Take, for instance, a recent case where an employee who worked for the State of Georgia notified her employer in October of 2020 that she was pregnant.  After announcing she had given birth in May 2021, the “child’s father” (who turned out not to exist) contacted the employer requesting leave for the employee to recuperate from the delivery, and as a result, her employer gave her seven weeks of paid leave.  The State later learned that a co-worker had witnessed the employee’s false stomach “come away” from her body.  The employee also sent photos of the new baby to co-workers, but with one major problem: the pictures appeared to depict different children.  The Georgia Office of the Inspector General interviewed the employee about her pregnancy, and shortly thereafter the employee resigned.  Now, not only is this employee out of a job, but she was also charged with three felony counts of False Statements and one felony count of Identity Fraud.

A faked pregnancy to get paid leave is undoubtedly an FMLA abuse outlier.  Typically, FMLA abuse is more subtle.  Sometimes FMLA abuse occurs when an employee takes more intermittent leave than their original medical certification called for.  Other times abuse can happen when the employee has a pattern of taking intermittent FMLA leave on Mondays or Fridays.  Employees also post pictures of themselves on social media showing them on a beach, enjoying a round of golf, or engaging in other activity that appears contradictory to the medical necessity for FMLA leave.

If an employer has a good faith belief that an employee is abusing FMLA leave, employers should be reminded of the following best practices.

• • Employer Policies. Review employee handbooks and other policies to ensure that your company has a policy prohibiting dishonesty, generally, and/or FMLA abuse, specifically.  Employers should apply these policies consistently. In the alternative, look at the form signed by the employee which requests FMLA leave. Did the employee acknowledge that the information was truthful and correct?
  • Investigate.  Review the employee’s request for FMLA and any associated medical documentation.  Look at the employee’s attendance records. Are there any actual discrepancies between the two?  Look at the timing of the request, does it coincide with Spring Break. If a co-worker reports suspicious or inconsistent information – follow-up.  Get details from the co-worker and try to identify any other witnesses who can shed light on the situation.
  • Speak with the Employee.  Have a candid conversation with the employee to understand the full picture, but be sure to exercise caution.  Taking an accusatory tone or implying discipline could result in an FMLA retaliation claim.  Take the opportunity to communicate expectations about call-in procedures, if needed, or review the employer’s FMLA policy with the employee.
  • Recertification.  If the investigation casts doubt on whether the employee’s original reason for FMLA is still valid, the employer may be able to request recertification.   Perhaps the employee’s condition has worsened, necessitating more days of leave per week than originally needed.  Maybe the converse is true, and the employee no longer has a qualifying need for FMLA.  Examine the recertification and make any necessary adjustments, such as documenting any necessary additional days of intermittent leave or notifying the employee that they are no longer qualified for FMLA.

Whatever you decide to do, don’t make any decisions until you have all the facts.

Bottom Line

While employers should not allow suspected FMLA abuse to continue unchecked, a healthy dose of caution will go a long way.  What may appear to be FMLA abuse in some situations, could be an acceptable use in others.  Conduct an investigation, talk to the employee, and seek recertification when appropriate.  It may be nothing, or it could be a faked pregnancy warranting disciplinary action.

The post Faked Pregnancies? Friday and Monday Leave Act? How Employers Can Handle Suspected FMLA Abuse appeared first on Felhaber Larson.

Background: Intermittent Leave Under the FMLA and ADA

The Family Medical Leave Act (FMLA) protects an employee’s right to take intermittent leave when medically necessary. Intermittent leave broadly refers to leave which is taken in separate blocks of time for a single qualifying reason. Under the FMLA, employees may take intermittent leave, like full-time leave, for up to 12 weeks in a one-year period. While employees seeking and taking intermittent leave must provide notice and work with employers to minimize workplace disruptions, intermittent leave often causes headaches for employers needing to make up for inconsistent employee absences.

Employees also occasionally request intermittent leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). To obtain a reasonable accommodation, employees must be able to perform the essential functions of the job with or without an accommodation. Because most jobs cannot be performed on a part-time basis, employees requesting leave as an accommodation are generally deemed not “qualified” under the ADA.

The court’s holding in Kalahar reaffirms each of these general rules.

Case Holding

The plaintiff, Kayce Kalahar (“Kalahar”), worked as a project manager for a Priority, Inc. (“Priority”), a Wisconsin-based company that designed and manufactured signs for companies. Kalahar requested intermittent FMLA leave due to mental health issues. Additionally, during this time, Kalahar began working from home part-time. Priority approved each request for leave over the next few months. However, during this time, Priority began receiving complaints from customers and coworkers about Kalahar’s lack of availability and poor work performance.

After Kalahar missed work without an excuse, Priority scheduled a meeting to discuss customer complaints and Kalahar’s absence. During the meeting, Priority’s COO told Kalahar she needed to work from the office full-time and allegedly told Kalahar she either needed to take full-time leave or come back to work full-time. Thereafter, Kalahar took (and Priority approved) intermittent FMLA leave. Kalahar did not allege Priority denied any of her leave requests; however, she did allege Priority ignored some of her requests. Kalahar’s performance issues continued, and Priority ultimately terminated Kalahar.

Kalahar brought claims under the FMLA for interference and retaliation, and under the ADA for failure to accommodate. On Kalahar’s claim that Priority interfered with her right to FMLA leave, the court held that the COO’s single comment—allegedly telling Kalahar to take full-time leave or come back to work full time—created a fact dispute as to whether Priority unlawfully interfered. The court was unconvinced by the fact that Priority never expressly denied Kalahar leave, holding that the fact Priority allegedly ignored a few requests was sufficient to allow the claim to survive summary judgment.

The court also denied summary judgment on Kalahar’s retaliation claim, holding that it was reasonable to conclude that Priority’s reason for terminating Kalahar (poor performance) was causally related to her FMLA leave. A large portion of Kalahar’s performance issues were related to her absences, and Priority did not have other employees cover for these absences. Thus, the court held that “if the performance problems that supposedly justified Kalahar’s termination were the direct result of her using FMLA leave, then allowing Priority to terminate her for those reasons would render her FMLA rights ‘illusory.’”

As to Kalahar’s ADA claim, the Court noted “it is awkward to describe ‘intermittent FMLA’ as a potential reasonable accommodation” because the FMLA already protects an employee’s right to take such leave. Additionally, to obtain an accommodation under the ADA, “the employee must be able to perform the essential functions of the position, and an inability to do so would prevent the employee from becoming a ‘qualified individual.’” Accordingly, because Kalahar’s leave would prevent her from performing her essential job functions, she was not entitled to take intermittent leave as a reasonable accommodation.

Bottom Line

Intermittent leave can be a major source of potential legal pitfalls. It is important for employers to create, implement, and follow clear policies regarding employees’ use of intermittent leave. This is particularly true for employees who are working from home. This case provides a good example that when an employee on intermittent leave begins to suffer from performance issues, it is often difficult to untangle these issues from those related to leave.

The post Wisconsin Court Reminds Employers of Pitfalls Surrounding FMLA Intermittent Leave appeared first on Felhaber Larson.

Telehealth and the FMLA

Under the Family Medical Leave Act, eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the essential functions of his or her job. In order to be eligible for FMLA leave, employees must seek “treatment,” which the relevant FMLA regulations define to include “examinations to determine if a serious health condition exists and evaluations of the condition.”

An “Apple” a Day Keeps the Doctor Away

The FMLA regulations define “treatment” to mean “an in-person visit to a health care provider,” and in 2008 the DOL added language clarifying that a “treatment” for FMLA purposes “does not include, for example, a phone call, letter, email, or text message.”

Of course, this definition may have made sense in a pre-COVID world where physical visits to the doctor’s office were easily undertaken, however, in July 2020 the DOL’s Wage and Hour Division published an FAQ which noted:

“Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits . . .  for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.”

In a Field Assistance Bulletin issued on December 29, 2020, the DOL extended this interpretation indefinitely, noting that a telemedicine visit will be considered “in-person” if the visit includes the following elements:

1. An examination, evaluation, or treatment by a health care provider;
2. Is permitted and accepted by state licensing authorities; and
3. Is performed by a video conference – although the Department notes that this is only “generally” the standard, potentially leaving the window open for other types of visits being acceptable as well (perhaps visiting the ER using VR).

The Bulletin goes on to note that “Communication methods that do not meet [the above] criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an ‘in-person’ visit.”

Bottom Line

In light of this new guidance, employers should continue to accept FMLA applications supported by telehealth visits, assuming that the three factors identified above are present. Given the fact that telehealth visits are likely to continue even after the pandemic subsides, it is likely that employers will continue to see telehealth “treatments” on an increased basis moving forward.

The post DOL Extends Ability to Use Telemedicine Visits for FMLA Purposes appeared first on Felhaber Larson.

The new forms do not really change the substance of the information that can be sought since, of course, the regulations governing that issue have not actually changed.  However, the forms now lean more toward a “check-the-box” format that will assist in verifying more specific information than what employers are used to getting in the older forms.

Some notable changes include:

Notice of Eligibility

The form now identifies the family member to whom the employee will be providing care during the FMLA leave.  This may not have much impact unless the employee was somehow confused about their inability to seek FMLA leave to care for more distant relatives.

The new form also sets out an extensive section with various check-box options for how the FMLA leave will run concurrently with the employer’s existing paid leave programs.  This will be a great benefit to both employees and employers by providing perhaps a simpler explanation of this critical issue.

Designation Notice

The new Designation Notice addresses one of the most misunderstood FMLA issues for both employees and employers – that if a leave request qualifies for FMLA coverage, it must be treated as such even if the employee (or sometimes the employer) does not wish to do so.  The form states:

The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice to the employee. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave

Thus, the form makes clear that employees may not treat FMLA as a benefit to be applied or not applied as they wish (e.g. “don’t count this as FMLA because I want to save some vacation for later in the year”), nor may employers ignore FMLA for their convenience (e.g. “if we don’t treat this as FMLA, we won’t have to pay their insurance for the next couple of months”).

The new form also provides greater precision in regard to dealing with an incomplete certification, including a requirement that the employer “[s]pacify the information needed to make the certification complete and/or sufficient.”

Medical Certification

One very helpful change is the inclusion of directives to the health care provider to provide their “best estimate” as to:

• how long the medical condition might last;
• the beginning and end date for treatments;
• the duration of treatment (including recovery period);
• in the case of reduced schedule leave, the schedule that the employee will be able to work; and
• in the case of intermittent leave, the frequency and duration of episodes of incapacity.

These directives will help reduce the number of times that employers receive certification forms that address these matters with responses like “indefinite”, “uncertain” or “to be determined.”

Finally, the new certification form sets forth the list of circumstances (e.g. inpatient care, incapacity plus treatment, chronic condition) that constitute a serious health condition that qualifies for FMLA.  At the end of this list, the DOL has included a checkbox for “None of the above” and a directive to proceed directly to the signature page.  Thus, for the first time, a health care provider can officially certify that there is no need for a FMLA leave.

DOL Request For Information

The DOL also published a “request for information” on suggested changes to FMLA regulations.  Their primary inquiry was “What would [employees and employers] like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA”

More specifically, indicated a request for input on such matters as:

• Challenges that employers and employees have experienced in applying the definition of a serious health condition;
• Challenges in administering intermittent and reduced schedule leaves;
• Challenges in regard to employee requests for leave;
• Challenges in regard to the certification process that are not addressed in the new forms; and
• Challenges and data in regard to other challenges in the administration of FMLA leave.

Comments are due by September 16, 2020.

Bottom Line

The new forms certainly are not earth shattering but they should help streamline the process a bit and head off some confusion for both employers and employees.

The bigger impact may be felt if the DOL receives helpful input from the public and proceeds with changes to the FMLA regulatory scheme.  Some relief in administering intermittent leaves would be particularly welcome.

Of course, as we saw in 2016 with the proposed overtime changes, all of this could come to naught if there is a change in administration in November.

The post Labor Department Issues New FMLA Forms and Offers Hope for the Future appeared first on Felhaber Larson.

Jerremy Dyer worked as a Technician for Ventra Sandusky, an automotive supplier with a manufacturing facility in Sandusky, Ohio. The labor union representing Dyer and his co-workers negotiated a collective bargaining agreement that includes a no-fault attendance policy.  Under this policy, employees are assessed between .5 and 1.5 points for absences, depending on whether the employee calls in to report the absence and whether the absence is for a partial or full day. The employee receives progressive discipline at various point levels, culminating in termination at eleven or more points. Certain absences are exempt from the point system, including absences pursuant to approved leaves under the Family and Medical Leave Act (FMLA).

Points Drop Off for Perfect Attendance

The attendance policy allows employees to gain back a point for each rolling 30-day period of perfect attendance.  Time off for vacations, bereavement, jury duty, military duty, union business and holidays do not disrupt the perfect attendance accrual. All other absences, including those taken in accordance with FMLA, require that the 30-day perfect attendance “clock” be reset to zero.

Dyer began to use approved intermittent FMLA leave for migraine headaches in 2013. Due to various non-FMLA related absences, he passed the 11-point threshold for attendance points and was terminated accordingly.  Dyer then sued the company in federal court for FMLA interference, claiming that he would have stayed below 11 points if his perfect attendance stretches did not have to be reset every time he missed work for FMLA-approved leave.

The trial court dismissed the case on summary judgment and Dyer appealed to the Sixth Circuit Court of Appeals.  He argued that the policy of ending his perfect attendance streak with each FMLA absence impaired his ability to reduce accumulated absence points and stave off termination, thereby interfering with the job protections afforded under FMLA.  The employer countered, however, that their policy simply treats FMLA leave the same as equivalent non-FMLA leave (e.g. sick leave) and that this is all that FMLA requires.

FMLA Does Not Impair Perfect Attendance

The Sixth Circuit reversed the dismissal and remanded the case back to the lower court for a jury trial, citing the FMLA regulation that states “[a]t the end of an employee’s FMLA leave, benefits must be resumed in the same manner and at the same levels as provided when the leave began.” The Court declared that the opportunity to reduce attendance points and “flexibly manage” absences was in fact an employee benefit.

As such, while Dyer’s intermittent FMLA leave could certainly halt his progress toward a 30-day perfect attendance streak, it could not lawfully be allowed to erase it.  Under FMLA, Dyer was entitled to return to the level of accrual of perfect attendance days he had achieved prior to taking his FMLA leave.  The Court concluded that a jury should make the factual findings to determine whether Dyer’s rights in this regard had been infringed.

The Court also addressed the company’s defense that they were entitled to treat FMLA the same as equivalent absences, explaining that under FMLA regulations, equivalency of leave benefits seems to hinge on whether the leave is paid or unpaid. Since there was evidence in the record that certain forms of unpaid leave (e.g. military leave and union leave) did not interrupt an employee’s 30-day perfect attendance run, it was for the jury to decide whether the company did or did not treat equivalent leaves more favorably than FMLA.

Bottom Line

Employers are well advised to review their FMLA policies to insure that employees on approved FMLA leaves are not denied benefits (a term that courts interpret expansively) afforded to employees on other similar types of leave.  In conducting this review, be mindful of the fact that FMLA is an employee-protection statute that is interpreted liberally by the courts.

The post Appeals Court Says FMLA May Not Disrupt Perfect Attendance Records Even Though Sick Leave Can appeared first on Felhaber Larson.

The Opinion Letter responded to an employee whose children have qualifying medical conditions under FMLA.  The employer had already approved her request for FMLA leave to care for the children and to take them to medical appointments.

School Meetings Include Health Practitioners

The children’s health care provider prescribed occupational, speech, and physical therapy, all of which their school district provides.  This brought the children under the ambit of the federal Individuals with Disabilities Education Act (IDEA) which requires public schools to develop an Individual Education Plan (IEP) for a student who receives special education and related services.

The children’s IEP’s called for periodic meetings to review their educational needs and progress.  These meetings are attended by the school psychologist, occupational and/or physical therapists, school administrators and the children’s teachers, all of whom work collaboratively to review progress under the IEP and make recommendations for additional care.

The Opinion Letter concluded that the employee’s attendance at these periodic meetings regarding the children’s special education and medical needs qualified for protection as intermittent FMLA leave.  Since the children clearly have a serious medical condition under the FMLA definition, the parent’s attendance at the meetings constituted “care for a family member with a serious health condition.” The Opinion Letter cited for support other instances where FMLA leave was approved under similar circumstances, including time to arrange changes in care, time to seek out appropriate care facilities and conferences designed to augment the employee’s ability to care for a family member.

In this instance, the employee needed to attended these conferences to help the practitioners make medical determinations, to offer input on the children’s progress and to make sure that the school environment was appropriate for her children’s needs.  The Opinion Letter specifically noted that the children’s doctor did not have to be present to still consider these meetings as within the framework of care for a serious health condition.

Bottom Line

While DOL Opinion Letters do not have the force of law, they do demonstrate the Department’s likely interpretation of similar fact patterns, and courts rely on the DOL’s opinions when interpreting the Fair Labor Standards Act. Thus, employers should now strongly consider including IEP meetings as legitimate reasons for granting FMLA leave.

In addition, the Opinion Letter cautioned that it applied to any school meetings held pursuant to the IDEA, and any applicable state or local laws. It therefore seems fair to conclude that employers should consider granting intermittent FMLA leave for any school meeting involving establishing, reviewing and altering care plans relating to special education services offered to a child with a serious health condition.

Of course, in order for the employer to evaluate the FMLA status of these meetings, they should be clearly referenced within the health care provider’s certification of the need for FMLA leave.

The post Labor Dept. Opinion Letter Says Certain School Meetings Qualify For FMLA Coverage appeared first on Felhaber Larson.

The Massachusetts Water Resources Authority (“MWRA”) approved Richard DaPrato’s request for time off under the Family and Medical Leave Act (FMLA) to undergo and recover from foot surgery. Upon returning from leave, DaPrato informed MWRA that he would need additional time off for knee surgery, a procedure he had postponed when the need for his foot surgery arose.

MWRA then discovered that DaPrato had taken a vacation to Mexico during the last two weeks of his leave for foot surgery.  Believing that it is impossible that an employee “who’s seriously ill or disabled would be able to be on vacation,” the employer launched an investigation and uncovered video of DaPrato walking, driving, and lifting luggage out of his car while on leave. Although DaPrato explained that these activities were consistent with his restrictions, the company terminated him for “[his] misrepresentation that [he was] unable to work…[his] receipt of extended salary continuation pay to which [he was] not entitled, and [his] failure to be truthful during [his] interview concerning these matters…”.

DaPrato sued for violations of FMLA, the Americans with Disabilities Act (ADA) and corresponding Massachusetts employment laws.

I’m Disabled But I’m Not Dead

At trial, DaPrato testified that he took this trip to a beach in Mexico with his family every year and had booked the arrangements well in advance.  Because of his foot issue, however, he limited his normal vacation activities to comply with the physical restrictions imposed by his doctor.  The employer sought to rebut this testimony in various ways, including showing the jury a picture of DaPrato standing on a boat holding a large fish that he had just caught.  At the conclusion of the trial, the jury ruled in DaPrato’s favor and awarded him close to $1.5 million in damages.

The employer appealed to Massachusetts State Supreme Court.  They contended that the judge unfairly blunted their defense of the case by instructing the jury that in deciding whether the employer terminated DaPrato for reasons unrelated to the ADA and FMLA, they could not consider the fact that he “took or requested leave or spent time recuperating in a particular location or in a particular manner.”

Employer Assumed Too Much

The Appeals Court disagreed with the employer and affirmed the jury award in DaPrato’s favor. They explained that while employers may take into account conduct on vacation (or other off duty behavior) in deciding that a leave has been fraudulently or improperly requested, they must view the evidence in its proper context and must have that information in their possession at the time the decision is made.  They then observed:

Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.

The Appeals Court determined that the employer had not viewed DaPrato’s off-duty behavior in the proper context, that they leapt improperly to the conclusion that he had falsely obtained authorization for a leave of absence, and that the jury award in DaPrato’s favor was justified.  Their ruling emphasized the following points:

– The employer did not have the pictures of DaPrato holding the big fish when they decided to terminate so their use of those pictures at trial did not actually support their decision-making;

– Company officials admitted that they did not view off duty behavior in proper context by testifying that all vacations taken while on FMLA leave are impermissible.

– The company failed to take into account the fact that DaPrato’s medical certification indicated that he could begin to put weight on his foot such that the conduct captured by the video might not have been inconsistent with DaPrato’s restrictions.

Bottom Line

While it might be tempting in many cases to conclude that employees have faked their way into approved leaves of absence, employers should not draw that conclusion until a proper investigation has been conducted.  As the court observed, employees who are ordered to rest can do so in various settings, such as a beach in a distant country, the deck of their lake home or anywhere else the employee finds suitably restful.

The critical question is not where the employee is but what the employee is doing.  If that individual is not supposed to lift more than 20 lbs, you may assume that the restriction is being observed regardless of physical location.  However, if you spot that person hauling a huge cooler down to the lake, or if you see pictures on social media of other behaviors outside of the designated restrictions, action may then be taken.  Just be sure that you have carefully considered the medical documentation and the evidence of noncompliance.

We thank Summer Associate Kau Guannu for her substantial contribution in preparing this post.

The post Is Vacationing in Mexico During FMLA Leave Grounds for Termination? appeared first on Felhaber Larson.

A DOL Opinion Letter dated March 14, 2019 states “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”  This is true regardless of whether or not the employee still has a balance of accrued leave to be used.

Generosity is Not Permitted

What if the employer just wants to be generous to the employee and/or wants to avoid all that FMLA paperwork for just a relatively short absence?  The DOL does not care.  Their opinion letter leaves no wiggle room for avoiding the application of FMLA when it states “[T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.”

Perhaps the DOL is concerned that employers might be able to divest employees of certain FMLA rights by delaying formal designation of the leave.  For example, an employee who delays FMLA designation might lose FMLA’s protection against absences being counted under an attendance control policy.

Whatever the reason, the DOL opinion letter emphatically tells us that FMLA is not an accrued benefit that employers can just use or ignore as they see fit, nor is it an inconvenience that employers can avoid if they don’t want to bother with it.  It is more of a counting or tracking system that ensures that an eligible employee receives 12 (and only 12) weeks of leave.

In this regard, the DOL’s viewpoint conflicts with a 2014 decision from the Ninth Circuit Court of Appeals declaring that employees can choose whether or not to elect FMLA protection and employers can not impose that choice upon them.  Under this decision, employees (at least in the 9^th Circuit) could elect to use paid sick leave in lieu of FMLA so that they could save their entire 12 weeks of FMLA entitlement for a parenting leave or medical procedure that is planned for later in the year.

What if the Certification is Not Returned?

If employees cannot choose to delay their FMLA leave, can they accomplish the same purpose simply by not returning the FMLA certification form to prevent the employer from designating the time as FMLA? In many cases the answer is “no.”  For one thing, the FMLA certification process is not mandatory – employers are free not to seek certification if they otherwise have sufficient information to designate the leave as FMLA.  For example, where the employee tells you (or you otherwise learn) that he was in the hospital overnight you have all the necessary information to conclude that the employee has a serious health condition that triggers FMLA coverage.  Similarly, if the employee submits a doctor’s note stating that she will be off for five days for outpatient knee surgery, you know what you need to know to designate the time off as FMLA.

If the employer does not have sufficient information to know whether the absence qualifies as FMLA and the employee fails to return the certification form, FMLA regulations permit the employer to deny the FMLA leave and declare the leave unauthorized, possibly subjecting the employee for penalties under an attendance program.

Bottom Line

Bear in mind that DOL Opinion Letters do not have the force of law in the same way that a statute or court decision does.  Nevertheless, courts do seek guidance from these advisories from administrative agencies in interpreting the law, and the DOL itself will assuredly apply this interpretation of the law when investigating charges or pursuing litigation.

Our best advice for employers outside the Ninth Circuit is to make sure that their supervisors and managers understand the importance of not letting employees resist application of FMLA, especially since the law authorizes individual liability for violations. Employers should also make sure they have consistent policies in how they inquire into absences and obtain information regarding the possibility that FMLA applies, and then aggressively follow your FMLA procedures whenever the law applies.

The post Labor Dept. Says Employees Cannot Choose to Defer or Skip FMLA – Employers MUST Apply It appeared first on Felhaber Larson.

Caroline Guzman worked as a Dispatcher for the County‘s 911 Call Center.  She was diagnosed in 2006 with sleep apnea and used a Continuous Positive Airway Pressure (CPAP) machine to help her sleep. Two years later, she had gastric bypass surgery and lost a substantial amount of weight, prompting her to stop using the CPAP because she felt she no longer needed it.  She never sought a subsequent diagnosis to determine if her sleep apnea had been resolved and was unsure whether she ever told her employer about it.

Employee Gets a Wake-up Call

After a few years, Guzman began having attendance issues.  She was cited for four occasions of tardiness in a little over a year, with the last occasion requiring a sheriff’s deputy to be dispatched to check on her.  Guzman received a disciplinary suspension for that absence and was warned that she would be fired if she was late for work again.  She explained that she slept through her alarm but did not mention the sleep apnea.

Just a couple of weeks later, Guzman was late again.  Her supervisor informed the manager who determined that Guzman should be terminated.  In the meantime, Guzman finally arrived for work and asked her supervisor if it might be helpful if she got a doctor’s note regarding the absence.  The supervisor suggested that this would be a good idea.  Guzman then obtained a note from her health care provider stating that she “most probably” had sleep apnea, and that she needed to be tested and treated again for it.

Guzman met a week later with her supervisor and manager and was informed that her employment was terminated.  Guzman gave them the doctor’s note (recollections differed as to whether she did this before or after being informed of her termination) and asked for a FMLA leave to address her condition (again, it was unclear when exactly this issue came up).  Nevertheless, the termination stood.

Court Provides No Rest For the Weary

Guzman sued for FMLA interference and disability discrimination under the Americans with Disabilities Act.  The lower court granted the county early dismissal and Guzman appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit affirmed the dismissal, noting first that Guzman did not actually suffer from a serious health condition under FMLA.  After all, she had not sought diagnosis or treatment for her sleep apnea for many years and was not undergoing continuing treatment for it at the time of termination.  Even the doctor’s note was inconclusive since it suggested only that she “probably” had a medical condition but verified that she had neither been tested nor treated for it.  Thus, Guzman would not have been eligible for a FMLA leave at the time she sought it.

The Court also determined that Guzman failed to provide adequate notice to her employer of her need for FMLA leave.  Under FMLA, an employee must provide notice of the need for a leave at least 30 days in advance if the need for leave is foreseeable, and as soon as practicable if the need is not foreseeable.  Here, the leave was not requested until the time of the termination meeting, which is not sufficient under FMLA’s regulations.

Moreover, regardless of whether Guzman asked for the leave before being informed of the termination, it was clear that the termination decision had been reached before the meeting.  As such, the County was not aware of the medical condition or the FMLA request at the time the termination decision was made and they therefore could not have intentionally and illegally interfered with the request for protected leave.

Employee’s Constructive Notice Argument is Retired

Guzman argued, however, that the County had constructive notice of her condition by virtue of her recent absenteeism, which was uncharacteristic with her previous performance.  Thus, they should have known that something was amiss.  The Court disagreed, noting that her record of absenteeism did not rise to the level of the “stark and abrupt change” required to prove constructive notice.  Moreover, Guzman herself acknowledged that a few of the absences had non-medical causes (e.g. her car did not start).

Guzman fared no better in her disability discrimination claim.  Again, the court found that the manager who made the decision to terminate had no knowledge of the disability and therefore could not have engaged in intentional discrimination when coming to the decision to terminate.

Bottom Line

While this was a Seventh Circuit decision that does not technically apply to Minnesota employers, it nevertheless is instructive on how our federal circuit (the Eighth) may evaluate similar circumstances.  In that regard, this decision gives assurance that employers will not be held to an unreasonable standard of constructively knowing that a medical condition exists just because an employee has some attendance issues.

In addition, the decision supports  the notion that an employee cannot fend off a termination decision that has already been made simply by claiming to have a disability – that information should be provided before termination is in the picture.  Of course, it is critically important for the employer to document the decision as soon as it is made so that if a challenge is filed, there is proof that the decision was made at a time when the disability had not been made known.

The post Court Puts FMLA Claim For Sleep Apnea To Rest appeared first on Felhaber Larson.

Frantz Coutard, an employee of Municipal Credit Union (MCU), was raised by his grandfather, Jean Manesson Dumond, for ten years after Coutard’s father died. Dumond even referred to Coutard as his son and moved in with him later in his life when he began to suffer a variety of physical ailments.

He put the “father” in grandfather

Dumond fell ill one night and had to be hospitalized.  Upon Dumond’s discharge  the next day, Coutard applied for FMLA leave so that he could stay home and care for Dumond until he could arrange for home health aide visits.

When asking for FMLA, Coutard never explained the special relationship he had with his grandfather and MCU officials never asked. Instead, they simply denied Coutard’s request on the grounds that FMLA does not apply to caring for sick grandparents.  When Coutard remained at home to care for Dumond anyway MCU fired him, leading to a lawsuit for interference with FMLA rights.

Of course, FMLA does not explicitly authorize leave to care for sick grandparents.  However, it does permit an employee to take leave to care for someone who served “in loco parentis” to the employee.  The Department of Labor (DOL) defines this relationship to mean one where “a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child.”   In loco parentis status is typically determined by the extent of day-to-day care and/or financial support that is provided.

Why didn’t you say something?

Coutard essentially claimed that he gave the company enough information to know that his request potentially could be covered under FMLA due to the in loco parentis relationship with his grandfather. The only reason he did not provide more information was because MCU failed to inform him that his relationship with Dumond might qualify for coverage and also neglected to ask him any questions designed to elicit that information.

MCU countered, however, that they were under no obligation to educate employees on the intricacies of FMLA coverage. Instead, they provided all required FMLA notices and forms, and it was therefore Coutard’s responsibility to provide enough information to allow the employer to determine that the requested leave qualified for FMLA coverage.

The lower court agreed with MCU and dismissed the case prior to trial. On appeal, however, the Second Circuit Court of Appeals reversed, finding that Coutard satisfied his obligation under FMLA regulations to provide sufficient information to permit the employer to determine that FMLA “may apply.”  At that point, the employer should have pursued the inquiry to resolve the question of whether the circumstances  underlying Coutard’s request made it subject to FMLA eligibility.

Ask, and ye shall receive

MCU contended that providing FMLA information to employees should be sufficient and that they should not be punished for failing to anticipate unique situations like this.  The Appeals Court disagreed, noting that the very reason for the existence of the in loco parentis provision was to “reflect the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother, and are increasingly raised by others including their grandparent.”

The court therefore ruled that an employee is not required to provide the employer with all of the necessary details to permit a definitive determination of  FMLA’s applicability. Instead, the court held that “in the absence of an employer’s request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that FMLA may apply.” At that point, it is then incumbent upon the employer to determine for certain whether the request for FMLA leave must be granted.

Bottom Line

This is a tough ruling for employers, who often must balance the need for due diligence on a FMLA request with the desire not to give the employee a roadmap for overreaching their FMLA rights.  To be on the safe side, employers should be ready with follow-up inquiries whenever employees seek leave that does not appear, at first glance, to qualify for FMLA treatment.

To meet this obligation, an employer could start with open-ended inquiries like “tell me more about your relationship with your grandfather” or “what made your relationship with your Aunt Susan so special?”  This might very well elicit enough information to determine whether or not there is an in loco  parentis relationship.  For example, responses such as “Grandpa was always very special and we used to go fishing together every Saturday” or “Aunt Susan was almost like a second mother to me” will make it clear that in loco parentis status does not exist.  If more information is needed, the employer should ask more direct questions.

Finally, if you are wondering if you can rely on the fact that this is a 2nd Circuit decision that is not binding on Minnesota employers, you should know that the 8th Circuit (in which Minnesota sits) has issued very similar rulings.

The post Court Slams Employer For Denying FMLA Leave for Sick Grandfather appeared first on Felhaber Larson.

FMLA Leave Runs Over

After employee Janet Ross requested FMLA leave for a hip ailment, the employer sent her a variety of forms, including their internal “Family/Medical Leave Request Form” and the standard “Certification of Health Care Provider Form.” Ross returned the forms, noting that her leave would begin on October 1, 2012, but her return-to-work date was “unknown.” The company then issued the FMLA “Designation Notice” verifying her eligibility for 12 weeks of job-protected leave and confirming that her expected date of return was unknown.

About two weeks later, Ross’s doctor provided updated documentation stating that Ross would be undergoing surgery on her right hip in November and on her left hip in January, and that her estimated return-to-work date was April 21, 2013.  There were no further communications about Ross’s leave until December 31, 2012, at which time the company’s Benefits Manager contacted Ross and learned that she still planned to be out until April.  The employer thereupon sent her a letter stating that they could not hold her position open for that long and that her employment was terminated.

Ross had her two surgeries, which were successful enough that she could march right over to her lawyer’s office and file a federal court lawsuit claiming a violation of FMLA.  Specifically, she asserted that the company failed to advise her that as a result of her newly-defined return date, her planned leave exceeded her 12 weeks of FMLA eligibility. Had she known this, she would have restructured the leave, presumably by delaying the second surgery until after she requalified for more FMLA time.

The employer replied that when Ross applied for her leave, they accurately informed her that she was eligible for 12 weeks of FMLA leave.  While her return-to-work estimate changed, she still had the same 12 weeks of FMLA eligibility so there was no change in her circumstances.  They also pointed out that even if they would have updated the Designation Notice  to tell her that her FMLA time would expire before April, Ross suffered no actual harm because she obviously would not have been able to return within the her allotted 12 weeks under FMLA.

Employee Walks Off With a Win

After reciting the requirements of the Designation Notice, the judge sided with Ross and quoted the following excerpt from the regulations:

If the information provided by the employer to the employee in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), the employer shall provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.

Since the note from the physician setting a specific return date was a change in circumstances, the judge ruled that the employer should have sent a revised Designation Notice identifying how much of the time would be attributed to FMLA.  After all, her original return date was “unknown” and therefore it was not clear that Ross would exceed her FMLA eligibility.  Once it became known that Ross would in fact exceed her allotted 12 weeks, the company should have advised her as such.  The judge wrote:

The overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations. Without such an opportunity, the employee has not received the statutory benefit of taking necessary leave with the reassurance that her employment, under proscribed conditions, will be waiting for her when she is able to return to work.

Even so, the company contended that Ross was not harmed since regardless of what might have been said in a revised Designation Notice, her leave lasted well beyond her 12 weeks of FMLA eligibility. The court disagreed, noting that Ross could have made the decision to delay her second surgery until she requalified for FMLA, thereby preserving her employment. The failure to notify her divested her of this opportunity.

Bottom Line

This decision is not binding on Minnesota employers (at least not until a Minnesota court decides to rely on it) and it could be subject to appeal.  Still, it is a wake-up call for everyone to remain vigilant in the administration of their FMLA programs. Issuing the required notices is important and helps prevent employees from claiming prejudice from lack of notice, even though it often seems that employees know the in’s and out’s of their leave rights down to the tiniest detail.  Even if you neglected to send the notices when they were required, send them anyway – better late than never.

Specifically, where the employee provides updated medical information or a revised duration of their absence, this case tells us that we should send out a new Designation Notice with updated calculations even if it seems obvious that the employee already knows that their leave exceeds their FMLA eligibility.  This takes a little extra effort but not nearly as much as litigation down the road if the employee wants to file a claim.

The post Court Requires New Designation Notice When FMLA Leave Duration Changes appeared first on Felhaber Larson.

Fortunately, a recent federal court decision provides a very helpful roadmap for how to navigate the issue of calculating FMLA for employees working regular overtime.

Employee Exhausts FMLA and Gets Fired

The case involves Bridgestone Americas Tire Operations, whose continuous production requires a great deal of regular overtime. Employees are allowed to express their interest in working an overtime shift, and if they are selected for the shift, they must report for work or be counted as having incurred an “incident of absence” under the company’s attendance policy.  If the employee misses the shift because of an FMLA reason, no absence is incurred but the overtime hours are deducted from the employee’s FMLA balance.

Employee Lucas Hernandez was approved for intermittent FMLA leave to care for his son who suffers from asthma. In the space of about nine months in 2011-2012, Hernandez missed work fifty-four times, including six overtime shifts.  Most of the absences (but not all) were attributed to FMLA.  On July 10, the company informed Hernandez that he had exhausted his 12-week FMLA allotment.  Therefore, when he missed his overtime shifts on July 11 and 12, even though they otherwise would have been for FMLA reasons, those absences were counted against him.  As a result, he was issued steps 2 and 3 of the company’s progressive discipline system.

When Hernandez failed to report for his regular shifts on July 13 through July 15, again because of his son’s illness, he progressed to the 4^th disciplinary step, which was termination.  Hernandez then sued the employer under various legal theories, including interference with his FMLA rights.

How Voluntary Overtime Becomes Mandatory

The trial court ruled in favor of Hernandez on his FMLA claim, concluding that since employees are allowed to choose whether or not they want to work overtime, the extra shifts are voluntary.  According to a Department of Labor (DOL) regulation, voluntary overtime hours missed for FMLA reasons may not be deducted from the employee’s FMLA balance.  Therefore, Hernandez should still have had FMLA time available to him at the time he was terminated for absenteeism.

Bridgestone appealed the judgment to the 8^th Circuit Court of Appeals (in which Minnesota sits), which flat-out disagreed with the trial court on the voluntary nature of the overtime. They noted that once the employee is selected to work an overtime shift, they are required to do so or face disciplinary action.  This turned a voluntary decision into a mandatory obligation and it was therefore appropriate for Bridgestone to deduct Hernandez’s missed overtime hours from his FMLA entitlement.

Employers Must Predict the Future – Here’s How

So, the FMLA deduction was proper and the termination stands, right?  Not exactly.  Even though the missed mandatory overtime can be deducted from Hernandez’s FMLA balance, the appeals court declared that he had not been properly credited in the first place with enough FMLA hours because the expected overtime was not taken into account.  The court explained that the DOL “intended for hours missed for FMLA-qualifying reasons to be deducted from the employee’s FMLA-leave entitlement only if those hours were included in the employee’s leave allotment.”  In other words, if the overtime was considered as part of Hernandez’s regular schedule for purposes of deducting FMLA, it also had to be considered when determining how much FMLA he would be granted in the first place.

The company argued that the overtime was variable and they would never be able to predict with precision how much overtime he would work.  Therefore, it was impossible to determine how much FMLA credit he should receive.  The court disagreed, noting that the DOL had already provided for this circumstance in a regulation that stated:

If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement.

As a result, Hernandez should have been credited with more FMLA time than he actually received because his regular schedule included the anticipated overtime hours.  Had this been done properly, he would still have had some FMLA hours left and he would not have been subject to termination for his final absences.  As such, the court affirmed the judgment is Hernandez’s favor but for reasons very different from what he might have expected based on the lower court’s ruling.

Bottom Line

This decision makes it very clear that mandatory overtime needs to be counted when determining how much FMLA time an employee can take in a 12-month period.  After all, if an employee regularly works an extra 10% of an ordinary week, they would be entitled to an additional 10% of their FMLA allotment too.

Counting hours ahead of time is far better than counting back pay after the fact.

The post Counting FMLA is Different When Employee Works Overtime appeared first on Felhaber Larson.

Employee’s Kidney Issues Lead to Multiple Absences

In Dalton v. ManorCare of West Des Moine, IA, LLC, No. 13-3743 (8th Cir. April 7, 2015), employee Lucinda Dalton began experiencing significant weight gain and fluid retention.  After multiple doctor visits, Dalton sought the opinion of kidney specialist, Dr. Robert Leisy, who diagnosed her with Stage One Chronic Kidney Disease (“CKD”) and Secondary Obesity.  Dr. Leisy later testified that Stage One CKD is not truly a disease because kidney function “is actually normal to above normal at that point.”  Instead, the kidneys simply must work harder than normal, which might eventually wear out the kidneys.  Still, with proper care, such as weight loss, a Stage One patient may avoid advancing to higher stages of CKD.

During all this time, Dalton received a series of disciplinary actions, including one for 10 attendance infractions in the space of one month, and another based on complaints from her direct reports.  Dalton raised the issue of FMLA leave but was informed that she was not eligible.  A few days after receiving her latest warning, Dalton was directed to complete several unfinished tasks as soon as possible.  She immediately left work, claiming to be ill.

Shortly thereafter, Dalton was admitted to the emergency room with complaints of “atypical chest pains.”  She was released that same day without a diagnosis but with a note excusing her from work for three days.  Upon her return, she was issued a written warning for failure to perform her job duties prior to her emergency room visit.  Consistent with ManorCare’s progressive discipline policy, this resulted in Dalton’s termination.

Employee Did Not Suffer from a Serious Health Condition

When Dalton sued for interference with her FMLA rights, ManorCare responded that Dalton was not eligible for FMLA leave because she did not suffer from the required “serious health condition.”  The lower court sided with ManorCare and dismissed the claim.  On appeal, the Eighth Circuit affirmed, explaining that while kidney disease most certainly can be a serious health condition, Dalton’s diagnosis – Stage One Chronic Kidney Disease – did not amount to an “advanced disease.”

The appeals court relied on Dr. Leisy’s testimony that Stage One CKD is simply a warning that the kidneys are working too hard.  They also pointed to the results of medical testing confirming that Dalton’s CKD had not reached an advanced stage.  The court explained that while FMLA does cover medical treatment for symptoms which are later diagnosed as a serious health condition, Dalton’s CKD never progressed past Stage One.  In other words, Dalton did not really suffer from a disease but rather demonstrated the signs that a disease might be forthcoming.

In dismissing the case, the Eighth Circuit also emphasized that the employer never interfered Dalton’s ability to take time off due to her medical issues or her need for testing.  This made it difficult for the court to accept that any actual interference took place.

Bottom Line

This was an unusual case since the employee was absent for more than three days due to medical reasons yet was not eligible for FMLA leave because the medical reasons did not add up to a “serious health condition.” Employers should watch for such situations in evaluating medical certifications. Remember, however, that if the medical issue becomes more serious and progresses to a serious health condition, the employee’s absences at the early stages would be viewed as protected under FMLA.  This sort of distinction is one of many that continues to vex employers in evaluating their rights and obligations under FMLA.

The post Eighth Circuit Holds Early Stage Illness Does Not Warrant FMLA Leave appeared first on Felhaber Larson.

1. The employee must be employed by a covered employer for 12 months.
2. The employee must have worked 1,250 hours in the past 12 months.
3. The employee must work at or within 75 miles of a worksite employing 50 or more employees (the “50/75 rule”).

What if the employer’s FMLA policy does not list one or more of these eligibility factors? According to one Federal Appeals Court, if an employee takes FMLA leave in reliance upon an incomplete list of FMLA eligibility requirements, that employee may be entitled to FMLA protection despite not actually being eligible under the law.

The Missing Eligibility Requirement in the FMLA Policy

In Tilley v. Kalamazoo County Road Commission, employee Terry Tilley had already received a final warning and was under a directive to deliver certain completed work assignment to his supervisor by August 1 or he might be terminated.

On the morning of August 1, Tilley began experiencing what he felt were symptoms of a heart attack and he left work to seek medical treatment. He then returned home and had his wife call the employer to say that he would not be returning to work until August 5. He applied for FMLA leave but the employer denied it, stating that since he worked at a job site that did not meet the 50/75 rule, he was ineligible for FMLA leave. Tilley was then terminated for failing to meet his August 1 work deadline.

The Court Eliminates The Road Commission’s Eligibility Defense

Tilley sued for interference with his FMLA rights. The employer countered, of course, that Tilley had no FMLA rights since he did not meet the 50/75 rule and therefore was ineligible for FMLA protection. Tilley replied that the employer’s FMLA policy only listed the first two eligibility criteria set forth above and omitted the 50/75 rule. He thought he was covered by the policy when he took his leave, and had he known that he was not protected by FMLA, he would have returned to work to finish off the last few details of his assignment.

Though the court acknowledged that Tilley technically be ineligible for FMLA, the absence of the 50/75 rule in the written policy prevented the employer from relying upon it to deny Tilley FMLA coverage. The appeals court reasoned that since Tilley had no independent knowledge of the 50/75 rule, “a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA” based on the FMLA policy as written. Therefore, fairness demanded that the employer be barred from using the 50/75 to deny Tilley’s eligibility for FMLA and allowed Tilley to pursue his FMLA claims despite not actually meeting the legal requirements for FMLA protection.

Bottom Line

Although Sixth Circuit decisions do not actually apply to Minnesota employers, the federal courts in this state could elect to borrow the reasoning of this case. Even if you feel that the 50/75 rule will never come into play because you only have one work site, don’t take the chance on an inadequate policy if and when your business circumstances change. Make sure that your FMLA policy properly lists all three eligibility requirements to avoid surprises like the one that the Sixth Circuit served up to the employer in this case.

The post Ineligible Employee Still Gets FMLA Leave Due To Incomplete Policy appeared first on Felhaber Larson.

This adoption of the “state of celebration” principle will allow more employees to access such FMLA privileges as taking take time off to care for their ill spouses, to take time due to exigent circumstances created by their spouse’s military obligations,  and take leave to care for stepchildren with serious medical condition.

This new definition is part of the DOL’s response to the landmark Supreme Court decision in United States v. Windsor,  570 U.S. 12 (2013), which invalidated a portion of the Defense of Marriage Act (DOMA) that restricted the definition of marriage for purposes of federal law to opposite-sex marriages.

What Does This Mean for Minnesota Employers?

Minnesota has legally recognized same-sex marriages since 2013 so Minnesotans in same-sex marriages would see no real impact of this new interpretation unless they live in other states that do not recognize same-sex marriage.  However, Minnesota does not recognize common law marriage, so Minnesotans who previously entered into a common law marriage in a state that still recognizes it are now considered spouses in regard to FMLA.  Of course, Minnesota employers with employees residing in other states must be sure that their FMLA determinations are based on where the law of the state where the employee was married rather than where they live and/or work.

The new rule may require some inquiry by the employer whenever an employee is claiming protected FMLA leave based on spousal status.  The DOL webpage answers a key question about what, if any, documentation an employer may require to verify a valid same-sex or common law marriage?  The DOL affirms that employers are still permitted to require “employees who take leave to care for a family member to provide reasonable documentation for purposes of confirming a family relationship.”   An employee must be given the opportunity to satisfy the request through formal documentation such as a license or court document, or through a personal statement asserting the qualifying relationship and location of marriage.  It is important for employers to remember that the employee determines what form of proof to submit.   Adopting a consistent policy regarding requiring proof will be essential for employers to maintain non-discriminatory administration of FMLA leave.

The post FMLA Leave Extended to Same-Sex and Common Law Marriages appeared first on Felhaber Larson.

In light of the U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which struck down Section 3 the Defense of Marriage Act, the U.S. Department of Labor (“DOL”) announced last week that it is no longer prohibited from offering spousal leave benefits under the FMLA to individuals in same sex marriages, and has proposed to redefine the term “spouse” under the FMLA to include partners in same-sex and common law marriages.

The FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave for family and medical reasons. One provision of the FMLA extends leave benefits to employees who need to care for a spouse with a serious health condition. Since the FMLA applies state law to define whether an individual is a spouse, state law on same sex marriages determines whether an employee may take FMLA leave to care for a same sex partner.

The DOL is taking it one step further, in the Notice of Proposed Rulemaking (“NPRM”), the term spouse is re-defined to include individuals in same-sex and common law marriages regardless of whether the state law currently allows same-sex or common law marriage. This proposal would establish uniformity across the United States, according to the DOL, by focusing on the “place of celebration” to determine eligibility for spousal leave benefits. By using the “place of celebration,” an employee’s partner would meet the definition of a spouse if the state where the couple entered into marriage recognized that marriage as valid. Then, for the purposes of the FMLA, the employee’s partner would qualify as a spouse in all 50 states.

Bottom Line

While the proposed definition would apply to all states, the effect of any changes would be less pronounced in states like Minnesota which already recognize same-sex marriage. Since FMLA’s spousal leave benefits are currently tied to state law, employers in states with recognized same-sex marriages are already providing spousal benefits to same sex couples. If the DOL’s proposed definition is adopted, however, employers in the 31 states that currently do not allow same sex marriage would be required to allow married employees to use spousal leave benefits to care for a same sex partner.

The proposed definition of spouse under the FMLA has only just begun to work its way through the rule-making maze, so employers do not need take any action yet. We will continue to monitor this proposed change and provide updates as they become available.

The post DOL Proposes FMLA Change to Cover Same-Sex Spouses appeared first on Felhaber Larson.

FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave during a 12-month period to care for a son or daughter with a serious health condition. The definition of “son or daughter” includes individuals over the age of 18 if:

1. the individual has a disability as defined by the ADA (as amended by the ADA Amendments Act of 2008 (ADAAA));

1. the individual is incapable of self-care due to that disability, which means that he or she “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living’”;

1. the individual has a serious health condition; and

1. the individual is in need of care due to the serious health condition.

Child’s Age at Onset of Disability Is Not Relevant

The Administrator’s Interpretation makes clear that FMLA leave is available even if the employee’s child developed the disability after reaching the age of 18.  In short, FMLA applies to caring for adult children if they meet the requirements set forth above.

More Adult Children Will Qualify as “Disabled” Under the Amended ADA

The Administrator’s Interpretation reminds employers that the ADA’s definition of “disability” has been substantially broadened by the ADAAA.   For example, there is no minimum duration for an impairment to be considered a disability, and an impairment that is in remission can still be considered a disability if it would substantially limit a major life activity when it is active. Even so, FMLA leave is only available if the adult child is incapable of self-care due to a disability and needs care due to a “serious health condition” under the FMLA regulations.

As an example, an employee’s 25-year old son with diabetes qualifies as having a disability under the ADA, but if he lives independently and does not need assistance with any daily activities, he will not be considered an adult “son” under FMLA. However, if he becomes unable to walk and care for himself, he will meet the definition and a parent could then take FMLA leave to care for him if such care is needed for a serious health condition.

Bottom Line

While an Administrator’s Interpretation does not carry the same weight as a regulation or judicial opinion, it does offer detailed guidance to managers applying the FMLA’s provisions in the context of employees caring for adult children.  Employers should study its contents carefully and ensure that qualifying parents are afforded FMLA leave.

The post DOL Issues New Guidance on the FMLA Rule for Caring for Adult Children appeared first on Felhaber Larson.

Recently, however, the Eighth Circuit Court of Appeals (which hears cases arising in Minnesota) ruled that where two months separate the protected activity and the termination, the employee needs more than the mere sequence of events to establish a connection between the two events.

This Will Be the Last Time

Mary Ellen Sisk, a Studio Manager at a Picture People retail store, took a 10-day leave under the Family and Medical Leave Act (FMLA) on June 3rd due to hip pain. During the leave, her condition worsened and she ended up having surgery on both hips, requiring that she remain off work for an additional 8 weeks.

Sisk returned to work with no restrictions but apparently struggled enough that co-workers immediately expressed concerns to management. On her third day back, company managers expressed concerns about Sisk’s health, asked her to return to her doctor and suggested that she should think about quitting and then reapplying when she was truly healthy enough. Sisk got up, tore up her name tag and walked out, believing she had just been fired. She sued the company in federal court for FMLA retaliation and appealed to the Eighth Circuit after her case was dismissed before trial.

The key to a retaliation claim is proof of a connection between the protected conduct and the adverse action (i.e., the “causal connection”). Sisk confidently asserted that the timing of the constructive termination — just three days after her return from leave — was sufficiently suspicious to allow the connection to be made. The appeals court disagreed, explaining that where timing is the only factor connecting the protected activity and the adverse action, the law must evaluate the employer’s actions when they first learn of the protected activity, not when that activity actually takes place or concludes. Therefore, the question to be addressed was whether a constructive termination occurring more than two full months after the employee begins an FMLA leave could establish a causal link between the two.

The Court noted that in previous cases of this type, they had ruled that a two-week separation might be “barely enough” to establish a connection, and that one month was too long. As such, the separation of two months in this matter was clearly too great to establish a causal connection between the two events and the dismissal of the case affirmed accordingly. Sisk v. Picture People, Inc., Case No. 10-3398 (8th Cir. Feb. 28, 2012).

Bottom Line

Employers should always give careful consideration to how it will look when they terminate an employee soon after he or she engages in protected activity. This case tells us, however, that as long as there is nothing to support the retaliation claim other than the Latin phrase quoted earlier, the employer will have a very respectable case and should end up happy.

The post Court Clarifies Timing Calculation for FMLA Retaliation Claims appeared first on Felhaber Larson.

Exigent Circumstances

The new proposed regulations memorialize last year’s announcement by the DOL that exigent circumstances leave would now cover the families of members of the regular armed forces (e.g., army, navy, air force), but that the exigency had to arise from deployment in a foreign country.  Foreign deployment will now include deployment in international waters.  Other proposed include expanding the time available for “Rest and Recuperation” from five days to fifteen, adding attendance at a funeral as a qualifying post-deployment event and permitting leave for child care and school activities even if the employee is not the parent of the deployed military member’s child.

Military Caregiver

The proposed regulations also memorialize interpretative changes announced last year for military care giver leave.  These changes included covering care provided to veterans for up to five years following release from service and including aggravation of preexisting conditions as a serious illness or injury warranting care. Other changes include:

• Providing that military care giver leave need only begin within the five years after discharge; the employee could continue exhausting the allotted 26 weeks into the sixth year if needed;

• Expanding “serious injury or illness” to cover a physical or mental condition:
  • for which a VA Servife Related Disability Rating of 50 percent or higher was issued, or
  • where the condition substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation.
• Allowing non-military health care providers to certify the serious illness or injury arising from military duty.

General Provisions

The proposed regulations also seek to eliminate a recent rule allowing employers to delay reinstatement from FMLA leave if it was a physical impossibility (e.g., a flight attendant seeking to return to an assignment on an airborne plane) and remove the certification forms from the regulations (even though the DOL would still maintain them on their web site and encourage their continued use).

Bottom Line

The DOL is seeking public comment on the new regulations, after which they will reexamine the proposals and likely issue a final version.

The post FMLA Proposed Regulations: Potential Changes Ahead appeared first on Felhaber Larson.