent, good faith efforts to obtain complete and sufficient certification:

  • When Brookins initially was rebuffed by these two physicians, she could have contacted them again, explaining the importance of completing the certification.
  • She could have asked any one of three other additional specialists she visited with during her treatment to complete the form.
  • She could have mailed the form to any of these doctors.
  • She could have delivered the form in person to any of these doctors.
  • Perhaps most significant to the court: she should have contacted her employer to explain her difficulties in obtaining timely certification and requested an extension before the 15-day deadline expired.  (In her case, she didn’t seek an extension until after the deadline passed.)

Because the court found that Brookins did not make diligent efforts to obtain certification, it dismissed her FMLA claims, finding that the exception to the 15-day rule did not apply.  More importantly, the ruling gave employers a guide map when determining whether their own employee has engaged in “diligent, good faith efforts” to obtain certification.  Brookins v. Staples Contract & Commercial, Inc. (pdf)

Cheesy moment alert:  I must confess a moment of weakness here — perhaps it’s my Catholic guilt setting in a bit on Ash Wednesday, but I can’t help but feel a bit for Ms. Brookins’ situation, since it appears as though her primary care doctors’ refusal to complete the form is what likely did her in.  As she battled breast cancer for a second time and now was rebuffed by her two main doctors, obtaining medical certification had to be a low priority for her.  Nevertheless, the FMLA rules apply to Brookins just as they do any other employee in far less empathetic situations.

And Brookins didn’t follow the rules.  As harsh as it may seem to some, it’s the correct ruling.   

military-864397_1280

This week, the Department of Labor released its final rule implementing the Family and Medical Leave Act amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).  The final regulation also revises a handful of existing regulatory provisions, and removes the model FMLA forms from the appendices of the regulations.  I reported on these proposed changes in greater detail in a previous blog post last year.  The final rule takes effect March 8, 2013.

Military Family Leave

The new rules regarding military family leave are not controversial and effectively carry out the amendments made by the NDAA.

Caregiver Leave

As for caregiver leave, it now can be taken up to five years afterthe service member leaves the military and for an injury or illness that results from a condition that predates the individual’s active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Qualifying Exigency

Prior to the NDAA’s enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  However, the NDAA and proposed regulations reverse that position.  FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members, so long as they are being deployed to a foreign country.  The final regulation also added and tweaked current qualifying exigencies:

  • Expands from five to 15 days the amount of “Rest and Recuperation” FMLA leave an eligible employee can take to spend with a covered family member; and
  • Creates a new category for parental care (caring for the servicemember’s parent when the parent is incapable of self-care)

Airline Flight Crew FMLA Leave

Enacted in 2009, AFCTCA closed an apparent loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave. Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek.

AFCTCA applies the same concept to airline flight crews, providing that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the FMLA regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. This calculation does not include personal commute time, or time spent on vacation, medical or sick leave.  The changes will result in more employees who are eligible for FMLA leave.

The final rule also includes:

  • Listing of all special requirements applicable only to airline flight crew employees and their employers (subpart H);
  • Adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reason and 156 days of military caregiver leave; and
  • Imposition of special recordkeeping requirements on employers of airline flight crew employees.

Other Notable Changes (or Non-Changes!)

Physical Impossibility

Although the DOL appeared poised to make changes to the “physical impossibility rule,” it simply reminded employers that this rule is to be applied in only the most limited circumstances, and that the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.  Notably, the DOL shared the following in its Fact Sheet 28I on the issue:

In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is designated as FMLA-protected leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents him from boarding the train before it leaves for its scheduled trip.

Increments of Leave

The DOL maintained a provision that allows employers to use varying increments of leave at different times of the work day or shift.  It reaffirmed the current rule that employers “must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour.”

DOL’s Model FMLA Forms

Notably, the WHD removed its model FMLA forms from the regulations’ appendices.  Employers may now locate the optional-use forms on the DOL website.  This change was made so that DOL has the flexibility to change (and hopefully, improve) the forms as needed without getting bogged down in the regulatory approval process.  DOL remarked that any future substantive changes to the forms will remain subject to normal notice and comment.

Resources

More information regarding the rule, including a side-by-side comparison of the new rule with the prior version, frequently asked questions and a fact sheet, is available on the DOL’s website.

Photo credit: U.S. Department of Labor

birthday cake frown.jpgHappy 20th Birthday, FMLA!  On February 5, 1993, President Bill Clinton signed the Family and Medical Leave Act, making it the very first piece of legislation he signed into law as President.    

Congrats on making it into your third decade, FMLA. Over the last two, however, you’ve given employers one hell of a ride! Don’t get me wrong: all of my clients clearly see the value in providing leave to employees to recover from a very serious illness or injury or to take time off to bond with their newborn child.  Generally speaking, employers are wildly supportive of their employees’ need to take leave for the manner in which the FMLA was intended.

And the FMLA has had a positive impact in my own life: a few years back, the FMLA ensured that my job was protected as I held my father’s hand and provided him comfort in the last days before he died of cancer, and it also allowed me time to bond with my three beautiful children after they were born.   

At the time he signed the FMLA into law, President Clinton remarked that the FMLA would provide leave to employees “urgently needed at home to care for a newborn child or an ill family member.”  What the President likely didn’t appreciate, however, was the enormous administrative headaches the FMLA would exact on employers.  On a daily basis, many of my clients are socked with conundrums such as FMLA abuse and employee misrepresentations of the need for leave, how to track intermittent leave, and even how to recognize the need for FMLA leave.

In light of the many difficulties employers face administering the FMLA, you might imagine my surprise yesterday when I learned about the results of a recent Department of Labor FMLA survey, which makes a whopper of a conclusion:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale. Finally, 90 percent of workers return to their employer after FMLA leave, showing little risk to businesses that investment in a worker will be lost as a result of leave granted under the act.

Don’t rub your eyes.  You’re reading this passage correctly.  Yet, the findings don’t stop there. Other notable — and curious — findings include:

  • 85% of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.
  • Employers reported the misuse of FMLA is rare. Fewer than 2% of covered work sites reported confirmed misuse of FMLA. Fewer than 3% of covered work sites reported suspicion of FMLA misuse.

Review the entire survey and supporting data here.

Geez…these results seemingly should be cast deep within Sir Thomas More‘s Utopia, as they present quite a saccharine view of the state of FMLA affairs.  Interestingly, the DOL’s survey results are vastly different than the findings of a survey conducted by SHRM just a few years back regarding the FMLA.  In its 2007 survey, “FMLA and its Impact on Organizations,” (pdf) SHRM uncovered an FMLA world far from Utopian.  Consider these quick stats from the SHRM survey and note how they differ from the DOL’s report:

  • 63% of HR professionals found it “very difficult” or “somewhat difficult” to comply with the FMLA. (page 21)
  • 73% of HR professionals reported it “very difficult” or “somewhat difficult” in determining whether an intermittent medical condition should be protected by FMLA.  (page 21)
  • 39% of HR professionals stated that they have had to grant FMLA requests that they perceived to be illegitimate because of the DOL regulations and interpretations. (page 23)

These differences are stark.  Granted, the SHRM survey is a bit dated and precedes the 2009 FMLA regulatory changes, but would the results really be much different today?  For what it’s worth, my experience in representing employers tracks a whole lot closer to SHRM’s survey results.

How can these surveys peacefully co-exist?  More analysis on the DOL’s survey results in the weeks to come, but for now, I’d encourage you to take part in fellow employment attorney Jon Hyman’s (admittedly unscientific) one-question poll: “How difficult has it been for your company to comply with the FMLA?”  I’ll be interested in your response and in Jon’s poll results.

In the meantime, feel free to make a 20th birthday wish for the FMLA in the comment section below! (Let’s keep it clean for the kids out there.)  

And get back to Utopia, you cynical employers!  

I came across an interesting FMLA case this past week, and the facts are simple enough that it kept my attention. [In the age of Twitter and Facebook, anything beyond a 30-second sound byte and you might as well give me a blanket for a long-winter’s nap.  Right?] However, the lesson from the case should be enough to grab the immediate attention of any in-house counsel or HR professional.

Patrick Hurley was president of a security company, and he also suffered from depression and anxiety. Despite treatment over several years, his condition had not improved.  Based on his doctor’s advice, Hurley asked his CEO for a leave of absence.  At first, Hurley simply told the CEO that he had been advised by his medical health professional to take some vacation.  In a follow-up conversation, however, Hurley bluntly told his CEO that he had been diagnosed with depression and that he needed time off to deal with it.

The CEO’s response?  “Hurley…we’ve ‘had a great run together,’ but it is ‘time to part ways.'” Immediately thereafter, Hurley was terminated.  The FMLA suit quickly followed, and Hurley prevailed at a jury trial on his FMLA interference and retaliation claims.  Hurley v. Kent of Naples

In their blog, Marti Cardi and Megan Holstein of Reed Group highlight the Hurley case, and they do a great job of assessing the cost to an employer where the manager (like here) does not recognize (or refuses to recognize) a leave request covered by the Family and Medical Leave Act.

Their estimate of the damages Hurley’s employer will have to pay out: a cool $1.26 million. This amount includes back pay, front pay, liquidated damages (a form of “punitive damages”), attorneys fees and interest.

What the Lesson Here?

Employers, let me be blunt: we need to do a much better job of training our managers because they simply are not identifying when a request for a leave of absence might be protected by the FMLA.  Court cases like the one above prove that we need to do better.  And as Reed Group aptly points out above, employers are hemorrhaging money as a result.

Interestingly, over the past week alone, I’ve worked with a Fortune 500 company and a large local government employer that face the same dilemma: their managers on the front lines are not recognizing when an employee’s absence could be covered by the FMLA, and their managers are not communicating this information to those responsible for leave management.  Their ignorance, in turn, is creating tremendous risk for the employer.

It is critical that your managers identify an employee’s need for FMLA leave because, at a minimum: 1) they are responsible for communicating to Human Resources or a leave administrator that the employee may need FMLA leave; and 2) they are your eyes and ears at an early stage in the game where FMLA abuse might be an issue.

Do yourself a huge favor as you prepare your budgets this year: include a line item for manager FMLA/ADA training.  The training should: 1) educate your managers on the FMLA and what the law protects; 2) include indicators of a serious health condition; 3) arm your managers with (perfectly legal) questions they can ask an employee who is requesting leave that may be covered by FMLA; 4) provide the skills and leave management techniques necessary to properly manage an employee with a medical condition.

If you spend the $2K now to train your managers, you’ll likely save $1.2 million and also significantly reduce the chance I’ll be writing about the FMLA judgment against you on my blog.

Not that anyone reads my malarkey anyway…

fmla.jpgYesterday, the U.S. Department of Labor issued an Administrator’s Interpretation (AI) to clarify the factors an employer must consider when an employee requests leave to care for an adult child.  

As we know, an otherwise eligible employee is entitled to FMLA leave to care for a child with a serious health condition. Under the regulations, “child” is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.  Thus, two factors must be present before an employee can take FMLA leave to care for his/her adult son or daughter: the child must be incapable of self-care and have a disability as defined by the Americans with Disabilities Act.

In short, the Administrator’s Interpretation seeks to clarify three issues: 1) the age of the child at the onset of the disability; 2) the impact of the ADA Amendments Act of 2008 on the interpretation of ‘disability’ under the FMLA; and 3) the availability of FMLA leave for parents to care for an adult child who becomes disabled during military service.

My overall read of the AI?  It does not declare anything new or otherwise signal a change in direction by the DOL in how it approaches the adult child provisions of the FMLA.  In fact, one DOL official told me that the AI is meant to clarify and confirm the DOL’s long-held position on caring for an adult child and provide guidance in this area to DOL field staff.  Despite the relative straightforward nature of the AI, there are a few nuggets in the AI of which employers should take note:

Age of the Disabled Child

In its AI, the DOL noted some confusion over whether it is relevant if the adult child’s disability occurred before or after the son or daughter turns the age of 18.  Not surprisingly, the DOL confirmed that the age of the child at the onset of the disability is irrelevant to the determination.  Put simply, the FMLA covers an adult child who suffers from a disability that originated prior to age 18 as well as one that did not commence until adulthood.

Impact of the ADAAA 

In the FMLA regulations, the DOL long has adopted the ADA’s definition of disability for purposes of defining a son or daughter over age 18 under the FMLA.  As expected, the DOL endorsed the changes to the definition of “disability” under the ADAAA and warned that these changes clearly will impact an employee’s ability to take FMLA leave to care for an adult child. Notably, the DOL reminded readers that the EEOC’s position that the definition of disability should “be construed in favor of broad coverage” and “should not demand extensive analysis” is persuasive in the FMLA context as well.  

What’s the impact of the ADAAA on FMLA leave to care for an adult child?  The DOL unambiguously tells us in the AI:

The ADAAA’s expanded definition of the term ‘disability’ will enable more parents to take FMLA-protected leave to care for their adult sons or daughters with disabilities . . . “

Requiring the Employer to be Clairvoyant?

Employers should take note of one particular example offered in the AI.  As I have noted in various FMLA presentations I’ve given over the past year, the employer’s determination to designate FMLA leave usually occurs within the first couple of days or weeks of the need for leave.  In many instances, however, employers do not have enough information yet to make the FMLA determination because it does not have any confirmation that the adult child actually is disabled.  Take, for instance, a horrific automobile accident that leaves an adult child in serious condition.  Despite the child’s current condition, the doctor opines that the child is expected to make a complete recovery.  Does this condition constitute one that rises to the level of a disability?  All too often, employers are not in a position to know.  In this context, the DOL offers some guidance in its AI:

An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

This example is relatively straightforward because the DOL tells us (in the middle of the paragraph above) that the daughter will be substantially limited in walking for six months. Under the watered down version of the ADAAA, this duration likely supports the notion that the child is disabled.  However, employers don’t often have a prognosis of the kind delivered above.  In fact, employers very rarely receive a prognostication from a health care provider like the kind offered above.  My continued fear is that employers will be required to read the tea leaves in determining whether the adult child is disabled.

Impact on Military Leave

Finally, the DOL confirmed in its AI that parents of adult children who have been wounded or sustained an injury or illness in military service may be allowed to take more leave than the 26 workweeks provided for under the FMLA.  Noting that the servicemember’s injury or illness may last beyond the 12-month period covered by the military caregiver leave entitlement, the DOL affirmed that the family member is entitled to take additional FMLA leave in subsequent FMLA leave years due to the child’s serious health condition, so long as the adult child is unable to care for him or herself due to a disability.

Insights for Employers

Anything earth shattering in this AI?  No.  But it’s good to see the DOL spring to life lately when it comes to the FMLA: in the past several months, it now has issued this AI on a thorny FMLA topic and published an Employee Guide to the FMLA, which we’ve found helpful to employees and employers alike.  Perhaps we’ll get some final regulations soon on those proposed last year?  I’m not holding my breath!

For those of you playing along at home, here are links to the Administrative Guidance issued by the DOL yesterday:

  1. Administrative Guidance
  2. Fact sheet
  3. Q and As on the Administrative Guidance

Feel free to call me out for shamelessly piling on veteran broadcaster Brent Musburger.  But by now, you know that issues arising under the Family and Medical Leave Act are part of the American fabric as much as baseball and apple pie, right? Well, at least on this blog it is.

For those of you living under a rock for the past 48 hours, let me set the stage before I get to the question posed in the title above. Musburger served as the play-by-play announcer for the BCS National title game between Alabama and Notre Dame earlier this week. After two quick touchdowns put Alabama up 14-0, ESPN began scrambling for a new story line in what was setting up to be a blow out.  So, the camera panned (several times) to Katherine Webb, the girlfriend of Alabama Quarterback A.J. McCarron.  She also happens to be a former Miss Alabama.  Musburger fawned over the attractive Webb on national TV, calling her “a lovely lady” and “beautiful,” and then engaged his broadcasting partner and former college QB, Kirk Herbstreit, further in the following banter:

Musburger: “You quarterbacks, you get all the good-looking women . . . what a beautiful woman.”

Herbstreit: “Wow!”

Musburger: “Whoa!”

Herbstreit: “AJ’s doing some things right down in Tuscaloosa.”

Musburger: “If you’re a youngster in Alabama, start getting the football out and throw it around the backyard with pop.”

Access the actual video clip here.  Musburger was not the only one in America to notice Webb.  In the past 48 hours, her twitter followers have jumped from 2,000 to over 200,000.

The criticisms of Musburger’s comments have been fast and furious.  Musburger has been more than embarrassed, culminating in this apology he and ESPN issued to Webb and viewers.

Stress-induced leave of absence

Day in and day out, oodles of employees claim that an embarrassing situation at work or a difficult boss causes them to suffer work-induced stress that requires a leave of absence from the job.  So, Musburger’s situation got me thinking (since all things in life indeed come back to the FMLA): If Musburger claims he has suffered job-related stress as a result of the backlash he’s received inside and outside of ESPN, can he seek FMLA leave?

In a word, yes (a reason why I will always have work as an employment attorney).  Unfortunately for employers, there are handfuls of cases from various states across the country where courts have found that stress caused by the workplace can be a basis for taking leave from work so long as the stress rises to the level of a serious health condition that renders them unable to perform their job.

Take, for example, Meadows v. Texar Federal Credit Union.  There, the plaintiff, a former operations manager at the credit union, was placed on a performance improvement plan (PIP) because of performance problems.  Thereafter, Meadows’ manager met with her on several occasions to inform her that her performance was not improving and that she would be terminated in 30 days if her performance did not improve.  Rather than taking her performance up a notch, Meadows sought FMLA leave for stress caused by the demands at her job.  While on leave, she engaged in activities of everyday life: shopping, taking trips, attending ball games and social functions, traveling with her son to a basketball camp out of town and to an out of town birthday party, watching television, and shuttling her children to and from school and sports practices. However, her health care provider confirmed that she could not work.

In a blow for employers, the court refused to dismiss her FMLA claim, finding that the evidence showed that the plaintiff was:

depressed, stressed out, nervous, and upset.  She had become this way because of what she believed to be unjust criticism of her job performance by [her supervisors] and because she felt [her supervisors] had threatened to fire her.

As a result, the court determined that a jury would need to decide whether the plaintiff suffered from a serious health condition under the FMLA that required her to take leave from her job.

Ouch.

Insights for Employers

Note to ESPN: Be afraid. Be very afraid.

Note to all other employers: When faced with a situation like the one in the Meadows case, before you panic, use the tools given to you by the FMLA: 1) insist upon complete and sufficient medical certification (so you have a clear picture of the employee’s medical condition and their need to be off); 2) seek clarification from the employee’s health care provider if the employee is not providing a sufficient and complete certification; 3) if you have reason to doubt the certification, seek a second and third opinion; 4) seek recertification every 30 days while the employee is on leave to maximize your understanding of the continued need for leave; and 5) maintain regular communication with your employee so you remain up to date on their status and can better gauge their ability to return to work.

If that fails, it’s time to call your friendly neighborhood employment attorney, and best wishes on the wild ride ahead.

Photo credit: USA Today

This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve.  Due to seniority or the employee’s last-minute request for time off, her leave request is denied.  However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can’t work due to a flare up of her chronic bad back.

Plenty of employers just mark these days off as FMLA leave.  But they often do so with a whole lot of regret and with a wish they could do something more to push back on what they believe is a suspicious leave request.

But employers can push back, and here’s how…

Unfortunately, the FMLA regulations give employers little guidance when dealing with a leave request like the kind above.  However, the regulations relative silence on this issue opens the door to lawful maneuvers by employers to get to the truth.  Let me explain the ways:

1.  Enforce your rights at the medical certification stage.  If this is an initial medical certification of a serious health condition, I would consider including a cover letter addressed to the employee (to be shown, in turn, to the health care provider) noting that the employee’s request for FMLA leave covers precisely the same days for which the employee just recently sought vacation leave.  As a result, you explain to the employee that you are (rightfully) concerned whether leave on these particular days actually are consistent with the employee’s alleged serious health condition and the pattern of absences.  In your letter, you ask that the health care provider specifically confirm this in the certification.

A risky move?  It’s not a conservative move, I admit, since this approach is not specifically sanctioned in the regulations (at least for an initial certification).  However, I also would be perfectly comfortable arguing to the DOL that that this approach does not remotely interfere with the employee’s substantive FMLA rights.  In taking this approach, you are making no determination as to the merit of the leave request just yet.  You simply are enquiring further since it’s necessary to obtain more information to ensure FMLA leave actually is being sought.  This kind of inquiry arguably is allowed under the regulations at 29 CFR 825.302(c).

The practical impact of this move: Even though the health care provider likely will confirm that your employee was incapable of working on Christmas Eve and NYE [author’s note: what a coincidence!], it sends a message to your employee that you take your own FMLA rights as the employer seriously and will vigorously enforce them to ferret out possible FMLA abuse.  The true impact of this move will be felt the next go around when the employee thinks twice about abusing leave time.

2.  Enforce your rights by seeking clarification and/or a second opinion.  This situation is fishy enough that it creates reason to doubt the validity of a certification that supports the absence.  Before moving toward a second opinion, however, employers should work with the employee to cure the certification and seek to clarify it with the health care provider.  During this process, you may learn information that either supports the merits of the employee’s leave request or, conversely, casts further doubt on the validity of the certification.

3.  Enforce your rights at the recertification stage.  If you already have medical certification on file, the timing of the FMLA absences on the same days that were requested and denied earlier as vacation arguably constitutes “a significant change in circumstances” from the previous certification which, in turn, allows the employer to request recertification.  Similar to point No. 1 above, I would recommend including (directly to the health care provider) the pattern of the suspicious leave requests and requesting that the doctor confirm whether the need for leave on these precise days is consistent with such a pattern.

4.  Consider implementing a personal certification procedure.   Some employers require as part of their usual and customary practice that an employee sign a “person certification” acknowledging that he/she took time off for FMLA or another medical reason.  If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline.  Keep in mind, though, that this practice should be usual and customary; otherwise, employers fall prey to claims of discrimination (i.e., requiring one employee but not another to complete the personal certification).

5.  If the abuse is particularly bad, termination may be appropriate (in extreme cases).  In an earlier blog post, I highlighted Rydalch v. Southwest Airlines (pdf), which is a fabulous case for employers.  Here, Southwest found that the plaintiff was abusing FMLA leave by taking leave in conjunction with other vacation days he requested off.  Southwest relied on its honest belief that the plaintiff was abusing leave, and the court agreed.  As a result, the court dismissed the plaintiff’s FMLA claims in their entirety.

A similar case is Crouch v. Whirlpool Corporation, in which the employer had an honest belief that its employee was using FMLA leave for vacation purposes instead of recovering from an injured knee.

Employers, all hope is not lost.  Use the tools above to probe further on leave requests, particularly when they are part of a suspicious leave request or an unusual pattern of absences.  In doing so, you properly assert your FMLA rights and serve warning to your employees that FMLA abuse will not be tolerated.

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Have your employees’ absences from work been a bit more frequent lately?  And are you tired of the lame excuses they’re providing?  After all, there are only so many times your employee’s dog can knock over the Christmas tree….on top of your employee, right?

In this “best of” FMLA post, employers need not settle for patterns of absences or even suspicious excuses for absences.  Keep in mind a few best practices to combat FMLA abuse:

1.  Recognize whether whether the employee is seeking leave that might be covered by the FMLA: Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary.

Of course, it’s never that easy. Employees are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

2.  Require that Employees complete a written leave request form for all absences: Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system.  And it tends to help your administration of employee leave.

3.  Enforce usual and customary call-in procedures:  Also under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer’s call-in procedures.  For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.  In practice, not nearly enough employers utilize this tool, even though they should!

4.  Prepare a list of probative questions you ask of all employees when they call in to report an absence:  This list will help you determine whether any of the conditions in No. 1 above may be in play.  As the employer, you have the right to know why your employee cannot report to work.  So ask!  During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:

  • The specific reason for the absence
  • What duties of the job they cannot perform
  • Whether they will see a doctor for the injury/illness
  • Whether they have suffered from this condition before and previously taken leave for it. If so, when?
  • When they first learned they would need to be absent
  • The expected return date (or time, if less than a day)

5.  Use medical certification and recertification to your advantage: Medical certification is one of the best tools to combat FMLA abuse.  So, use it!  Moreover, if this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form?  Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately.

If you are concerned about a Monday/Friday pattern of absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

6.  Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your employment counsel to ensure that your FMLA policy and procedures are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

For more strategies on combating FMLA abuse, feel free to access a webinar I conducted on this subject and another I conducted recently on administering difficult FMLA issues.  In these webinars, we covered real life FMLA abuse scenarios and offered practical tips to address them so that you can set your FMLA administration right.

Best wishes for a peaceful New Year!  I look forward to connecting with you in 2013.

As a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee.  Often enough, the situation goes something like this:

My operations people want to terminate Fred.  He has flown off the handle one too many times, and now, we think we caught him misreporting his time worked.  He received a mediocre performance review a few months back — some good, some bad.  And his problems continue.

But here’s the problem: Two days ago, he asked for FMLA leave.  We can still terminate him, right?

The coincidence is uncanny: a request for FMLA leave just as the employee is about to be handed the pink slip.  It’s one of the biggest headaches for any HR professional or in-house counsel.  The timing of the request stops the employer dead in its tracks, and rightfully so.  By terminating an employee immediately after he/she requests FMLA, the employer undoubtedly wonders whether it will find itself on the wrong end of FMLA interference and retaliation claims.

All is not lost!  Recently, a federal appellate court determined that an employer lawfully terminated an employee just two days after he requested FMLA leave.  The guidance from the court is instructive to employers handing these kinds of touchy situations.

The Facts

Frank Brown, a customer service operations analyst for ScriptPro, was a mediocre employee.  In June 2008, he received mixed performance reviews, which noted his excessive Internet usage, his lack of respect for personal boundaries in the workplace, and that he was argumentative and abrasive with co-workers.  After the review, his performance issues continued through September 2008.  Notably, he was belligerent toward a customer and failed to complete a critical project on time.

Later that fall, on November 19, 2008, Brown asked for time off to attend his wife’s doctor’s appointment.  Instead of providing the FMLA leave, however, his employer terminated his employment two days later on November 21 because of “unresolved, previously discussed performance issues.”

The Ruling

Plenty of courts have found that the timing of a termination decision — especially two days after an FMLA leave request — often is persuasive evidence to establish that the employer’s decision may have been motivated by the leave request.  To overcome this hurdle, the employer must “provide[] undisputed evidence that [the employee] would have been terminated regardless of this or any other FMLA-protected request.”

Here, the court found that the employer met this burden by pointing to: 1) Brown’s mixed performance review; and 2) his continued performance problems after the review in the months leading up to his FMLA request.  Brown v. ScriptPro (pdf)  As a result, Mr, Brown’s FMLA claims were properly dismissed.

Insights for Employers

This is a good win for employers in what I think is a really close case on the facts.  What was ScriptPro’s key to success here?  Documentation of the employee’s performance problems in his review and continued documentation of his performance problems thereafter.  When it comes to effective performance management and defending yourself in litigation down the road, there is no substitute for objective and comprehensive documentation of an employee’s performance issues.

So, ready yourself when you call your employment attorney prior to terminating employee: what documentation do you have to support the basis for your termination decision?  Much more often than not, your success in court will depend on it.

webinar1.jpgThanks to those who attended my webinar last week with Matt Morris and Tamika Lynch on “FMLA Made Easy: Effectively Managing Difficult FMLA Issues.” As the survey feedback indicated, this webinar was a great opportunity to discuss common issues that arise in the administration of FMLA leave and how employers can best address them.

From an employer perspective, there are several key takeaways from the webinar that will help employers legally administer FMLA leave and prevent FMLA leave abuse (ignoring, of course, the part where I sang to you during the webinar):

  1. Medical certification, recertification and second/third opinions continue to be among the best tools to combat FMLA abuse. We spent a good amount of time during the webinar working through what an employer should do when it receives incomplete, inadequate or suspect medical certification. The message is clear — employers have rights when it comes to the medical certification process, and they should utilize them to combat FMLA abuse.  A prior blog post here also help guide you through best practices in the certification process.
  2. A honest belief that an employee is abusing FMLA leave — in most cases and states (except California!) — is a strong defense to an FMLA claim, so long as the employer conducts a complete and exhaustive investigation of the facts involved.  Clearly, more employers should be mindful of this defense, since courts are increasingly turning to it when analyzing FMLA claims.
  3. Employers must be careful where an employee seeks leave to care for an adult child or another family member.  For best practices in dealing with these issues, access the webinar!
  4. Where FMLA ends and ADA begins, it is critical that employers engage the employee in the ADA’s interactive process.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  Where an employee has requested additional leave after FMLA leave expires, we want to know what they can and cannot do, whether reasonable accommodations are available to help them perform their essential job functions, and whether additional leave will help them perform these essential duties. As I also pointed out during the webinar, it is important for employers also to document how the requested leave of absence poses an undue hardship to their business. Specifically, they should document the following:
    • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
    • Lower quality and less accountability for quality
    • Lost sales
    • Less responsive customer service and increased customer dissatisfaction
    • Deferred projects
    • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
    • Increased stress on overburdened co-workers
    • Lower morale

Finally, as you may recall during the webinar, I made reference to an FMLA guide recently published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA.  You can access the Guide here (pdf).  What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process.  HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.

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