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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.

DOL FMLA guide-tn.jpgEarlier this week, the U.S. Department of Labor issued a 16-page FMLA guide that the DOL says is “designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.”  Entitled “Need Time? The Employee’s Guide to the Family and Medical Leave Act,” the Guide apparently was created out of DOL’s belief that “too many workers don’t know about their rights under the FMLA and fail to take advantage of its protections,” as stated in a DOL press release earlier this week. 

The Guide was unveiled at a DOL-sponsored webinar this week by DOL Wage and Hour Division Deputy Administrator Nancy Leppink and DOL Branch Chief for FMLA, Diane Dawson.  Ms. Leppink and Ms. Dawson provided an overview of the Guide and took questions from webinar attendees.  Although the webinar was geared toward employees and those generally unfamiliar with the Family and Medical Leave Act, I applaud the DOL for highlighting the FMLA in a webinar by two high ranking officials within the agency. 

As for the Guide itself, my initial reaction is that it will be well received by the employer community.  Don’t get me wrong: the Guide primarily is meant to answer “common” questions about the FMLA, so it leaves unanswered all of the issues that continue to frustrate employers in their administration of the FMLA.  However, 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.

Many of the points emphasized in the Guide are likely to have some benefit to employers when administering the FMLA.  For instance, the Guide:

  1. Contains relatively easy to follow flowcharts so that employees can better understand eligibility requirements and the FMLA notice process.
  2. Provides a succinct definition of “serious health condition” so that employees better understand that FMLA leave cannot be utilized simply for the common cold.
  3. Reminds employees that they must work with their employer to schedule medical treatments so as to not disrupt the employer’s operations.
  4. Contains examples of how accrued paid leave and FMLA run concurrently, so as to minimize an employee’s oft-mistaken belief that the two cannot run together.
  5. Emphasizes to employees the need to provide their employer with enough information so that the employer can determine whether the leave may be covered by the FMLA.
  6. Highlights the employee’s obligation to maintain regular contact with the employer during FMLA leave.
  7. Makes clear that the employee — not the employer — is responsible for paying for the cost of obtaining medical certification from a health care provider.  (This can be a confusing principle, as doctors are increasingly charging for medical certification, and all too many employees mistakenly believe that the employer should pick up the tab.)
  8. Lists the specific medical information that must be provided in the medical certification.

As Ms. Leppink pointed out in the webinar, the DOL encourages employers to use the Guide to facilitate discussion with employees where questions or confusion about the FMLA arise.  She may be onto something here, since employees are more likely to accept an employer’s explanation of a document when it contains the DOL seal on front. 

Finally, I also was impressed that the DOL invited to the webinar stakeholder Charlie Fox, Executive Director of the Disability Management Employer Coalition, who provided his support for the Guide.  Clever move on the DOL’s part to get the buy in of a strong employer-oriented organization. 

So, employers: what say you?  What’s your initial take on this Guide?  Am I painting too rosy a view of this Guide?  Cynical responses are welcome, so long as you can back them up with good reasoning! 

fmla.jpgOn Wednesday, June 27 (tomorrow!), the Department of Labor will host a complimentary webinar to assist employers and employees in better understanding the Family and Medical Leave Act.  According to the DOL’s press release highlighting the webinar, it believes “too many workers don’t know about their rights under the FMLA and fail to take advantage of its protections.”  Thus, the DOL hopes this webinar “will make the law easier to understand, including recent guidance for nontraditional families.”

The webinar also will include a “general” question and answer session for employees and employers, which will be moderated by an unnamed “FMLA expert.”  Interesting teaser.  The webinar begins at 2:00 p.m., EDT.  Registration is required and can be accessed here.

In conjunction with this webinar, the DOL has published a booklet, “Need Time? The Employee’s Guide to the Family and Medical Leave Act,” which answers common questions about the FMLA.

I’ll be taking notes during the webinar and will report back.  In the absence of any regulatory changes or major impending annoucements, don’t expect anything too earth-shattering from the DOL, and therefore, me!

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Here’s a question from the client inquiry line this past week, and it pops up often enough that I figured I would share:

Q:  An employee on maternity leave contacted us two months into leave that she will not be returning to work at the end of FMLA leave (which now is one month away).  Is her employment terminated immediately?  And can we recover any health care premiums we paid during her leave?

A:  The question above raises two issues: 1) What are the restoration rights of an employee who has informed you they will not return after FMLA leave? and 2) Can the employer recover its share of health care premiums paid during FMLA leave?

Restoration Rights

As we know, employees generally are entitled to be restored to the same or equivalent position upon return from leave under the Family and Medical Leave Act.  However, in this fact scenario, one important exception applies.  Under the regulations:

If an employee gives unequivocal notice of intent not to return to work, the employer’s obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so.  (My emphasis, not the DOL’s.)

When do the employer’s obligations to maintain health benefits and restore the employee cease?  Immediately.  According to the regulations, an employee’s FMLA rights effectively end where they have provided uneqivocal notice (defined by Merriam-Webster as “leaving no doubt”) that they will not return.

Recover Health Care Premiums

Under the regulations, the employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work, unless the reason for not returning to work is due to, among other things, “circumstances beyond the employee’s control.  The Department of Labor makes clear that this phrase is “necessarily broad” and includes a situation where the employee chooses to stay home with a newborn child who has a serious health condition.  However, the DOL acknowledges that this caveat clearly does not cover a situation where the employee chooses to stay home with a “well, newborn child.”

Beware of Treating Employees Differently

Although employers technically have the right to recover health care premiums from a mom who voluntarily decides not to return to work, should they recover them?  On one hand, the decision may be based on company culture and business priorities.  On the other hand, might the recovery of premiums in these situations open the employer up to a claim of gender discrimination?  Do you do this for all employees who do not return after FMLA expires?  Recovering premiums only from the mom who chooses not to return might be inadvertent — and bad — evidence of gender discrimination.  A theory perhaps, but what do you think?  Post a comment below.

dali-clock-150x150.jpgIn a recent post, I discussed an employer’s obligation to designate leave under the Family and Medical Leave Act even though the employee did not want it to be classified as FMLA leave. 

The post generated considerable feedback and some follow-up questions.  I wanted to highlight one of those questions.  One of our blog followers (see right hand column of our blog to sign up to receive our blog posts!) posed the following:  We have a policy that requires employees to use paid leave at the same time as FMLA leave.  However, paid leave can be taken only in one-half day or full day increments.  If an employee needs two hours of FMLA leave (e.g., to receive medical treatment), can an employer require that the employee use paid leave and FMLA leave in increments provided for under the employer’s policy?  In other words, can the employer require the employee to use one-half day of paid leave and one-half day of FMLA leave?

This question raises a rarely discussed FMLA principle, but the short answer to the question likely is, “Yes.”  If the employer’s paid leave policy requires paid leave to be used in certain increments (e.g., half or full days), and the employee wants to use paid leave, then FMLA leave will be exhausted in the same increment of time as required by the paid leave policy.  The Department of Labor explains this principle in the following example, as outlined in its FAQs to the FMLA (pdf):

Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days.  Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.

The Employer Has Options

In light of the DOL guidance above, let’s return to the question posed by our blog subscriber.  Because the employer requires paid leave to be used in one-half day or full day increments, it has the following options (presuming that the employee wants to use paid leave in conjunction with FMLA leave):

  1. The employer can require the employee to take paid leave and FMLA leave in increments required by the paid leave policy.  Therefore, if the employee requires two hours of FMLA leave to attend a medical appointment, and the employer requires paid leave to be used in one-half day increments, the employee exhausts one-half day of paid leave and one-half day of FMLA leave).  Note to employers: employees cannot be charged FMLA leave for time in which they are working.  So, in an example of an eight-hour work day, you cannot require that an employee take one-half day of FMLA leave but insist that the employee return to work immediately after the two-hour medical appointment.  
  2. The employer can make an exception to the paid leave policy and allow the employee to take paid leave and FMLA leave in a smaller increment of time.  Thus, if the employee needs two hours of FMLA leave to attend a medical appointment, the employer can account for two hours of paid leave and two hours of FMLA leave.
  3. Now, put the two points above aside.  If the employee wants to take unpaid FMLA leave for the two-hour medical appointment, the employer must allow the employee to take two hours of leave.  Here, the employer may charge only two hours of FMLA leave against the employee’s allotment.

Is This Rule Short Lived?

Now that I have explained the current rules with respect to accounting for paid leave and FMLA leave, the DOL is proposing that these rules change!  In its recent Notice of Proposed Rulemaking, the DOL has proposed that “an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.” Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time.  If adopted, employees only would be charged FMLA leave for the period in which they need leave (e.g., two hours of FMLA leave for a two-hour medical appointment).  The Society for Human Resource Management (SHRM) has commented on the proposed rule change (pdf) that are worth a read.  The DOL is unlikely to issue a final rule until later this year.

I would be interested in the employer community’s feedback on this current regulation.  Does the current rule help your business?  Would a reversion (as DOL proposes) create operational problems?  I welcome your comments.

Q:  One of our employees will be absent for a serious health condition.  However, the employee prefers to use his accrued sick days instead of FMLA leave.  He has enough sick time to cover the absence.  In this situation, can the employee choose not to take FMLA leave, either because he has not specifically asked for FMLA leave or because he simply does not want to use FMLA leave?

A:  This is one of the most common questions I am asked in my practice, and it is due largely to the grand confusion caused by the Family and Medical Leave Act.  There actually are several sub-questions contained in the nugget above, and I answer them below.

1.  Does an employee specifically have to use the letters F-M-L-A when requesting leave protected under the Act?  Heck no!  Why?  The U.S. Department of Labor says so.  In its FAQs (pdf) on the FMLA, the DOL specifically states that when “an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA.”  Rather, the employee need only provide “sufficient information” to make the employer aware of the possible need for FMLA leave.  Note: After the employer has provided FMLA leave for this reason, however, the DOL tells us that “the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.”

Thus, it becomes critical that HR professionals and supervisors fielding the call-offs from employees be trained and in a position to identify situations where the employee has put you on notice of the need for FMLA leave.

2.  If the employee qualifies for FMLA leave, can an employer make the employee use FMLA leave, even if the employee does not want to use it?  Do not let your employees sweet-talk, bamboozle or bully you into not counting an absence as FMLA leave where the leave of absence is taken for an FMLA-qualifying reason.  Take it from the regulations themselves:

The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee . . . When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.  29 CFR § 825.300(d)

The employer’s obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave.  In other words, the employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event.  Employees do not have the right to choose when they take FMLA leave.  As soon as the leave of absence qualifies as FMLA leave, it should be designated as such — regardless of whether the employee wants FMLA to apply.

Failing to designate an absence as FMLA leave can have quite a negative impact on an employer’s operations.  For example, if you fail to designate an employee’s 10-week absence as FMLA leave (when it rightfully qualifies as such), but instead allow them to utilize accrued sick leave from their sick bank, you effectively have allowed the employee leave that they otherwise are not entitled to by law.  Although they will have exhausted 10 weeks of sick leave, they still have up to 12 weeks of FMLA leave available to them (instead of two weeks) because you did not designate the 10-week absence as FMLA leave.

3.  Can an employer require paid leave to run at the same time as FMLA leave?  Here, the employer’s policy governs.  If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run at the same time.  29 CFR § 825.207(a).  In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave.

In this situation, you run into the same troubled situation identified in Section 2 above — the employee can stack paid leave and FMLA leave on top of each other, resulting in more leave than the employee legally is entitled to.  If your policy currently does not require paid leave to run concurrently with FMLA leave, discuss this with employment counsel to ensure your policy is consistent with your business objectives.  The money you save in the long run will be well worth the advice.

2Equals1f.jpgEmployers beware: Just when an employee gives you the left jab, look for the right hook.  The combination of the two, as far as the Family and Medical Leave Act is concerned, can knock employers out.  As evidenced by a recent federal court case, an employee may be able to add up two medical conditions — neither of which would alone constitute a serious health condition under the FMLA — to take FMLA leave.

Facts

Consider these facts, as reported by Scott: Angela Fries worked for a marketing company as a telemarketer and suffered from genital herpes and interstitial cystitis (I had to look it up: it’s an inflammation of the bladder wall).  On a Friday, she missed work because of alleged pain and frequent urination.  The next day, she claimed to have difficulty urinating and by the evening could not urinate.  On Sunday, Fries went to the emergency room, where her doctor attributed her urinary retention issue more to the herpes than to the interstitial cystitis.  The ER doctor installed a catheter, prescribed medications, and instructed her to take off Monday and return to work on Tuesday.

While at the ER, Fries texted her supervisor and informed her that she was in the hospital and had a doctor’s note supporting the need to miss work on Monday.  Apparently not a fan of genital herpes, Fries’ supervisor texted her back, informing Fries that if she missed work on Monday, she would be terminated.

Guess what happened next?  Fries was initially suspended for missing work on Monday and later terminated after she threatened to sue.  In a move that should never ever (repeat: NEVER) be repeated again, the Company sent her a termination letter, which stated, in part:

Originally was suspended for 30 days, threatened to sue company and management.  It was then decided that termination was the best.

To make matters worse, Fries’ boss later testified in a deposition that her termination was motivated “a little bit” by her threat to sue the Company.

Court Ruling

Not surprisingly, Fries brought an FMLA interference and retaliation claim against her former employer.  The Company argued that Fries did not have a serious health condition under the FMLA because she was not incapacitated for more than three days.  Specifically, it argued that Fries’ interstitial cystitis caused her urinary issues on Friday and Saturday and her herpes caused her inability to urinate on Sunday and her Monday absence.  If you do the math, the employer suggested, neither condition resulted in Fries being incapacitated for three or more days.

The Court rejected the Company’s arithmetic.  Acknowledging that each of Fries’ medical conditions alone may not have incapacitated her for three or more consecutive days, the court found that two conditions (which alone do not constitute a “serious health condition”) can together rise to the level where they are “temporally linked” and affect the “same organ system.”  As for Fries’ retaliation claim, the court concluded that because the employer admitted that Fries’ threat to sue was at least “a little bit” of the reason for her termination, and her termination letter stated that Fries only was going to be to suspended until she threatened to bring a lawsuit, a jury could conclude that it violated the FMLA by retaliating against her for threatening to sue.  Check out the court decision here: Fries v. TRI Marketing

Insights for Employers 

A couple of obvious takeaways:

  1. As the court stated in this decision, when reviewing an employee’s medical condition within the context of FMLA, the employer’s focus should be on the cumulative, adverse effects of the related medical conditions afflicting the employee at the time she seeks leave from work.  In a nutshell, two can equal one.
  2. When you make foolish, foolish comments in a termination letter that reek of retaliation, you will pay the price — almost every time.  File this suggestion in the common sense folder: Don’t ever draft a termination letter that states anything along the lines of “threatened to sue … termination is best.”  Back in the day, the nuns would give us a swift swat on the knuckles for that, and make us stand the rest of the day with our nose flush against the blackboard.  Such places are a lonely existence.  Don’t be the employer that meets the same fate.
  3. When you find that you want to terminate an employee even “a little bit” because they threatened to sue, you need to (honestly) identify a non-discriminatory reason for the termination.  And if you are an attorney reading this post, take additional time next time to prepare your decisionmaker for his deposition!

100.jpgThere must be something in the water.  Over the past few months alone, I have reviewed a number of employers’ policies and correspondence regarding an employee’s return to work from a leave of absence.  What has been surprising to me is the number of employer policies that require an employee to return from leave with “no restrictions” or “100% healed.”  Consider the following requirement, which was embedded in an employer’s return to work notice at the conclusion of FMLA leave:

As your FMLA leave is nearly exhausted, we expect you to return to work on April 2, 2012 with a note from your physician stating that you are able to work with no restrictions.

Or take this one, which a third party administrator proposed to one of my clients for use in correspondence sent with the Company’s FMLA Rights and Responsibilities Notice:

In addition, [the Company] cannot accept light duty restrictions upon your return to work.  If you are unable to return to work without restrictions, you must remain on leave until you are able to return without restrictions.

¡Ay, caramba!  Really?

What’s the Problem with a “No Restrictions” Approach? 

When employers require that employees be 100% healed or have no restrictions upon their return to work, the far majority of employer labor compliance courts have found that these policies discriminate against employees with disabilities who may be able to perform the essential functions of their position with or without a reasonable accommodation under the Americans with Disabilities Act.  To be clear, the ADA requires employers to make an individualized assessment when deciding whether an employee can return.  When employers implement a “100% healed” policy, most courts find that employers improperly bypassed the individualized assessment process.  Under these policies, the employer simply presumes that the employee is unable to perform the duties of his or her job without properly considering whether the employee’s restrictions can be accommodated.

At a minimum, the problem with this practice is two-fold: 1) it bypasses the process requiring an employer to make an individualized assessment under the ADA; and 2) it increases the chance that the employer will have found to perceive the employee as disabled.

Not all courts feel this way, of course.  Recently, in Powers v. USF Holland (pdf), a federal appellate court found that “100% healed” policies are only problematic if the employee can show he or she is actually disabled or is regarded as disabled.  Hmmmm…that doesn’t make me feel too comfortable.  Interestingly, this decision applied pre-ADA Amendments Act (ADAAA) law and regulations because the facts pre-dated the ADAAA.  However, even this conservative Seventh Circuit court warned employers:  “The risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”

The Powers decision certainly echoes the EEOC’s position, which has long held that these policies violate the ADA.  In fact, late last month, I had the chance to serve as a fellow speaker on ADA and FMLA issues at a DMEC conference with Chris Kuczynski, the EEOC’s Assistant Legal Counsel and Director of its ADA/GINA Policy Division.  At the conference, Mr. Kuczynski reminded employers that they face significant risk under the ADA if they maintain a policy that requires an employee to return to work without restrictions (for the reasons stated above).

Insights for Employers

Given the much broader regulations implementing the ADAAA, employers that still enforce “100% healed” policies or require evidence that employees can return to work “without restrictions” take on a tremendous amount of risk.  Far too much risk, in my opinion.  Therefore, employers must re-evaluate these practices and implement policies that provide for individualized assessments of an employee’s ability to return to work with or without a reasonable accommodation under the ADA.  In light of the EEOC’s recent litigation in this area, this evaluation is imperative.

Naturally, this means employers also must do an effective job of obtaining medical information to which they are legally entitled so that they can make the most informed decisions about: 1) the employee’s ability to return to work; and 2) whether an accommodation may help the employee perform the job.  Thus, in the context of FMLA, employers should engage in a consistent and regular practice of requiring all employees returning from FMLA leave to provide a fitness-for-duty certification from their health care provider that confirms their ability to return to work and perform the essential functions of their job, with or without a reasonable accommodation.

On February 15, the Department of Labor published proposed regulations to the Family and Medical Leave Act in three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.  We summarized those changes here.

Public comments originally were due by April 16, 2012.  However, last week, the DOL announced that it is extending the due date for comments to April 30.  We strongly encourage you to make your voice heard about these proposed regulations.

 

Q:  We have an employee who works four days per week.  He regularly calls off work one day every other week due to his chronic bad back.  Can we require that he “make up” his day off later in the workweek?

A:  The FMLA regulations do not give us any clear guidance as to whether an employer can maintain a policy that requires or even encourages employees to “make up” FMLA leave.  However, the regulations (and several court decisions) make two general principles very clear: 1) employers cannot engage in conduct that discourages or otherwise “chills” an employee from requesting or taking FMLA leave; and 2) employers must provide privileges and benefits to employees who take FMLA leave in the same manner they offer benefits to those on non-FMLA leave.

Let me be blunt: requiring employees to make up FMLA leave is fraught with problems and invites litigation, as a court would very likely find that such a policy causes employees to refrain from requesting FMLA leave (because they are forced to make up the time on a different day).  I am reminded of a few cases that generally highlight the point: 

  • A few years back, we highlighted McFadden v. Ballard Spahr, a case in which the plaintiff claimed her employer misinformed her of the amount of FMLA leave she was entitled to, and then harassed her for taking leave.  The court found that, where an employee can demonstrate that she would have taken more available FMLA leave had the employer not engaged in this conduct, she could assert an FMLA interference claim.
  • Take a look Grosso v. Fed Ex. Corp. (pdf) as well.  In that case, Grasso was provided all the FMLA leave he requested to care for his ailing father.  However, he also claimed that Fed Ex told him he was taking too much FMLA leave and that he needed to return to work.  The Court found that Grosso had provided enough evidence to show that Fed Ex had attempted to discourage the employee’s use of FMLA leave and allowed the claim to go to a jury.

In the context of a policy or practice requiring employees to make up time taken as FMLA leave, these cases above give me some pause.  Can you picture this scenario: 

Employee: I’m calling off today because of my chronic bad back.  So, I’ll take it as an FMLA day.

Boss: Well, Sonny, that’s fine, but you know we like people who take these one-off FMLA leaves to make up the time later in the week.  It’s all good, cause then you’ll get your full pay for the week.  Now, tell me, what day can you come in later this week?

Employee:  Uh…well, I dunno.  I would need to find child care for my child who has uromysitisis poisoning.  Ummm, well, it’s probably too much trouble.  On second thought, I’ll just come into work today.  I’ll be there by the start of the shift. 

Boss: Sounds good, Sonny.  Good decision, I say.  See you in a few.

Wham!  In seconds, the boss — who was just following Company policy — has created an FMLA interference claim.  Even if the employee had taken FMLA leave and agreed to make it up later in the week, might we have a situation like McFadden or Grosso above, in which the employee could show that the exchange between the boss and him above had a chilling effect and caused him to refrain from requesting FMLA leave in the future?  I think the employee has a good argument.

With this guidance in mind, for those employers out there that still maintain a policy that allows employees to make-up time to replace lost wages (as a result of unpaid FMLA leave), its absence/make-up policy should clearly identify that: 1) scheduled work missed as a result of FMLA leave will still be counted towards the employee’s FMLA allotment, and make-up time is allowed to compensate for lost wages (again, in the event FMLA leave was unpaid); and 2) make-up time is not required.  Employers should consider prohibiting make-up time if the FMLA leave ran concurrently with paid leave, such as sick or vacation time.

On the flip side, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges. Keep in mind one of the two principles I outlined at the outset: the FMLA regulations require employers to provide benefits to employees on FMLA leave in the same manner offered to those on non-FMLA leave.

What’s your practice in this situation?  I welcome your feedback on whether a make-up policy has worked for you.