FMLA Law Blog : Family Medical Leave Act Lawyer & Attorney : Fox Rothschild Law Firm : Human Resources, Unpaid Leave

I have received a number of questions, both by email and on the blog, so I wanted to take some time to address the most frequently asked questions.  I hope to make this a continuing series.

Q.  Can an employee qualify for FMLA leave in connection with an upcoming imprisonment?

A.   Unless the employee or a qualified family member suffers from a serious health condition, the employee is giving birth to or adopting a child or taking leave to care for a newborn child, or the employee qualifies for military-related FMLA leave (and has worked for a covered employer for at least 12 months and at least 1250 months in the previous 12 months), the employee would not be eligible for FMLA leave to prepare for an upcoming imprisonment. 

Q.  Must an employee requalify for FMLA in connection with an intra-company transfer to another department?

A.  No.  If the employee previously established her eligibility for FMLA leave, and has complied with any valid recertification requirements, as applicable, the employee need not reestablish eligibility for FMLA leave due to a transfer.

Q.  What is the current status of the proposed Family and Medical Leave Inclusion Act, H.R. 2132?

A.  The bill was referred to committee, which is the first step in the legislative process.  I will update the blog should there be any new updates concerning the bill.  In the meantime, FMLA leave is not available to employees who require leave to care for the serious health condition of a domestic partner or same-sex partner, although employers may offer such leave voluntarily.

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In Moran v. Redford Union School District, the United States District Court for the Eastern District of Michigan recently held that an employee with a history of absenteeism who requested FMLA leave but took a vacation in Florida was not retaliated against in violation of the FMLA when she was terminated for refusing to sign a last chance agreement.  

The plaintiff became employed by the School District as a part-time bus driver beginning in 2001.  She was subject to a collective bargaining agreement, which provided that part-time bus drivers were entitled to five days of paid leave per year.  She had a history of absenteeism and related warnings.  On March 10, 2008, she received a verbal warning for absenteeism.  In the disciplinary meeting, she requested to take two days of leave on March 30, 2008 and April 1, 2008 to travel to Florida using airline tickets that she had previously purchased.  Her request was denied. 

A few days later, the plaintiff had an appointment with her physician, who diagnosed her with acute situational anxiety based primarily upon her complaints of work-related stress.  He provided her with a note indicating that she could not work from March 17, 2008 through April 7, 2008.  She requested a leave of absence premised upon her physician's note, and did not report to work during that time frame.  From March 20, 2008 through April 1, 2008, she traveled to Florida.

Suspecting that the plaintiff fabricated her leave request to enable her to travel to Florida, the School District attempted to contact her at home on several occasions during her leave and she did not return any messages.  Upon her return from Florida, she was suspended pending an investigation into the reason for her absence.  The union attempted to negotiate a last chance agreement, whereby the plaintiff would be reinstated and agree, among other things, that any further absences would result in termination, and she would forgo any grievance in the event of her termination.  The plaintiff refused to sign the agreement and was terminated. 

The School District argued that the plaintiff did not engage in statutorily protected activity under the FMLA because she fabricated her alleged need for leave, and that it had a legitimate non-discriminatory reason for terminating her--i.e. her failure to sign the last chance agreement. 

While the Court held that a jury could find that there was nothing plainly inconsistent about traveling to Florida while suffering from acute situational anxiety (some might disagree), it held that the School District had an honest belief that the plaintiff has misused her FMLA leave, and its termination of the plaintiff for failing to sign a last chance agreement was not a pretext for discrimination.

This case provides significant guidance to employers who are contemplating disciplining employees whom they suspect of misusing FMLA leave.  It also suggests that last chance agreements may be a viable option where an employee has a history of absenteeism and the employer has an honest belief that the employee has misused FMLA leave. 

Employers should consult their counsel when evaluating whether to discipline an employee for suspected misuse of FMLA leave. 

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Happy New Year! 

For employers that permit employees to accrue 12 weeks of FMLA leave on a calendar year basis (or do not specify any other method in their policies), January 1, 2010 will mean a clean slate for any employees who may have exhausted their 12 weeks of FMLA leave in 2009.  Even employees who exhausted their 12 weeks as recently as December 31 will automatically be eligible for FMLA leave as of January 1 so long as they worked 1,250 hours in the prior twelve month period and otherwise meet the eligibility requirements.

Employers that permit their employees to use 12 weeks of FMLA leave per calendar year should give serious thought to converting to a rolling 12-month accrual basis rolling backward from the date an employee uses any FMLA leave.  Note, however, that under the Revised Regulations  (Section 825.200(d)(1)) an employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.  During the running of the 60-day notice period, an employee needing FMLA leave may use the option providing the most beneficial outcome to that employee.  At the conclusion of the 60-day period, the employer may implement the new method of calculation.

Employers requiring assistance with revising their policies to reflect a change to a rolling accrual method should consult their counsel. 

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As anticipated, cn December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act.  See my prior post concerning the new legislation. 

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On December 2, 2009, the House by voice vote gave final congressional approval to the Airline Flight Crew Technical Corrections Act, which would amend the FMLA to permit airline pilots and flight attendants to qualify for leave.  The measure has been sent to President Obama, who is expected to sign it.  The Act is similar to a bill that passed the House earlier this year. 

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Recently, the Department of Labor (DOL) issued a Question and Answer publication concerning Pandemic Flu and the FMLA.  While the publication does not change the analysis concerning whether an employee is eligible for FMLA leave, it suggests that the DOL is evaluating whether the current FMLA regulations need to be amended to address a severe influenza pandemic. 

Of course, should the regulations be amended, I will update this blog immediately. 

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You may have read about Alexis Hutchinson, who is an Army cook and single mother who is facing potential criminal charges for refusing to deploy to Afghanistan because she did not have child care for her ten-month-old son.  She claims that her superiors told her to put her son in foster care.

This is one of the scenarios that the National Defense Authorization Act of 2010 is designed to address.  Under the Fiscal Year 2010 National Defense Authorization Act, Specialist Hutchinson's immediate family members would be eligible for exigency leave of up to 12 weeks to make child care and other related arrangements for Specialist Hutchinson's deployment.  Under the recent Act, exigency leave is now available to family members of active duty service members in the Armed Forces who are deployed to a foreign country.  Previously, this exigency leave was only available to family members of National Guard members and reservists. 

Employers should be proactive about notifying their employees about the potential military leave options available to them.  At a minimum, they should ensure that they update their FMLA handbook policies and postings to include information about military leave.

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Guest Post: by Erin Fitzgerald, Esquire

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 ("GINA") into law.  Title II of GINA, which goes into effect on November 21, 2009, covers private, state, and local government employers with 15 or more employees, as well as employment agencies and labor organizations.  Title II restricts the deliberate acquisition of genetic information by covered entities, prohibits the use of genetic information in employment decision-making, requires that genetic information be kept confidential, and places limits on disclosure of genetic information.  However, several exceptions apply to an employer's acquisition and disclosure of information under the FMLA. 

GINA defines genetic information as information regarding:

1. an individual's genetic tests;
2. the genetic tests of an individual's family members;
3. the manifestation of disease or disorder in family members of the individual (family medical history);
4. an individual's request for or receipt of genetic services or the participation in clinical research that includes genetic services by the individual or a family member of the individual; and
5. the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Although GINA generally prohibits employers from acquiring genetic information of an employee (including family medical history), the Act provides that the prohibition does not apply to the extent such a disclosure is made inadvertently by an employee when submitting a certification requested under the FMLA.  For example, an individual requesting FMLA leave to care for a seriously ill relative may disclose family and medical history when completing the certification required by the FMLA.  An employer who receives that genetic information would not be in violation of GINA.  However, the genetic information disclosed is still subject to GINA' s confidentiality requirements, and must be placed in a file separate from the employee's personnel file.  The Americans with Disabilities Act ("ADA") also requires that employees' medical records be maintained in a file separate from the personnel file, and an employer may maintain GINA-protected information in the same file in which it maintains an employee's medical information under the ADA.   

A second exception permits disclosure of genetic information when that disclosure is made in support of an employee's compliance with the certification provision of Section 103 of the FMLA.  For instance, if an employee's supervisor receives a request for FMLA leave from an employee who wants to care for a family member with serious health condition, that supervisor may forward that request to individuals with the need to know the information because of responsibilities relating to handling FMLA requests. 

Employers should become familiar with GINA's requirements to ensure that they are not requesting, maintaining, or disclosing genetic information in violation of the Act. 

Erin Fitzgerald is an Attorney in the Labor and Employment Department of Fox Rothschild LLP.  

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Happy Halloween!

While trick-or-treating with my children tonight, I saw several people dressed as the swine flu, replete with pig noses, bathrobes, and TAMIFLU.  Swine flu, or more accurately the H1N1 virus, has certainly captured the nation's attention.  Recently, President Obama declared the H1N1 flu outbreak a national emergency.  Despite this, swine flu vaccine is still in short supply, and the number of H1N1 flu cases is expected to rise.

Many employers have implemented H1N1 preparedness plans that require their employees to stay home if the employees or their family members have the H1N1 virus.  Employers need to ensure that they remember their obligations under the FMLA when requiring, or granting, leave time in connection with the H1N1 virus.  Earlier this year, I discussed in a post whether swine flu cases qualify for FMLA leave.  If an employee or an employee's family member with the H1N1 virus has a serious health condition within the meaning of the FMLA, and the employee otherwise qualifies for FMLA leave, covered employers need to ensure that they provide the employee with the required FMLA notices, make available up to 12 weeks of FMLA leave, reinstate the employee at the conclusion of the leave, and avoid retaliation.  In addition, employers should ensure that their  H1N1 preparedness plans provide that any leave due to swine flu runs concurrently with FMLA leave for qualifying employees. 

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