Posted on January 22, 2010 by Catherine Barbieri

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. 

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Posted on December 31, 2009 by Catherine Barbieri

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. 

 

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Posted on December 22, 2009 by Catherine Barbieri

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. 

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Posted on December 9, 2009 by Catherine Barbieri

President Obama Expected to Sign FMLA Amendment To Permit Airline Pilots and Flight Attendants To Qualify for FMLA Leave

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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Posted on November 20, 2009 by Catherine Barbieri

DOL Issues Question and Answer Publication Concerning Pandemic Flu and FMLA

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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Posted on November 17, 2009 by Catherine Barbieri

The FMLA Military Leave Amendments in Action

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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Posted on November 17, 2009 by Catherine Barbieri

Do Employers Run Afoul of the Genetic Information Nondiscrimination Act When Requiring FMLA Certifications?

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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Posted on October 31, 2009 by Catherine Barbieri

Employers Need To Remember Their FMLA Obligations When Faced With Absences Due To Swine Flu

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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Posted on October 29, 2009 by Catherine Barbieri

The Fiscal Year 2010 National Defense Authorization Act Expands Military Leave Under the FMLA ... Again

Yesterday, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which provides, in part, for additional exigency and caregiver leave provisions for military families.  The Act amends the military leave provisions of the FMLA, which were adopted in 2008.  The changes took effect immediately.

The exigency leave benefit (of up to 12 weeks) now will be available to family members of active duty service members in the Armed Forces who are deployed to a foreign country.  Formerly, this exigency leave was available only to family members of National Guard members and reservists. 

In addition, under the Act, the caregiver leave benefit (of up to 26 weeks) now includes leave to take care of a child, spouse, parent or next of kin who (1) is a veteran, (2) is undergoing medical treatment, recuperation or therapy for serious injury or illness, and (3) was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date of treatment.  The medical treatment must be related to a serious injury or illness incurred while in the line of duty on active duty in the Armed Forces or which existed before the beginning of military service, and which was aggravated by service in the line of duty while on active duty. 

Employers should revise their FMLA policies and notices to reflect these new amendments and comply immediately. 

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Posted on October 22, 2009 by Catherine Barbieri

Employers Beware: Granting An Ineligible Employee FMLA Leave May Bar An Employer From Later Asserting A Defense of Non-Coverage

A federal court recently considered whether an employer that granted an employee's request for FMLA leave was later equitably estopped from arguing that the employee was ineligible for leave under the FMLA because the employee had relied on the leave designation to his detriment.  

In Harvey v. Wal-Mart Louisiana LLC, 2009 WL 3171099 (W.D. La. 2009), the plaintiff suffered from degenerative arthritis in his lower back.  He took two leaves of absence in 2005.  The first leave from February 22 to April 12 was due to back pain, and the plaintiff wanted to evaluate whether to have surgery.  The plaintiff decided not to have surgery, and his leave was characterized as a "personal", not medical, leave.  The second leave began on September 1 and was scheduled to end on November 19.  The plaintiff requested to return to work early, but his request was denied.  He took the second leave to career his 38-year-old daughter, who was suffering from intracranial hypertension, which inhibited her ability to care for her two minor children.  The leave was counted as FMLA leave, and approved as such by the plaintiff's supervisor.  Despite this, the plaintiff was not restored to his prior position for six weeks following his leave, and he sought back pay for the break in service, which was denied by his employer. 

The plaintiff filed suit against Wal-Mart alleging, among other things, that it violated the FMLA by failing to restore him immediately to his prior position following his second leave of absence.  Wal-Mart argued in its motion for summary judgment that the plaintiff was not eligible for FMLA leave for his second leave of absence because he had not worked 1,250 hours during the 12-month period prior to his leave, and that the reason for his leave--to care for his grown daughter and her children--did not qualify for FMLA leave.  The plaintiff countered, in part, that Wal-Mart was equitably estopped from asserting a defense of non-coverage because it had previously approved his second leave of absence as FMLA leave and he had relied on the designation to his detriment. 

The Harvey court held that Wal-Mart was not equitably estopped from asserting the plaintiff's non-coverage as a defense.  In so holding, the court relied upon the fact that the plaintiff was not aware until after his second leave of absence that his leave had been designated as FMLA leave.  Accordingly, the court held that he did not rely upon any representation by Wal-Mart in deciding to take his second leave of absence.  Moreover, the court held that the fact that Wal-Mart did not approve the plaintiff as an "eligible employee" under the FMLA, and only counted the leave as FMLA leave, further required a finding that Wal-Mart could assert a defense of non-coverage.  Ultimately, the court held that the plaintiff had not established that he had worked 1,250 hours in the 12-month period prior to his second leave of absence, and he therefore had no rights under the FMLA.

This case is instructive not so much for its holding, as for its discussion of the instances in which equitable estoppel would apply and bar an employer from asserting a defense of non-coverage.  If the plaintiff had been aware prior to or during his second leave of absence that his leave had been designated as FMLA leave, and that he was determined to be an eligible employee under the FMLA, and he did not return to work as a result, this case suggests that Wal-Mart would have been barred from subsequently arguing that the plaintiff was not eligible for FMLA leave.  Employers need to ensure that, when confronted with a request for potentially FMLA-qualifying leave, they assess carefully whether the employee is eligible for leave, and whether the reason for the leave is FMLA-qualifying.  If not, they may be barred from subsequently arguing in a lawsuit that the employee was ineligible for FMLA leave.    

 

 

 

 

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