U.S. Supreme Court To Review Whether States Have Immunity To the FMLA's Self-Care Leave Provision

On June 27, 2011, the United States Supreme Court granted a state employee's petition to review a ruling by the Fourth Circuit Court of Appeals denying his FMLA claim.  In Coleman v. Maryland Ct. of Appeals, the Court will consider whether states enjoy Eleventh Amendment immunity from suit under the FMLA's self-care leave provision. 

The Supreme Court previously ruled in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), that state employers are constitutionally subject to the FMLA provision concerning leave to care for a family member with a serious health condition.  In denying Coleman's FMLA claim, the Fourth Circuit ruled that courts must analyze each FMLA provision separately, and that states have Eleventh Amendment immunity to FMLA claims premised upon the Act's self-care provision.  While the Fourth Circuit recognized that Congress intended to abrogate states' immunity when it passed the provision, it held that the provision was not a valid exercise of Congress' power to enforce the Fourteenth Amendment.  The Fourth Circuit also noted that there is no split in the circuits; every federal circuit court to have considered the issue has held that states are immune from the Act's self-care leave provision.



Federal Court in Pennsylvania Upholds Termination of Employee on FMLA Leave Who Took A Trip To Cancun In Violation of Company Policy

On May 19, 2011,  the United States District Court for the Western District of Pennsylvania held in Pellegrino v. Communication Workers of America that an employer's enforcement of its rule requiring that employees not travel outside the immediate vicinity of their homes (with some limited exceptions, including for medical treatment) during paid leave did not violate the FMLA.

The plaintiff, Denise Pellegrino, was on an approved FMLA leave for a hysterectomy surgery on October 2, 2008.  On October 16, 2008, while on leave, plaintiff traveled to Cancun for one week.  The plaintiff was terminated for violating company policy by traveling to Cancun.  The plaintiff sued, alleging that the company violated the FMLA by interfering with her FMLA rights.

In holding that the company's application of its rule prohibiting travel did not violate the FMLA, the court explained that "the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of the FMLA leave, so long as these policies do not conflict with or diminish the rights provided by the FMLA."   The court further explained that the policy was designed to curb abuses, and did  not interfere with or discourage employees from exercising their FMLA rights.

Employers that would consider adopting a similar policy should ensure that the policy would not interfere with or discourage employees from exercising their FMLA rights, and that employees have clear notice of the policy before it is enforced. 




EEOC Issues Regulations for ADAAA

On March 24, 2011, the Equal Employment Opportunity Commission issued its Final Regulations to the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA").  Most significantly, the Final Regulations tend to simplify the determination of who is disabled, and and make it easier for employees to establish that they are disabled within the meaning of the Americans with Disabilities Act (the "ADA").   

While not every serious health condition that may qualify an employee for leave under the FMLA also qualifies as a disability within the meaning of the ADAAA, the ADAAA makes it easier for employees to establish that they qualify as covered under both Acts.  Often, this issue arises when an employee exhausts his or her leave under the FMLA, and then requests additional leave time as a reasonable accommodation under the ADA.  Because the ADAAA expands significantly the scope of who will be considered disabled under the ADA, employers should tread carefully when evaluating whether an employee qualifies for additional leave time.


Reminder to Employers: Include GINA Safe Harbor Language in FMLA Certification Forms

Guest Post: by Erin Fitzgerald, Esquire

In a November 17, 2009, blog entry, I advised that although the Genetic Information Nondiscrimination Act of 2008 ("GINA") generally prohibits employers from acquiring genetic information from 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.

Since that blog entry, the Equal Employment Opportunity Commission has issued final regulations on Title II of GINA. Included in the regulations is a safe harbor provision, which addresses situations when an employer is lawfully requesting medical information. Specifically, the regulations provide that if an employer informs the individual requesting leave under the FMLA and the health care provider who is completing the FMLA certification not to provide genetic information, any acquisition of genetic information from the certification will be deemed inadvertent under the Act.

The regulations provide the following suggested language to use in order to be protected by the safe harbor provision:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. `Genetic information' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

While GINA includes an exception for employers who request medical information in a FMLA certification and who inadvertently receive such genetic information, it would be prudent to include the safe harbor language as stated in the regulations when sending out any certifications under the FMLA. We recommend that all FMLA certification forms be revised to include the safe harbor language.

Good Advice Regarding FMLA Information on the Internet

I recently read an article advising employers to beware where they get their FMLA information.  Apparently, there are some Internet resources that are not entirely accurate. 

Thankfully, this blog was on their list of favorite free FMLA resources.  Please also refer to the other resources listed in the article if you don't see what you are looking for here. 

Ninth Circuit Takes on Definition of "Successor-in-Interest" Under FMLA

In an opinion issued on September 27, 2010, the Ninth Circuit tackled the question of when a new employer is a successor-in-interest to a former employer under the FMLA.  This is a critical issue, because if an employee goes to work for a company deemed to be a successor-in-interest under the FMLA, the employee need not accrue an additional 12 months of tenure to become eligible for leave under the FMLA. 

In Sullivan v. Dollar Tree Stores, Inc., the plaintiff was employed by Factory 2-U before being hired by Dollar Tree, which bought the lease to the building where she worked and opened its own store there after Factory 2-U went bankrupt.  Dollar Tree did not purchase any assets of Factory 2-U other than the leaseholds. 

Within a year of becoming employed by Dollar Tree, the plaintiff sought leave under the FMLA, which was denied, and she resigned.  She later was reinstated by Dollar Tree, but filed suit against it, seeking her lost wages during the period that her resignation was in effect. 

The district court held that Dollar Tree was not a successor-in-interest to Factory 2-U and granted summary judgment to Dollar Tree.  The Ninth Circuit affirmed.  Applying the eight factors established by the Department of Labor to determine whether a company is a successor-in-interest under the law, the court concluded that, while some factors slightly suggested successorship, on balance successorship had not been established.  In particular, the court noted that when it opened its store Dollar Tree brought in many of its own employees, trained employees in its own methods, changed the plaintiff's job title and responsibilities, and brought in all new inventory. 

The Ninth Circuit joins only a handful of federal courts that have addressed this issue.  When merging with or purchasing the assets of another company, employers should be aware that they may become a succesor-in-interest to certain employees of the former employer.

Third Circuit Panel Rules That Lay Testimony Can Create Fact Issue In FMLA Cases

My law partner, Wayne Pinkstone, recently was quoted in Inside Counsel regarding the recent decision of the United States Court of Appeals for the Third Circuit in Schaar v. Lehigh Valley Health Services, in which the court held that lay testimony in conjunction with expert testimony can create a material issue of fact regarding the length of an employee's incapacitation. 

Significantly, this decision may make an employee's self-diagnosis relevant to the issue of how long he or she may be incapacitated.  Employers should be careful not to dismiss out-of-hand employees' comments regarding how long their anticipated leave may run, and ensure that they follow their policies when responding to requests for FMLA leave.


Recent Webinar Addresses Proposed Legislation That Would Expand the Scope of the FMLA

As we kick off the Summer of 2010, this is a great opportunity for employers to brush up on some recent developments under the FMLA through a free, previously recorded webinar.   

Recently, my law partner, James A. Matthews, III, and I presented a webinar for in-house counsel entitled The Obama Administation After Year One: The Evolving Legal Landscape of the Workplace.  Among other recent developments, I discussed proposed legislation that would expand the scope of the FMLA.  Some of the proposed changes include extending leave to employees to care for a domestic partner and/or same sex spouse with a serious health condition; making leave available to employees in connection with domestic violence issues; and reducing the number of employees that an employer must employ to be a covered employer from 50 to 25. 

I recommend that employers listen to the webinar to stay abreast of proposed changes to the FMLA.  Should any of the proposals become law, please check back here for a discussion of what the changes mean for employers. 

New GINA Case Highlights Need To Ensure Compliance with GINA When Requesting FMLA Certifications

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. 



Federal Health Care Law Provides for Breaks for Nursing Mothers

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. 

Answers To Frequently Asked Questions--Part Two

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. 

Answers To Some Frequently Asked Questions--Part One

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.

A Recent Case Holds Lessons for Employers Faced with Suspicious FMLA Leave Requests

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. 

Happy New Year--Time To Switch To A Rolling Twelve Month FMLA Period

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. 


President Obama Signs Into Law FMLA Amendment Permitting Airline Pilots and Flight Attendants To Qualify for FMLA Leave

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.