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Q. We provide our employees “non-FMLA” leave after they have worked for us for six months. They are given up to six weeks off during that time if it can be certified by a physician.  Since these employees are not eligible for FMLA leave at this point, can we credit the time they took off against their allotment for the following FMLA year as soon as they become eligible for FMLA leave? 

A.  First of all, good for you for offering this benefit to your employees.  However, the Department of Labor is not going to give you a big pat on the back.  In the FMLA regulations, it is clear (if it wasn’t before) that an employer cannot credit leave given in the first year of employment against an employee’s FMLA allotment once he or she becomes eligible for FMLA leave.  This is true even if the employee otherwise suffered from a serious health condition that would have been covered by the FMLA had he or she otherwise been eligible.  This situation is covered, in part, by the following regulation:

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.  An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”  29 CFR 825.110(d) (emphasis added)

As the regulation makes clear, a leave of absence can only be designated as FMLA leave after the employee meets eligibility requirements.  This situation is covered even more explicitly in the preamble to the FMLA regulations, which I provide here.   In the preamble, the DOL states:

…any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

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I love my Golden Retriever, Abby.  I really do.  But this development below is a bit too much, especially for this management-side attorney.

Is it possible that employees in Florida soon may be eligible to take a leave of absence when their pets are abused or subjected to the threat of abuse?  As Eric Meyer at the Employer Handbook reports, it is indeed!

Under Florida state law, employees currently are eligible to take leave if the employee or a family or household member is the victim of “domestic violence” and the leave requested relates to the domestic violence.  However, pets in Florida may soon have some protections, too!  Under legislation proposed by State Senator Mike Fasano, the existing Florida domestic violence statute would be amended so that the definition of “domestic violence” would now include “inflicting, or attempting to inflict, physical injury against a [pet], … or placing a family or household member in fear of physical harm to a [pet].”

Based on our quick research, Florida is the only state considering a move to protect employees and their beloved pets, and even there, passage of this legislation is unlikely.  Wow, what will they think of next?

Lexis Top 25.jpgA very special thanks to all of our readers for voting us the No. 2 Labor and Employment blog of 2011.  Last week, LexisNexis notified us that we not only made it into the Top 25 Labor and Employment blogs of 2011, we finished in SECOND place! 

When we started this blog a bit more than a year ago, we never could have envisioned such an honor.  It has been a treat to assist employers through our blog posts.  We continue to try and provide the best practical guidance to help you nagivate the Family and Medical Leave Act so that you can, in turn, meet your business objectives and minimize legal risk when it comes to managing employees with medical conditions.

Congrats to Ashley Kasarjian and the Employment and the Law blog for being named LexisNexis’ Top L&E blog of 2011.  It’s a great blog, and most worthy of the honor!  Thank you to LexisNexis for supporting our blog and offering a labor and employment online community, which includes posts from my other employment colleagues and me.

As always, please let me know what you are looking for from our blog in Year Two.  We welcome your suggestions and questions! jsn@franzcek.com  Again, many thanks for your support!

Perhaps it’s just me, but I recently have received several calls from clients inquiring about an employee’s right to take FMLA leave to care for an adult child (i.e., age 18 or older).  Some examples include: Can a grandparent take FMLA leave to care for her daughter after the birth of her baby?  Or can an employee take leave to care for an adult child suffering from depression?  The answer is not always an easy one.  What are an employer’s obligations when an employee seeks leave under the Family and Medical Leave Act to care for an adult child?  (I apologize in advance for the length of this post, but I hope it’s worth the read.)

First, let’s reacquaint ourselves with the law and regulations on point.  As we know, an employee is entitled to FMLA leave to care for a child with a serious health condition.  Under the regulations, “child” is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.

Therefore, based on the applicable FMLA regulations, two factors must be present before an employee can take FMLA leave to care for his/her son or daughter: the adult child must be incapable of self-care and have a physical or mental disability.

Incapable of Self-Care

Under the regulations, the adult child must require active assistance or supervision to provide daily self-care in three or more activities of daily living or instrumental activities of daily living.  The regulations define these activities as follows:

Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating.  Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

There is no magical line here.  Temporary conditions, such as minor pregnancy-related conditions, a bout with the flu, a broken bone or routine surgeries, typically would not result in being incapable of self-care.   On the other hand, plenty of others would: an adult child with Down syndrome, brain damage, serious illnesses or other developmental disabilities that are long term in nature.  It also could include a child who is involved in a catastrophic accident that impacts activities of daily living.  Notably, in Salas v. 3M, a federal trial court recently refused to dismiss an FMLA lawsuit when the evidence showed that that the employee’s adult daughter had learning disabilities, was unable to cook, got lost easily and might have been harmed at birth by an oxygen shortage.  As you can see, it doesn’t take much to create a fact issue in these cases, which is a scary proposition for employers.

Physical or Mental Disability

The regulations also require that the adult child have a physical or mental disability as defined by the ADA regulations.  Under the EEOC’s recently expanded interpretation of disability under the ADA Amendments Act of 2008 (ADAAA), an employee’s burden to establish a disability is much lower, and the “new” ADA allows for the possibility that a short-term impairment lasting fewer than three to six months may very well be considered a disability.  Put another way, it has become a whole lot easier to establish that an adult child has a disability.  In turn, it arguably is easier now for an employee to take FMLA leave to care for an adult child.

As to the common conundrum of whether pregnancy-related complications constitute a disability, we recently received some guidance from the courts.  Just last month, in Serednyj v. Beverly Healthcare, LLC, a federal appellate court ruled that pregnancy-related complications can rise to the level of a “disability” within the meaning of the ADA.  However, such complications, if they are of limited duration and dissipate once a woman gives birth, may not be “substantially limiting.”  Under these circumstances, the court held that no “disability” exists.

Since we’re on the topic of pregnancy, another helpful case to keep in mind is Novak v. MetroHealth Medical Cntr (pdf).  There, a federal court found that the two weeks the adult child suffered from a bout of postpartum depression failed to establish that she had a disability.  Although the Novak decision predates the ADAAA, it nevertheless is helpful guidance when determining the conditions that potentially fall in and out of the ADA.

Insights for Employers

So, what approach should employers take?  Since the ADAAA makes it significantly easier for employees to establish a disability, employers are in an incredibly difficult spot when determining whether an adult child is incapable of self-care and has a disability.  Take a situation involving a car accident.  Although the adult child might in the hospital with broken bones and other related injuries (rendering them incapable of self-care), can we determine within days after the accident whether they are considered disabled?  After all, the regulations tell us this FMLA determination must be made at the time FMLA leave is needed.  Seriously — how can employers make an educated determination at this point?  Often, it will be difficult, if not impossible, to do so.  Therefore, we must make a reasoned decision based on the facts as we know them within that short window in which we must designate leave as FMLA protected or not.

Keep some of following best practices in mind when analyzing an employee’s request for leave to care for an adult child.  I welcome more, if you have any that have worked for you:

  1. Set aside the misconception that an employee cannot take FMLA leave for an adult child.  Information is critical.  When the FMLA medical certification is returned to you, insist that you have a clear picture of the adult child’s medical condition, the three or more activities of self-care they are unable to perform, and a good sense that the condition might be rise to the level of a disability under the new standards of the ADAAA.
  2. Set aside the misconception that an employee can take FMLA leave to be present for the birth of his/her grandchild or to care for the daughter after a normal childbirth.  This is not covered by the FMLA.  Only where significant pregnancy complications arise do we need to turn our attention to a possible FMLA situation.
  3. Conditions that may appear short-term but serious can be a trap for employers.  Take, for instance, Patton v. Ecardio Diagnostics LLC (pdf).  There, the adult child was in a car accident, causing two broken femurs, a small hole in her lung, and a small hole in her bladder.  She recovered, but required a wheelchair to ambulate for more than one year.  Unfortunately, the employer did not have the benefit of knowing what the child’s prognosis would be long term.  It had to make the decision to designate FMLA leave (or not) within the first few weeks when the child was in the hospital.  In these situations, employers are wise to look closely at the child’s current medical condition and take an extremely broad view as to the possibility that a court might later find the child to have been disabled during the FMLA period.
  4. When the disability and self-care issues are obvious, don’t push it.  If an employee needs leave to care for a child with Down Syndrome or mental retardation, do you really need extensive documentation?  Remember, the FMLA does not require you to obtain medical certification for every absence.  Let common sense (and a little compassion) rule here.
phone call

During a webinar I conducted last month with the EEOC’s John Hendrickson regarding “leave” as a reasonable accommodation under the ADA, I pleaded with, begged, and cajoled employers to maintain regular contact with an employee while he or she is on FMLA leave.  Here is another reason to heed this advice – failing to do so may increase your risk of an FMLA retaliation claim.

As Eric Meyer reports in The Employer Handbook blog, a federal court in Pennsylvania found that an employer’s failure to return an employee’s telephone calls while she was on FMLA leave is evidence of retaliation.  In Hofferica v. St. Mary Medical Center, the plaintiff was a registered nurse who was approved for intermittent FMLA leave for an unusual medical condition that involved tinnitus, hearing loss and vertigo.

In September 2008, she took extended FMLA leave to undergo treatment for the condition.  She expected to return by November 6, 2008.  The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates.  However, her supervisor often failed to return the calls.  In early November, she provided a return to work certification clearing her return for November 13.  She also contacted her supervisor to ask for a “modest” extension through November 13, but the supervisor again did not return the call.  Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.

A really bad move.

Not surprisingly, the employee filed suit claiming, among other things, that the Medical Center retaliated against her for taking FMLA leave.  This claim will now make its way to a jury.  In refusing to dismiss the employee’s retaliation claim, the trial court found that the supervisor’s failure to return phone calls was evidence of “an antagonistic attitude toward the employee, particularly where – as here – such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee.”  As such, it could be used as evidence of retaliation.  A scary result for employers, but the decision provides plenty of lessons for employers.

Insights for Employers

  1. As this decision makes clear, it is imperative that employers maintain contact with employees on FMLA leave.  Why go weeks or months without talking with an employee on leave?  If you are communicating with them for the first time on the eve of their return to work, you are only inviting trouble.  Your FMLA policy and forms should make clear that you expect the employee to check in at appropriate intervals, and that you will be contacting them, too!
  2. In last month’s webinar, we covered a fact pattern very similar to this case to help employers understand their ADA obligations when an employee’s FMLA leave expires.  Where FMLA ends, employers must be prepared to analyze requests for additional leave under the parameters of the ADA.  Click here for more guidance on this point.
  3. Finally, don’t let the supervisor off the hook — issue discipline if necessary (if they failed to manage this situation properly) and provide additional training.  In Hofferica’s case, it appears as though the supervisor completely dropped the ball in (not) communicating with the employee.  Training on FMLA responsibilities is critical.  And for this supervisor, might some additional training on telephone etiquette be in order?

wrong-addition.jpgQ. We employ an FLSA-exempt employee who has been certified for intermittent FMLA leave for migraine headaches.  He averages two to three intermittent absences per month.  Normally, I would calculate the employee’s total FMLA allotment as 480 FMLA hours (12 weeks x 40 hrs/wk), but he claims he should be entitled to 600 FMLA hours because he averages 50 hours worked per week.  Is he correct?  Help!?! 

A.  One of the (many) headaches of managing intermittent FMLA leave is keeping track of leave in increments smaller than one work week.  For non-exempt employees, employers often calculate leave entitlement as 480 hours per FMLA year (i.e., 12 weeks x 40 hrs/wk).  However, the FMLA regulations urge caution when making these calculations.  

When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to.  You make this calculation according to the employee’s regular workweek.  For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk.  Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.

Fluctuating work week: If an employee’s schedule varies from week to week that an employer cannot determine with any certainty how many hours the employee would otherwise have worked, the employer should average of the hours scheduled over the 12 months prior to the beginning of the leave period (including the hours for which the employee took any type of leave) to calculate the employee’s leave entitlement.

However, for an FLSA-exempt employee, employers typically have not recorded any work hours for the employee.  Thus, determing the actual intermittent FMLA allotment is particularly difficult, since it is not unusual for exempt employees to work more than 40 hours in a work week.  In these instances, the burden is on the employer to disprove the employee’s record of the number of hours he or she worked. 

Insights for Employers

How can an employer meet this burden?  For starters, we strongly recommend that employers utilize a standard leave of absence form that employees complete in conjunction with any absence.  On the form, employers should require their exempt employees to specify the number of hours they have worked over the preceding 12-month period. 

If you have concerns about the hours represented by the employee, discuss this with your employee.  Perhaps you can cite to attendance patterns or time records to show that their calculation is not accurate.  At a minimum, it encourages an open dialogue at the beginning of the FMLA leave so that it minimizes any surprises (or claims of unfair treatment) further down the line. 

One additional note:  If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA leave and before the notice of need for FMLA leave), the employer can use the hours worked under the new schedule to make the leave entitlement calculation.

Thanks to those who attended my webinar last week with EEOC Regional Attorney John Hendrickson on “Examining the Use of ‘Leave’ as a Reasonable Accommodation Under the ADA.”   As the survey feedback indicated, it was a great opportunity to discuss issues specifically relating to leaves of absence under the Family and Medical Leave Act and the Americans with Disabilities Act.

From an employer perspective, there are several key takeaways from the webinar as to an employer’s obligation to provide leave as a reasonable accommodation under the ADA, particularly where FMLA is implicated:

  1. Utilize “Automatic termination” provisions at your own risk.  As employers now are well aware, the EEOC takes the position that policies which call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.) 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, attendance policies must incorporate a case-by-case assessment of the individual employee’s situation and an employer’s duty as to reasonable accommodation.
  2. Engaging the Employee in the ADA’s Interactive Process is Essential.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  When a client calls me for guidance on whether they can deny leave or terminate an employee after he or she has asked for the second or third extension of leave (particularly when FMLA has already expired), I ask the client for a detailed report of all the communications they have had with the employee regarding issues such as: a) the employee’s ability to perform his/her job; b) whether the employee likely will be able to return to work (and when); c) whether the requested leave will allow the employee to return to work immediately after the leave ends or very soon thereafter; d) whether there are other accommodations to help the employee return to work in a timely manner; and e) whether the employer has received any feedback from the employee’s physician about the above issues.  As evidenced by Mr. Hendrickson’s comments in the webinar, the EEOC’s decision to initiate litigation against an employer often hinges on whether the employer is to blame for the breakdown in the interactive process.  To minimize your exposure to liability, keep communicating with your employees!  The interactive process is essential.
  3. Analyze and Document how the Requested Leave of Absence Poses an Undue Hardship to your business.  In addition to Point 2 above, I want to know from my client how the requested leave impacts the employer’s business.  Thus, it is critical that employers review and document how the employee’s request (and continued requests) for leave poses an undue hardship to their business and operations.  During the webinar, we provided several factors that you should consider when analyzing whether the requested leave of absence poses an undue burden.  As noted in a survey (pdf) conducted by Mercer, these factors are extremely helpful in guiding your decision to grant or deny leave:
    • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
    • Lower quality and less accountability for quality
    • Lost sales
    • Less responsive customer service and increased customer dissatisfaction
    • Deferred projects
    • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
    • Increased stress on overburdened co-workers
    • Lower morale
  4. Communicate internally and with your third party administrator.  With increasing regularity, employers are looking to outsource FMLA and leave administration to TPAs.  For many employers, this is a good move — to name a few benefits, it can bring some predictability to your costs and it potentially helps combat abuse of leave.  Keep in mind, however, that the employer is on the hook for the actions of its TPA in the event of an ADA or FMLA lawsuit.  Therefore, it is imperative that your TPA effectively manages Points 2 and 3 above.  Insist upon an open exchange of information with the TPA so that you can make the best call when faced with the decision to grant/deny leave or terminate employment.
  5. Implement a comprehensive “ADA policy” and include it in your employee handbook and personnel policies. As I recommended in the webinar, in light of the ADAAA (pdf), employers should work with their legal counsel to draft an ADA policy that prohibits discrimination against individuals with disabilities and outlines a reasonable accommodation process.  In doing so, employers can more convincingly argue that obligations of reasonable accommodation and non-discrimination have become part of their everyday practice and are communicated to employees in the very first instance.

As we learned during the webinar, it is clear that even the top officials within the EEOC struggle with the concept of leave as a reasonable accommodation.  As Mr. Hendrickson pointed out, there is no one-size-fits-all approach to these real life situations.  However, by regularly communicating with employees and documenting how they have engaged in the interactive process, employers clearly have a leg up in minimizing ADA and FMLA liability.

LexisNexis Labor & Employment Law Community 2011 Top 50 Blogs

Here we are AGAIN asking for your support.  FMLA Insights is honored to be a nominee for LexisNexis’ Top 25 Labor & Employment Law Blogs.  FMLA Insights was selected by LexisNexis along with 60 other employment-related blogs.  We are readers of many of the blog nominees and are humbled to be part of this distinguished group.

Now, let the voting begin.  To vote you must provide a comment—preferably favorable—on your blog of choice.  Each (presumably positive) comment translates into a vote for that blog.  You must register with Lexis to vote.  We just voted ourselves, and it only takes a few minutes.  Comments (or “votes”) must be submitted by September 12.

Whether you vote or not, we continue to be grateful that you stayed tuned to our blog.  Even if we don’t make LexisNexis’ Top 25 or the ABA Blawg 100, we promise to ramp it up another notch in 2012!  Our passion for FMLA is not going anywhere, and increased readership is infinitely more rewarding than being listed among the Hollywood Blog Stars—although being a “Star” does have its perks.

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Employers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays.  In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far.

Douglas Rydalch was a reservation sales agent for Southwest.  When Southwest closed its reservation center in Salt Lake City where Rydalch worked, it transferred him to Houston.  However, his family remained in Utah.  In 2004, Rydalch injured his back, and these issues continued through 2007.  Curiously, Rydalch’s back issues tended to flare up on the days just before or after his previously scheduled time off — 35 times, to be precise.  What’s worse, he often used FMLA leave on important dates and holidays.  In 2007, for example, he used FMLA leave in conjunction with July 4, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve and his own birthday.  I’m not kidding.

Southwest caught onto the pattern of Rydalch’s absences and began monitoring his FMLA use.  It learned that he had a habit of taking flights to and from Utah on the days he requested FMLA leave.  On Christmas Eve 2007, Rydalch’s supervisor learned that he again had taken FMLA leave and later learned that Rydalch had been out of town when he called in his absence.  Upon further investigation, the supervisor determined that Rydalch booked a trip to Utah from December 22 to 27.  Thereafter, it was not surprising when Rydalch also called off for a bad back on December 26 and 27, which were his next two scheduled work days.  Southwest suspected that Rydalch misused FMLA leave in violation of the Company’s attendance program.  After an internal hearing was held regarding his FMLA use (pursuant to the bargaining agreement governing Rydalch’s employment), Southwest terminated Rydalch’s employment because he abused FMLA leave.

When Rydalch later filed a lawsuit claiming FMLA retaliation and interference, Santa was waiting at the courthouse steps with a lump of coal.  In quickly disposing of his lawsuit, a federal court in Utah held that Southwest rightfully had an honest belief that Rydalch was abusing FMLA leave and that its termination decision was legitimate.  See court decision here: Rydalch v. Southwest Airlines (pdf).

Insights for Employers

Southwest Airlines isn’t considered one of the best places to work for nothing.  An employee who not only abuses FMLA leave, but does so to effectively extend personal time off, raises the ire of co-workers.  Their actions can only have a negative impact on employee morale.  When you dare to take action as Southwest did in this instance, you not only rid yourself of FMLA abuse.  You also enhance employee morale.  Employers can learn much from Southwest’s response here:

  1. To some extent (whether great or small), FMLA abuse affects every workplace.  Consequently, employers must be vigilant to identify patterns of abuse and act swiftly to investigate and stop it from occurring.  The costs of ignoring FMLA abuse are far more dear — they impact employee morale and inflate overtime costs because other employees are left to pick up the slack.
  2. Where FMLA abuse is suspected, an employer has every right to investigate the circumstances and take action if it honestly believes that the employee has engaged in FMLA abuse.  All too often, employers in Southwest’s situation feel powerless.  They live with the misconception that they cannot question the employee’s reason(s) for leave or investigate any suspicious activity on the employee’s part.  To the contrary, the FMLA regulations give employers fairly broad rights to inquire about an employee’s reasons for leave and monitor patterns of suspected leave misuse to ensure that the employee’s leave is legitimate.
  3. Where possible, consider having an objective participant review and play a role in the investigation and disciplinary action to further bolster the employer’s legitimate, non-discriminatory reason for taking action against the employee.  Not all employers have the level of due process that Southwest’s bargaining agreements afford, but courts tend to give even greater deference to an employer’s termination decision where objective decisionmakers are part of the process.

Voting is now open for the the ABA Journal’s 100 best legal blogs, and we would love to have your support!

When starting this blog, we sought to provide employers with the very best advice in handling common, yet difficult issues that arise under the Family and Medical Leave Act.  Whether it’s commenting on a significant court case or raising an issue making news, our posts consistently attempt to give employers the tools they need to effectively and lawfully administer FMLA leave.  As you might be able to tell, we love the FMLA and we’ll continue to bring it over the next year.  Thanks, as always, for your continued support.

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

As we say here in Chicago, vote early…and vote often!  (Deadline is September 9, 2011.)  Thanks in advance for your support.