Q. One of our employees has asked for leave to care for a family member in another state.  Does the travel time to and from the family member count as part of the FMLA leave?

A. This clearly is a grey area in the law at present. Very few courts have given us guidance as to whether travel time itself (to care for a family member with a serious health condition) qualifies as part of the FMLA leave allotment.  My quick take: If it’s clear that the employee will be required to care for the family member beginning on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Although not directly on point, take the recent case of Lane v. Pontiac Osteopathic Hospital.  In this case, the plaintiff was required to care for his mother, cook her meals and transport her to medical appointments.  However, the Court supported the employer’s denial of FMLA leave when the plaintiff sought leave to clean up his mom’s flooded basement.  Interestingly, the plaintiff claimed that his mother’s condition would have worsened had he not taken time off to clean the basement. 

In finding for the employer, the court grappled with the concepts of “direct” vs. “indirect” care for a family member.  The court’s ruling implies that where acts like “travel” to the family member are so intertwined or necessary to the need for leave itself, it should be considered part of the FMLA leave.  See also Tayag v. Lahey Clinic Hospital, Inc. (pdf), which upheld a denial of FMLA leave because a significant portion of a trip to meet with a “faith healer” actually was spent visiting socially with family.

An employee enrolled in an addiction treatment program need not be under a doctor’s care or actually staying at a rehab institution to qualify for FMLA leave, according to a federal court in Texas.  Picarazzi v. John Crane, Inc.

The Facts

Plaintiff Perry Picarazzi, a customer service representative for John Crane, Inc.(JCI), had a history of alcoholism, and his alcohol problems clearly led to absenteeism problems in March 2008.  As a result, he was issued a number of “points” under JCI’s attendance policies, which led to progressive discipline.  However, JCI failed to issue this course of discipline until the day it also issued a final warning to Picarazzi, which occurred mere days before his termination in late June 2008.

In late March, Picarazzi informed the Company of his alcoholism and that he “needed to get some help.”  As a result, he took leave beginning on April 1, 2008 and, on the following day, he checked into a rehab program, where he was first diagnosed with alcoholism.  At the time, JCI informed Picarazzi that he was entitled to 12 weeks of leave and that his leave would expire on June 23.  In the meantime, JCI asked Picarazzi to check in with the Company every 30 days.

Picarazzi remained in the rehab facility until April 23, at which time he was discharged.  Although the treatment facility released him to work on April 24, his doctor returned him to work with no restrictions nearly a week later, on April 30.  Due to relapses, Picarazzi returned to the rehab facility from April 30 to May 8 and then from June 9-15.  On many days between and after these periods through his termination, Picarazzi was absent from work, apparently as a result of his alcoholism.

In a nutshell, JCI considered the periods when Picarazzi was in actual treatment as FMLA leave, and as a result, no absentee points were assessed against him.  However, the Company did assess absentee points for some of the days when he claimed to be on FMLA leave but not actually undergoing treatment at a rehab facility.

The Court’s Ruling

As for FMLA leave relating to substance abuse, the FMLA regulations clearly state that:

FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. 19 C.F.R. § 825.119(a).

In light of these regulations, JCI argued that it assessed absentee points against Picarazzi on those occasions when he was not enrolled in a rehab program or under his doctor’s care.

For a number of reasons, the Court disagreed with JCI.  First, the Court found that a employee need not be enrolled in a rehab institution every day that he was on leave in order to qualify for FMLA leave.  As such, some of the other days Picarazzi was absent may also have been considered FMLA leave.  Second, it held that a jury could find that JCI made representations to Picarazzi that he was on approved FMLA leave through late June, the time period in which he was terminated.  Separately, the Court found that JCI did not warn Picarazzi of the consequences of failing to provide adequate medical certification of his serious health condition.  As a result, the Court determined that a jury should decide whether JCI violated the FMLA.

Insights for Employers

  • Although substance abuse itself is not protected by the FMLA, this decision blurs the lines a bit between substance abuse and treatment for that abuse.  In fact, the Court did not seem moved at all that several of Picarazzi’s absences seemed to relate to his “abuse” as opposed to his “treatment” of it.  Let this decision be instructive to employers:  When an employee seeks FMLA leave as a result of alcohol or drug related issues, employers should closely analyze all the leave time involved so as to avoid incorrectly designating FMLA leave.
  • Employers, sober up!  Miscommunication is a killer.  Clearly, the court refused to dismiss Picarazzi’s case at least in part because the employer mistakenly represented to him that “his job would be protected until the 12 week period of leave to which he was entitled under the FMLA expired on June 23, 2008.”  Why would the employer communicate such a broad period of leave when the date of return was unknown, and at that point, looked like it may only be four weeks in length?  At a minimum, JCI’s communications confused Picarazzi, leading him to believe that he was entitled to more FMLA leave than he may otherwise have been entitled to.
  • Be consistent with discipline.  The Court smelled something funny when JCI failed to notify Picarazzi of multiple disciplinary warnings until days before his termination.  A wise lesson: federal judges don’t like when you stack stale discipline at the end of employment and then terminate days later! With respect to discipline, employers all to often get tripped up when they fail to treat an employee on FMLA in the same manner it would treat any other employee.  Timing matters!  When you have a legitimate reason to discipline an employee, whether or not the FMLA is involved, do so in a timely manner.  Employers who wait seem to always pay the price.

Super Bowl.jpegThis morning, the sound of the morning alarm was harsh reality for scores of employees throughout Wisconsin.  After celebrating a Packers Super Bowl victory late into the night (a bitter pill for this Bears fan to swallow!), they have no interest in dragging themselves out of bed and heading into work.  For employers, you need not be located in Wisconsin to suffer the effects of the Super Bowl.  Case in point — I was talking with an HR professional (located outside of WI.) last week who was not looking forward to the day after Super Bowl Sunday, when she spends much of her day processing leave of absence requests — nearly all of which come from employees who called off right before the Monday morning shift started.

Some of the employees have fairly legitimate reasons for their absences (“My son, Johnnie, ate Aunt Erma’s chili last night and he can’t keep anything down this morning); others phone in ambiguous reasons such as, “I am taking FMLA again today,” or “Remember that thing I was dealing with three weeks ago … well, it’s acting up again.”

For HR professionals, the employer response to these phone calls is one of the most difficult they face: Do I count this as an ordinary sick day? Do I ask for more information? Can I ask for more information? What precise “thing” is “acting up” again?  Does this information trigger FMLA leave?

What can an employer do to obtain more information from the employee in these situations?

Continue Reading Suffering from Super Bowl-Induced FMLA Leave?

sheriff

(the county in which Chicago is located) currently faces one of the largest budget deficits in its government’s history.  So, when the Cook County Board president (Toni Preckwinkle) tells the County Sheriff (Tom Dart) to cut $70 million from his budget, it tends to grab people’s attention.  In this story, however, this proposed budget cut took a back seat to a notable statistic that grabbed the headlines: one out of every five employees in the sheriff’s office takes FMLA leave on any given workday.  At the Cook County Jail, it’s one in four, as reported by the Chicago Tribune.

Before you are left aghast at these figures, allow me to point out a sad fact: the Cook County Sheriff is not alone.  In my experience, I find all too many employers that suffer through FMLA absenteeism percentages well above the single digits.  In fact, a new client shared with me that as much as 30% of its workforce is absent on any given workday, the far majority of which is FMLA-related.

When I hear of FMLA absenteeism figures as high as these, one thing is abundantly clear: FMLA abuse is rampant in that workplace.  Fortunately for employers in this situation, there are several tools available to turn the tide and take back your workplace.

Continue Reading As FMLA Absences Mount, the Employer Must Lay Down the Law

FMLA developments in 2010 came fast and furious: the DOL’s interpretation clarifying the definition of in loco parentis, GINA’s impact on the FMLA, an impending DOL survey on how families use medical leave, and a number of new court cases giving guidance (and in some cases, muddying the waters) on important issues such as FMLA eligiblity and notice, abuse of FMLA leave, medical certification, caring for a family member and FMLA retaliation.

2011 surely will usher in new and unexpected FMLA developments.  In the meantime, what should employers do? Prepare.  As the calendar turns over to a new year, consider implementing the following to minimize FMLA liability and put yourself in the best position to administer the FMLA:

  • Update your FMLA policy and any relevant personnel policies (and inform employees!). You still have not updated your FMLA policy after the new regulations or the more recent military leave amendments took effect?  No time like the New Year!  Take this opportunity to review and revise your FMLA Policy as well as other personnel policies and procedures (e.g., call-in procedures, leave policies) so that you can administer FMLA leave efficiently and fully assert your rights in preventing FMLA fraud and misuse.  At a minimum, update your policy to adhere to the new GINA regulations.  See our post regarding GINA compliance.
  • Update your Employee Handbook to include your FMLA Policy.  The FMLA regulations require all employers who maintain an employee handbook to publish their FMLA Policy within the handbook.  Easy enough — take your newly updated FMLA policy and publish it in your handbook.
  • Change your FMLA leave year to a rolling year measured “backward.” The FMLA allows employers to define the 12-month FMLA year in a number of different ways, such as a calendar year, a look-forward period (from the time the employee first takes leave), or a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.  The rolling 12-month period typically is the best choice for employers, since it avoids stacking 12-week FMLA periods back-to-back.  Keep in mind, though, that employers must provide employees with 60 days’ notice of any change to the FMLA 12-month period.
  • Ensure that your FMLA forms are up to date and useful. On several occasions in 2010, I found that some clients were still using pre-2009 DOL forms for FMLA leave.  The new regulations require employers (and employees) to use a whole new suite of FMLA forms.  Consider adapting FMLA forms to ensure you are obtaining all the information available to you under the rules.
  • It’s a New Year, so update job descriptions! When employers seek medical certification of an employee’s serious health condition, they now may require the employee’s health care provider to identify in the medical certification form those “essential duties” the employee cannot perform. Similarly, employers also may require a health care provider to confirm in a fitness-for-duty certification that the employee can perform all essential job functions upon his/her return to work. Updating job descriptions will help promote an efficient and accurate certification process.
  • Revise severance agreements. Employees now may release past FMLA claims. However, many employers are not including the requisite language in severance and settlement agreements.  Consider updating your model agreements to maximize your protection, and use employment counsel to ensure the language is sufficient.
  • Analyze bonus programs/criteria. As you set new goals for 2011, keep in mind that the new FMLA regulations allow employers to deny such bonuses as “perfect attendance” awards to employees who take FMLA leave.  Have you taken this into account for 2011?
  • As always, Train! Train! Train!  From the front-line supervisor to the top executive, managers must understand their responsibilities to effectively manage an employee with a medical condition.  Properly training your managers as to their responsibilities under the FMLA should become a regular part of an employer’s operations, as it will significantly reduce the risk of legal liability.

Dodd picture.jpgIn the upcoming weeks, the halls of Congress will welcome a number of new faces and bid farewell to many other personalities.  One of those personalities riding into the sunset is the longtime Senator Christopher Dodd of Connecticut.  Putting aside for now whether you love him or hate him, Senator Dodd leaves at least one significant legacy behind — passage of the Family and Medical Leave Act.  As the author of the FMLA, which was passed in 1993, and sponsor of several bills pending in Congress that would expand the FMLA, Senator Dodd clearly has been a strong voice for employees in the workplace.

Continue Reading Senator Dodd’s Legacy: The Family and Medical Leave Act

bingo.jpgEmployers increasingly are finding federal courts to be receptive forums for the consideration of an employee’s retaliation claim.  In Burlington Northern v. White, for instance, the Supreme Court held that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions.  Last year, in Crawford v. Metro Government of Nashville, the Court ruled that an employee who was terminated after she answered questions during an employer’s internal investigation was protected under the anti-retaliatory provisions of Title VII.

The FMLA is no exception.  In his blog, attorney Michael Davey effectively summarizes a recent FMLA and ADA lawsuit brought against Wal-Mart where the federal trial court refused to dismiss an FMLA retaliation claim where Wal-Mart declined to interview Kimberley Stoppi for a management position after she returned from FMLA leave.  Stoppi v. Wal-Mart Transportation, LLC  However, Stoppi provided compelling evidence that other employees who received interviews lacked the transportation experience that she had.  In fact, one interviewee had worked in a dentist’s office prior to working at Wal-Mart and another worked in a bingo hall.  After the interviews, Wal-Mart decided not to fill the position at all. 

Had she been allowed to interview for the position, Stoppi apparently was confident she would have hit  B-I-N-G-O.  Nevertheless, Stoppi sued Wal-Mart, alleging among other things that the company retaliated against her by refusing to interview her for the promotion simply because she took FMLA leave.  When explaining its reasons for failing to interview Stoppi, Wal-Mart argued that the individuals interviewed for the job more fully met the qualifications for the position than she did.  However, the court found that a jury might see it differently, particularly in light of the fact that Stoppi provided evidence that several candidates had less supervisory experience than she.  As a result, the court allowed Stoppi to proceed with her FMLA retaliation claim.

Insights for Employers

  1. Don’t retaliate against employees because they have taken FMLA leave.  Not ever.  Never. 
  2. Employers should carefully arrive at and articulate the qualifications for the position under consideration and compare each candidate—independent of FMLA leave and other protected leave they have taken—against these qualifications.  Here, the outcome might have been different had the employer been able to distinguish the plaintiff from other candidates through objective, quantifiable criteria.

Join over 500 people who already have signed up for our complimentary FMLA Webinar, which will take place next Wednesday, September 29 from 12:00 to 1:15 p.m. CDT.  The Webinar will address a common issue that has plagued too many HR professionals — employee abuse of FMLA leave.  We will identify the most common forms of FMLA abuse, learn how to document and communicate effectively to fight FMLA abuse, highlight new regulations to use in fighting FMLA abuse and tackle the most common form of FMLA abuse — intermittent leave.

Throughout our session, we will address hypothetical and real-life situations in an interactive format, and we’ll save plenty of time for your questions.

Register for the Webinar by clicking here.  See our earlier post for more information about the Webinar.

Employers frustrated with their employees’ lack of communication during FMLA leave have found a friend in the Seventh Circuit Court of Appeals.  In what must be described as a solid win for employers, the appellate court (which covers IL, IN and WI) affirmed the dismissal of a former employee’s Family and Medical Leave Act claim against the company that fired her after she failed to provide proper notice under the company’s policies for an extension of leave.  Brown v. Automotive Components Holdings, LLC, and Ford Motor Co.

Continue Reading Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim

When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the “negative certification” may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.

The Facts

Deborah Branham worked for The Dickson Herald, owned by Gannett. On November 7, 2006, Branham called her supervisor and advised that she would not be in because her son was ill. The next day, she sent an e-mail to her supervisor, Tracy Buhler, stating that her son was still sick and that she would again be absent. On November 9 and 10, she left voice messages for Buhler stating that she was sick and would be absent.

The following Monday, Branham’s husband left a message for Buhler stating that Branham was still sick and that he was taking her to the doctor. Branham was examined by Dr. Singer, who found her exam to be “normal” and expected her to return to full work duty the following day, November 14. Branham called Buhler later that day and told her that the doctor had released her to come to work the following day. She also told Buhler that she still was not feeling well, and would need to be absent to attend other doctors’ appointments during November and December. Buhler asked her to come into the office to fill out a short-term disability form and “see if she qualified for anything.”

On November 14, Branham did not report to work, but went to the office late at night to complete an STD / FMLA form and fill out a medical certification form. Buhler faxed the certification form to Dr. Singer’s office. On November 17, Dr. Singer faxed the completed certification form back to Buhler. On the form, the doctor indicated that Branham’s condition began on November 10, that she could perform her full duties as of November 14, and that she did not require intermittent leave.

Branham remained absent through the Thanksgiving holiday. Although both her supervisor and HR advised her that she needed to provide a medical certification to support her absences, she did not do so. Branham did tell her supervisor that another doctor, Dr. Peters, should have filled out the form. However, the company asked both Dr. Singer and Dr. Peters to review the certification form for accuracy, and was advised that Dr. Peters had not seen Branham and would not fill out a certification for her.

On November 24, the company decided to terminate Branham’s employment. A termination letter was sent to her the following Monday. At 6:00 p.m. on the following day, November 28, a nurse practitioner who had previously seen Branham sent the company a medical certification stating that Branham had an illness that began on May 6, and that she would not be able to return to work until January 1, 2007.

The Lawsuit

Branham filed suit alleging that Gannett interfered with her FMLA rights and terminated her employment in retaliation for using FMLA leave. The district court granted summary judgment to Gannett, finding that Gannett was entitled to deny her FMLA leave based upon the “negative certification” from Dr. Singer, indicating that she was not incapacitated. Branham appealed.

The Sixth Circuit Court of Appeals reversed the ruling and remanded the case to the district court for trial. The Court of Appeals held that Gannett could not rely upon Branham’s failure to return a medical certification supporting her need for FMLA leave because it never properly triggered her duty to provide a medical certification in the first place. While the district court had found that Branham’s supervisor orally requested a certification from her on November 13, the court of appeals held that Gannett failed to make the request in writing, as it was required to do under the applicable FMLA rules. Consequently, it could not rely upon Branham’s failure to provide a medical certification as a basis for terminating her employment.

Insights for Employers

  1. As we stressed in our most recent podcast, whenever an employee seeks FMLA leave for his or her own serious health condition or to care for a family member with a serious health condition, the best practice is to always ask the employee for a medical certification. As this case makes clear, that request needs to be made in writing, and the employee must be notified of the possible consequences of failing to provide a certification. Using the proper eligibility notice form and having a complete and up-to-date FMLA policy can go a long way toward eliminating the risk of lawsuits such as this one.
  2. Before terminating an employee who fails to return to work despite a “negative certification” confirming that he or she is not incapacitated, employers should carefully review all of the relevant facts and circumstances to ensure that the employee has received all of the appropriate FMLA notices and had an adequate chance to provide a proper medical certification. It is far better to delay a termination by a few days than to spend the next several years defending a lawsuit.