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. 

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. 

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.    





U.S. Office of Professional Management Issues Proposed Regulations Implementing Military Family Leave under the FMLA for Federal Employees

On August 26, 2009, the U.S. Office of Professional Management issued proposed regulations implementing military family leave under the FMLA  for federal employees.  The proposed regulations would provide eligible federal employees up to 26 administrative workweeks of leave under the FMLA to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is injured in the line of duty while on active duty; amend the rules on advancing sick leave; and make organizational changes to the existing sick leave and FMLA regulations to enhance reader understanding and administration of these programs. 

Comments must be received on or before October 26, 2009. 

See my prior postings for links to the Revised FMLA Regulations concerning military leave for employees of private employers. 





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. 



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. 


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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Focus on Revised FMLA Regulations: Can An Employer Request A Second Or Third Opinion Before the Opportunity To Cure?

Happy New Year!  We are closing in on the January 16, 2009 effective date of the Final Regulations, so I hope to cover a number of topics in the next few weeks. 
A client recently asked whether an employer must give an employee the opportunity to cure any deficiences in a medical certification pursuant to 29 C.F.R. Section 825.305(c) before the employer may seek a second or third opinion concerning the certification.  The Final Regulations do not address this issue.  According to the Final Regulations, an employee is required to provide a "complete and sufficient" certification to the employer if the employer's request otherwise complies with the applicable Final Regulations.  The employer shall advise an employee whenever the empoyer finds the certification incomplete or insufficient, and shall state in writing what additional information is needed to make the certification complete or sufficient.  A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.  A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or non-responsive.  The employer must provide the employee with seven calendar days (unless "not practicable under the particular circumstances despite the employee's good faith efforts") to cure any such deficiency.  See 29 C.F.R. Section 825.305(c). 
An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.  Pending receipt of the second medical opinion, the employee is provisionally entitled to the benefits of the FMLA, including maintenance of group health benefits.  See 29 C.F.R. Section 825.307(b).  If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a health care provider at the employer's expense.  The third opinion is final and binding.  See 29 C.F.R. Section 825.307(c).  Employers should refer to 29 C.F.R. Sections 825.307(b) and (c) concerning which health care providers may furnish a second or third opinion and, in the case of third opinions, the process for selecting the health care provider. 
Sections 825.305 and 825.307 of the Final Regulations are silent as to whether an employer must provide the employee with the 7-day opportunity to cure an insufficient or imcomplete certification before seeking a second opinion because the employer has reason to doubt the validity of the medical certification.  In many, if not most, cases, if an employer has reason to doubt the validity of the medical certification, the concern likely will arise from the fact that the initial medical certification is either incomplete or insufficient.  Given this, and given that an employer must provide the employee with an opportunity to cure if the certification is incomplete or insufficient, the best practice is to provide the opportunity to cure and then seek a second opinion if the employer still has concerns about the validity of the medical certification.  In addition, because the employer must pay for the second and third opinions, it would behoove the employer to attempt to resolve any issues with the certification through the 7-day opportunity to cure prior to expending monies on additional certifications. 
I suspect that we will see a Department of Labor opinion letter on this issue at some point. 
Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations. 

Focus on Revised FMLA Regulations: How Breaks in Service Affect Eligibility

As promised, I will be reporting on the specific revisions to the FMLA Regulations in individual blogs over the next few weeks in the hopes of getting everyone "up to speed" prior to the January 16, 2009 effective date.

With layoffs in the news, I thought that it would be an appropriate time to discuss breaks in service and their impact on FMLA eligibility.

Employees must have been employed with their employer for at least twelve months to be eligible for FMLA leave. Under the existing FMLA Regulations, the 12 months need not be consecutive, but there is no guidance in the current Regulations as to how long an employer is required to "look back" when the employee has had a break in service.

The Revised Regulations provide that, although the 12 months still need not be consecutive, employment prior to a continuous break in service of seven years or more does not need to be counted. In the proposed Regulations, the Department of Labor (DOL) had proposed a five year break-in-service period. However, the DOL received comments that any cap on the break in service was contrary to the admittedly ambiguous language of the Regulations, and that women who take extended leaves from the workforce to care for children or ill family members might be particularly adversely affected by the change. In extending the permissible gap to seven years, the DOL expressed its belief that it strikes an appropriate balance between the interests of employers, many of whom retain records for seven years, and employees.

There are two exceptions to the cap in the Revised Regulations for breaks in service resulting from an employee's fulfillment of National Guard or Reserve military service obligations, and breaks where a written agreement exists concerning the employer's intention to rehire the employee after the break in service.

The Revised Regulation also provides that employers may recognize employment prior to a continuous break in service of more than seven years when determining whether an employee has met the 12-month requirement. However, if the employer does so, it must do so uniformly with respect to all employees with similar breaks in service.

This new development means that employers will need to evaluate their record-keeping practices to ensure that they retain records of employment for all employees for at least seven years. Given that there is a two year statute of limitations on FMLA claims, and a three year statute of limitations when the claim is premised upon a willful violation, employers would be prudent to maintain records of the duration of their former employees' employment for ten years.

Please see my November 21, 2008 blog for a link to the full text of the Revised Regulations. The new Regulation concerning breaks in service can be found at Section 825.110 (eligible employee) of the Revised Regulations.