Part-Time-EmploymentQ: One of our employees was at full-time  status (40 hrs/wk.) six months ago when he was granted intermittent FMLA leave for a GI issue that flared up from time to time. He took 120 hours of FMLA leave (or three weeks) through last month when he transferred to a part-time position (20 hrs/wk.). He continues to require FMLA leave, but we are not sure whether to calculate the intermittent leave based on his former full-time hours or current part-time hours.

A: This situation actually is covered by an FMLA regulation. Under 29 CFR 825.205(b)(2):

If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

In this question, the employee has reduced his weekly hours worked from 40 to 20 hours. And he already has used the equivalent of 3 weeks of FMLA leave. So, 9 weeks of FMLA leave remain in his FMLA year. Moving forward, you will use his part-time schedule to calculate any intermittent FMLA leave. Thus, he would have 180 hours remaining.

Keep in mind, though, that the Department of Labor requires us to calculate FMLA leave in workweeks. It may be easier to use hours of leave from an FMLA administration standpoint, and this approach would work just fine for an employee who works the same number of hours every week. But what about your employee who works 20 hours one week and 25 hours the next?  In this situation, you should calculate his FMLA intermittent leave not in “hours” but as a fraction of that particular workweek in which he is absent.

For instance, if an employee is scheduled for 20 hours one week and takes intermittent leave for a total of 10 hours that week, he has used 1/2 of a workweek for FMLA purposes. If an employee is scheduled for 25 hours the following week and takes intermittent leave for 5 hours that week, he has used 1/5 of a workweek for FMLA purposes.  Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

What about calculating FMLA leave for an employee who works a varying workweek? According to the DOL, this term should be used sparingly and only industries like the railroad industry where engineer and other employees’ schedules can vary widely such that you can’t determine with any degree of certainty what an employee’s schedule will look like in any given week. See my prior post for calculating a varying workweek.

This is riveting stuff, isn’t it?  Who says the FMLA ain’t sexy . . .

Sick-note.jpgOne of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.

Take, for example, Joe, who suffers from irritable bowel syndrome (IBS). On the FMLA medical certification you received for Joe, his physician indicated that he will be absent for this condition three times each month for one day each episode.  But here’s Joe’s pattern over the previous two months: in month one, he was absent five times (one day each) and in month two, he was absent four times, but one of these absences was four days in duration.

Can we discipline Joe for exceeding his frequency and duration indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Joe’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.  29 CFR 825.308(c)(2)

Joe’s circumstances clearly have changed significantly (i.e., more than double the frequency in month one, and a lengthy duration for one absence in month two).  Therefore, the regulations tell us we can do the following:

As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. 29 CFR 825.308(e)

Being the exceedingly reasonable, compliant employers we are, we follow the regulations and ask Joe’s physician to confirm for us whether this change in frequency and duration is consistent with Joe’s serious health condition and his need for leave. If your employment counsel is worth anything, they should be able to draft for you an articulate letter to the doctor explaining the pattern you have observed and your concerns about whether these absences are consistent with Joe’s need for leave.

The Response from Joe’s Physician

Eight times out of 10, Joe’s doctor simply will rubber stamp Joe’s pattern and confirm that these absences are related to his IBS. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Joe’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Joe’s pattern somehow is not consistent with his need for FMLA leave. If we’re lucky, in one in 100 situations, the doctor will tell us in not so many words that Joe is “full of c#&@”!  [In light of Joe’s situation, pun definitely intended.]

Can We Discipline Joe?  Here’s My Recommendation…

In these “20-percent” situations, can we discipline Joe for any absences that exceed the frequency and/or duration, as now confirmed by Dr. Zhivago?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by the Department of Labor to give guidance as to how employers might consider handling these situations.  Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation?  You issue discipline for any absences that exceed the frequency and duration.  

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Joe’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion. After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Joe to miss work three times per month at one day each because of his IBS. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for the excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.

webinarIt’s Webinar Time!

When managing an employee with a medical condition, the issues involved regularly implicate the FMLA or ADA — or both. Using interactive case studies, we will address critical FMLA and ADA compliance considerations when dealing with the most difficult employee leave and accommodation scenarios.

Please join us on Thursday, November 12 (12:00 – 1:15 p.m. central time) for “Where ADA and FMLA Overlap:  Leaves, Accommodations and Headaches, Oh My!” I will be joined by Sara Elder, (Division Vice President, Fair Employment & Compliance, for Sears Holdings Management Corporation) and Matt Morris (Vice President at ComPsych).

And the best part? It’s FREE!  Click here to register for this complimentary webinar. When you register, please take a moment to tell us your most burning FMLA and ADA questions — we’ll weave the best you have into our presentation.

During the webinar, Sara, Matt and I will highlight the most difficult FMLA/ADA overlap issues employers face and identify practical solutions to help employers stay compliant. Among other topics, we will address:

  • Requests that implicate the FMLA and ADA and whether leave and/or workplace accommodations are necessary
  • Employee requests for a “less stressful position” – is it an FMLA or ADA issue?
  • Examine the roles of HR and managers and provide tools and best practices for effective communication during the leave management and accommodation processes
  • ADA Intermittent leave!?! Do we have to?
  • When discussing “reasonable accommodations,” what does “reasonable” mean? Reasonable to whom?
  • The age old question: When FMLA ends, how much additional leave must an employer provide before terminating the employee?

This session promises to be practical and fun. As has become our custom, we might even throw in a Thanksgiving tune to finish things off.  Click here to register for this complimentary webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

Looking forward to dining on FMLA and ADA with you.

autismQ:  One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son.  In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school.  For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t not drop him off and pick him up.

The difficulty we have is this — our employee not only misses the first hour of work and another hour in the middle of the work day, but she claims she needs the entire day off to attend to her son.  First, is autism a serious health condition under the FMLA? And if so, are there any limitations we can place on the employee’s need for FMLA leave in these situations?

A: These are not uncommon questions posed by employers, who wonder whether they are required to provide intermittent FMLA leave to an employee in this kind of situation.

To be clear, employers generally don’t deny that autism is a serious health condition (since it often is considered a disability under the ADA). However, employers struggle with an employee’s unpredictable attendance in situations where it presents a burden on staffing, like the example above.

Is Autism a Serious Health Condition?

Generally speaking, courts have found that autism is a serious health condition.

As we know, an otherwise eligible employee can take leave to care for a child with a serious health condition.  Under the FMLA regulations, a serious health condition  includes a period of incapacity which is “permanent or long-term due to a condition for which treatment may not be effective.” A “period of incapacity” includes the inability to attend school or perform other regular daily activities due to the serious health condition, including treatment or recovery.  29 C.F.R. § 825.114.

In the example above, there appears to be sufficient facts for a jury to conclude that the employee’s son likely suffers from a serious health condition because he is has a permanent medical condition rendering him unable to participate at school in certain situations.

If Autism is a Serious Health Condition, are there any limitations we can place on the employee’s need for leave?

Put aside the question about whether autism is a serious health condition, as that’s a definition over which the attorneys can argue.  What you’re really worried about is whether your front reception desk gets properly staffed and whether you have to accept your employee’s erratic schedule on days when she tells you she must attend to her son.  In short, there are not many limitations you can place on your employee if they need FMLA leave in these situations to care for her son.  But there are tools available to employers:

1.  Analyze the medical certification.  In many instances, the certification will articulate the kind of care the employee is required to provide to the autistic child.  Does the certification appear to cover the need for transport, drop off and pick up?  If it is unclear, follow the FMLA’s cure process to obtain the information you need.

2.  Rein in the excess time off.  Does the certification require your employee to take the entire workday off (or even a significant portion of the workday) for trips to school with her son at 8am and at 2pm?  If so, why does the certification make such a pronouncement?

Assuming the cert does not contain this information, the employer should consider having a candid conversation with the employee about the need for leave for the entire or even a significant portion of the workday.  Keep in mind that intermittent leave is required only where it is medically necessary. FMLA leave from work from the period of ~9am to 2pm does not appear to be medically necessary, so if you can’t come to an understanding with your employee as to the additional time during the workday, employers should require that the employee cure the certification (to obtain additional information about the need for leave), and clarify the certification, if necessary.

Hat tip: Thanks to Linda Croushore for suggesting that I address this question on my blog!

bad-mathQ: Several of my employees’ workweeks vary from week to week.  Some might work 30 hours one week and 40 hours the following week. How do I calculate their intermittent FMLA leave in any given week?  

A:  As we know, FMLA leave can be taken over a continuous period of time or intermittently/reduced schedule.  If leave is taken over a continuous period of time, the employee is entitled to 12 workweeks of leave regardless of the number of hours typically worked in the workweek.

However, when an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s FMLA leave entitlement.  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.

But what about the employee whose schedule varies week to week?  Like the question initially posed above, the employee might work 30 hours this week, but 40 hours next week.  The week after, the employee might pick up someone else’s shift and work 48 hours.  In any given week, how should an employer determine how much FMLA leave the employee has used so that it can track the employee’s total FMLA leave allotment?

Let’s look to the FMLA regulations first:

If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. 29 CFR 825.205(b)(3)

This current regulation departs from the former regulation (prior to 2009) in two respects: first, by changing the calculation period from 12 weeks to 12 months (to account for seasonal variation in hours worked); and, second, by changing the phrase “weekly average of hours worked” to “weekly average of the hours scheduled . . . including any hours for which the employee took leave of any type.”

The regulations do not explain the reason for the change in language from “hours worked” to “hours scheduled,” but the preamble to the regs [ahem, only true FMLA nerds care about the preamble] state that the intent of the rule change was to “give a truer picture of the employee’s actual average workweek.” 73 Fed. Reg. 67978 (pdf) From what I can tell, no court has yet interpreted this change in the regulations. Absent any further guidance, it seems to me that the DOL used the word “scheduled” simply to mean that employers should calculate an employee’s leave entitlement based on an average of how many hours the employee would have worked in the past 12 months if the employee reported to work for every hour scheduled, as opposed to an average of how many hours the employee actually worked during the same time period.

Keep in mind one general principle when it comes to a varying work schedule: this “varying workweek” regulation should be used sparingly, since the employer will almost always be able to calculate how many hours an employee is scheduled in any given week. For instance, if an employee is scheduled for 30 hours one week and takes intermittent leave for 10 hours that week, he has used 1/3 of a workweek for FMLA purposes.  If an employee is scheduled for 40 hours the following week and takes intermittent leave for 8 hours that week, he has used 1/5 of a workweek for FMLA purposes.  Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

So, my employer friends, this is a long-winded way of saying that the weekly average method should be reserved for situations where you are unable to determine with any certainty how many hours the employee would have worked.  One example of this limited application might come from the case of Brotherhood of Locomotive Engineers v. Union Pacific Ry. Co., where train engineers’ assigned work schedules varied from week to week depending on trains scheduled to meet customers’ demands and where assignments could be made as little as one hour before the shift started.  In this case, the court found that the employer could average the number of hours to determine the employee’s FMLA leave allotment.

Use this above case as the exception, however. In the far majority of cases, you will be able to calculate your employee’s FMLA leave allotment in any particular week, even though the schedule may vary from week to week.

I can only imagine how many questions this post will generate.  This is why the FMLA is so much fun. [smirk]

It’s the final week of the year, so while everyone else in the world is playing with their latest version of iPhone and other new electronic gadgets, I spend my time analyzing this year’s FMLA blog posts and agonizing over how I can deliver the FMLA to your virtual door in an even more efficient and effective way in 2015. [In light of this revelation, I trust you all would jump at the chance to spend time with me during holiday break. Right?]

Based on the stats, a number of my FMLA posts apparently caught your interest in 2014, but two stood out when dissecting the numbers. Earning the award for most visits in a single day in 2014 (nearly 5,000 visitors), my post about the risks in sending FMLA notices by email earned top honors. Sending notice by regular U.S. mail and email is an interesting conundrum, but I hope this post (along with another one I drafted earlier this year) helped address your compliance efforts.

That single-day tally aside, the most popular post of 2014 (which tallied 12,000 visitors) was my musing about whether an employer can require an employee to submit a doctor’s note for each intermittent FMLA absence. Although the post can be viewed here, I’ve copied it below for your (bedtime: think drowsy) reading pleasure.

In the meantime, I offer my very best wishes for a peaceful New Year and an extraordinarily successful 2015!

FMLA FAQ: Can an Employer Require a Doctor’s Note for Each Intermittent FMLA Absence? (May 20, 2014) 

doctor's noteOver the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Can an employer request that an employee submit a doctor’s note for each of their intermittent FMLA absences?

At the time, I didn’t give a terribly thoughtful answer, so I figured I would address it head on here for the benefit of my fellow FMLA peeps.  [My apologies to the woman in the audience dressed in red with shoulder length brown hair who asked the question…would someone be sure to pass this onto her?]

I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic.  I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand.  This would be entirely helpful, as it ensures that the employee actually attended the appointment and was absent from work for a legitimate reason.

Much to my chagrin, the courts don’t agree with me.

The latest example is Oak Harbor, an employer which understandably was sick and tired of its employees taking off on Fridays and Mondays.  To clamp down on suspected FMLA abuse, the company’s Human Resources Director sent a letter to employees containing language along the following lines:

In order for me to know when to apply FMLA to an absence, a medical note will be required from your provider for that absence. The note will need to indicate you were seen by a provider during the absence and how the absence relates to the FMLA qualifying condition. Without this information, I would be unable to apply FMLA to any specific absence.

Robert was one of Oak Harbor’s employees and requested leave for back pain.  He submitted complete and adequate medical certification indicating a need for intermittent leave for flare ups and ongoing monthly water therapy with his physician.  Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend.  Harumph!

When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined.

The Court Ruling

In an unusual twist, Oak Harbor filed suit against Robert and another employee in a similar situation, asking the court to declare that its practice of requiring a doctor’s note for these above absences was perfectly legitimate under the FMLA.  The Court, however, gave Oak Harbor a legal smack down.  Finding the FMLA regulations clear with respect to obtaining an employee’s medical information, the court reminded the parties:

The employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave, the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave . . . If an employer disagrees with the initial medical certification, a specific statutory process authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.”

But once an employee provides “complete and sufficient” certification signed by the health care provider, the court opined, the employer “may not request additional information from the health care provider.” 29 C.F.R. § 825.307(a).  For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again.  Given the very specific rules about seeking recertification, Oak Harbor’s practice was deemed illegal.  Oak Harbor Freight Lines, Inc. v. Antti (pdf)

Insights for Employers

So what do we do now?  Here are a few thoughts:

  1. Manage the medical certification process with all the skill and grace you have within you!  Get the information you need, seek clarification and verification if the opportunity presents itself. Moreover, initial medical certification is an employer’s opportunity to seek second and third opinions, so be sure to advocate for your rights at this stage if you have reason to doubt the validity of the certification.
  2. Similarly, seek recertification if and when you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
  3. The far majority of Robert’s water therapy sessions (typically scheduled on Fridays and Mondays) could have been held on Saturday, which was his day off.  Why? Because the doctor’s office was open on Saturdays! Keep in mind that the FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact your operations. So, when your employee needs time off for therapy or medical appointments, push back a bit on your employee to determine whether these appointments can be scheduled during non-work hours in the evening or on weekends.
  4. I believe the Oak Harbor decision still leaves the door open for employers to establish a policy that requires any employee to provide a doctor’s note in exchange for paid leave under the employer’s normal paid leave policy. So long as the policy is applied consistently, the employer would not be singling out those employees on FMLA leave, nor would you be denying one’s FMLA leave. I’ve opined on this topic before in a previous FMLA podcast you can access here.

part_time_jobsThis one is a real headache.

Sam oversees a storage area for the Connecticut Department of Transportation (ConnDOT) and during certain times of the year, his position requires a fairly extensive amount of overtime. For years, Sam has suffered from “cluster headaches,” which are far worse than migraines and can last for days.  Sam’s physician tinkered with medication over the years, but nothing helped.

Sam’s doctor later determined that Sam’s excessive work schedule during periods in which he worked overtime was one of the main factors that triggered his headaches. Therefore, he limited Sam’s work to no more than eight hours per day, and he also prohibited overtime. Permanently. These restrictions were provided on an FMLA certification form.

What do you think ConnDOT did here?  Did it: a) agree to allow him to take FMLA leave whenever overtime would be required?; or b) tell Sam overtime is an essential function of the job, and if he could not work OT, he either needs to resign or seek disability retirement?

Here, ConnDOT chose the latter, reminding Sam that overtime was an essential function of his position and that under the union contract, if he couldn’t perform all the essential functions of his position, ConnDOT would need to try and transfer him to another position. ConnDOT also told him that he needed to submit medical certificate in order to take FMLA leave, but it made one thing clear: if the certification confirmed Sam could not work overtime, he would have to resign or seek disability retirement. As the story goes, Sam’s certification confirmed that he could not work OT.  Not a single hour of it.  Sam later resigned after ConnDOT could not locate another position for him. He later filed an FMLA lawsuit.

The Court Ruling

In response to Sam’s FMLA claim, ConnDOT made a rather sound argument, and one that other courts have bought into: an employee cannot seek leave for incapacity that may (or may not) occur at some point in the future.  In other words, the employee can take FMLA leave only if he is presently incapacitated because of a serious health condition. Recall my old post about Pat Hurley, the CEO who asked his company to approve leave in advance for various dates over an upcoming two-year period because he needed to address his stress?  There, a federal appellate court turned Pat and his FMLA claims away, finding that FMLA did not cover periods of time that “potentially” qualified as FMLA leave at some point in the future.

Wasn’t Sam effectively making the same argument here, and shouldn’t he suffer the same fate as Pat above?

Sam’s situation was different, said the court, and here’s why:  The FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary.”  Moreover, ConnDOT’s position that the employee must be incapacitated from working in order to obtain FMLA leave actually is belied by the FMLA regulations, which interestingly state as follows:

Absences attributable to incapacity [for chronic conditions] qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. For example, an employee with asthma may be unable to report . . . because the employee’s health care provider has advised the employee to stay home when the pollen count exceeds a certain level. 29 CFR 825.115(f)

As a result, the court determined that Sam could take “prophylactic” FMLA leave because his doctor opined that he could come to work when he is required to work certain excess hours [kind of like the excess pollen count].

Does the FMLA Turn a Full-Time Position into a Part-Time Position?

The court also addressed a larger issue that it acknowledged was a novel question: Could Sam use his annual FMLA allotment to effectively convert his full-time position into one that no longer required overtime?  Or taken further, could an employee use FMLA leave also to convert a full-time position into a part-time version of the same?  In short, the court said “Yes,” and reminded us that the FMLA does what the ADA cannot.  Specifically, the ADA does not require an employer to eliminate an essential function (such as overtime) or provide an accommodation that would cause an undue hardship.  However, the same is not true for the FMLA. Notably, the FMLA directly applies to situations where the employee cannot perform essential job functions, and as we know, there also is no undue hardship defense under the FMLA.

Tough FMLA luck for employers, so says this court.  Santiago v. Connecticut Department of Transportation, et al.

Insights for Employers

There are several takeaways here:

1.  If you want to hear more about this case and its practical impact on employers, access my recent FMLA webinar on the topic.  For those of you paying really close attention, you will remember that I highlighted Sam’s case as a contrast to the Pat Hurley case above.  So, access this webinar for extra FMLA nerd points.

2.  There is NO undue hardship argument available under the FMLA. ConnDOT’s loss in this case is a reminder that the FMLA can have brutally harsh results for employers. As we see above, the FMLA presumes that it will cause employers hardship — as in Sam’s situation, when an employee is excused from essential functions of the job, these tasks fall directly to other employees and can wreck havoc on an employer’s operations.  That’s the unfortunate reality of the FMLA. If we were in an ADA situation [for instance, if Sam had exhausted FMLA leave and was seeking additional leave under the ADA], we could make a case for undue hardship: other employees have been required to take on the duties of the absent employee; even more overtime will need to be paid out; managers have been required to cover certain tasks, leaving voids elsewhere; projects have been deferred because of inadequate staffing; and morale has been adversely impacted.

However, we are unable to make the same undue hardship argument under the FMLA. Why should that be?  If the Department of Labor ever asked for my opinion [which, of course, it won’t] on how to improve the FMLA regs, adding the “undue hardship” provision is one suggestion I’d offer.  Of course, we would need to balance such a defense between the rights of employees and employers, but the concept should be in play, even in FMLA situations.

3. Don’t Forget that the FMLA and ADA may BOTH apply to a request for leave or reduced work schedule. When an employee requests FMLA leave for his own alleged serious health condition, an employer is well advised to initiate the ADA’s interactive process to evaluate whether the employee may require a reasonable accommodation in addition to FMLA leave. If an employee’s leave request implicates both the FMLA and the ADA, the employer must analyze its obligations under each act. Keep in mind: the employee is entitled to the benefits of whichever law provides the employee with the greater protection. For the reasons stated above, the FMLA offers more protection in this instance.

4. For those who really want to delve deeply into the legal morass here, I believe ConnDOT could advance a strong argument on appeal in this case. Specifically, as to the question of whether intermittent FMLA leave can effectively turn a full-time position into a permanent part-time position, the court seemingly overstates (at pages 16-17) the DOL’s guidance in this area.  Citing a 2006 DOL report, the court found persuasive the DOL’s alleged position that an employee should be entitled to FMLA leave even though the employee’s condition is permanent and will prohibit the employee from ever working full-time.  However, the DOL has not officially taken this extreme a position.  In the DOL opinion letter cited by the court at page 17, the DOL states that FMLA is available to an employee even though the employee’s condition is permanent and the employee “will more than likely not be able to return to full employment in the near future.” (My emphasis) Not being to return to full employment in the near future is a far cry from not ever being able to return full-time.  The court in this case took the DOL’s stated position too far, thereby undermining its reasoning on a very critical issue in this case.

red flagsIt’s Webinar Time!

The year 2014 has ushered in a host of fascinating developments involving the FMLA. Courts across the country have issued critical decisions on an employee’s notice of the need for FMLA leave; whether an employee can affirmatively decline FMLA leave; combating FMLA abuse; and caring for a family member.

Please join us on Thursday, November 13 (12:00 – 1:15 p.m. central time) for “Managing FMLA Red Flags and Staying Ahead of the Trends.”  I will be joined by Ellen McCann, Assistant Vice President and Senior Counsel for Unum.

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?!  Click here to register for this complimentary webinar. When you register, please take a moment to tell us your most burning FMLA questions within our topics below — we’ll weave the best you have to offer into our presentation.

Ellen and I will highlight the latest FMLA trends and identify practical solutions to help employers stay compliant.  Among other topics, we will address:

  • Recognizing an employee’s need for FMLA leave
  • Whether an employer should designate FMLA leave on occasions when an employee does not want FMLA to apply
  • How to nab an employee when you are provided Facebook or other social media posts showing them acting inconsistently with their need for FMLA leave
  • Handling an employee’s request for FMLA leave where the employee will care for a family member while on vacation or during out of state travel
  • The latest on managing FMLA intermittent leave

This session promises to be practical and fun. And I might even throw in a Thanksgiving tune to finish things off. Click here to register for this webinar. We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

This program has been submitted to the HR Certification Institute for review. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org.

Illinois MCLE credit also will be available to attorneys attending the program. For attorneys in states other than Illinois, we will provide proof of attendance, but CLE credit will be governed by your particular state’s rules.

doctor's noteOver the past few weeks, I have had the pleasure of presenting on complex FMLA issues for attorneys and HR professionals attending several seminars sponsored by the National Employment Law Institute (NELI), which puts on some of the best employment law seminars in the country (my session, of course, being a drag on their success!). During one of the sessions, an attendee asked a thoughtful question that seems to come up from time to time in my practice:

Can an employer request that an employee submit a doctor’s note for each of their intermittent FMLA absences?

At the time, I didn’t give a terribly thoughtful answer, so I figured I would address it head on here for the benefit of my fellow FMLA peeps.  [My apologies to the woman in the audience dressed in red with shoulder length brown hair who asked the question…would someone be sure to pass this onto her?]

I wish I could answer this question with an unequivocal “YES,” but my guidance would go against the weight of court decisions on this very topic.  I wish, for instance, that I could advise employers that it is perfectly legal to maintain a policy in which employees who take FMLA leave for a doctor’s appointment must return to work with a doctor’s note in hand.  This would be entirely helpful, as it ensures that the employee actually attended the appointment and was absent from work for a legitimate reason.

Much to my chagrin, the courts don’t agree with me.

The latest example is Oak Harbor, an employer which understandably was sick and tired of its employees taking off on Fridays and Mondays.  To clamp down on suspected FMLA abuse, the company’s Human Resources Director sent a letter to employees containing language along the following lines:

In order for me to know when to apply FMLA to an absence, a medical note will be required from your provider for that absence. The note will need to indicate you were seen by a provider during the absence and how the absence relates to the FMLA qualifying condition. Without this information, I would be unable to apply FMLA to any specific absence.

Robert was one of Oak Harbor’s employees and requested leave for back pain.  He submitted complete and adequate medical certification indicating a need for intermittent leave for flare ups and ongoing monthly water therapy with his physician.  Interestingly, the company determined that nearly 90 percent of Robert’s absences over a six-year period fell in conjunction with a holiday or weekend.  Harumph!

When Robert failed or refused to provide doctor’s notes to confirm he actually attended the therapy sessions, he was disciplined.

The Court Ruling

In an unusual twist, Oak Harbor filed suit against Robert and another employee in a similar situation, asking the court to declare that its practice of requiring a doctor’s note for these above absences was perfectly legitimate under the FMLA.  The Court, however, gave Oak Harbor a legal smack down.  Finding the FMLA regulations clear with respect to obtaining an employee’s medical information, the court reminded the parties:

The employer may require the completion of a medical certification, which must be deemed sufficient if it includes, in the case of intermittent leave, the dates of expected treatment, the medical necessity of intermittent leave, and the expected duration of the intermittent leave . . . If an employer disagrees with the initial medical certification, a specific statutory process authorizes an employer to request second and third opinions, and to require the employee to obtain a subsequent recertification “on a reasonable basis.”

But once an employee provides “complete and sufficient” certification signed by the health care provider, the court opined, the employer “may not request additional information from the health care provider.” 29 C.F.R. § 825.307(a).  For this court, when the employer required a doctor’s note for every FMLA-related absence — doctor’s appointment or not — it was tantamount to requesting re-certification over and over again.  Given the very specific rules about seeking recertification, Oak Harbor’s practice was deemed illegal.  Oak Harbor Freight Lines, Inc. v. Antti (pdf)

Insights for Employers

So what do we do now?  Here are a few thoughts:

  1. Manage the medical certification process with all the skill and grace you have within you!  Get the information you need, seek clarification and verification if the opportunity presents itself.  Moreover, initial medical certification is an employer’s opportunity to seek second and third opinions, so be sure to advocate for your rights at this stage if you have reason to doubt the validity of the certification.
  2. Similarly, seek recertification if and when you receive information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.
  3. The far majority of Robert’s water therapy sessions (typically scheduled on Fridays and Mondays) could have been held on Saturday, which was his day off.  Why?  Because the doctor’s office was open on Saturdays! Keep in mind that the FMLA regulations require that the employee make a reasonable effort to schedule medical appointments in a way that does not impact your operations.  So, when your employee needs time off for therapy or medical appointments, push back a bit on your employee to determine whether these appointments can be scheduled during non-work hours in the evening or on weekends.
  4. I believe the Oak Harbor decision still leaves the door open for employers to establish a policy that requires any employee to provide a doctor’s note in exchange for paid leave under the employer’s normal paid leave policy.  So long as the policy is applied consistently, the employer would not be singling out those employees on FMLA leave, nor would you be denying one’s FMLA leave.  I’ve opined on this topic before in a previous FMLA podcast you can access here.

 

kid on toilet.jpgQ: One of our employees drinks a lot of water at work and goes to the bathroom continuously throughout the day.  As a result, she uses far more than her normal breaks allow.  She has provided documentation that a severe medical condition in her kidneys causes this predicament. Do we have to allow this? And if we do, can we at least count the additional trips to the bathroom as FMLA leave?

A: Before you wonder whether this actually is a serious question, it is! In fact, last month, a court allowed a jury to consider an employee’s claim that her employer retaliated against her in violation of the ADA after she requested to take frequent bathroom breaks.

In this situation, Bonnie suffered from “interstitial cystitis,” which is an inflammatory bladder condition causing frequent trips to the bathroom — as often as every 20 minutes.  Bonnie claimed that, while she was in the bathroom, her supervisor would intentionally call her at her desk, and when she wouldn’t answer, he would send another employee into the bathroom looking for her. Upon Bonnie’s return to her desk, her boss allegedly would “shake his head disapprovingly.” After a short leave of absence, Bonnie’s desk was moved and her duties reassigned. Days later, she was terminated.

The court declined to flush Bonnie’s ADA retaliation and reasonable accommodation claims, finding that she could establish that she had a disability and that there was ample evidence for a jury to decide that her request for an accommodation was a deciding factor in her termination. Akerson v. Pritzker (pdf) 

Bonnie’s claim got me thinking (in a nerdy FMLA kind of way): could the employer have assessed FMLA leave for these bathroom trips?  It seems the answer is yes, since the FMLA regulations do not limit the size of intermittent FMLA leave, and it appears that the employee could show that these bathroom trips are medically necessary.  This situation is similar to the facts in Collins v. U.S. Playing Card Co., where the court determined that a diabetic employee’s requests for breaks of a few minutes at various points during the work day to get something to eat could qualify as intermittent leave under the FMLA.

I don’t want to encourage employees’ unfettered access to the loo, but in light of the Akerson and Collins decisions, the employee’s bathroom time in these circumstances arguably would be protected by the FMLA.  

Insights for Employers

  1. When counting bathroom time against an employee’s FMLA entitlement, only do so if the frequency and duration extends beyond the employee’s normal lunch and break periods.
  2. Don’t be fooled by the lazy employee. If an employee has notified you of a medical condition causing their unusually frequent or lengthy trips to the bathroom, that’s one thing.  But if not, treat it first as a performance-related issue, and communicate with the employee about your expectations and how they’re missing the mark.  Suzanne Lucas (aka the “Evil HR Lady”) has some great guidance on how to deal with an employee who makes too many trips to the bathroom, including a suggested dialogue with your employee.
  3. But Don’t be Pee Brained! I have a tough time with some of the facts in Bonnie’s case. Here’s why: 1) What’s illegal about asking an employee to check on another if the former has been away from her work station? 2) I’d be interested to know what a “disapproving” head shake looks like when the boss uses it to communicate his disappointment for using the the bathroom too long.  Is there a definition somewhere?  And how does that differ from “you’re playing your music too loud in your cubicle” head shake, or “your lunch smells” head shake.  All kidding aside, though, this court decision reminds employers of how easy it is to get tripped up by a retaliation claim, especially where a termination decision is temporally related to the request for accommodation. Here, even though the employer claimed it had taken steps to terminate Bonnie’s employment prior to her request for bathroom breaks, it lacked documentation proving so.  This was particularly difficult for the court, as it noted “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.”  When it comes to an employee’s medical condition, employers must take every request seriously, and it’s best to keep our comments (and mannerisms) to ourselves!