vegas

The FMLA just got a whole lot broader.

In what might be one of the key FMLA decisions of the year, a federal judge has upheld an employee’s right to take FMLA leave to care for her mother during a recreational trip to Las Vegas.

Yep . . . you read it correctly.  Employee + her mother + their trip together to Vegas = FMLA leave

The Facts

The story isn’t all that complicated.  Beverly Ballard was a private swimming lessons instructor.  She also had a mother who was diagnosed with end-stage congestive heart failure and was not expected to live.  Beverly was the primary care giver for her mom: she was responsible for preparing her meals; administering her mom’s insulin shots and medicine; operating a pump to remove fluids from her mom’s heart; bathing her mom; providing her transportation and ensuring she made it back and forth to and from her bed.

Beverly later learned that a local charitable organization had granted her mother a “make a wish” trip to Las Vegas because she was terminally ill.  According to Beverly, the six-day trip would require her own absence from work because she would need to care for her mom during the trip.  Beverly’s employer denied her request for leave, but Beverly went anyway.  In addition to administering her mom’s medicine and generally looking after her while in Vegas, Beverly also “spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants.”  Beverly fully acknowledged that her mom was not heading to Vegas for medical care, therapy or any kind of treatment.  Put simply, it was a vacation exclusively for her mom.

Beverly’s employment was terminated for unauthorized absences.  She later filed suit, alleging that her employer interfered with her ability to take FMLA leave.

An FMLA Conundrum

We’ve grown used to courts dismissing these kinds of cases.  Recall the Tayag case, where the court dismissed an FMLA lawsuit because the employee’s trip with her seriously ill husband to meet with a “faith healer” in the Philippines also was spent visiting socially with family.  By and large, courts tend to dismiss FMLA lawsuits where the family member for whom the employee is caring is not seeking treatment at the remote destination.

That said, I have been worried about a case like Beverly’s.  Not necessarily the Vegas part (but these facts don’t help).  I’ve been worried that a court actually would allow an employee to travel on a recreational trip to care for a family member.  The cynical side of me frets over the proverbial flood gates opening to allow any FMLA abuser to scam FMLA leave simply by taking mom on their next trip to Disney World or to climb Mt. Kilimanjaro.

But the court reviewing Beverly’s situation bucked the authority preceding it, finding that it didn’t matter where Beverly was providing the care — so long as she was providing it.   (Read the court’s decision here.)

Do you know what bothers me the most about this decision?  That I can’t necessarily disagree with it.  Many courts before this one have read into the FMLA an obligation that treatment be part of any trip that requires travel away from home.  Yet, as this court pointed out, the FMLA only requires that Beverly seek leave to “care for” her mom, who had a “serious health condition.”  Here’s the imporant part of the court’s written opinion:

There is no question that [Beverly’s mom] suffered from a covered “serious health condition,” and was unable to care for her own basic medical, hygienic, or nutritional needs or safety.  There is also no question that the services [Beverly] provided her mother at home [long list of services] constituted, at the very least, physical care within the meaning of the FMLA.  It follows, then, that Ballard also “cared for” her mother during their trip to Las Vegas because her mother’s basic medical, hygienic, and nutritional needs did not change while she was there . . .

So long as the employee provides “care” to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.  Accordingly, . . . a reasonable jury could find that [Beverly] “cared for” her mother within the meaning of the FMLA during the time she spent traveling to Las Vegas.

Insights for Employers

Wow.  A case like this one screams out for some DOL guidance on the issue, as employers rightly fear that a decision like this one — as reasoned as it is in this instance — is a “get out of jail free” card for those who abuse FMLA leave.  Until then, employers should keep the following in mind:

  1. In light of the Ballard case, treatment is not required where an employee is obligated to care for a family member with a serious health condition.  So, employers clearly take a risk when they allow FMLA leave only when the trip includes some form of medical care, treatment or therapy.
  2. As a result of this reality, employers must ensure that certification clearly indicates that care by the employee is medically necessary.  If the certification is incomplete or inadequate, use the tools available to you to authenticate and clarify the certification.  Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days).  Where they fail to cure the deficiency, consider obtaining their permission to talk directly with their family member’s health care provider to obtain the information.  In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider.  Having the appropriate certification on file will deter would-be FMLA abusers from seeking a quick FMLA fix.
  3. Let the obvious situations go.  Call me squishy here, but when an employee’s mom is terminally ill and she’s seeking leave to care for her while she goes on a “make a wish” trip, let her go and use your time and effort to fight a different battle.

In the meantime, feel free to mutter under your breath, “Serenity now“!

beer_of_the_month.jpgEmployers and fellow FMLA nerds, consider this an early holiday present: Courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.  

This is a longer than usual post, but hang with me, as I share some best practices below.  

Take the situation of Sara Jaszczyszyn.  (We’ll call her Sara, for short.)  Sara worked for Advantage Health Physician Network as a customer service representative where she spent most of her day talking with customers by telephone.  As the result of a car accident several years earlier, Sara experienced back pain, which began to worsen shortly after her employment started. 

Sara first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four “flare ups” per month and that each flare up could last anywhere from a few hours to a few days. When they occurred, Sara could not perform all of her job functions.

After obtaining this certification, Sara took it as carte blanche to remain absent for a continuous, open-ended period of time.  After early September, Sara remained absent.  

While Sara was on FMLA leave, she attended “Pulaski Days,” a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara’s co-workers weren’t amused, since they “were covering for her” (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren’t, several of Sara’s co-workers complained to their boss, who then viewed the Facebook pictures.  

We know how this story ends, right?  Indeed!  Days later, Sara’s employment was terminated.

Sara’s FMLA Claims are Dismissed because the Employer Flawlessly Handled the Situation

After her termination, Sara filed FMLA interference and retaliation claims against Advantage. However, these claims were quickly dismissed.  

Why?  Because the employer responded precisely in the manner it should.  

After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was “completed incapacitated.”  

Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her “complete incapacitation” and the Facebook photos.  Sara’s response?  She “was in pain at the festival and was just not showing it.”  After that excuse failed miserably, her next response was telling.  You guessed it: silence.

Insights for Employers

What must an employer establish when it terminates an employee for FMLA abuse?  That it had an honest belief the employee was engaging in fraud. In other words, it must show that it reasonably relied on the particular facts at issue, even if the employer is later proven to be mistaken in its belief.  An employer effectively advances this defense only when it conducts a complete and exhaustive investigation into the alleged facts.  

Here, Advantage’s investigation served as Defense Exhibit A in dismissing Sara’s FMLA claims because it was able to show that it conducted a complete and exhaustive investigation into the facts at issue. Look above at Advantage’s investigation: it confirmed the scope of Sara’s need for FMLA leave; it asked Sara explain in her own words what her limitations were; it had her acknowledge the importance of combating fraud in the workplace; and then, after obtaining these admissions, it lowered the boom by introducing the Facebook pictures. At that point, did Advantage really even need to inquire further? Sara’s underwhelming response when faced with the pictures was evidence enough. See the court’s opinion in Jaszczyszyn v. Advantage Health Physician Network (pdf) here.

I regularly remind my clients: even when you have have caught an employee red-handed in fraud or inappropriate conduct, there is absolutely no substitute for a complete and exhaustive investigation into the facts.  Why?  Courts and juries insist on it.  It simply is human nature to assume that all employees will be afforded some level of due process — i.e., the chance to respond to the allegations and defend themselves — before a termination decision is made. When employers don’t afford an employee this opportunity, the risk of litigation and an adverse ruling increases significantly.  Follow Advantage’s lead, and set yourself up for a strong defense.

Still interested in how an employer can effectively advance an “honest belief” defense?  We’ll cover this topic head on during our December 6 webinar, which you can register for here.

By now, you’re really interested in seeing Sara’s Facebook pics, aren’t you?  Eric Meyer of the Employer Handbook has them here.

webinar.jpgI’ll admit it: I am longoverdue to host an FMLA webinar for employers.  Wait no more!  I have partnered with two fabulous attorneys — Matt Morris of FMLASource and Tamika Lynch of Siemens Industry — to hit head on a number of FMLA juggernauts that all of us face everyday.

Please join us on December 6, 2012 (12:00 – 1:30p.m. CST) for FMLA Made Easy: Effectively Managing Difficult FMLA Issues.   I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover.  What’s the best part?  It’s FREE!  So, you have no excuse not to join us, right!?!

Overview of the Webinar

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job.  Moreover, intermittent leave is the “single most serious area of friction between employers and employees seeking to use FMLA leave,” according to a recent Department of Labor report.

But why must it be so difficult?

In this complimentary webinar, Matt Morris, vice president at FMLASource, Tamika Lynch, counsel at Siemens Industry, Inc., and I will tackle some of the most common FMLA conundrums and offer practical advice to employers in addressing these situations.  Using real life situations from their own wealth of experience dealing with the FMLA, our presenters will cover topics such as:

  • Unique issues when caring for an adult child or a family member
  • Responding to inadequate or incomplete medical certification (or one that’s never turned in!)
  • Recertifications: what employers can ask for when circumstances have changed or the validity of leave is in doubt
  • Fluctuating work weeks and its impact on an employee’s FMLA allotment
  • “Honest Belief/Honest Suspicion” cases: taking action against FMLA abuse
  • Managing the second opinion process
  • ADA meets the FMLA: what employers should do when an employee’s FMLA leave is exhausted and he/she still can’t return to work

 

Thanks for the great feedback we received on our post earlier this week about Hurricane Sandy’s impact on employers when it comes to issues arising under the Family and Medical Leave Act.  In your feedback, I received several requests to address the following question:

If an employer shuts down because of damage related to the Hurricane, and an employee was out on FMLA leave at the time the office closed, is the employee charged FMLA leave for these days?

The FMLA regulations (at 29 CFR § 825.200(h)) clearly state how an employer should calculate FMLA leave when it shuts down its operations:

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

Thus, the regulations indicate that, if an employer’s business is closed for a week or more because of the natural disaster, the days that the business is shuttered could not count against an employee’s FMLA leave allotment.

Keep in mind: in these situations, you cannot count the time against the employee’s FMLA allotment even if it is obvious the employee would not have been able to perform the duties of the job during the break.

Our thoughts and prayers are with those on the east coast who are attempting to return to some sense of normalcy in the wake of the devastation left behind by Hurricane Sandy.

Natural disasters like Sandy raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered?

The aftermath of the hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Awhile back, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricane Sandy:

  • Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.
  • However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee’s parent who suffers from diabetes.  If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
  • Could the Hurricane actually cause a serious health condition requiring time away from work?  See my answer here.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Dads need lovin’ too.  So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer’s “macho man” culture was a culprit in his ouster.

As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law firm.  By all accounts, he had two years of solid performance evaluations and a $30,000 bonus in the year prior to his termination.  Then, he took four weeks of leave to care for his wife after the birth of their child and to bond with his newborn.  (The facts suggest he needed to care for his wife, who suffered from a variety of serious health conditions.)

When Ayanna returned to work, it wasn’t the same.  He claims the firm assigned him less work and ridiculed his care-taking ways.  At the time of his termination, the firm even shared that his “personal” issues constituted one of reasons for his ouster.  Ouch.

In refusing to dismiss Ayanna’s FMLA retaliation claim, the court clung to the statement above, suggesting that a “reasonable jury could find that the comment was directed at Ayanna’s recent need to take FMLA leave.”  Also noted as an inconsistency in the employer’s story: its claim that Ayanna’s low client billable hours also supported his termination.  The problem?  There was evidence that others missed the hours mark, too, and did not suffer the same fate as Ayanna.

In Ayanna’s complaint, he claimed that the firm maintained a “macho culture” where time off to attend to fatherhood and being an “engaged” dad were seen as weak and undesirable.  However, in a nod to the employer, the court bounced this claim, finding that it was too vague to support a sex discrimination claim, which the court dismissed.  Ayanna v. Dechert LLC (pdf)

However, the FMLA retaliation claim now remains for a jury to consider.  The evidence precluding dismissal falls into two usual taboo categories that often trip up an employer when it comes to retaliation claims: insensitive comments that could be viewed as discriminatory and an inconsistent application of discipline to those outside the protected class.

Insights for Employers

As always, there are lessons to be learned by employers.  The court’s decision reminds us of at least two best practices:

  1. As I have stated before, loose lips sinks ships.  If one of the reasons for his termination was indeed his “personal” issues — that is, taking care of his wife with a serious health condition and bonding with his child — it created a tremendous risk of liability for the employer.  Note to managers, supervisors, owners, HR professionals and anyone else in a positive to effect a personnel decision:  Stop saying stupid stuff!  I’ve detailed all too often lately stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made foolish remarks in conjunction with a termination decision.  Don’t do it, and train your managers and supervisors to do the same.  This case serves as yet another example of how easily a court will send a case to a jury as a result of one indiscreet comment.
  2. Apply disciplinary criteria consistently.  If you decide that a performance deficiency is particularly troublesome and requires termination, look around the room before lowering the boom.   Are other employees (especially those who have not recently returned from FMLA leave) guilty of the same problem?  If they were not subject to similar discipline or their situation cannot be distinguished in some meaningful way, employers again create significant risk of liability.  Courts don’t like it, and juries are even less forgiving.

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?

Here’s a real life application of this question:  Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she was sexually harassed at work, she sought leave to be treated for post-traumatic stress disorder.  Shortly thereafter, her physician sent the employer a note indicating that she was being treated for this condition and “would be unable to return to work yet.”

The employer played by the rules.  As required under the FMLA regulations, after it was put on notice by Miedema of the possible need for FMLA leave, her employer issued a Notice of Eligibility and a medical certification form, which was to be completed by her health care provider.  Fifteen calendar days came and went, and the employee had not returned the certification.  Spectrum contacted the employee shortly after the expiration of the 15-day period to remind her of the need to submit certification.  However, the employee still did not return the certification.

No Soup for You!

In these situations, where the employee fails to return certification, the regulations clearly state “No Soup for You!”  Well, something close, at least: if the employee never returns the certification, according to the regs, “the leave is not FMLA leave.”  29 C.F.R. 825.313(b).  Here, Miedema suffered the consequences.  Because she did not return the medical certification, her employment was properly terminated, despite clear evidence that she otherwise suffered from a serious health condition.  As a result, her FMLA interference and retaliation claims were dismissed.  Miedema v. Spectrum Catering & Concessions

Interestingly, the court also rejected the employee’s argument that she should not have been terminated because the employer did not explicitly tell her in the follow-up letter (after she missed the 15-day deadline) that her employment would be subject to termination for failing to return the certification.  The court found no such obligation in “follow-up communications,” however, since the employer already had informed her of the consequences when it initially provided the blank certification.

Insights for Employers

Spectrum followed the rules and won.  Other employers should follow its lead:

  1. Identify a potential FMLA absence at the earliest opportunity and issue the proper FMLA notice and medical certification.
  2. When the employee fails to return completed certification within 15 calendar days, send the employee a letter informing them of their oversight and giving them a new deadline to return the certification.  (Make it a fairly tight one — I typically recommend seven days.)
  3. Give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn’t turn it in on time.
  4. When the employee doesn’t cooperate despite your own efforts to seek compliance, know that you have treated the employee fairly and have given him/her every opportunity to comply.  At this point, termination of employment often can be an appropriate option.
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Q: We requested that an employee have his health care provider complete FMLA medical certification in conjunction with what appears to be an FMLA-related absence.  The employee has been off work for 30 days and we still have not received certification.  Can we count any of these days as unexcused absences?

A: Before you get to the “unexcused absence” question, employers first should analyze whether the employee has been attempting in good faith to provide medical certification.

Returning Medical Certification

Pursuant to the FMLA regulations, an employee must return medical certification to the employer within 15 calendar days from receipt of the blank form, “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)  So, before taking any adverse action based on the employee’s failure to return medical certification, an employer must closely assess whether it has been in communication with the employee about returning the form and whether the employee has a good reason why he has not returned the form within the time allotted by the regulations.

As a best practice in addressing an employee who has not returned certification by Day 15, I recommend sending a letter to the employee (immediately upon expiration of Day 15) reminding him of his failure to return the form within the allotted time and that you expect to receive the form within seven days.  The letter also should explicitly invite the employee to communicate with you if he needs assistance with this process.  (Remember: “How can I help you?” can go a long way…)

What Absences Should Be Unexcused?

Let’s now assume that: 1) you have determined that the employee has not acted in good faith to obtain the medical certification; 2) you have sent him a letter at Day 15 about his failure to respond; 3) Day 22 (the extended date after you give him seven more days) has come and gone with no response; 4) you have tried to contact the employee by telephone (which you have documented contemporaneously with the phone call) to remind him of his obligations (because a jury will later want to know that you tried and tried to communicate with him, to no avail!); and 5) you stand at Day 30 (frustrated as heck and now trying to hold back the steam seeping from your ears) and you still have not received any medical certification.

Can you count any of the these days as unexcused absences?  Yes, according to the regulations:

Absent such extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided.  29 C.F.R. 825.313(b)

The regulations tell us that any day following Day 15 can be counted as unexcused absences until the employee provides sufficient certification.  The regulations even provide an example:

…if an employee has 15 days to provide a certification and does not provide the certification for 45 days without sufficient reason for the delay, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period, if the employee takes leave during such period.

Interestingly, the regulations further state that, if the employee never returns the certification, “the leave is not FMLA leave.”  29 C.F.R. 825.313(b).  As I interpret this provision, if the employer never receives certification from the employee, all days missed (from Day 1 on) can be counted against the employee.  (Otherwise, why would the DOL include in the regs this phrase above?)

Hat tip: Matt Morris

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The Family and Medical Leave Act and its regulations tell us that an employer must return an employee to the same or an equivalent position upon return from FMLA leave.  Not surprisingly, I often am asked by clients, “What is an ‘equivalent’ position?”

On their face, the FMLA regulations seem to be a bit unforgiving for employers, offering what appears to be little wiggle room in returning the employee back to his/her original status.

The regulations state that an “equivalent position” is:

one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

My emphasis above.  But the regulations appear to offer little wiggle room, right?  A recent federal court case highlights the cautious approach employers should take when returning an employee to work after FMLA leave

The Facts

Sally Wanamaker was a computer teacher for the Westport Board of Education in Connecticut.  While on maternity leave, Sally gave birth to her daughter, but she had complications during labor that resulted in a spinal cord injury.  Her daughter also was born with a heart defect, necessitating a lengthy period of FMLA leave.

She claimed that, at first, her school district told her it would employ a substitute teacher to cover her work during her leave of absence.  However, just a few weeks later, Sally alleged that the principal informed her that he had decided to replace her permanently.  Later, the school district gave her the option of returning to a full-time classroom teacher position instead of a computer teaching position.  When she declined the classroom position, the district terminated her employment.

The Ruling — New Position Might Not Be Equivalent

This case is at the beginning stages of litigation, but at least at the outset, the court refused to dismiss Sally’s FMLA interference and retaliation claims.  Notably, the court found that a reasonable juror could infer that the offer of a full-time classroom position was not equivalent to her former computer position, particularly in terms of skills and responsibilities.  In fact, the court suggested such a move actually might be considered a demotion.  Wanamaker v. Bd. of Education (pdf).

Insights for Employers

  1. Of course, employers often have to temporarily replace an employee while they are on FMLA leave.  However, avoid the temptation of replacing them permanently.  Permanently replacing the employee on FMLA leave requires you to return them to an equivalent position, which (as you see above) is fraught with danger.  (Permanently replacing an employee also causes ADA headaches, since employers are obligated to hold open an employee’s position while they are out on leave as a reasonable accommodation under the ADA.)
  2. If you are returning an employee to an equivalent position, be prepared to show that you gave the decision considerable thought and document how you determine to be equivalent.  Prepare an analysis of how the new position requires the same level of duties, skill, responsibility, earning potential, authority and room for advancement within the company or organization.
  3. I find that employers often get into trouble when they don’t fully consider how the duties of the new position will be viewed by the employee in terms of prestige, authority and especially earning potential.  One common example is a sales position.  Here, an employer can’t take the approach that all of its sales managers are the same.  Selling a different trinket, or assigning them to different accounts that arguably provide for less earning potential or cause them to work with “lower profile” clients in your industry may very well be enough — in light of the fairly stringent regulations above — to create genuine risk of a viable FMLA interference or retaliation claim.  I am not suggesting here that the employee gets to choose the position to which he/she returns, but employers simply need to be mindful of the impact of the decision and give it some thought beforehand.
  4. Another sobering reminder: Be mindful of what you put into email and about the comments you make about an employee’s leave of absence.  In Sally’s case above, her principal allegedly: 1) told the union president that Sally’s daughter’s health condition was one of the reasons she was replaced permanently; and 2) sent an email to all staff that suggested that short-term absences were not legitimate and may dealt with more harshly.  Hello…FMLA intermittent leave!?!  Nothing is more short-term than intermittent leave.  As we have pointed out in other posts here and here, emails and thoughtless comments almost always come back to haunt employers.  (I say this while fully acknowledging that the comments above come from a union president, which of course will be subject to discovery and cross exam.)  In any event, the best practice is clear — stop saying things that will make you cringe if and when they are uttered in front of a jury!
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Later this week, I am conducting FMLA training for management employees at one of our clients.  The training will focus on how the employer can utilize its own current personnel policies to properly administer FMLA leave and combat FMLA abuse.  During this training, I am going to tell them about Ritenour v. State of Tennessee.  Why?  Because it’s a great example of how an employer properly applied its call-in policy to discipline and ultimately terminate an employee who chose to ignore her obligation to timely report her absences.

Going into extensive factual detail about the case isn’t terribly necessary.  In any event, Jon Hyman does a great job of summarizing the case at his employment blog.  Although the fact pattern is a bit detailed, it boils down to this:  the plaintiff, Amy Ritenour, required time off to care for her child.  In the midst of taking several days off to attend to her son, she was absent for four straight workdays without calling in to report her absence.  Really — no one heard from her and she had no excuse for failing to call in her absences.

Under her employer’s call-in policy, her failure to call in her absences was a problem, as it should be.  As Mr. Hyman appropriately points out in his blog post, the FMLA regulations are quite clear as to an employee’s obligations to call in an absence:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. . . .

Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.  29 C.F.R. 302(d)

So, what did the employer’s call-in policy state here?  It clearly stated the following:

If you must be late for work or absent because of illness or for an unforeseen circumstance, personally notify your appropriate manager or immediate supervisor as soon as possible by telephone. . . .

If you are not at work during your regular hours, you must be on authorized leave. This means that your supervisor knows of and has approved your absence.  In accordance with the law and rules, job abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays following the expiration of any authorized leave.

In short, Ritenour was obligated to follow her employer’s policy above unless she could establish that an “unusual circumstance” prohibited her from calling in her absences.  As the court pointed out, Ritenour was well aware of the obligation to call in her absences, and when she failed to do so, she was in violation of her employer’s reasonable call-in policy.  Her defense was doomed when she failed to articulate an unusual circumstance that otherwise would absolve her of following the employer’s call-in policy.  This is particularly true because the employer’s policy required proper notice for an absence of any kind, not just those under FMLA.  Therefore, when the employer disciplined Ritenour for violating the policy, it did not do so simply because of her rights under the Family and Medical Leave Act.  Rather, it applied its policy fairly to an employee who was absent from work, just as it would have done with another employee.

Insights for Employers

  1. Employers often are reluctant to apply their call-in policy to those employees on FMLA leave.  However, as the Ritenour court points out, an employer’s usual and customary call-in policies can and should be enforced, so long as they are applied consistently for all forms of absences.  Consistent application is key.  Employers should use this case as a guide when implementing reasonable call-in policies in their own workplace.
  2. As the regulations specifically point out, a employer may require as part of its policies that an employee provide written notice of the need for leave, and that the employee also call in an absence to a particular person.  As I have recommended in the past, I strongly encourage the use of leave of absence forms to ensure full employee compliance and to require the employee to call into a specific person.
  3. If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place.  They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.