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.

maryland_flag1.jpgThat pesky State of Maryland! (Not that I hold grudges all these years after your Maryland Terapins beat my Indiana Hoosiers for the 2002 NCAA basketball championship!) 

With a little assistance from the U.S. Supreme Court, the State of Maryland avoided potential FMLA liability yesterday in Coleman v. State of Maryland Court of Appeals when the Supremes held that the Family and Medical Leave Act does not allow lawsuits against states by their employees when the suit deals with the “self-care” provisions of the FMLA.  Consequently, Maryland’s victory is a win for all states and their subdivisions. 

The Facts

Plaintiff Daniel Coleman worked for the Maryland Court of Appeals.  A good employee by all accounts, Coleman requested FMLA leave as a result of his own alleged serious health condition.   Instead of providing leave, however, the Court of Appeals fired him.  Not surprisingly, Coleman sued his employer.

Maryland asked the trial court to dismiss Coleman’s lawsuit because it was barred by Maryland’s sovereign immunity.  What is sovereign immunity?  It is a legal privilege under which federal, state and local governments cannot be sued unless they agree to be sued.  (Wouldn’t that be a neat trick for the rest of us private citizens to invoke, too?)  In order to work around the privilege of sovereign immunity and allow private lawsuits against state entities, Congress has to show that the self-care provision of the FMLA remedies a pattern of gender-based discrimination (or some other form of legally cognizable discrimination) in states’ sick leave policies.  Here, Maryland argued that the self-care provision of the FMLA was passed pursuant to the Commerce Clause of the U.S. Constitution, which cannot be used to bypass the states’ sovereign immunity. 

The trial court and appellate court agreed.  And so did the Supreme Court.  For several of the conservative justices, the decision was an easy one, since there arguably is little evidence that Congress passed the self-care provisions of the FMLA to right the wrongs of gender discrimination.  However, in an interesting exchange during oral argument before the high court, Justice Samuel Alito seemed concerned by the apparent unfairness of the result here — that state employees would have no legal recourse in the event they were denied FMLA leave for self-care or terminated because of the need for leave.  Ultimately, Justice Alito suggested that an employee still could seek an injunction to stop the employer from violating the FMLA, even though the employee could recover no monetary damages. 

Insights for Employers

Keep in mind that this decision only affects employees of the states and their subdivisions.  Therefore, public employers cannot to be sued under the “self-care” provision of the FMLA (so long as they have not voluntarily ceded their sovereign immunity with respect to the FMLA).  Other forms of FMLA leave (e.g., caring for a family member), however, still remain protected. 

Interestingly, the Supreme Court has not ruled on whether states can be sued under the FMLA for “bonding” leave and similar forms of FMLA leave.  Thus, public employers should be cautious when seeking to deny FMLA leave for reasons other than self-care.  

Similarly, it is vital for employers — public and private alike — to enforce sick leave and FMLA policies consistently to avoid claims of discrimination.  Failing to do so could subject you to liability under other federal, state or local employment laws.

Illinois currently has no equivalent of the federal Family and Medical Leave Act.  Soon, it may.  And unlike the FMLA, the proposed Illinois leave law would allow civil union partners the same leave entitlements currently enjoyed by married couples.  Notably, because of the conflicting parameters of state and federal law, the proposed Illinois Family and Medical Leave Act, which recently hit the floor of Illinois House of Representatives, actually would afford civil union partners greater leave benefit rights than married couples.

Let me explain.

The Illinois Religious Freedom Protection and Civil Union Act, which became law on June 1, 2011, provides that partners in a civil union are entitled to the same rights, benefits and privileges as those in traditional marriages.  Under this Act, wherever the term “spouse” appears within any Illinois statute, it must be read to include “partners in a civil union.”

Like its federal counterpart, the Illinois FMLA would extend leave benefits to “spouses.”  Because “civil union partners” are now the equivalent of “spouses” in Illinois under the Civil Union Act, civil union partners would be able to take leave to care for their civil union partner under the Illinois FMLA.

This leaves employers with operations in Illinois in a bit of an inadvertent quandary.  Currently, civil union partners cannot utilize leave rights under the federal FMLA because it is governed by the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  So, if an employee in a civil union takes leave to care for his/her partner under the proposed Illinois FMLA, it would count against the leave entitlement under Illinois law, but not under the FMLA.

To illustrate, let’s pretend I am your employee and a partner to a civil union.  I also am otherwise eligible for leave under the FMLA and the proposed Illinois FMLA (meaning, I have worked for you for 12 months and have worked 1,250 hours in the past 12 months).  If I take a two-week leave of absence to care for my partner with a serious health condition, I will have exhausted two weeks of Illinois leave, but I have not exhausted any portion of my 12 weeks of FMLA leave (because FMLA, of course, does not recognize my civil union).  In theory, I could take up to 24 weeks of leave in a 12-month period — 12 weeks under the Illinois FMLA to care for my civil union partner, and 12 weeks for any eligible reason under the FMLA.

Insights for Employers

If the Illinois FMLA becomes law, we will advise employers further.  In the meantime, let me address a more immediate issue.  Over the past several years, I have counseled employers who voluntarily have chosen to provide federal FMLA leave to domestic and civil union partners.  Clearly, this is a growing phemonenon among Fortune 500 companies and leading business.

Keep in mind as you develop these FMLA leave policies: if your policy provides employees leave to care for a domestic or civil union partner, employers cannot count this leave under the employee’s 12-week FMLA allotment, since (as noted above) the FMLA does not recognize these relationships.  To ensure that you are not unintentionally setting yourself up for an FMLA interference claim when providing leave to domestic or civil union partners, we recommend that employers contact their employment counsel for guidance as to best practices in this area.

Q:  An employee who recently returned from FMLA leave claims that a portion of his leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out.  Can we still count this time as FMLA leave?

A:  I have fielded this question from several employers lately, so I figured I would tackle it head on.  In this situation, what an employer is worried about is FMLA “interference” — the idea that the employer is denying the employee FMLA benefits to which he otherwise was entitled.

In a nutshell, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a “professional courtesy” that does not interfere with FMLA leave.  Therefore, a few  work-related communications likely will not constitute interference with an employee’s FMLA rights.  As one federal court in New York put it, when an employee is passing on “institutional knowledge” or providing closure on open assignments, employers do not violate the FMLA.

What about the employee who is answering e-mails and calls without the boss’ knowledge?  Generally good news for employers here, too.  Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so.  Soehner v. Time Warner Cable, Inc.

Insights for Employers

There are no hard and fast rules about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions (where they can find the company business plans, for example) or to wrap up a job the absent employee was working on.  Also, as evidenced in the Soehner case above, it is unlikely to be an FMLA violation where the employee is working behind the boss’s back.

Tread carefully here, though.  If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work.

linkedin-facebook-twitter.jpgWith the growth of blogs and other social networking like Linkedin and Twitter, news comes at us fast and furious these days.  In a recent blog post, LexBlog CEO and legal marketing guru Kevin O’Keefe cited a recent survey finding that 55 percent of people hear about breaking news on Facebook and 20 percent on Twitter.

Clearly, sites like Twitter and Linkedin are revolutionizing the manner in which we find our news and cultivate relationships with prospective clients and influencers.  Over the past couple of months, however, I have found something fascinating: I can tune into these various media to find out what’s most important to the leaders of both the EEOC and Department of Labor.

Stick with me here.  If you took a look at the EEOC’s web site lately, you’ll find press release after press release trumpeting the agency’s latest settlements and/or victories over employers.  In fact, there are so many PRs your eyes glaze over reading through them.

Enter EEOC Commissioner Chai Feldblum, one of the top five officials of an agency that rigorously enforces our federal employment laws.  On any given day, by following Cmmr. Feldblum on Twitter, you can find out in 140 characters or less what her and the EEOC’s priorities are.  This information is precious for at least two reasons: 1) it keeps us up to date on what the EEOC cares about; and 2) it helps employers (and attorneys who help employers) proactively engage our managers on ways they can and should follow the law.  I am sure you can think of more.

Consider for a second Commission Feldblum’s “tweets” over the past few months:

  • Employee with post-partum depression needed time off as a reasonable accommodation. http://dld.bz/a9fm4
  • Nice settlement with American Apparel on an ADA leave case.  http://dld.bz/a84Vf  Looking forward to having comprehensive guidance soon.
  • Spread the word! Do individualized assessment of accommodation when employee returns from short-term disability. http://1.usa.gov/uNBcna

What does Commissioner Feldblum care about?  Leaves of absence as a reasonable accommodation.  What can we then assume what really is on the EEOC’s mind these days?  You guessed it: Leaves of absence as a reasonable accommodation.

Call me weird, obsessed or something worse, but I usually check in with Commissioner Feldblum daily on Twitter to see what’s on her mind.  Why?  More often than not, I find a helpful nugget to share with one of my employer clients, to use in my employment law training sessions or to simply file away for future use.  Fyi: I have not (yet) been accused by anyone on the management side of being a traitor because I follow Cmmr. Feldblum, so no worries — you’re not selling out!  To the contrary, you’ll have a leg up in serving your employer or employer clients even better.  So, take the leap and follow her on Twitter here.

Insights for Employers

If you’re still scared of Twitter and have no desire to venture into a world that will change your life (unreservedly for the better), here are just a few good reminders that I have gleaned from Commissioner Feldblum’s tweets, all of which are instructive to employers:

  1. Utilize “Automatic termination” provisions at your own risk.  As another recent EEOC settlement instructs us, policies that call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.) will doom employers every time.  These kinds of policies do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process and to determine whether a reasonable accommodation is necessary.  At a minimum, ADA and attendance policies must incorporate a case-by-case assessment of the individual employee’s situation and an employer’s duty as to reasonable accommodation.  EEOC Regional attorney John Hendrickson and I covered this topic in detail in an August 2011 Webinar, which (I hope!) helped employers better understand the EEOC’s position on this topic.
  2. When you fire an employee while he or she is on a leave of absence due to a disability, you better have your ducks in a row!  As a recent EEOC settlement makes clear, employers must be able to articulate a very sound, legitimate, nondiscriminatory reason for terminating an employee on a leave of absence.
  3. Be particularly careful with medical conditions such as depression, anxiety and other impairments that are not as visible as ones we can readily see (e.g., an employee in a wheelchair).  The ADA requires an employer to provide a reasonable accommodation of an employee’s disability, unless the employer would suffer an undue hardship, so it’s critical that employers individually assess an employee’s need for leave.

Happy tweeting!

aba_logo_01.jpgEach year, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  2011 proved to be an active year for cases involving the Family and Medical leave Act, and this year’s report captures nearly all of them.  It is a great reference for me throughout the year, and I highly recommend it to HR professionals and employment attorneys.

The report can be accessed here (pdf).  Although my FR colleagues and I contributed to the publication, Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee, are the main editors.  Enjoy!

According to Forbes and other news sources, Stephen Colbert has taken a leave of absence from his late-night comedy show, “The Colbert Report,” to attend to his ailing 91 year-old mother.

Only a true FMLA nerd would use this as an opportunity to explain a little-used, often forgotten rule under the Family and Medical Leave Act — the “key employee” provision — that actually could deny Colbert’s reinstatement to his wildly popular comedy show. The FMLA allows employers to utilize this “key employee” provision to deny reinstatement to an employee who is among the highest paid in the workplace and whose reinstatement after FMLA leave creates a significant financial hardship on the employer.

Before I explain further, to all those who inadvertently stumbled upon this blog article while searching google for “Stephen Colbert,” I assure you — the man running for President of the United States of America of South Carolina most assuredly will be welcomed back to The Colbert Report once his FMLA leave ends.

But, let’s suppose for an instant that we lived in the bizarro world, and Comedy Central wanted to get rid of Colbert as quickly as NBC chucked Conan O’Brien from the Tonight Show.  Could it do so under the FMLA? Under the FMLA’s “key employee” exception, Comedy Central could terminate Colbert’s employment so long as it could show that:

1. Colbert is among the highest paid 10 percent of all the employees working for Comedy Central.  Keep in mind two points: a) Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses; however, earnings do not include incentives whose value is determined at some future date, (e.g., stock options, future benefits or even incentives for Colbert because he reportedly is surging ahead of Buddy Roemer in the presidential polls in the upcoming Louisiana primary); and b) the determination of whether Colbert is among the highest paid 10 percent is made at the time he gives notice of the need for FMLA leave.

2. Having to reinstate Colbert would cause substantial and grievous economic injury to Comedy Central’s operations.  This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA.  In short, the only real guidance the regulations give employers is not much in the way of guidance at all:

A precise test cannot be set for the level of hardship or injury to the employer which must be sustained.  If the reinstatement of a “key employee” threatens the economic viability of the firm, that would constitute “substantial and grievous economic injury.”  A lesser injury which causes substantial, long-term economic injury would also be sufficient.  Minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute “substantial and grievous economic injury.”  29 C.F.R. 825.218(c)

In other words, an employer has to show it would be in a world of hurt because of a key employee’s reinstatement after FMLA leave.

Notice to “Key Employee” is Critical

Even if the employer can satisfy the above factors, the employer still must provide the employee written notice at the start of FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits.  If the employer fails to do so, it cannot deny reinstatement.  Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the employer must provide notice to the employee, including the determination that the employee’s reinstatement will cause such injury, and the basis for the determination.  If the employee already has begun FMLA leave, the employer still must provide FMLA leave but allow the employee a reasonable period to return to work in lieu of additional FMLA leave.

If the employee does not return after receiving this notice, he or she still is entitled to take FMLA leave.  Upon the employee’s return from FMLA, the employer must again assess whether substantial and grievous economic injury will occur to its operations if the employee is reinstated. If the employer finds that this injury still will occur, the employer must deny reinstatement in writing and, like before, provide the basis for the determination.  Keep in mind: the “key employee” provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.

Of course, as to Colbert himself, this is simply a hypothetical from the bizarro world.  We look forward to Stephen Colbert’s return to his rightful place at The Colbert Report — and making us laugh on the presidential campaign trail.

Late last month, I reported that the Department of Labor had announced proposed changes to the Family and Medical Leave Act regulations with respect to Military Family Leave, Flight Crew FMLA Eligibility and the manner in which employers calculate increments of FMLA leave.

This morning, these proposed regulatory changes were published in the Federal Register (pdf), which means that the public has 60 days, or until April 16, 2012, to comment on them.

We strongly encourage you to make your voice heard about these proposed regulations.  On behalf of our employer clients, I intend to submit comments to the DOL.  If you would like your thoughts, concerns and suggestions to be included in our comments, please let me know.  Please email your comments to me by April 1, 2012 to ensure that we can incorporate them into our submission.

DOL pic.jpgAs I reported last month, the Department of Labor has been working with the Office of Management and Budget to extend the life of its model FMLA forms, which expired on December 31, 2011.  If you checked the DOL website today, you would find that the Department now has approval to use its model FMLA forms through February 28, 2015.  The “new” forms can be accessed here.

So, what changes did the DOL make to its model FMLA forms?  [Insert background music from Groundhog Day.]  Ahem, there are no changes to the forms.  That’s right!  Zero. Zip. Nada.

Call me naive, wet behind the ears, clueless about federal government [not apologizing for that one], but it’s a bit odd that DOL made absolutely no changes to its model FMLA forms.  Sure, the OMB process can be maddening, at best, but all we anticipated a few tweaks, right?

At a minimum, I would have expected the following changes to the DOL’s FMLA forms:

  1. Incorporating the 2010 amendments for military family leave.  The forms do not account for the changes to exigency leave, which now is possible as a result of a family member’s call to duty in a foreign country (as opposed to the confusing “contingency operation” language originally used).  Indeed, the “contingency operation” language remains.  They also do not contain any reference to a servicemember’s past service, since caregiver leave now can be taken up to five years after the servicemember leaves the military.
  2. Reference to use of genetic information under the Genetic Information Nondiscrimination Act.  Last month, I provided language that we recommend inserting into FMLA medical certification to avoid any issues with disclosure of genetic information.  Employer also should use this disclaimer when seeking medical information from a health care provider (e.g., to support a request for an ADA reasonable accommodation after FMLA leave has expired).

Will the model FMLA forms change any time soon?  We presume that the DOL will update its FMLA forms when the new regulations take effect.  See my prior post outlining those recently proposed changes.  Given that we are squarely in the middle of an election year, however, I would not expect any final regulatory changes or even tweaks to the forms until 2013.

Now that the DOL’s model FMLA forms are in effect for the foreseeable future, employers should work with their employment counsel to review and amend their FMLA forms to include the suggestions above and to streamline forms to fit your operational needs.  If you haven’t done so already, you also should update your FMLA policy regarding the changes to military family leave, since those changes took effect when the military amendments were passed in late 2009.

Hat tip: Anne St. Martin