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

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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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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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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Today, in Erdman v. Nationwide Insurance Co., the United States Court of Appeals for the Third Circuit reversed summary judgment for the defendant on the plaintiff's FMLA interference and retaliation claims, holding that a reasonable jury could have concluded that the defendant miscalculated the plaintiff's hours worked when it determined that she did not meet the 1,250-hour threshold. 

To be eligible for leave under the FMLA, an employee must have worked at least 1,250 hours during the previous 12-month period.  In Erdman, the plaintiff initially requested to use her vacation time in August to prepare her child with Down Syndrome for school.  When her request was denied, she requested FMLA leave for the period of July 7 to August 29.  Approximately one month after she requested leave, but before she took any leave time, she was terminated after she used profanity during a telephone conversation that was monitored for quality control purposes.  The plaintiff alleged that the employer's motives for terminating her were pretextual, and that she was actually fired for requesting FMLA leave. 

The district court granted summary judgment to the employer on the FMLA claims on the grounds that the plaintiff had not met the 1,250-hour threshold to be eligible for leave under the FMLA.  In calculating the plaintiff's hours worked during the previous 12-month period, the district court declined to include certain hours that the plaintiff worked at home after the employer had advised her to simply "put in the hours that . . . you're supposed to put in and nothing more than that," and found that the employer could not have had constructive notice of those hours.  

Under the FMLA, all work that "the employer knows or has reason to believe . . . is being performed" counts toward the 1,250-hour threshold requirement.  See 29 C.F.R. Section 785.12.  Hours worked off-site or beyond an employee's schedule count if the employer "knows or has reason to believe that an employee is continuing to work extra hours."  See 29 C.F.R. Section 785.11.  Actual knowledge is not required; constructive knowledge will suffice. 

In Erdman, the Third Circuit found that a reasonable jury could conclude that, although the employer had communicated to the plaintiff that she would not be paid for any hours worked at home, she understood that she could continue to accrue "comp" time by working extra hours.  Moreover, the court concluded that her employer had actual and/or constructive notice that she was continuing to work from home until it explicitly prohibited her from working more than her regularly scheduled hours on February 10,2003.  Counting all of the hours that the plaintiff worked at home prior to February 10, 2003, the Third Circuit found that she had accumulated 1,282.25 total hours during the prior 12-month period. 

The Third Circuit also considered the defendant's argument that, because the plaintiff had never taken FMLA leave, she could not pursue a retaliation claim.  The defendant relied, in part, on the language of the statute, which provides that employers are prohibited from "discriminating against employees or prospective employees who have used FMLA leave."  See 29 C.F.R. Section 825.220(c) (emphasis added).  The Third Circuit held that there is no requirement that the employee "use" FMLA leave in order to bring a claim of retaliation; the employee need only have invoked his or her FMLA rights.  As such, the Third Circuit held that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee. 

The Erdman decision is instructive for several reasons.  First, it puts employers on notice that, if they have actual or constructive notice that an employee is working from home or otherwise putting in extra hours, those hours must be included for purposes of calculating the employee's eligibility for FMLA leave.  Broken down by week, an employee needs to work only approximately 24 hours per week to meet the 1,250-hour threshold.  If the calculation is close, prudent employers will err on the side of assuming that the employee is eligible for FMLA leave.  Second, the decision makes it clear that an employee need not use FMLA leave in order to preserve a retaliation claim; the employee need only request FMLA leave or otherwise invoke his or her FMLA rights in order to bring a retaliation claim.  Employers need to be aware of the significant risk that they will be faced with a retaliation claim if they terminate or otherwise take some adverse employment action against an employee who has invoked his or her FMLA rights, and there is some causal connection between the two events. 

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In Scobey v. Nucor Steel-Arkansas, 2009 U.S. App. LEXIS 19094 (8th Cir. Aug. 25, 2009), the United States Court of Appeals for the Eighth Circuit recently affirmed the dismissal on summary judgment of FMLA claims brought by an employee who allegedly notified his employer that he had a drinking problem, but did not initially request a leave of absence for treatment. 

The plaintiff worked in the defendant employer's steel mill for seven years.  Initially, he requested leave to attend the funeral of his former father-in-law.  The next day, he called the employer while intoxicated, and said that he was "done, through" and intended to resign.  On the following day, he spoke with his direct supervisor, told him that he had had a nervous breakdown, and hung up the telephone.  The supervisor had the impression that the plaintiff was intoxicated.  The plaintiff called the shift manager the same day and reported that, due to the death of his former father-in-law and some personal problems, he would not be back at work for a while.  He missed work the next two days for a total of four days. 

The next day, the plaintiff called another supervisor and told him that he could not recall the previous four days and needed help.  He subsequently treated with a physician, and notified the employer's HR manager that he had an alcohol problem and was depressed.  He received in-patient treatment for alcoholism and depression, and was later discharged to outpatient care.  While the employer did not designate the leave time as FMLA leave, it paid the plaintiff for his leave of absence.

Subsequently, the plaintiff was suspended for three days and demoted for having had four consecutive, unexcused absences.  He later stopped reporting for work, and sued his employer for FMLA interference and retaliation.  The district court granted the employer's motion for summary judgment on the ground that the plaintiff failed to provide notice that his 4-day absence was covered by the FMLA. 

In evaluating the plaintiff's claims, the Eighth Circuit noted that, under the regulations in effect at the time of the leave of absence and prior case law, the plaintiff needed to provide notice of the need for FMLA leave.  (Employers should note that the current language of 29 C.F.R. Section 825.303(b), which became effective on January 16, 2009, is more restrictive, and requires employees to specifically reference either the qualifying reason for leave or the need for FMLA leave.)  Specifically, the plaintiff needed to provide information to his employer to suggest that his health condition could be serious. 

The Eighth Circuit held that the plaintiff did not provide notice of the need for FMLA leave with respect to his four -day absence.  The court explained that initially the plaintiff requested time off to attend a funeral, which is not protected by the FMLA.  Later, he called while intoxicated and said that he wanted to resign, which was not notice that he needed time off from work.  Moreover, the court explained that, while absences for treatment for alcoholism are covered by the FMLA, absences caused by the use of alcohol are not.  The Eighth Circuit's discussion of the "constructive notice" doctrine is also instructive. 

While employers need to be proactive about designating leaves of absence as FMLA-eligible where employees notify them of the need for time off due to a serious health condition, the FMLA does not require them to be mind readers.  Prudent employers will document the reasons provided by employees for their absences from work, and offer FMLA leave as soon as it becomes apparent that an employee is eligible for such leave.

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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. 

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As children and young adults return to school, it's time to prepare for flu season again. 

On August 19, 2009, the U.S. Department of Health and Human Services' Center for Disease Control and Prevention (CDC), with input from the U.S. Department of Homeland Security, issued updated guidance for businesses and employers to plan and respond to the 2009-10 flu season. 

In its guidance, the CDC recommends that sick employees stay at home.  Consistent with this recommendation, the CDC suggests that employers should develop flexible leave policies to allow workers to stay home to care for themselves and sick family members, or to care for children whose schools are closed due to influenza.  The CDC advises employers to expect that employees with the flu will be out of work for 3 to 5 days in most cases, and that students in schools that are dismissed will be out of school for at least 5 to 7 calendar days. 

As I discussed in a prior posting, cases of H1N1 flu may rise to the level of a serious health condition, as defined in the FMLA.  Accordingly, employers need to be prepared to be proactive about offering FMLA leave to employees who qualify. 

As the CDC recommends in its guidance, now is the perfect time for employers to review their existing leave policies to ensure that they comply in all respects with state and federal law.  Prudent employers also will develop a flexible influenza pandemic plan to respond promptly should H1N1 or other serious flu cases arise in the workplace or their community. 

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On July 9th, Senator Patty Murray (D-Wash) and a group of five other bi-partisan senators introduced legislation--The Airline Flight Crew Technical Corrections Act--that would permit flight attendants and pilots to qualify for leave under the FMLA.  The proposed legislation is similar to H.R. 912, which I discussed in a prior blog, and which passed the House by voice vote on February 9th. 

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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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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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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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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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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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