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

Recently, I was interviewed in connection with an article about a new charge of discrimination filed under the Genetic Information Nondiscrimination Act (GINA) by a woman who had a double mastectomy because she carried a gene linked to breast cancer, and subsequently was terminated from her employment.  She is alleging that her employer was aware that she carried the gene in question, and terminated her as a result.  To date, approximately 80 charges of discrimination alleging GINA violations have been filed with the EEOC, although this appears to be the first case alleging termination in violation of GINA. 

During my interview, I noted that I advise employers to keep medical and personnel records separate to comply with the Americans with Disabilities Act and to avoid the potential for conflicts, and not to request more detailed information about an employee's medical condition than is required to substantiate the need for leave.  Of course, under the FMLA, employers are generally restricted to the areas of inquiry contained in the certification of health care provider form to be completed by the employee's, or the employee's family member's, health care provider. 

Please see my prior blog post (authored by Erin Fitzgerald, Esquire) regarding whether employers run afoul of GINA when requesting FMLA certifications. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One of the lesser known provisions of the recently adopted Patient Protection and Affordable Care Act protects nursing mothers.  Section 4207 of the Act amends Section 7 of the Fair Labor Standards Act to provide for breaks for female employees to express their milk, and requires employers to provide them with a location other than a restroom in which to do so. 

Specifically, employers are required to provide nursing mothers with reasonable breaks any time that they need to express milk for up to one year after their child's birth.  The breaks need not be paid if they occur during working time.  In addition, employers are required to provide nursing mothers with a place (other than a restroom) that is shielded from view and free from intrusion in which to express their milk. 

There is an exception for some smaller employers.  Employers with 50 or fewer employees need not comply with the provision if its requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.

While the provision does not impact any FMLA rights, it suggests that Congress may be open to expanding leave for childcare responsibilities beyond the 12 weeks of unpaid leave provided under the FMLA to care for a newborn or newly adopted or foster child. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I am frequently asked the following question:

Q.  May an employer contact any employee's physician in connection with a request for FMLA leave?

A.  Before making any contact with an employee's physician, an employer should require that the employee seeking leave for her own serious health condition or that of a family member have her physician complete a certification of health care provider form that is consistent with the Department of Labor's sample form.  Under the revised regulations issued in 2008, a representative of an employer may contact an employee's health care provider directly about a medical certification, but only to seek "authentication" or "clarification" of information on the form.  The employer's representative must be a health care provider, human resources professional, a leave administrator, or a management official, but the representative may not be the employee's direct supervisor.  Further, employers may not ask health care providers for additional information beyond that required by the certification form. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link