Suits In The WorkPlace : FMLA

Employee Notice Requirements - the Bright Side (Part 2 of 5)

Rod Satterwhite — Thu, 05 Feb 2009 14:28:00 GMT

Last week we discussed the notice obligations imposed on employers by the new FMLA regulations. This week we're going to review one of the more employer-friendly sets of changes brought about by the regs: employee notice requirements; i.e., how much notice does an employee have to provide, and what do they need to say?

Foreseeable Leave

Section 825.302 addresses foreseeable leave, and retains the traditional 30-day notice requirement. If it is not possible to provide 30-days' notice, notice must be provided as soon as practicable. Again, this part isn't really new. However, the regulations now go further and state that it is usually "practicable" to provide notice the same day or the next business day, absent extenuating circumstances. This new language should be helpful for employers who have employees with last-minute notice problems. For qualifying exigency leave, there is no 30-day requirement, but an employee still must provide notice as soon as practicable. The regulations also provide that employees must comply with the employer’s usual notice and procedural requirements for leave. The language that prohibited an employer from delaying or denying leave if the employee did not follow such procedures has been deleted.

Employees still have no obligation to specifically mention the need for FMLA leave; the regulations now provide additional guidance as to what constitutes “sufficient information.” The Department of Labor (“DOL”) clarified that the specific information mentioned need not be provided in each case, and that the information required depends on the situation. However, some examples are: information that a condition renders the employee unable to perform the functions of the job; or if the leave is for a family member that the condition renders the family unable to perform his/her daily activities; that the employee is pregnant or has been hospitalized overnight; the anticipated duration of the absence; or that the employee is under the continuing care of a health care provider.

If the leave is for a previously-certified FMLA-qualifying condition, the employee must specifically reference the particular reason or the need for FMLA leave.

The new regulations also add references to explain the notice requirements for qualifying exigency leave and military caregiver leave. Interestingly, if an employee fails to give 30 days' notice and the leave was forseeable, the employer can require the employee to provide an explanation as to why 30 days' notice was not provided.

Unforeseeable Leave

Employees are required to provide notice of unforeseeable leave as soon as practicable under the facts and circumstances of the case. It is generally practicable for the employee to provide notice within the time prescribed by the employer’s usual and customary notice and procedural requirements that are applicable to such leave. Thus employers can apply procedural requirements such as "you must speak to a supervisor and not just a co-worker when you call in" as long as those rules apply equally to non-FMLA leaves.

As with foreseeable leave, the new regulations retain the standard that the employee need not specifically mention the FMLA when requesting leave but now provide additional information regarding what type of information is “sufficient.” The regulations also (finally) explicitly state that calling in “sick” is insufficient to trigger the employer’s notice requirements. An employee must also respond to questions from the employer designed to determine whether the leave is FMLA-qualifying.

The employee is required to specifically mention the condition or the FMLA if the leave is for a previously-certified FMLA-qualifying reason.

Consequences

The new regulations also provide guidance clarifying the consequences of an employee’s failure to provide timely notice of the need for leave. The old regulations only explained the consequences for a delay where the need for leave was foreseeable and the employee could have provided 30-days notice. Now the regulations also address situations where the need for leave is foreseeable less than 30-days in advance, and where the leave is unforeseeable. The new regulations also provide examples of what it means to delay leave.

Overall, the new employee notice requirements are generally employer-friendly. The language of the regulations makes it clear that it is the employee's obligation, at all times, to provide enough information for the employer to determine that it is an FMLA leave request. For employers who have been dealing with employee abuse in this area, these changes should prove helpful.

FMLA Regs on the Way

Rod Satterwhite — Fri, 14 Nov 2008 13:36:00 GMT

Be on the lookout for new regulations to be issued by the Department of Labor relating to the Family and Medical Leave Act, according to this and several other recent stories. The regulations may be published as early as today, based on information from our sources. You may (or more likely may not) recall that these regs are nearly 2 years in the making: we noted in a post here in November 2006 that the DOL had opened the comment period for the regulations.

Based on the proposed regulations, the changes will certainly have an impact on the day-to-day administration of leave under the FMLA. Although it is not clear that the final regulations will adopt all the changes in the proposed regulations, some areas mentioned in the proposed regulations include:

Additional notice requirements the employer must provide to the employee regarding paid leave substitution
Employees who miss time under FMLA may now be disqualified from perfect attendance bonuses
Voluntary light duty work resulting from a worker's compensation injury is no longer considered FMLA
Employers will have 5 days instead of 2 to notify employees of their eligibility for FMLA under certain circumstances
Employers must provide additional information, such as the amount of FMLA used, and the reason for denying FMLA coverage
Employees must follow employer call-in procedures even for FMLA leave
Employers must allow employees 7 days to cure deficiencies in medical certifications

Remember, these are examples of the potential changes, based on what was in the proposed regulations. You shouldn't start changing policies or notice letters until the final regulations are issued and digested by lawyers, pundits and pollsters. Once we have the regulations and have analyzed them, we'll publish a more thorough summary and analysis here.

ADA/FMLA Plaintiff Cannot Double-Dip

Rod Satterwhite — Tue, 21 Nov 2006 19:28:00 GMT

An automobile mechanic for the county of Fairfax, Virginia cannot ignore his FMLA-related absences when he claimed that he could perform the essential job function of regular attendance. Payne v. Fairfax County, 1:05cv1446 (E.D. Va. 11/1/06).

Payne, an auto mechanic, was diagnosed with panic disorder, irritable bowel syndrome, and Epstein-Barr disease. For three straight years, he used all or nearly all of his twelve weeks of leave under the Family and Medical Leave Act. When the county refused to grant him additional leave in the final year, he “retired” but then sued under the FMLA, ADA and local employment ordinances.

The issue of first impression for the court (and apparently undecided by any other court as well) arose under the ADA. The court first analyzed whether Payne was a “qualified individual with a disability” under the ADA, and turned to the issue of his attendance, noting that “an employee who cannot meet the attendance requirements of his job cannot perform the essential functions of his job, and therefore, cannot be a ‘qualified individual’ under the Americans with Disabilities Act.”

As mentioned, Payne had regularly and consistently missed time from his job because of his medical conditions. Much or all of that time, however, had been covered under the FMLA. Payne argued, therefore, that this time should not “count against him” with respect to his ADA claim. The court acknowledged that the FMLA did in fact protect employees from adverse actions because of the taking of protected leave: the FMLA prohibits any discrimination or retaliation against an employee taking FMLA leave and further requires that leave taken pursuant to the FMLA "shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced." 29 U.S.C. § 2614(a)(2)-(3).

However, the court refused to carry this protection as far as Payne wanted. Citing DOL regulations implementing the FMLA, it held that, since the FMLA was not intended to modify the ADA in any way, “the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a ‘qualified individual’ within the meaning of the ADA. To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to § 825.702.”

This is an important ruling, especially in light of the frequent intersection between FMLA and ADA issues relating to employee leaves of absence. Employees like Payne cannot double dip by claiming that they should be able to invoke FMLA protections, while simultaneously avoiding the standards for qualifying under the ADA. Employers should be particularly aware of all applicable statutes during leave situations, not just the obvious ones.

Employers - This is What You're Up Against

Rod Satterwhite — Sun, 22 Jan 2006 03:08:00 GMT

Jeffrey Yamaguchi at 52 Projects has posted an interesting how-to guide for employees: Maximizing your Sick Leave in 2006. It describes the most effective way to leverage sick leave to maximize 3, 4 and (if you're really good) 5 day weekends. Keep those FMLA policies in order, folks.

If at first you don't succeed, lie lie again

Rod Satterwhite — Tue, 20 Dec 2005 15:31:00 GMT

Here's a set of facts that could leave you sick to your stomach: Employee checks her leave balance and determines she has almost no sick time left. Soon thereafter, she shows up for work at 6:30 A.M. and leaves within 2 hours. The next day, she goes to physician assistant about her gastroesophigal reflux disease to get the absence the day before certified as a "chronic condition" and therefore an FMLA-qualified absence. Physician assistant says no, employee goes over her leave time, and the employer terminates her in accordance with both its policy and the collective bargaining agreement.

Part Deux: Employee goes to a physician to try and get the absence covered under FMLA. The physician also says no.

Finally, going for the medical trifecta, the employee goes to a nurse practitioner, who gives the employee a note that says "Reports missed day of work 7/31/02 due to stomach pain seen in office today with epigastric pain." The nurse practitioner then completes the FMLA form certifying the condition as "chronic". Employee gives the form to the union rep, who gives it to the employer, who sticks to its guns.

Employee sues for FMLA discrimination. Employer moves for summary judgment. The result? The federal district court for the Northern District of Iowa denied summary judgment. In an unpublished opinion, the court held the Employer's request for medical certification and whether or not the Employer gave Employee a chance to fix any problem with that certification were triable issues of fact. It also held that the law does not restrict the employee's ability to seek second (and in this case third) opinions with regard to certifications, so long as the certification is made within the DOL-required 15 day time period. Makes us wonder how many medical appointments one could schedule for one day....

Cook v. Electrolux Home Products Inc., N.D. Iowa, No. 04-3063-MWB, unpublished opinion, 11/28/05.

Ball of Confusion

Lou Michels — Tue, 29 Nov 2005 17:25:00 GMT

A recent Sixth Circuit case shows, again, how careful an employer must be when monitoring Family and Medical Leave Act absences. This is a long story, but stay with me.

In Wilkerson v. Auto Zone, Inc., the Sixth Circuit ruled that the lack of coordination between employer managers, which resulted in a failure to notify the employee that her FMLA leave had expired, meant that the employer could be found guilty of interfering with FMLA rights when it fired the absent employee, even if her FMLA rights expired two weeks before she returned to work.

Wilkerson went out on maternity leave and claimed that she was told she would have six weeks of FMLA leave before the baby's birth, and six weeks after. But because Wilkerson had used intermittent leave prior to leaving work to give birth, she actually ran out of FMLA leave four weeks following the birth of the baby, rather than six. Auto Zone failed to inform her of this fact, however. Further complicating the issue, Wilkerson tested positive for a drug masking agent on a routine urinalysis that was reported to the company shortly after she left on FMLA leave. Although it was the company's normal practice to advise an employee of a positive drug test, Auto Zone did not so advise Wilkerson, and instead determined that she would be terminated because of the failed drug test when she returned from maternity leave.

Before she returned, Wilkerson called Auto Zone regarding a medical release she needed to return to work (inexplicably, at the company's request). Also inexplicably, the human resources official monitoring Wilkerson's absence expected her to return to work after five weeks of FMLA leave. When Wilkerson failed to show up after five weeks, the HR official notified company management that Wilkerson had not returned to work when expected.

Wilkerson ultimately showed up after six weeks of leave and was terminated for failing to report for work or call in her absence after five weeks. She was not advised that she was terminated for the positive drug test.

Wilkerson sued, claiming that Auto Zone denied her right to reinstatement and retaliating against her for taking FMLA leave. A jury found in her favor, awarding $56,000 in damages.

As you might expect from such a complicated fact pattern, the Sixth Circuit had several things to sort out. The initial issue is whether Wilkerson was entitled to reinstatement after six weeks of leave, even though her FMLA entitlement expired after only four weeks. The Sixth Circuit held that an employer must notify an employee in writing when leave is designated as FMLA leave, and if the employer fails to do so, the leave may not be counted against the employee's 12-week allotment. The court found that this holding was not in conflict with the Supreme Court's Ragsdale decision, even though it effectively awards additional FMLA leave above the statutory entitlement. The Sixth Circuit found that because the employee reasonably believed that she was entitled to the additional two weeks of leave, she was prejudiced by the employer's failure to notify her of exactly when the FMLA entitlement would run out.

Similarly, the court rejected the company's claim that Wilkerson's leave entitlement ended when her doctor released her to return to work after five weeks of leave because Wilkerson was unaware of the company's receipt of the release, despite her calls to verify its receipt. As for the jury's rejection of the company's claim that it would have fired Wilkerson anyway because of her drug test results, the court noted that the company's failure to notify Wilkerson of the results, as it would normally, along with its formal notice to Wilkerson that she was being fired for attendance, provided ample basis for the jury to reject the company's evidence.

This case is almost a model for how not to manage an FMLA claim. The company's failure to get its story straight regarding why it fired the plaintiff (there were actually three separate reasons for the company's termination decision), failure to properly monitor exactly how much FMLA time the plaintiff had, failure to provide her with notice as to when her FMLA leave would end, and failure to notify her of her failed drug test, provided a basis for the jury to disbelieve all of the company's reasons. The Sixth Circuit simply affirmed the decision. The lesson for employers? Carefully monitor and communicate consistently with anyone out on FMLA leave; have a clear understanding on everyone's part as to exactly how much leave is available and when it will end; when you have more than one reason for terminating an employee, communicate all viable reasons at the time of termination.

Taking a Bite out of the FMLA

Rod Satterwhite — Fri, 11 Nov 2005 18:04:00 GMT

A recent federal case coming out of St. Paul, Minnesota may save employers a headache when it comes to granting leave to their employees under the FMLA. Judge Donovan Frank, writing for the U.S. District Court for the District of Minnesota, rejected an employee’s FMLA claim outright that he was illegally denied leave for the maladies of sinusitis and a tooth-ache (hence the title - yes, it's corny). In Hastings v. Carlson Mktg. Group, Inc., D. Minn., No. 04-3370, 10/27/05), the court held that the plaintiff’s ills were not serious conditions under the FMLA as a matter of law, and granted summary judgment for the employer stating that neither a toothache nor sinusitis are qualifying serious health conditions. In this case the plaintiff was scheduled to return to work after a period of leave. Instead, when the plaintiff awoke that morning with “mind numbing” tooth pain, he phoned his secretary to say he would not be making it in until the afternoon. The plaintiff ended up sleeping until 5:00 pm and was soon thereafter terminated and told by his employer that it was too late to get medical certification for his absence. In this case, the plaintiff testified that he was only incapacitated for one day, not three or more as required by the FMLA in order to be a serious health condition. However, the court stated that even if plaintiff had not shot himself in the foot in this way, and could prove that he was incapacitated for more than three days, he still would fail to make a showing that a toothache constitutes a serious health condition. Moreover, the court rejected the plaintiff’s argument that the employer was estopped from arguing that the condition was not serious because it had failed to request medical certification. Although possibly a minor victory, this court decision will save employers from the headache of being required under the FMLA to deal with employees’ trivial (albeit “mind numbing”) health conditions. Sometimes, you just have to take a couple of aspirin and do your job. At least it’s not the employers who are required to take the pain killers this time.

More FMLA Fun

Lou Michels — Thu, 29 Sep 2005 22:25:00 GMT

The FMLA continues to be a source of problems for employers, if for no other reason than there is so much ambiguity built into the statute about notice and what actually constitutes FMLA-based discrimination or retaliation. A recent federal case from Connecticut further clouds the issues by holding that repeated requests for additional medical information can be a form of retaliation and actionable under the FMLA. In a case involving Coach USA, the federal judge refused to credit the company's argument that requests for additional medical information, which were made primarily by a third-party contractor with no decision-making power within the company, could not be used as a basis for a retaliation claim. Instead, the court said that the employer systematically raised a series of obstacles to the plaintiff's return to work and never told him exactly what documentation was necessary for recertification and was never satisfied with what was submitted.

For anyone who has tried to work through the maze of third-party health benefits administration and short- or long-term disability insurance claims, this case is a recognizable nightmare. Bureaucratic ineptitude does not equal FMLA retaliation, although in this case, it apparently did. Employers now are charged with making sure that their employees coming back from FMLA leave are not subject to the same run around that everybody else gets as a matter of course. Troubling.