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.



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. 

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. 

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. 

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 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.



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. 


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.    





Third Circuit Holds That Hours Worked At Home Count Towards the 1,250-Hour Eligibility Threshold If the Employer Had Actual or Constructive Notice of the Hours Worked

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. 



Employers Need Not Be Mind Readers: Recent Case Law Provides Guidance Concerning What Constitutes Sufficient Notice of the Need for FMLA Leave

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.


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. 





As Students Return to School, CDC Issues Updated Guidance for Employers on H1N1 Flu

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. 




Senators Introduce Measure That Passed House To Allow Airline Crews To Take FMLA Leave

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. 

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. 



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.

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. 



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.


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.