emergency-room-sign.jpgOften enough, HR professionals tell me that they have a difficult time recognizing when an employee has provided adequate notice of the need for leave under the Family and Medical Leave Act.  A recent court case reminds us that: 1) the threshold for requesting leave is not that high; and 2) employers have an obligation to ask questions to determine whether FMLA leave may be at issue.

In Lichtenstein v. University of Pittsburgh Medical Center, the plaintiff, Jamie Lichtenstein was employed as a psychiatric technician.  She appears to have been better known as an employee with an awful attendance record.  In the three months leading up to her termination, she was absent twice, tardy six times and switched shifts constantly.  This pattern largely is irrelevant to this discussion, however.  (I just needed to add a cynical thought to suggest that the employer isn’t entirely to blame for everything that follows.)  Interestingly, as Lichtenstein skated on thin ice for attendance issues, she called her supervisor prior to a scheduled shift and shared the following:

Currently in the emergency room . . . my mother had been brought into the hospital via ambulance, and I am unable to work today.

The supervisor taking the call simply noted in the attendance log, “sick mom.”  Four days later, the Medical Center terminated Lichtenstein.

The Ruling

Notably, the Court found that, by notifying the Medical Center that her mother had been taken to the emergency room, Lichtenstein did not provide enough information for her employer to conclude that she needed leave to care for her mother due to a serious health condition.  The analysis, however, did not end there.  The Court held that the employee had given the employer enough information to conclude that the FMLA may be in play.  As a result, the Medical Center had an obligation to inquire further to determine whether FMLA leave was necessary.  Because it did not, and shortly thereafter terminated the employee, it raised an inference that the employer took the action so as to interfere with Lichtenstein’s FMLA rights.  Lichtenstein v. Univ. of Pittsburgh Medical Center (pdf) 

Insights for Employers

The Lichtenstein case follows a growing line of cases that seems to put the onus on employers to ask the questions necessary to determine whether the FMLA is applicable.  The lesson here? Stay in touch, ask questions (especially when the request is vague or ambiguous) and insist that the employee maintain contact with you (pursuant to your call-in policies) to communicate the timing and duration of his or her absence.  Keep in mind: employees are not required to specifically state “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play, and to inquire further if there is any ambiguity in the leave request.  When there is doubt, ask the questions.  In doing so, you likely have decreased your liability.

Editorial comment: Who was the real killer was here?  The supervisor who took the call from Lichtenstein and who later wrote in the attendance log, “sick mom”!  Even the most skilled HR professional or attorney is unlikely to read this entry and conclude it constitutes an FMLA event.  Time and again, the supervisor taking the call from the employee creates the greatest risk of liability for the employer.  A gentle reminder — whoever is responsible for taking the phone calls must be trained and well versed in FMLA administration.  In this case, that simple oversight may have cost the employer hundreds of thousands of dollars in legal fees and a potential judgment. 

Q:  Is an Employer Liable for Overtime Pay and similar damages for an FMLA Violation? 

A:  The FMLA provides for a broad range of damages in the event an employer is liable for an FMLA violation.  The statute states that an employee may be awarded “any wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the [FMLA] violation.”  As my colleague Staci Ketay Rotman points out in her wage and hour blog article, damages also likely include the amount of overtime the employee would have earned during the period covered by the FMLA violation.

In an FMLA case highlighted by Staci, a federal court estimated that a plaintiff who prevailed on his FMLA retaliation claim would have worked 6.5 hours of overtime per week over the 125-week period between his termination and the judgment.  The court arrived at this figure using an average of the plaintiff’s weekly hours during the four months preceding his termination. Notably, the court apparently found that the year-to-date average was more reliable than a 12-month average for determining how much overtime the plaintiff would have worked had he not been terminated.

when-is-enough-plenty-orange.jpgIn light of the EEOC’s litigation over automatic termination provisions under the ADA (we’ve beaten you over the head with it here and here), employers generally feel as though they have no clue as to their legal obligations when it comes to providing a leave of absence as a reasonable accommodation under the ADA after an employee’s 12 weeks of FMLA leave has been exhausted.  Do they provide two more weeks of leave?  Two months?  3.5 years?  Unfortunately, there is no bright line rule, and despite signals from the EEOC that it intends to publish guidance on “leave” as a reasonable accommodation, it has only flirted with the issue.

In the meantime, employers rely on well reasoned court decisions to give us guidance as to the length of leave required under the ADA.  Of course, each situation is different, as the ADA requires employers to conduct an individualized assessment of each employee to determine whether a reasonable accommodation would help the employee perform the essential functions of the job.

Here is one of those “well reasoned” cases for employers.  A recent federal appellate court case makes clear that an employee is properly subject to termination when she cannot provide a reasonable estimate regarding when she will be able to resume all essential functions of her position.

The Facts

Catherine Robert worked for Brown County, Kansas, as a supervisor of felony offenders.  Her job included 18 “essential functions” as listed in her written job description, which included performing drug screenings, ensuring compliance with court orders, testifying in court, and “field work,” which consisted of visiting the homes of individuals who had been released from prison to assist them in their reentry into society.  As a result, the work involved potentially dangerous situations.

Robert experienced severe pain in between her back and hips, which later was diagnosed as sacroiliac joint dysfunction.  Walking became impossible, and she needed crutches and a wheelchair to ambulate.  Robert then required a lengthy leave of absence before returning.  Robert resumed her job functions several months later, but soon thereafter, her symptoms returned.  She performed partial duties for some time, and the other officers picked up some of her remaining duties.  Ultimately, she required surgery and another extensive leave of absence.

Roberts’ FMLA leave expired on July 5.  (It appears the County also provided additional leave that, in total, amounted to about six months of leave.)  On July 17, her doctor told her that she “might be able to walk with a cane in two to three weeks, and unassisted two weeks after that.”  Although it is unclear what medical information actually made it to the employer, the County terminated Robert’s employment because she “was unable to return to work at full capacity after her leave ended.”  Robert later sued, alleging ADA discrimination (failure to provide a reasonable accommodation) and FMLA retaliation.

The Ruling

In finding for the employer, the Court outlined the employee’s burden in showing that a leave of absence is “reasonable.”  First, the employee is required to provide “an estimated date when she can resume her essential duties.”  Second, the employee’s leave request “must assure an employer that an employee can perform the essential functions of her position ‘in the near future.'”  The Court cut its analysis short, finding that Robert failed to meet the first prong:

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position . . . the doctor’s prediction that Robert could walk with a cane in a month’s time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork . . .

At the time of her termination, the county did not have a reasonable estimate of when she would be able to resume all essential functions of her employment.  As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. (My emphasis)

Consequently, the court found that Robert was not a qualified individual under the ADA, and it dismissed her ADA and FMLA retaliation claims.  Robert v. Bd. of Commrs. of Brown Cnty. (pdf)

Insights for Employers

There are plenty of good takeaways for employers here:

  1. Like many others have done in similar situations, this court dismissed the employee’s ADA claim in large part because she could not provide a reasonable estimation of her return to work.  In other words, she was asking for an open-ended, indefinite leave of absence.  Courts almost always will support an employer’s right to terminate employment in instances like these.  Other employers should take note — when an employee cannot provide a reasonable estimate of when they will again be able to perform their essential job duties, their ADA claims skate on thin ice.  Time and again, courts find that a request for an indefinite or open ended leave of absence is unreasonable as a matter of law.
  2. Me thinks the employer got a bit lucky here.  Recall the reason given for Robert’s termination: she “was unable to return to work at full capacity after her leave ended.”  Remember a basic tenet of disability law (and one of the EEOC’s pet peeves): Requiring that an employee return to work 100% healed or that she return to “full duty” work can raise a host of problems under the ADA, since this position arguably does not assess the employer’s need to provide a reasonable accommodation under the ADA.  Before requiring an employee’s “full duty” return, know your obligations under the ADA.  See my post on this particular topic here.
  3. Accurate, robust job descriptions are a must.  Why?  It saved Brown County here.  The court relied heavily on the County’s job description for Robert’s position, which clearly supported witness testimony in the case.  Notably, the Court gave great weight to the employer’s definition of the essential functions of the job, ultimately pointing to the County’s written job description.  This serves as yet another reminder of the need for regular review of job descriptions.
  4. When is enough plenty?  I don’t know.  So, keep communicating with your employee.  Don’t shut the door on the reasonable accommodation conversation simply because the employee has requested an additional leave of absence.  Keep in mind: the side responsible for the breakdown in the reasonable accommodation conversation typically is the party that loses the lawsuit.  So, don’t drop the ball.  Keep talking.

images.jpgDear fellow FMLA nerds:

Last year, our blog was named to the ABA Journal’s 100 best legal blogs of 2011.  Voting is now open for the best legal blogs of 2012, and we would love to have your support!  The deadline is fast approaching — it’s this Friday, September 7, 2012.

If you find value in our FMLA Insights blog, we would be forever grateful if you took a quick minute to nominate us for the ABA’s Blawg 100.  Nominating our blog could not be any easier. Click this link and complete the (very brief) questions asked.  You will be asked to provide your contact information and a statement as to why you’re a fan of FMLA Insights.

If you have any feedback on our FMLA Insights blog and how we might get your vote in the future, please do not hesitate to contact me.

A sincere THANK YOU for following the blog and for your continuous support.

Jeff

job

When an employee takes FMLA leave, is an employer obligated to adjust its performance standards so as to avoid penalizing the employee?  According to a recent federal court decision, the answer is Yes.  And failing to do so sets the employer up for an FMLA interference claim.

The Facts

Take this situation: Jeff was a salesperson for a company that manufactured corrugated packaging products.  Pagel began experiencing chest pain and labored breathing, causing him to undergo a battery of tests.  Tests revealed a blockage in a portion of his heart, and he was later admitted to the hospital to treat the blockage.  Five days before his scheduled heart procedure, Jeff met with his bosses to discuss his year-to-date performance.  The bosses weren’t happy: they had observed a noticeable decline in Jeff’s sales revenue and volume over the past two years and his year-to-date numbers were even worse.

Jeff didn’t agree with his bosses’ assessment, claiming in large part that the employer didn’t adjust his sales expectations for the time he took FMLA leave.  The meeting ended with a stern warning to Jeff: improve your performance or face termination.

Several weeks later, while Jeff was in an Iowa medical clinic for follow-up tests, his boss contacted him and informed him he would be traveling to Jeff’s sales territory the following day to tag along on some sales calls.  There was one critical issue — sales calls typically were scheduled one week in advance to give the client enough notice and the employee enough time to prepare.  Jeff had no time to set up a full day of calls or to prepare for them.  Ultimately, Jeff and the boss made two client visits the following day.  By all accounts, Jeff did not perform well.

As these stories tend to go, Jeff was terminated shortly thereafter for continued poor performance, including the awful sales calls with his boss.

The Ruling

Jeff filed an FMLA interference and retaliation claim, and the Court refused to dismiss it.  Pagel v. TIN, Inc.  Interestingly, the Court noted:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.

Particularly troublesome to the court was evidence that: 1) the company terminated Jeff for not meeting sales expectations, even though he was absent a number of days for FMLA-protected treatment; 2) his boss relied on inaccurate data in finding that he not meet some of the company’s reporting requirements; and 3) the boss insisted on making client sales calls even though the standard approach required one-week advance notice to the client, which could indicate that the boss was setting Jeff up to fail.

Insights for Employers

Surely, I can be accused at times of drinking the employer cool-aid, but I wonder whether the actual facts here lie somewhere in the middle.  Put aside the few weeks of FMLA leave that Jeff took, his sales numbers declined for two years!  Had the employer took action just a few months earlier, it arguably would not have faced any liability at all, since no employer has to live with an employee who misses the mark for such a prolonged period of time.

However, the timing of these events, the failure to account for FMLA leave in its performance standards, and the insistence of a sales ride along on short notice was enough to sink the employer.  A few words of caution in these situations:

  1. Eric Meyer puts it well: the employer failed to hire slow and fire fast.  In other words, the employer should have acted long before Jeff’s heart blockage to identify performance issues and communicate them to the employee.  By pushing off the conversation about continued performance problems, employers shoot themselves in the foot.
  2. Employers should adjust performance standards during an employee’s FMLA leave.  Why?  Because courts say so!
  3. Don’t set yourself up for a retaliation claim.  The employer here may very well have been frustrated with Jeff’s prolonged deficient performance, but creating a separate set of performance expectations for an employee taking FMLA leave is a recipe for disaster.  For example, if the standard is to set up sales calls one week in advance to give the client and employee time to prepare, give the employee time to do so.  Setting an unlevel playing field for the employee in this situation significantly increases the risk of a retaliation claim.

had enough of its employees abusing FMLA leave, so it played the ultimate trump card — the Company hired a private investigator to conduct surveillance on 35 employees who were suspected FMLA abusers.  One of the 35 was Daryl Scruggs, who served as a brazier (one who torches parts into fan coils) for the Company.

Scruggs Has No Where to Hide

For several years beginning in 2004, Scruggs requested and was provided intermittent FMLA leave to visit his mother at a nursing home and to drive her to doctor’s appointments.

In 2006, Carrier initiated an aggressive campaign to clamp down on excessive absenteeism.  In addition to developing new procedures for requesting leave, Carrier also hired a private investigator to conduct surveillance Scruggs and several co-workers who were suspected of misusing leave or who had a high number of unexcused absences.  On one of these occasions, the investigator set up video surveillance in front of Scruggs’ home throughout the day to follow his comings and goings at a time when he requested FMLA leave to visit his mother.

The P.I. had little to report.  In fact, video indicated that Scruggs emerged from his house just once that day — to check his mail.  His two cars were parked in the driveway all day and didn’t move.  Scruggs’ poor mom never received a visit from him that day.

Scruggs, however, begged to differ.  After being confronted with the results of the video surveillance taken on a day when he should have been caring for his mother, he first could not recall what he did that day.  Later, he insisted that his brother picked him up and dropped him off in the back of his home, and that he used the back door to come and go (otherwise known as the ‘ol “Sneak out the back door to see mom at the nursing home” trick).  Curiously, Scruggs later provided documentation from the nursing home showing that he had checked out his mom for a doctor’s visit.  As for not reporting to work that day, Scruggs suggested that, by the time he returned home (through the back door, of course), it was “early afternoon” and therefore too late for him to report to work.

Not surprisingly, Carrier wasn’t buying Scruggs’ story.  Not only did the video confirm Scruggs didn’t leave his house, the documentation he provided was inconsistent.  On one hand, documents from the nursing home showed that he checked out his mother at 11:30a.m.  On the other hand, a note from her physician indicated that Scruggs had been there between 10 and 10:30a.m., which was well before he checked mom out of the nursing home.  After reviewing all the information, Carrier terminated Scruggs employment, citing: 1) the surveillance video; 2) inconsistencies among the documents from the nursing home and his mother’s physician; and 3) holes in Scruggs’s account.  Scruggs later filed FMLA interference and retaliation claims.

Scruggs FMLA Claims Dismissed

An employee is entitled to reinstatement after taking FMLA leave only if he takes leave for its intended purpose.  As the court pointed out, an employer can “refuse to reinstate the employee based on an ‘honest suspicion’ that she was abusing her leave.”  Here, Scruggs could not advance his FMLA claims because Carrier had an honest belief that he was not using FMLA leave for its intended purpose.  Scruggs v. Carrier Corp. (pdf)

Insights for Employers

Time and again, I’ve addressed FMLA abuse on this blog, and I’ve offered suggestions for combating leave abuse here and here.  So, I won’t hit you over the head with another laundry list of items to fight FMLA abuse.

What’s interesting about this case is the employer’s use of surveillance to support its position that it had an honest suspicion Scruggs was not using FMLA leave for its intended purpose.  I think we are likely to see more of these honest suspicion cases in the future as employers continue to fight FMLA abuse.

But employers, beware!  When you are presented with evidence of suspected abuse, it is critical that you independently investigate the issue before taking action.  Of course, you need not employ surveillance to do so, but a court will expect you to validate the accuracy of your suspicions before taking an adverse action against the employee.  Moreover, although courts understand that an imperfect investigation could support an ‘honest suspicion’ defense, jumping to conclusions and employing a shoddy investigation also gives the impression that the investigation was mere pretext for something sinister.

The scenario is all too common: An employee takes and exhausts 12 weeks of FMLA leave and still cannot return to work.  At this point, the employer is left with a dilemma — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act?  This series of events is a regular trap for employers and, often enough, an employer gets ensnared in the trap without first analyzing its obligations under the Americans with Disabilities Act.

Let me share an example of an employer who got this situation right, and its approach is an excellent example for other employers to follow.

The Facts

Kathy Henry worked for United Bank as a commercial credit analyst, which required her to ensure the credit-worthiness of borrowers and make recommendations on loans issued by the Bank.  In January 2008, she suffered from spinal cord compression, causing severe pain in her back and neck.  The pain was severe enough that, on July 1 of the same year, she sought a leave of absence and was placed on bed rest.  In late September, as her 12 weeks of FMLA leave were about to expire, Henry provided a note from her physician that stated that she would need to “remain out of work until further notice.”

After reviewing the note, the Bank informed Henry that it could not continue to hold her position open indefinitely, and as a result, it terminated her employment.  Shortly thereafter, Henry filed a lawsuit claiming FMLA retaliation and disability discrimination.  Henry v. United Bank (pdf)

Insights for Employers

The court dismissed Henry’s claims in their entirety.  The decision itself was not surprising, given that Henry essentially requested an indefinite leave of absence — one that did not identify when she likely would be able to perform the essential functions of her job.

However, here’s the real value of this case: What I found particularly noteworthy about the employer’s approach in this situation is that it documented how Henry’s continued absence created an “undue hardship” on its business.  This is a critical step for employers when analyzing their obligations under the ADA.  The Bank was ahead of the curve, identifying early on — indeed, even as Henry’s FMLA leave was wrapping up — how Henry’s extended absence (beyond FMLA) was impacting its business.

Employers often miss this critical step.  As I have explained in prior posts and in a webinar I held on this topic last year, when an employee requests additional leave after FMLA leave has expired, it is critical that the employer review and document how the employee’s request for leave impacts their business and operations and whether continued leave poses an undue hardship.  Employers tend to invite EEOC scrutiny when they give undue hardship no thought.

Here, the Bank documented that Henry’s continued absence posed the following problems, all of which could be used to support “undue hardship” under the ADA:

  • Two other credit analysts and Henry’s supervisor had taken on extra work that resulted from Henry’s absence, which in turned strained the department;
  • No other employee in the bank was available to temporarily fill Henry’s analyst position, causing an overload on the department;
  • Hiring a temporary employee was not an advisable business practice, due to the confidential nature of the client information to which the credit analysts have access and the particularized training involved in preparing an employee to competently perform the job;
  • Analysts’ loan review responsibilities were expected to increase because the poor state of the economy had created a need for increased financial documentation when scrutinizing credit-worthiness, thereby emphasizing the need for a regular, full-time analyst to handle this increased load; and
  • The Bank was expecting an increase in new loans, creating further stress on a short-handed staff.

Henry’s continued absence created quite a burden on the Bank, and because the Bank actually reviewed and documented this reality, it was in a far better position to make personnel decisions and defend against an employment discrimination lawsuit.  As I have outlined before, employers should consider a host of factors when analyzing whether the requested leave of absence poses an undue burden, such as:

  • 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

If employers considered all of the above, we’d quickly put the EEOC out of business when it comes to ADA reasonable accommodation claims.  In the meantime, follow the Bank’s lead: 1) carefully administer FMLA leave, 2) communicate regularly with the employee while he or she is on FMLA leave, and if additional leave beyond FMLA is requested, 3) individually assess the individual’s return to work with or without a reasonable accommodation consistent with the mandates of the ADA, and 4) if you intend to deny additional leave, be prepared to articulate how the continued absence significantly impacts your business operations.

In the end, don’t be blind to your end goal, which is to return the employee to work.  Right?  If you keep your mind on that goal, it’s amazing what a little patience and creativity can do.

calendar.jpgThere are a number of discussions happening lately about updating handbook provisions and social media policies to ward off a suddenly over-zealous National Labor Relations Board.  And this advice certainly is well taken.

As you review and revise these policies, consider also taking a look at your FMLA policy, and specifically, how you calculate your FMLA leave year.

As employers are aware, an otherwise eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period.  (Perhaps more, of course, if military family leave is at issue.)  However, this “12-month period” is defined by the employer.  Recently, I have counseled employers who maintain an FMLA year that simply does not meet their business goals.  So, let’s briefly re-visit the 12-month periods employers can choose from and then recommend the method most advantageous for employers.

How Many Ways are There to Count to 12?

The FMLA regulations allow employers to utilize any one of four different methods to calculate the amount of FMLA leave an employee uses within a 12-month period.  Per the regulations, an employer may choose any one of the following 12-month periods:
 
  1. The calendar year
  2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins
  4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave

Pros and Cons of Choosing a 12-Month Period

Employers may select any one of these four counting methods, so long as the method is applied consistently and uniformly for all employees.  Once the employer chooses a particular 12-month period, however, it cannot change to another 12-month period without first giving all employees at least 60-days’ notice of the change.  If the employer fails to select one of the above 12-month periods, or if the employer has changed the method but it is within the 60-day window, the employer must use the 12-month period that provides the most beneficial outcome to that employee.

Clearly, there are pros and cons with each of these four methods.  But one method stands out above the rest: the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

Let me explain.

Methods One and Two

The first two methods are materially the same in that they set a fixed point in time by which to start calculating FMLA leave.  Although these two options are by far the easiest to administer, they allow for employees to double-dip or “stack” 12-week FMLA periods on top of each other, thereby potentially providing more leave than necessary.  “Stacking” means taking FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.

Take Jane, for example.  Under her employer’s “calendar year” method, Jane takes four weeks of FMLA leave the first time on February 1.   Later in November, she takes another eight weeks of leave, which takes her through the end of the calendar year.  In theory, beginning on January 1, Jane could utilize another 12 weeks of FMLA leave.  In this example, this method of calculation allows Jane a total of 20 consecutive weeks of FMLA leave.  (It could have been worse — Jane could have taken 12 weeks at the end of the year and another 12 at the beginning of the following calendar year, for a total of 24 consecutive workweeks of FMLA leave.)  For employers seeking a continuity of business operations, this unintended result might be a difficult pill to swallow.

Method Three

The third method is not entirely different from the two above, but it offers a marginally better balance between protecting the continuity of businesses operations and ease of administration. Under this method, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  From an administrative perspective, this is easier to get your hands around:  the employee begins leave on February 1, so the employee’s leave year begins on February 1.  However, this method does not avoid the “stacking” conundrum identified above.  Here, employers cannot avoid a situation where an employee takes FMLA leave later in the FMLA leave year, which is followed consecutively by as many as 12 weeks taken at the beginning of the following FMLA year (on February 1).

Notably, under the new FMLA regulations, employers must use this method when calculating leave for an employee who is caring for a covered servicemember with a serious injury or illness. 29 C.F.R. 825.200(f)

Method Four

The most common method (but clearly the most confusing) that employers use is referred to as the “rolling” method.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  Therefore, when calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

The regulations provide a fairly straightforward example of how the employer would calculate leave using this method:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

29 C.F.R. 825.200(c)

The Winner

When using the rolling calendar or look-back period, an employee’s FMLA leave remaining in his or her 12-week FMLA leave entitlement literally can change daily, since the employer must add days (or hours) used upon the 12-month anniversary of an FMLA absence.  Although this method can be confusing to administer (such as calculating the leave available from different FMLA dates for each employee, and to do so each time FMLA leave is requested), it is the only method available under the regulations to ensure that an employee will not take a block of FMLA leave for more than 12 consecutive weeks.  Implementing this method is an employer’s best defense against FMLA abuse, and it tends to save costs in the long run.  Moreover, it discourages employees’ use of extended periods of leave across consecutive 12-month periods. When balanced against the others, this method often is the best choice for employers.

Work with your employment counsel to ensure you’re using an FMLA year that meets your operational and business needs.  And while you’re at it, consider tightening up these other provisions in your FMLA policy and your FMLA practices, as I explained in an earlier post.

fired.jpgRemember a few months back when I warned employers to be wary of eliminating the position of an employee who days earlier requested several weeks off for surgery?

Let me take that advice one step further: if an employee informs you that she needs leave to undergo a hysterectomy, don’t tell the employee it’s “not a good time to take leave,” and then urge her to read the book titled, No More Hysterectomies.

File this one under the category of “supervisors do inexplicable things that cause their employer to be sued.”  Here’s a brief summary of the rather interesting facts: Brenda Drew, a stellar employee of 15 years, informed her supervisor at Quest Diagnostics that she would need a leave of absence to undergo a hysterectomy.  In response, her supervisor allegedly made the above comments.

While on FMLA leave, Drew found out that her domestic partner had cancer.  Shortly thereafter, while Drew was still on leave, a Quest Human Resources staff member contacted Drew to inform her that she would be terminated in a reduction-in-force after Quest lost a significant client contract.  Unfortunately, the HR generalist continued talking, suggesting to Drew that the termination might be a “blessing in disguise,” as she would have more time to take care of her partner, and that, in any event, Drew “would not be able to give 100% to her job anyway.”

Gulp.

Despite these untimely and inexplicable comments, they didn’t by themselves do Quest in.  Even more compelling to the court was the manner in which Quest chose employees to be terminated as part of the RIF.  Drew wisely pointed out that discipline issued to another employee did not factor in the RIF, but discipline issued to Drew was one of the factors in her dismissal.  This evidence of disparate treatment created doubt about Quest’s explanation that it chose employees for the RIF based on performance evaluations and discipline.  From the court’s perspective, this evidence — along with the various comments made to Drew — was enough to allow Drew to present her FMLA claims to a jury.  Drew v. Quest Diagnostics, Inc. (pdf)

Insights for Employers

Whether it is negative comments made about an employee after FMLA leave is requested or rating performance differently as a result of FMLA leave (when there is no evidence to indicate as such), employers fail to dismiss a case short of trial typically for the most obvious of reasons.  I write the obvious here, but bear with me:

  1. When employers use specific, objective criteria in a RIF (e.g., performance reviews, recent discipline, etc.) as they should, these criteria must be applied consistently to examine every employee subject to the RIF.  Where exceptions are made (such as counting discipline for some and not for others), they must be documented thoroughly and be defensible so that a court (and potentially, a jury) later can understand, distinguish and accept them.  Treating employees in similar situations in a different manner is a recipe for disaster.  Assistance of in-house or outside employment counsel is a must in these instances.
  2. Mind your communications.  As the court pointed out, Quest ultimately may convince a jury that Drew’s discipline was compelling and the cause for the RIF.  To be clear, by all accounts, Quest disputes that these comments were ever made, and it will have the chance to prove its side at trial. In fact, as one who represents employers exclusively, I am confident there is another side to this story which explains the supervisor’s actions.  However, alleged comments of the kind here by Drew’s direct supervisor and Quest’s HR generalist give a reviewing court such an easy basis to allow a case to go to a jury.  In any event, these are not the kind of communications an employer wants to present to a jury.  Enough said.
  3. One issue that troubled me about the court’s decision was its suggestion that discipline of an employee with a spotless track record may itself be evidence that something is afoul.  I don’t buy into this, but it’s not the first time a court has provided this kind of reasoning.  Does it mean that long-term, stellar employees are untouchable?  Surely not; however, in light of decisions like these, employers are well-advised to review discipline of these employees closely to ensure something is not amiss.
  4. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Investing a couple hundred bucks now to conduct effective FMLA training will maximize your chances of saving tens of thousands when the real life situation presents itself.
medications-257336_1280

Take Bob.  He is a machine operator.  Bob suffers from back and leg pain as well as bouts of anxiety.  As a result, he typically visits with his physician every couple of months and is on prescription medication.  He’s been approved for intermittent FMLA leave as a result of his serious health condition(s).

On September 30, he informs his employer that he has an appointment with a back specialist the following afternoon on October 1.  On October 1, however, he instead takes the whole day off — both morning and afternoon.  In the morning, he picks up his paycheck from work, visits with his primary care physician (receiving no treatment, but simply a prescription refill), refills the prescription at Walgreens, and drives out to his afternoon medical appointment.

Not surprisngly, Bob’s employer is not amused.  It excuses his afternoon absence because he treated with a back specialist, but tags him for 1/2 attendance point for his morning absence, putting his attendance point total over the top and resulting in his termination.

“Foul,” Bob cries, and he sues his employer because he believes it interfered with his right to take FMLA leave for: 1) his visit with his physician in the morning; and 2) his trip to Walgreens to refill medication.  Both, he claims, are protected by the Family and Medical Leave Act.

Court Denies Bob’s FMLA Claim

Bob’s FMLA interference claim faced a buzz saw in the federal court.  Let me explain why: To qualify for FMLA leave, an employee must not only have a serious health condition, but he also must be incapacitated from working as a result of the condition.  As the court pointed out, an employee who is receiving treatment for a serious health condition is “automatically considered to be unable to perform the functions of [his] position.”  On the flip side, said the court, unnecessary treatment or no treatment at all means that the employee is not incapacitated from working.  Jones v. C&D Techs, Inc. (pdf)

So, does a simple visit to a primary care doctor or a trip to the drug store to fill a prescription constitute “unnecessary” treatment or no treatment at all?

Visit to Primary Care Physician

According to the FMLA regulations, “routine” examinations with a health care provider ordinarily will not constitute treatment necessitating FMLA leave.  Rather, the examination must determine whether the serious health condition exists or serve as an evaluation of the condition.  Here, the court determined that Bob showed neither:

Bob’s doctor never evaluated or examined Bob, and Bob even conceded in a deposition that he was never “physically examined” that morning.  Bob arrived at his doctor’s clinic unannounced and appeared only to briefly speak with his physician in the office lobby.  The entirety of his interaction with his doctor consisted of the physician’s acquiescence to refill a prescription.  There is simply no evidence that Bob was examined, and therefore treated, that morning.

Therefore, Bob’s visit with his physician in the morning was not covered by the FMLA.

Trip to Drug Store to Fill a Prescription Not Covered by the FMLA

The Court also made quick work of Bob’s claim that his trip to the drug store to refill his prescription should be considered FMLA leave.  To this, the court responded with a resounding NO.  Notably, although the court pointed out that a prescription-refill note might be evidence that Bob has a serious health condition, it is not evidence that he received treatment that required him to be absent from work that morning.  Bottom line: FMLA leave cannot be taken to fill and refill prescriptions.

Insights for Employers

So, what’s the lesson to be learned here?  Although this court decision is not a shocker, it is a good reminder of how an employer should handle an employee’s absence under the FMLA where treatment is involved.  As the court properly pointed out, where a doctor’s visit is the reason for the absence, it likely only qualifies for leave where the employee’s serious health condition actually is being evaluated.  Courts tend to take a reasonably broad view of a medical appointment as treatment, but clearly there are limits.  A doctor’s visit without an examination or a trip to Walgreens simply is not going to count.