Posted on June 30, 2009 by Catherine Barbieri

Requesting Doctors' Notes for Intermittent Leave Absences Within Three Days Can Get Employers Into Hot Water

Employers continue to be frustrated with the limited options they have to curb apparent abuses of intermittent FMLA leave.  One of the most common scenarios involves an employee who is certified as eligible for intermittent leave, has repeated absences, and takes the position without documentation that the absences qualify as intermittent FMLA leave.  To counteract this fact pattern, some employers require employees to submit doctors' notes confirming that the absences in question are covered by the FMLA. 

A recent opinion from the United States District Court for the Southern District of Ohio calls into question the practice of requesting doctors' notes within a short timeframe to establish that absences are covered by the FMLA.  In Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009), the plaintiff presented a certification from her health care provider and was approved for intermittent FMLA leave due to her chronic major depressive disorder and dysthymic disorder.  The defendant employer used a point system that governed not only employee attendance, but other infractions and performance-related issues.  Under the point system, an employee received a written notification once she accrued four points.  Once she accumulated five points, she received a written warning and, at six points, she was subject to termination.  The plaintiff received several notifications that she had reached the six-point level due to her absences.  Under the system, the points could be removed for FMLA-related absences if the plaintiff brought in a doctor's excuse, even if the note excused several absences retroactively. 

After accumulating 6.75 points, the plaintiff was advised on May 28, 2006 that she would be terminated unless by May 31, 2006 she reduced her point level below six by providing a doctor's verification that at least some of her absences were the result of her medical condition.  The plaintiff told her supervisor that she would not be able to obtain the necessary documentation within three days.  The plaintiff stopped reporting to work after May 31, 2006, and was terminated. 

The plaintiff sued, in part, under the FMLA, alleging that the defendant interfered with her FMLA rights.  The court denied the defendant's motion for summary judgment as to her FMLA claim.  The court held that, while the defendant "clearly was entitled to some form of medical documentation for [the plaintiff's] absence even through she had been approved for FMLA leave . . . and had verbally informed her supervisor that her absences were related to her condition," the FMLA requires only that an employee provide medical documentation in a timely manner.  While the court did not require that the plaintiff be afforded 15 days to provide the doctors' notes (as would be required for a certification from a health care provider), it held that she needed to be provided with a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor.  The court further held that allowing the plaintiff only three days to obtain medical documentation for her absences was unreasonable as a matter of law. 

While this case appears to sanction the practice of requiring doctor's notes to substantiate the need for intermittent FMLA leave when those notes are requested pursuant to company policy, it also teaches that employers need to provide employees with a reasonable time period in which to comply with the request.  Given the court's reliance on the 15-day certification period as a patently reasonable timeframe, prudent employers would permit employees to submit doctors' notes within 15 days to avoid termination pursuant to company attendance policy. 

 

 

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Posted on June 23, 2009 by Catherine Barbieri

Seventh Circuit Holds That Termination of Employee Whose Performance Deficiencies Are Discovered During His FMLA Leave Does Not Violate FMLA

It's the age-old story: an employee goes on FMLA leave, and the employer discovers that the employee has serious performance problems.  More often than not, the employer makes the discovery when it hires a temporary employee to perform the employee's duties in her absence. 

A recent case tackled this precise scenario.  In Cracco v. Vitran Express, the United States Court of Appeals for the Seventh Circuit held that an employer that terminated an employee for performance problems that it discovered while the employee was on FMLA leave did not violate the FMLA.  The employee, who was a manager for a trucking company, requested and was granted FMLA leave for his own serious health condition.  During his absence, the company hired temporary replacements, who uncovered numerous problems in the manager's department.  A subsequent investigation revealed that the manager had deliberately disguised late and damaged deliveries.  On the day that the manager was to return from FMLA leave, the company terminated his employment. 

The manager sued the company, alleging retaliation and interference with his FMLA rights.  The district court granted the company's motion for summary judgment.  The Seventh Circuit affirmed.  With respect to the retaliation claim, the court held that there was no causal link between the request for leave and the termination.  Moreover, the court explained that the fact that the leave permitted the employer to discover the manager's performance deficiencies could not be a bar to its ability to terminate the manager.  The court also held that the manager failed to establish a prima facie case under the indirect method of establishing retaliation, because he failed to prove that he met his employer's legitimate job expectations at the time he was terminated.  As to the interference claim, the court explained that an employee is not entitled to reinstatement if the employer can present evidence to show that the the employee would not have been entitled to his position even if he had not taken leave.

In a recent blog, I discussed the circumstances in which an employer can terminate an employee who has requested FMLA leave.  The Cracco decision reinforces, in particular, the fact that documentation is key to defending the termination of an employee who is on FMLA leave.  The Seventh Circuit relied heavily on the fact that the company presented sufficient evidence, after a thorough investigation, of the manager's misconduct.  Employers would be wise to ensure that their reasoning for terminating an employee on FMLA leave, and their documentation of the basis for the decision, are iron-clad.

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Posted on May 31, 2009 by Catherine Barbieri

Proposed Domestic Violence Leave Act Would Expand the Scope of the FMLA

Recently, Rep. Lynn Woolsey (D-CA) introduced the Domestic Violence Leave Act (H.R. 2515).  The Act would amend the FMLA to permit victims of domestic violence, sexual assault, and stalking (as those terms are defined in the Violence Against Women Act) and their family members to take leave as a result of the violence.   Specifically, the Act would permit a qualified employee to take leave to seek medical attention, legal assistance, or psychological counseling, or to attend support groups, as a result of domestic violence, sexual assault, or stalking directed at the employee or a family member.  In addition, the Act would permit leave to participate in safety planning or other activities necessitated by domestic violence, sexual assault, or stalking.  The employer could require a certification that the employee requires leave for the reasons outlined in the Act.  Court or police records, or other records substantiating the domestic violence, sexual assault, or stalking, would meet the certification requirement.

If the legislation is signed into law, it would not be the first time that leave unrelated to medical care or childbirth would be made available to eligible employees.  Under the amendments to the FMLA occasioned by the National Defense Authorization Act, eligible employees are entitled to up to 12 weeks of leave due to "any qualifying exigency" arising out of the fact the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation.  Under those amendments, qualified employees can take leave to meet with legal counsel, make childcare arrangements, and take other similar actions necessary to deal with the family member's active duty status.

The Domestic Violence Leave Act also would amend the FMLA by adding the phrase "or domestic partner" wherever the  word "spouse" appears in the Act.  This change previously was proposed in H.R. 2132, which I discussed in my post on May 12, 2009, and which has been referred to Committee.   We should anticipate that any upcoming bills to amend the FMLA will include a provision expanding the definition of "family member" to include a domestic partner. 

 

 

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Posted on May 20, 2009 by Catherine Barbieri

Focus on Revised FMLA Regulations: When Do Employers Count A Holiday As FMLA Leave?

With the Memorial Day holiday approaching, I am being asked by employers whether the holiday counts against the 12-week FMLA leave entitlement of employees who have requested FMLA leave.  

The answer depends upon the length of the leave.  Under the Revised FMLA Regulations that went into effect earlier this year (see 29 C.F.R. Section 825.200(h)), if an employee takes a full workweek of FMLA leave during which a paid holiday falls, the holiday counts against the employee's FMLA entitlement.  If the employee takes FMLA leave in increments of less than a full workweek, and a holiday falls on a leave day, that day does not count against the employee's 12-week FMLA leave entitlement. 

For example, if an employee requires FMLA leave for the full week of Monday, May 25, through Friday, May 29, 2009, for surgery due to a serious health condition, Memorial Day will count as an FMLA leave day.  However, if the employee only requires FMLA leave for Tuesday, May 26, and Wednesday, May 27, 2009, for continuing treatment related to a serious health condition, Memorial Day would not be counted against the employee's FMLA leave entitlement. 

Employers should keep these rules in mind as the other summer holidays--Fourth of July and Labor Day--present similar scenarios.

 

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Posted on May 12, 2009 by Catherine Barbieri

Proposed Legislation Would Make FMLA Leave Available to Care for a Domestic Partner, Same-Sex Spouse and Other Extended Family Members

On April 28, 2009, Representative Carolyn Maloney of New York introduced H.R. 2132, entitled the Family and Medical Leave Inclusion Act, which would amend the FMLA to permit leave to care for  same-sex spouses, domestic partners and other extended family members.  Specifically, the Act would permit leave to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent with a serious health condition. 

Currently, the FMLA permits eligible employees to take family leave to care for a spouse, minor child, adult child who is incapable of self-care, or parent (not in-law) with a serious health condition.  Under the federal Defense of Marriage Act, the term "spouse" is defined as a spouse of the opposite sex.  The proposed Act would define spouse to include a same-sex spouse as determined under applicable state law.  You can access the full text of the proposed Act here

Although the proposed Act would not provide employees with additional leave time, it would expand significantly the instances in which eligible employees could invoke their FMLA rights. 

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Posted on May 4, 2009 by Catherine Barbieri

The Catch-22 of Timing: Can You Still Terminate An Employee Who Has Requested FMLA Leave?

An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility.  Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?  

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee.  Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't.  The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status.  However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation.  If the company terminated her following her FMLA leave, she also could claim retaliation.  What should an employer do in this situation?

1.  Ensure that the reason for termination is as iron-clad as possible.   The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations.  In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation.  Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims.  Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2.  Document, document, document.  Document the policy violation clearly as soon as it occurs.  If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination. 

3.  Be decent.  We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way.  The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination.  The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee.  In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month.  (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month).  Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis.  By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.   

(If you know someone who would benefit from this Blog, please pass it along.)

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Posted on April 28, 2009 by Catherine Barbieri

Do Swine Flu Cases Qualify for FMLA Leave?

Yesterday, the World Health Organization raised the worldwide pandemic alert level to Phase 4 in response to the growing number of international cases of swine flu. The CDC is reporting that there are 64 laboratory-confirmed cases of the swine flu in the United States.

With the number of suspected swine flu cases in the United States continuing to rise, there will be employees who will be requesting FMLA leave because they have or are suspected of having swine flu, or need to care for a family member with an actual or suspected case of swine flu.   Does swine flu qualify as a serious health condition under the FMLA?

The swine flu may be sufficiently serious to constitute a serious health condition.  Under the Revised Regulations, a serious health condition must involve: (1) inpatient care in a hospital or medical care facility, or (2) continuing treatment by a health care provider.  To qualify as "continuing treatment", the employee must have a period of incapacity of more than three consecutive, full calendar days.  In addition, the employee must receive subsequent treatment, or have a period of incapacity relating to the same condition, that also involves treatment two or more times within thirty days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider or under the orders or referral or a health care provider, or treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment.  A "regimen of continuing treatment" includes a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition. 

While the run-of-the-mill flu often does not meet the definition of a serious health condition (see 29 C.F.R. Section 825.113(d)), courts have held that the flu may qualify for FMLA leave if the condition otherwise meets the definition of a serious health condition.  See, e.g., Miller v. AT & T Corporation, 250 F.3d 820 (4th Cir. 2001).  Given the current press concerning the swine flu, one could envision a scenario in which an employee is hospitalized as a result of the swine flu, and/or is absent from work for more than three consecutive days, and treating with a physician while taking anti-viral medications. 

As always, employers are encouraged to require the employee requesting FMLA leave to submit a completed Certification of Health Care Provider for Employee's Serious Health Condition, or Certification of Health Care Provider for Family Member's Serious Health Condition, as appropriate. 

 

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Posted on April 6, 2009 by Catherine Barbieri

Proposed Legislation to Extend Paid Family Leave to Federal Employees: Are Private Employers Next?

Congress has proposed legislation that would make four of the twelve weeks of parental leave available under the FMLA for the birth or adoption of a child paid for federal employees.  There are two proposals currently pending--S. 354 and H.R. 626. 

Some have predicted that paid family leave for federal employees is a harbinger of legislation that would require private employers to provide paid leave. 

Read what I had to say about this recently in the National Law Journal.

Feel free to comment.

If you know someone who would benefit from this blog, please forward this to them.  Thank you.

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Posted on March 10, 2009 by Catherine Barbieri

Proceed With Caution: Laying Off Employees On FMLA Leave

It's something no employer wants to do, but layoffs have become a reality in these stark economic times. 

There is a fair amount of uncertainty among employers about whether they may lay off employees while the employees are on leave under the Family and Medical Leave Act.  Generally, an employee on FMLA leave (other than a key employee who receives the appropriate notification) must be reinstated to the same or an equivalent position at the conclusion of his or her FMLA leave.  Under the Revised FMLA Regulations, and the prior Regulations, an employee whose position is eliminated, and would have been eliminated regardless of his or her FMLA leave status, need not be restored to the same or an equivalent position at the conclusion of FMLA leave.  The employer's obligations to continue FMLA leave, maintain group health plan benefits, and restore the employee cease when the employee is laid off, provided the employer has no continuing obligation under a collective bargaining agreement or otherwise.  The employer has the burden of proving that the employee would have been laid off during the FMLA leave and therefore is not entitled to restoration. 

Of course, the position must actually be eliminated--not filled by the person who was filling the role temporarily while the incumbent was on leave or reinstated within a week of notifying the employee on leave that the position had been eliminated, etc. 

Employers should proceed with caution when laying off employees on FMLA leave.  Employers who are unable to establish that an employee who is not reinstated following FMLA leave would have been laid off during the leave face potential claims of interference with FMLA rights and retaliation. 

See Section 825.216 for the applicable Regulation

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Posted on February 11, 2009 by Catherine Barbieri

House Passes Bill for Second Time to Cover Airline Crews

On February 9, 2009, the House passed the Airline Flight Crew Family and Medical Leave Act (H.R. 912), which  would make it easier for flight attendants and pilots to meet the hours of service requirements of the FMLA.  The measure aims to close a loophole that reportedly excludes more than 200,000 flight attendants and pilots from FMLA coverage. 

Under the FMLA, to qualify for leave employees must have worked at least 1,250 hours in the 12 months preceding the leave.  Currently, hours spent by airline employees in flight count towards the hours of service requirement, but hours spent on the job between flights or on mandatory standby do not.  Under the House bill, a flight attendant or pilot would meet the hours of service requirement if he or she worked or was paid for 60% of the "applicable monthly guarantee", or the equivalent annualized over the preceding 12-month period, and for a minimum of 504 hours during the same period.  An "applicable monthly guarantee" is the time employers schedule flight crews, including time spent on the job between flights or on mandatory standby.  Under the bill, the Secretary of Labor would issue regulations providing a method of calculating leave for airline flight crews.

The House passed a similar bill in May, 2008, but the Senate did not act on it before Congress adjourned.  A similar bill is expected to be introduced by Senator Patty Murray (D-Wash). 

 

 

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