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.

Q: Can an employee take FMLA leave due to a cold or the flu? 

A: Yes, if it otherwise meets the definition of a “serious health condition.”

This question is confusing to many employers, and even some folks who hold themselves out FMLA experts. The source of this confusion is a misleading passage in the FMLA rules:

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

Reading this, one might assume that when an employee calls in sick with the flu, there’s no need to worry about FMLA leave. That, unfortunately, is the wrong answer.

The passage above is included in the FMLA rules as an example only. It in no way limits the definition of “serious health condition.” If an FMLA-eligible employee has a bad case of the flu, is incapacitated for more than three full consecutive days, and goes to the doctor and receives a prescription for antibiotics, that employee is entitled to FMLA leave. The same is true regardless of the condition, whether it is a cold or sinus infection or ear ache. If the condition meets the criteria in the rules, then it is a “serious health condition” and the FMLA applies.

This conclusion leads to an obvious question: do employers need to go through the whole FMLA process every time an employee comes down with the sniffles? Not quite. For more on that, check out FMLA Insights Podcast No. 3.

Is the fifth time the charm?  On July 30, 2010, U.S. Senator Richard Durbin introduced the Family and Medical Leave Inclusion Act, which would broaden the Family and Medical Leave Act to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who has a serious health condition.  S.B. 3680 (pdf) is nearly identical to H.B. 2132, which has been pending in the U.S. House of Representatives, and that (based on our count) has been introduced in the House on four occasions.  What’s notable about S.B. 3680, of course, is that it now is on track to be considered by the Senate for the first time. 

Does this signal renewed support for a fairly drastic expansion of the FMLA (i.e., extension of eligiblity to domestic partners, adult children, siblings and grandparents)?  Too soon to tell, given that Sen. Durbin is the only Senate sponsor right now.  However, the Senator claims to have momentum on his side.  In remarks introducing the legislation and citing the Human Rights Campaign, Senator Durbin suggested (pdf) that federally mandated family and medical leave protections keep up with 461 major American corporations, nine states, and the District of Columbia, all of which currently provide varying levels of FMLA benefits to same-sex partners.

The FMLA Inclusion Act is one of several bills pending in Congress that would further expand the FMLA.  Despite the number, none has been able to gain any momentum in the 111th Congress.

survey pic.jpgOn the campaign trail, then candidate Barack Obama promised to work aggressively on work-family balance if he was elected president.  In doing so, he clearly signaled a movement toward pursuing additional rights for employees to permit them to better balance their workplace duties and their personal and family lives.  This “movement,” however, has been stalled by the health care debate, the conflict in Iraq, and the Gulf Oil mess.

Yesterday, the Administration signaled that its commitment to work-family balance is back on track.

Yesterday, Vice President Joe Biden held a Middle Class Task Force event on solutions for families balancing both work and caring for family, during which he announced various initiatives to reinforce the Administration’s priorities in this area.

Per the Task Force’s recommendations as to family and medical leave, the Department of Labor will conduct a Family and Medical Leave Act survey in 2011 to “provide insight into how families use leave.”  In addition to collecting data on current family workplace policies and practices, the DOL hopes to gather “more information on parental leave, child care responsibilities, family leave insurance program usage, and other issues related to the intersection of work and family responsibilities.”  The DOL also intends to host a series of “National Dialogue on Workplace Flexibility” forums across the country.  Over the past year, the DOL has sent mixed signals as to whether there will be major FMLA regulatory change later this year.  However, a 2011 FMLA survey may very well forecast substantial regulatory changes next year.

Also announced in yesterday’s Task Force event, the Administration indicated that the EEOC and DOL would coordinate enforcement and data collection activities to better crack down on wage violations and systemic pay discrimination practices.  This is a notable development, since it has been apparent that EEOC or DOL very rarely shares data with the other or coordinates strategy on enforcement priorities.

For employers, it pays to listen closely to the reason for which an employee requests time off, since the reason may not always be covered by the FMLA.  Kind of like occasions when the employee tells you he needs time off to clean his mother’s flooded basement.

Take Joe Lane, a medical technologist for Pontiac Osteopathic Hospital.  Joe, who lived with his mother, sought and was granted FMLA intermittent FMLA leave for six months to care for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis.  He needed leave from time to time to provide her food and transport her to doctors’ appointments, which he did without issue for the next four months.

For Joe, when it rains, it pours. Literally. Right into his mother’s basement. Joe was absent for four consecutive days and, in violation of the Hospital’s personnel policies, he failed to call in his absences. Thereafter, he informed the Hospital that he would need additional time off to clean up flooding in his mom’s basement. He claimed that the “flood cleaning days” should be excused because his mother had hepatitis and the stagnant water was a “breeding ground” for the disease. The Hospital disagreed and fired him.

At that moment, Joe’s FMLA claims went down the drain.

Continue Reading Cleaning Up Mom’s Flooded Basement Not Protected by FMLA

Managing long-term intermittent leave has long been one of the central problems for employers administering FMLA leave. Particularly problematic is the employee who presents a certification suggesting that he or she will need unscheduled leave with little or no notice to the employer over a period of months or years based upon self-diagnosed, unverifiable symptoms such as pain or fatigue. A recent decision by the 8th Circuit Court of Appeals suggests that, at least in some cases, such a leave request need not be granted because the need for frequent, unscheduled, unpredictable leave over an extended period of time can render an employee unqualified for duty. Wisbey v. City of Lincoln, Neb.

The Facts

Charlene Wisbey worked as an emergency dispatcher for the City of Lincoln, Nebraska. Due to the nature of her position, the City expected her to “function accurately while working under considerable pressure” and to “think and act quickly and calmly in emergency situations.”

From January through February 2007, Wisbey used a significant amount of sick leave due to a respiratory infection. As Wisbey had already exhausted her sick leave, the City issued her a written warning for excessive absences and recommended that she apply for intermittent FMLA leave. In February 2007, Wisbey took that advice, and submitted an application for intermittent FMLA leave based upon depression and anxiety, stating in her application that she had a serious health condition that rendered her “unable to perform the essential functions of her job. She submitted a medical certification from her physician, stating that she suffered from recurring depression and anxiety, which interfered with her sleep, energy level, motivation, and concentration. The doctor stated that she would require intermittent leave “over the next 6 months or longer.” He left blank the “anticipated return to work date.”

In light of the certification, the City questioned whether Wisbey was able to adequately perform her job as an emergency dispatcher. The City scheduled Wisbey for a fitness for duty examination with a psychiatrist, Dr. Chesen. Dr. Chesen submitted a three-page report of his findings, stating that Wisbey suffered from “chronic relapsing depression” that “intermittently interferes with her ability to function at full capacity at work vis-a-vis tiredness,” and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

The City subsequently placed Wisbey on administrative leave with pay and scheduled a Personnel Board hearing. At the hearing, Wisbey testified that her fatigue did not interfere with her work, because she stayed home when she felt tired. Following the hearing, the City terminated Wisbey’s employment.

The Lawsuit

Wisbey filed suit against the City in state court, and the City removed her case to the U.S. District Court for the District of Nebraska. In her Complaint, Wisbey alleged that the City violated the ADA and FMLA by terminating her employment. The District Court granted summary judgment for the City, and Wisbey appealed.

Affirming, the Court of Appeals rejected Wisbey’s ADA claim, finding that she “was terminated because she was not ‘fit for duty,’ as reported by Dr. Chesen, and not based on any myths or stereotypes about being disabled.”

With respect to the FMLA, the Court explained that the Act supports two distinct types of claim, for “interference” and “retaliation.” To establish an interference claim, an employee need only show that an employer denied some benefit to which the employee was entitled under the FMLA. The court held that Wisbey could not maintain an interference claim because she was never denied any FMLA leave. Going further, the court held that even if Wisbey’s FMLA requests had been denied, the FMLA did not give her the right to FMLA leave because she requested “intermitent leave” for “six months or longer.” Quoting a 2005 decision in Spangler v. Fed. Home Loan Banke of Des Moines, the Court stated:

Even had Wisbey’s FMLA requests been denied, the FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide occupational qualification….

As for her retaliation claim, the Court again found that the City discharged Wisbey not because she exercised any rights under the FMLA, but because she was unfit for duty.

Insights for Employers

This case should come as a breath of fresh air to employers who have dealt with employees who treat long-term intermittent FMLA leave as an invitation to skip work whenever they feel like it, without notice or further explanation. However, some may argue that the 8th Circuit went too far in suggesting that an employee has no right to FMLA leave where she requests “intermittent leave” for a period of “six months or longer.” Indeed, the FMLA plainly allows for intermittent leave over extended periods of time. 

What employers can take away from Wisbey is that, particularly for safety-sensitive positions and jobs where regular attendance is a crucial requirement, there may be situations where an employee’s serious health condition renders the employee unfit for duty, regardless of the availability of leave under the FMLA. In such cases, it may be permissible for an employer to terminate an employee’s employment without first allowing an employee to exhaust all available FMLA leave. However, employers should be cautious about exercising that option, as other courts faced with different factual scenarios may be less friendly to the unfit-for-duty argument than the 8th Circuit was in Wisbey.

World Cup soccer ball pic.jpgA couple weeks ago, as I was preparing a witness for his deposition (in a Title VII and FMLA case), it dawned on both of us that his deposition would take place mere hours after the deciding Game 6 of the Stanley Cup Playoffs.  Upon this realization, his face grew a bit pale, and he began wondering out loud whether he would be in the best shape for a deposition the day after a Chicago Blackhawks victory.  [Insert here: visions of a late night at the local pub.]

No worries — both my client and the Blackhawks came out on top.  However, the more I considered the above exchange, the more I wondered whether this scenario raises a common issue for employers as they administer FMLA leave — Do major sporting events, such as the Stanley Cup and ongoing World Cup, invite widespread abuse of FMLA leave?

Continue Reading He Shoots . . . and Misses! Does the World Cup Invite FMLA Abuse?

On June 22, 2010, the U.S. Department of Labor issued an Administrator Interpretation (.pdf) to clarify the definition of a “son or daughter” under the FMLA to ensure that an employee who seeks time off work to care for a child receives FMLA leave regardless of the employee’s legal or biological relationship with the child.  Although the DOL interpretation arguably does not change existing law, many consider it a huge win for nontraditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community who, the DOL asserts, “often in the past have been denied leave to care for their loved ones.”

Continue Reading DOL Permits FMLA Leave for Gay Parents and Others Caring For a Child

Gay and lesbian employees in the Illinois Treasurer’s office who are in a committed relationship will enjoy the same FMLA benefits as married employees under an executive order signed by state treasurer (and U.S. Senate candidate) Alexi Giannoulias Sunday.  As a result, these employees will have the same family and medical leave benefits to care for their domestic partner when they suffer from a serious health condition and will be allowed to take time off to have or adopt children.

Continue Reading Illinois State Treasurer Extends FMLA Benefits to Employees with Same-Sex Partners