Various news outlets and web sites, including the Washington Post, Fox News and MilitaryFamily.com, have reported that the Department of Labor will propose various changes today to Family and Medical Leave Act regulations regarding military family leave.   Fox reports that Secretary Hilda Solis will make the announcement with First lady Michelle Obama. 

According to the web reports, the new rules will allow leave for family members when a servicemember is called to duty on short notice and “will help military families who require time off to care for service members who are injured or called to active duty.”

We will post updates as information becomes available.

Q: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week.

The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities in Florida.  In June 2009, Pereda informed her employer that she was pregnant and would need FMLA leave after the birth of her child in November 2009.  However, in September 2009, about 11 months after her hire, Brookdale terminated Pereda’s employment.

Pereda thereafter filed suit, claiming that the employer violated the Family and Medical Leave Act when it: 1) denied her FMLA leave (interference); and 2) terminated her for exercising her right to take FMLA leave (retaliation).

The Court grappled with whether an employee who is not yet eligible for leave (because she had not worked for Brookdale for the requisite 12 months) could advance an FMLA interference claim.  For the Court, the answer was quite clear: Yes, she can.  In answering the question, the Court first looked to the regulation regarding eligibility:

“The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d).

So, the answer is easy enough: when assessing an employee’s eligibility under the FMLA, employers should make the calculation not as of the date of the request, but as of the date the leave is to begin.  If an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible,” the employee could advance an FMLA interference claim.  Pereda v. Brookdale Senior Living Communities (pdf)

Insights for Employers

There are several takeaways for employers on this issue:

  1. Keep in mind that the FMLA requires a 30-day notice for foreseeable leave.  This is particularly true for the birth of a child.  An employee who reports a future need for FMLA leave (even though they are not yet eligible) likely will be protected by the FMLA if the employee would be eligible by the time the leave is to begin.
  2. A gentle reminder — don’t treat your employee differently after the leave request has been made.  According to Pereda above, she claims to have been harassed, disciplined for attending prenatal appointments (an FMLA no-no!), and inappropriately placed on a performance improvement plan.  Of course, an employer can and should insist that their employees meet legitimate performance expectations, but retaliating against the employee after she requests leave not only violates the FMLA, it results in a dejected employee who will have no desire to work for you again.
  3. Note: If an employer grants leave before the employee becomes eligible under the FMLA, any leave taken in the first year cannot be counted against the employee’s FMLA allotment.  See my prior post on this subject.
  4. Eric Meyer of The Employer Handbook points out several other lessons from Pereda case that are worth reviewing.

doghappynewyear.jpgFirst, a heartfelt THANK YOU for following our FMLA Insights blog in 2011.

In 2011, our most popular blog entries involved two general topics: 1) employers’ best practices for FMLA administration; and 2) leave as a reasonable accommodation under the ADA when FMLA leave ends.  We share these posts again below, since we believe the guidance is valuable as we enter a new year.

The Best of 2011

In 2011, two blog posts highlighted practical steps employers should take to maximize the efficiency of their FMLA leave administration.  Updating your FMLA policy and forms, using the medical certification process to your advantage, enforcing call-in policies…and much more below.

Policies, Practices and More: An FMLA “To Do” List for 2011

Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

In August and September 2011, about 900 attendees attended my webinar with the EEOC Regional Attorney John Hendrickson regarding “Leave” as a reasonable accommodation under the ADA.  My takeaways from that webinar proved to be popular as well, and employers kept the questions coming.

What’s in Store for FMLA in 2012?

The DOL has been relatively quiet on the FMLA front.  Some time ago, it intimated that it would conduct a survey in 2011 to “provide insight into how families use leave,” but we heard nothing further.  Some (including me) wondered at the time whether this survey would signal even more regulatory change for the FMLA.  At this point, however, we are left guessing as to whether the DOL will even update its FMLA forms to include recommended changes such as the GINA disclaimer and the amended definition of “exigency leave” for military family leave.  Days ago, though, the DOL did publish this handy dandy guidance on FMLA retaliation, which told us what we should already know — Don’t retaliate against employees who take FMLA leave.

As we move into 2012, the EEOC (as opposed to DOL) seems to be grabbing the headlines on employee leave of absence issues, as it continues its war on automatic termination provisions and the use of leave as a reasonable accommodation under the ADA.  (See my post later this month on this topic.)  This year, we are likely to witness even more EEOC settlements in this area.  More importantly, the employer community eagerly awaits whether the EEOC will issue further guidance on “leave” as a reasonable accommodation, as it forecasted at its June 2011 hearing on this subject.  Will it give us the guidance we need to reduce liability and bring some predictability on this subject?

In the meantime, we soldier on.  We update FMLA policies and forms.  We change our FMLA leave year so it is the most adventageous for our operations.  We update and communicate our call-in policies so all employees understand their responsibilities.  We clean up job descriptions so they are useful in the context of both the FMLA and ADA.  We create call-in questionnaires and effective medical certification procedures so we can better combat FMLA abuse.  (Click here for one of our more popular articles in 2011 on fighting FMLA abuse.)  We try to avoid an ever-growing list of FMLA class actions.  We train our supervisors and HR professionals so they are in the best position to administer the FMLA.

May your 2012 be an FMLA worry-free year.

Finally…a Thank You, Again!

As we start out 2012, we give thanks to you!  Because of our readers and your votes, we were voted the No. 3 Labor and Employment blog in 2011 by the ABA Journal and the No. 2 L&E blog of 2011 by LexisNexis.  We look forward to communicating with you about all things FMLA in the year ahead.  Keep the questions coming!

wh380f.jpgIn a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011.  In short, employers may continue to use the DOL’s FMLA forms, although consider our suggestions below before using these standard DOL forms.

Why did the DOL’s FMLA forms expire?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms to the Office of Management and Budget (OMB) for approval, so that OMB can ensure the information request and the time spent responding to the request is minimized.  [Insert your own sarcastic comment about the efficiency of the federal government here.]  OMB approved the DOL’s FMLA forms in late 2008 around the time the new FMLA regulations took effect.  As a result, the forms were approved for three years, which is the maximum time period allowed.  Upon expiration of the forms (in this case, on December 31, 2011), the DOL may continue to use the forms while it seeks renewal of OMB’s approval, which it has done in this instance.

Even if employers can continue to use the DOL’s FMLA forms, should they use them?

Ahem, this really is the more important question.  In a nutshell, we encourage employers to proceed with caution.  At a minimum, keep the following in mind and make appropriate changes in 2012 and beyond:

  1. Add the GINA safe harbor provision to your FMLA notices and forms.  Under the Genetic Information Nondiscrimination Act (GINA), employers requesting medical certifcation or fitness for duty certification must instruct health care providers not to collect or provide any genetic information.  Therefore, employers should strongly consider adding language to their FMLA medical certification forms for an employee’s serious health condition.  And to avoid any further procrastination, I am even giving you the new language you should use.  Here it is:

    The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

  2. Consider adapting the DOL’s “model” FMLA forms to suit your needs.  The DOL’s “model” FMLA forms fall short in several respects.  To name a few: 1) the medical certification forms do not request all of the information that employers may require, such as information regarding an employee’s work restrictions; 2) the model designation notice does not include language addressing the rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse; and 3) because the DOL’s forms are designed as a “one-size-fits-all” solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers’ policies and procedures.  Additionally, 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).

However, changing the language of the DOL’s model FMLA forms should be done carefully.  At a minimum, we encourage you to update your notices and forms regarding the change to exigency leave above.  Either way, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their rights under the FMLA regulations while also fully complying with the rules.

blawg100.jpgAfter going “live” a bit more than one year ago, we are humbled to have been selected by the ABA Journal as one of the Top 100 Legal Blogs of 2011.  In its 5th Annual ABA Journal Blawg 100, the ABA Journal also was kind enough to name us among only nine labor and employment blogs receiving this honor.  Congrats to those other employment blogs who made the list — they definitely are worth the read. 

In naming us to this elite group, the ABA Journal shared the following:

For those confronted with regular questions about the developments in and applications of the Family and Medical Leave Act, Chicagoan Jeff Nowak’s blog is one to bookmark. Tuscaloosa, Ala., lawyer Bruce H. Henderson recounts that in April, when large swaths of his state were devastated by a string of tornadoes, he posed several leave-related questions to FMLA Insights. The response was a post addressing many of his disaster-related issues.

Now, the real work begins!  If you enjoy our blog, please take a few seconds to vote FMLA Insights among the leading blogs from the Annual Blawg 100.  (Seriously, it literally takes seconds to vote.)  Complete a simple registration form and vote for up to 12 blogs from the Top 100 by clicking here. 

As always, thanks for your support of our blog.  It means so much to us!  If you are not subscribed to our blog, please enter your email in the box to the right so that our posts can be sent directly to your Inbox, or feel free to add us to your RSS feed.

cover your eyes.jpgBefore you read this post, cover your eyes!

Cynthia Adams was a registered hospice nurse for Fayette Home Care and Hospice.  According to one of her hospice patients, Adams apparently showed him and his wife three pictures of her boyfriend’s genitals, the photos of which were stored on her cell phone.  Not surprisingly, the patient told another nurse from Fayette about the incident and asked that Adams not come back.

In responding to this incident, however, Fayette was faced with a bit of a Human Resources quandary: Adams had just begun a leave of absence taken under the Family and Medical Leave Act.  These fact patterns never are simple, are they?  So, did Fayette investigate and terminate Adams’ employment immediately (if the alleged facts are indeed true), or wait until Adams returned from FMLA leave (ahem, two months later) to terminate employment?  In this instance, Fayette decided to wait until Adams’ FMLA leave ended before confronting her with the allegations and terminating her employment.

Fortunately for the employer, this story has a happy ending.  Despite Adams’ claims that Fayette retaliated against her because she took FMLA leave, a federal court quickly dismissed them, a decision that was upheld by the Eighth Circuit Court of Appeals.  Adams v. Fayette Home Care and Hospice (pdf)

In reviewing Adams’ FMLA claim, however, the court grappled with this intriguing issue: did Fayette’s decision to wait two months until Adams’ return to work before calling the incident to her attention and terminating her employment indicate a discriminatory motive on Fayette’s part?  Thankfully, the Court found no such “sinister motive,” finding the following:

that [Fayette] sat on the allegations for two months before reporting them to Adams does not suggest a sinister motive on its part.  Fayette knew the full duration of Adams’s FMLA leave in advance; if it sought to retaliate, it had no reason to wait until the leave ended.  And Adams was recovering from a major surgery during her leave.

Case dismissed.

Insights for Employers

I regularly deal with this “timing” issue in FMLA training I conduct for employers: When do you confront an employee on FMLA leave with evidence of performance issues or (as in this case) deplorable conduct that is uncovered while the employee is on leave?  The more conservative approach is the one followed here by the employer: Don’t contact the employee while she is on leave, and deal with the issue immediately upon her return to work.  What’s great about the Fayette case is that courts typically will support this approach.

But is this approach always the most desirable?  Other employers would have conducted a swift investigation, contacting Adams while on leave and terminating her employment immediately thereafter because of the egregious conduct here.  Clearly, this approach is understandable in light of the facts.  So long as the employer conducted an adequate investigation, which would include informing the employee of the allegation and giving them a chance to respond, a court likely would be comfortable with this approach.

However, an employer’s approach as to the timing of its investigation and confrontation of the employee should take the circumstances into account.  Before rushing to hit the termination button, consider a couple of factors:

  1. How egregious is the conduct?  Surely, the more egregious, the more reason for the employer to act swiftly.
  2. Why is the employee on FMLA leave?  In other words, are we talking bunion surgery or major heart surgery?  Note: If the employee is in a hospital bed or could be at any moment, call off the dogs!
  3. In the same vein, is the employee suffering from a serious health condition that might make it difficult to communicate or prevent them from effectively responding to an investigator’s questions (e.g., depression)?  If so, I encourage you to tread lightly and deal with the situation after you have some confidence that the employee can adequately respond to the investigation.
  4. What is the employer’s typical practice or policy in these situations?  Employers typically do well in Court when they can establish that they handled the particular situation in the same manner as a similar situation in the past.  There are reasonable exceptions, of course, but we should respond to similar situations in the same manner.

For the few (or perhaps one?) who want to hear me blather on about this topic, feel free to listen to our FMLA Insights podcast “Can We Demote or Terminate an Employee During FMLA Leave?”

I welcome your feedback on how you would handle Fayette’s situation above.  Do you act swiftly or wait calmly before pouncing…and why?

Now, feel free to open your eyes.

This Thanksgiving, I have much to be thankful for: a wonderful family and friends, a great job, good health, loyal readers.  The economy of 2011 and beyond continues to be challenging for employers, but there still is much to be thankful for onHappyTurkey.gif this special holiday. 

For those employers open on Black Friday, may your FMLA headaches be scarce, and for those with the day off on Friday, go spend some money at those businesses open on Black Friday! 

Thanks for your continued support of our blog.  I am most grateful.

Happy Thanksgiving!

loose lips

When making difficult decisions about eliminating jobs, senior management surely may disagree as to “who” is cut and how it’s done.  However, after the decision is made, it is critical that management collectively support the decision and refrain from public dissension.  When that dissension is shared publicly or with the affected employee, it can spell disaster.

Take a situation involving Laura Makowski.  Makowski was employed as Marketing Director by SmithAmundsen LLC, a Chicago-based law firm.  In December 2007, during the massive economic downturn, Makowski took maternity leave.  One month later, during a firm retreat in January 2008, the firm’s executive team decided to eliminate the positions held by Makowski as well as the firm’s IT Director.  The Executive Committee charged Molly O’Gara, Director of Human Resources, with the task of consulting outside counsel on the termination decision.  O’Gara considered herself the “boss” with respect to HR policies and compliance and was regularly consulted on termination decisions.

According to Makowski, when she returned to pick up her belongings in early February after being terminated, O’Gara met her at the elevator.  Shockingly, Makowski claims that O’Gara told her that she “was let go because of the fact that [Makowski] was pregnant and took medical leave” and that Makowski was one of several at the firm who were let go because they were pregnant or took medical leave.  O’Gara allegedly didn’t stop there, suggesting that Makowski should consult with an attorney, since there “might be the possibility of a class action.”

Ouch.

You know how the rest of this story goes.  Last week, a federal appellate court in Chicago ruled that Makowski’s FMLA interference and retaliation claims (as well as a pregnancy discrimination claim) would not be dismissed, and that a jury must determine whether O’Gara’s comments help establish that the firm interfered with Makowski’s FMLA leave and ultimately terminated her because of her pregnancy and the use of FMLA leave.  Makowski v. SmithAmundsen (pdf)

Insights for Employers

A few lessons to be learned:

  1. Whenever possible, involve senior management in RIFs and other employment terminations.  This should include your senior HR executive.  It is unclear from the case whether O’Gara was involved in the actual decision to terminate (or whether her sole task was obtaining employment counsel’s blessing).  However, when senior executives are not consulted on significant business decisions, it can breed resentment.  Resentment manifests itself in a variety of ways, such as a manager who blows off steam about the decision in public or to the affected employee.
  2. Loose lips sink ships.  After the debate has ceased and management has made the personnel decision, it is critical that any dissenters support the decision of the whole or that of the decisionmaker.  The public front should be collective, and the message consistent.  Clearly, we don’t know all of the facts at issue in Makowski’s situation.  However, if O’Gara’s comments are true, she obviously allowed her personal opinion to become public.  In turn, it created a tremendous risk of liability for the firm, a decision that now will be placed in the precarious hands of a jury.
  3. A no-brainer reminder to HR professionals: Be exceedingly careful when discussing with the employee the reasons for his/her termination, as this conversation will be dissected over and over again and used by the employee’s attorney as evidence of alleged discrimination or retaliation.  Whenever possible, seek the guidance of employment counsel in framing the reasons communicated to the employee so that you ultimately reduce the risk of liability.

‘turkey.jpgTis the season already, as I am starting to receive telephone calls from employers with questions about how they calculate an employee’s FMLA leave during a holiday week or when the employer is closed for a period of time (e.g., winter break for schools, plant shut down).  As we prepare for the holidays, here are a few basic rules to have handy next to your payroll sheet:

Calculating FMLA Leave During A Holiday Week

Let’s use Veterans Day as an example.  This year, Veterans Day falls on a Friday.  If the employee observes the Veterans Day holiday and then takes the entire work week off (i.e., he is absent from Monday through Thursday), the employer should count the entire workweek as one full week of FMLA leave used. (The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.)

However, if the employee works any portion of the workweek (i.e., he takes FMLA leave Tuesday through Thursday and then observes the employer holiday on Friday), the employer cannot count the holiday as FMLA leave.  Here, the employer can only count Tuesday through Thursday as FMLA leave.  29 C.F.R. § 825.200(h).

Calculating FMLA Leave During a Plant Shut Down or School Break

What about situations where the employer shuts down operations for a period of time or a School District or College/University observes winter and summer breaks?  Here, the regulations are very clear:

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

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

Does the same hold true for a School District or College/University on winter, spring and summer breaks where the employee is otherwise not required to report to work?  Yes.  As noted above, the FMLA regulations specifically incorporate by example a “school closing two weeks for the Christmas/New Year holiday or the summer vacation.”  Thus, the days during these school breaks should not be counted against the employee’s FMLA leave entitlement.

Happy holidays!

RIF.jpgFile this in your “Don’t Do This When Conducting a RIF” folder.  As highlighted by the folks at the Atlanta Employment Lawyer Blog, employers should be wary of eliminating the position of an employee who announces days earlier that he will need several weeks off for surgery.  When the evidence shows that this employee was not targeted for the layoff before he requested FMLA leave, but only after, it may well be enough to allow him to present his claims to a jury.

The Facts

William Shaffer was the Director of Leadership Communications for the American Medical Association (AMA).  In 2008, when the economic downturn was taking shape, the AMA cut internal budgets.  When initial cutbacks were not enough, the AMA slated various staff positions for elimination.  Shaffer’s boss indicated that it would be an “obvious choice” to eliminate the position of another employee in Shaffer’s Department because this employee’s duties had changed significantly and, in any event, the AMA had stopped work on one of his core campaigns.  When Shaffer’s boss was asked on October 28 whether Shaffer should be slated for layoff, he did not believe cutting additional positions was necessary, including Shaffer’s position.  The decision appeared to make sense. 

However, the boss suddenly had a changed of heart.  On November 20, Shaffer asked for FMLA leave for knee replacement surgery.  Four to six weeks, to be exact.  By November 30, Shaffer’s supervisor changed his tune, recommending now that Shaffer’s position be eliminated.  Specifically, he stated in an email to his superiors: “The team is already preparing for Bill’s short-term leave in January, so his departure should not have any immediate negative impact.”  Ugh.   

Not surprisingly, Shaffer filed suit shortly after his termination.

The Court’s Ruling

In reversing the decision to grant summary judgment to the employer, the Seventh Circuit Court of Appeals in Shaffer v. American Medical Association held that the supervisor’s “11th hour” decision to terminate Shaffer, as well as the inconsistent decisionmaking as documented (e.g., shredded handwritten notes, notes that were dated months before they were written), could have created a “paper trail” that acted as a cover up to unlawful conduct.  As a result, the court decided that a jury should hear Shaffer’s FMLA retaliation claim.

Insights for Employers

The advice might seem a bit obvious here, so let me put it succinctly: 1) When you shift course and decide to terminate an individual not initially slated for layoff (and especially after they request protected leave), your thought process and documentation must be precise and well reasoned; and 2) when you actually document, be consistent, thorough and careful.  What clearly was convincing to the Court was the supervisor’s email — a missive that specifically referenced Shaffer’s request for FMLA leave.  Although Shaffer’s request for leave may have had nothing to do with his actual layoff, the content of the email put Shaffer in a good position to argue that a jury should decide whether the need for leave was a motivating factor in the decision to eliminate the position.  This is yet another example of the importance of FMLA training for supervisors and employees who manage employees with medical conditions.