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

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

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

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

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




EEOC Issues Regulations for ADAAA

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

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


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.


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. 

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. 


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.    





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.


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. 


Proposed Legislation to Extend Paid Family Leave to Federal Employees: Are Private Employers Next?

Congress has proposed legislation that would make four of the twelve weeks of parental leave available under the FMLA for the birth or adoption of a child paid for federal employees.  There are two proposals currently pending--S. 354 and H.R. 626. 

Some have predicted that paid family leave for federal employees is a harbinger of legislation that would require private employers to provide paid leave. 

Read what I had to say about this recently in the National Law Journal.

Feel free to comment.

If you know someone who would benefit from this blog, please forward this to them.  Thank you.

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.

DOL Releases Revised FMLA Regulations!

On November 17, 2008, at long last, the Department of Labor issued Final Regulations concerning the FMLA and the amendments to the FMLA under the National Defense Authorization Act.  As anticipated, the Regulations make significant changes to the ways in which employers will need to administer leave under the FMLA.  

The new Regulations take effect on January 16, 2009.  Before then, employers will need to: 

  • revise their existing FMLA policies to incorporate the changes for nonmilitary and military FMLA leave;

  • adopt the new certification forms and general, eligibility, rights and responsibilities, and designation notices;

  • train their human resource professionals and supervisors concerning compliance with the new Regulations;

  • ensure that other policies are consistent with the new FMLA Regulations; and

  • ensure that their job descriptions accurately describe the essential functions of each position.

Please see the Firm's ALERT concerning the Final Regulations.

Also, the Final Regulations as they appear in the Federal Register.

In future articles, I will be discussing each of the new Regulations in more detail, and discussing some scenarios that highlight the changes and how employers will need to amend their FMLA practices going forward. 

FMLA expanded to provide leave to the families of U.S. military service personnel

In January, 2008, President Bush signed legislation that expands the leave available to family members of U.S. military service personnel under the FMLA.  The amendments, which went into effect on January 28, 2008, are the first amendments to the FMLA since its enactment in 1993. 

Under the amendments, covered employers (i.e. those with 50 or more employees) are required to provide up to 26 weeks of unpaid leave during a 12-month period to eligible employees who are caring for a "covered servicemember" who is injured in the line of duty.  In addition, the amendments require covered employers to provide up to 12 weeks of FMLA leave to the immediate family members (spouses, children, or parents) of military personnel or reservists who have "any qualifying exigency" arising out of the servicemember's active duty or call to active duty in support of a contingency operation.  The Secretary of Labor will be issuing regulations defining "any qualifying exigency." 

For more information concerning the amendments to the FMLA, and who is eligible for this type of FMLA leave, please click here.

FMLA Leave for flight attendants and pilots?

On May 14, 2008, the House Education and Labor Committee unanimously approved the Airline Flight Crew Technical Corrections Act (H.R. 2744), which clarifies that full-time flight attendants and pilots are covered under the FMLA.  The bill would close a loophole that effectively excludes more than 200,000 flight attendants and pilots from coverage under the FMLA.

Because the flight schedules for most full-time attendants and pilots are calculated only according to their "in-flight" time, a full-time schedule for a flight attendant or pilot is almost always less than the 1,250 hours needed to qualify for leave under the FMLA.  Under H.R. 2744, a flight attendant or pilot will be eligible for leave under the FMLA if he or she has been paid for or has worked 60% of the employer's monthly hour or trip guarantee, or the equivalent annualized over the preceding 12-month period.

To read the Bill, please click here.