When an employee can’t return to work after an FMLA leave

The plaintiff in Demyanovich v. Cadon Plating & Coatings (6th Cir. Mar. 28, 2014) suffered from congestive heart failure. He returned from his latest FMLA leave in 2009 with a no-overtime medical restriction. The employer, however, ignored the restriction, kept assigning overtime hours, and denied an early-2010 FMLA request. Demyanovich’s doctor advised him to quit his job and apply for social security benefits. Shortly thereafter, the company terminated him for excessive absenteeism.

In the subsequent FMLA lawsuit, the employer claimed that Demyanovich could not prove him FMLA claim because he could not have returned to his job at the end of the 2010 FMLA leave, had it been granted. The court, however, disagreed:

Although there is ample evidence that Demyanovich might have had difficulty returning to work within twelve weeks of his February 23 request for FMLA leave, it is not indisputable that he would have been unable to do so. Dr. Mussani, Demyanovich’s primary physician, “advised [Demyanovich] to quit work” and seek Social Security benefits, but he did not draft any documentation stating that Demyanovich was categorically unable to continue working. We may not draw the inference, adverse to Demyanovich, that because Dr. Mussani had always cleared Demyanovich to return to work after past examinations, his advice to quit on this occasion demonstrates that Demyanovich was no longer capable of working.

According to the FMLA, employees who, at the end of the 12-week leave period, remain “unable to perform an essential function of the position because of a physical or mental condition … [have] no right to restoration to another position under the FMLA.” Thus, if Demyanovich truly could not have returned to work at the end of the FMLA leave, then he would not have a claim. In this case, the court concluded that the employer could not measure that inability prospectively, since Demyanovich presented no medical paperwork to that end.

What are the takeaway from this case?

1. When dealing with medical issues under the FMLA, get it in writing. In this case, it appears that the employer was attempting to justify its decision based on information in learned after the fact—that Demyanovich’s doctor recommend that he quit and seek social security benefits based on a total inability to work. Had the company learned this information at the time of the termination from medical information provided by Demyanovich at that time, this case likely would have turned out differently.
2. Don’t forget about the ADA. Just because an employee cannot return to work at the end of an exhausted FMLA leave does not mean you can always terminate the employee. Instead, you have an obligation under the ADA to explore, through the interactive process, reasonable accommodations such as temporary light duty or an unpaid leave of absence. Even if you are on solid legal ground to terminate under the FMLA, ignoring your obligations under the ADA will still buy you a lawsuit.

When is 1,250 not 1,250? Hours worked versus hours paid for FMLA eligibility

For an employee to be eligible to take leave under the FMLA, the employee must have been employed for at least 12 months, and have at least 1,250 “hours of service” during the previous 12-month period.

Hours of service means hours actually worked by the employee. It does not mean hours paid. Thus, paid non-working time—such vacations, holidays, furloughs, sick leave, or other time-off (paid or otherwise)—does not count for purposes of calculating one’s FMLA eligibility.

What does this rule look like in practice? Saulsberry v. Federal Express (6th Cir. 1/10/14) provides an example. In support of his claim that Fed Ex wrongfully denied leave under the FMLA, Pernell Saulsberry relied upon a document entitled, “Federal Express Corporation Employee Monthly Trend Report.” That report listed his “HR PAID TOT” for the previous 12 months as”1257.29.” The same report, however, listed Saulsberry’s “HR WKD TOT” as “1109.29.” At deposition, Salsberry admitted that the “Paid Tot” included paid time off during which he performed no services for Fed Ex, and the “Wkd Tot” accurately reflected the number of hours he had actually worked. Thus, because he worked less than the required 1,250 hours, the 6th Circuit concluded that Fed Ex legally denied his request for FMLA leave.

This case illustrates the importance of accurate time records. Whatever time tracking and payroll system you use, it must the ability to differentiate between time paid and time worked. It saved Fed Ex from an FMLA claim in Saulsberry, and it could likely save you too if an employee is on the 1,250-hour FMLA bubble.

Separation of protected activity and discipline can protect employers from retaliation claims

Can an employee succeed on a retaliation claim if the decision maker did not know about the alleged protected activity at the time the employer decided to terminate? The answer, according to McElroy v. Sands Casino (E.D. Pa. 1/9/14), is no.

Darryl McElroy, a dealer at the Sands Casino, submitted his FMLA request to the employee in Defendant’s human resources department who deals with benefits inquiries, Stacey Berasley. As was her practice, Berasley sent the claim to the company’s outside third-party benefits administrator, for a determination on the FMLA request. She did not tell anyone at the company about McElroy’s request for FMLA leave. Two months later, the company fired McElroy for harassing a co-worker. Berasley played no role whatsoever in the termination. McElroy claimed the termination was in retaliation for his FMLA request. The court disagreed, and dismissed the FMLA-retaliation claim.

But there surely can be no causal relationship between an FMLA request and a termination, and any temporal proximity cannot be considered suggestive, if the party making the termination decision had no knowledge of the FMLA request…. Here, none of the individuals involved in Plaintiff’s termination knew about his FMLA inquiry…. The record indicates that only Berasley knew about Plaintiff’s FMLA inquiry, and she has declared, “As is my practice with all questions regarding FMLA leave, I did not tell anyone in the Human Resources department or any of Mr. McElroy’s managers about his inquiry.” Nothing in the record could support a jury’s determination that anyone else knew; therefore, the retaliation claim fails as a matter of law.

In a perfect world, every company would operate like the employer in this case, with a separate department to handle FMLA request, which, in turn, minimizes the risk that a decision maker will learn of an FMLA request before taking an adverse action. As we all know, however, our world is far from perfect. Your organization might not be big enough to enjoy this luxury, or, maybe the employee tells someone other than an FMLA administrator of a need for FMLA leave.

Whatever the case, you can help insulate your company from retaliation claims by training your employees to treat FMLA requests (and other instances of protected activity) as need-to-know. The less people who know that an employee asked for FMLA (or made a harassment complaint, or filed an EEOC charge…), the better you will be to claim that the decision maker had no knowledge of the protected activity.

When an extended leave of absence is NOT a reasonable accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?

Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.

Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.

Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.

In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:

Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.

Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.

If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:

• The cost of the accommodation.
• The employer’s overall size, number, composition, structure, and functions  of employees, and the financial resources.
• The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
• The relationship of the facility in question to the overall operations of the employer.

Is the denial of paid paternity leave discriminatory?

ABCNews.com is reporting that a CNN reporter, Josh Levs, has filed an EEOC charge against Time Warner challenging its family leave policy as discriminating based on sex.

Levs, whose wife just gave birth to their third child, claims that his employer treats biological fathers differently. He claims that Time Warner’s policy permits 10 weeks of paid leave to women who give birth to children, or male and female parents following adoption or surrogacy. Biological fathers, on the other hand, are limited to two weeks of paid leave. This treatment, Levs says, discriminates against him as a man.

On his Tumblr, Levs makes a compelling argument for the unfairness of Time Warner’s policy:

If I were a woman, but other elements of my situation were the same — I was still with the same woman (so that would be a same-sex relationship), and she gave birth to our child, legally I would have to adopt in order to be co-parent. I would then have the option of 10 weeks off, paid.

Or how about this: If I gave my child up for adoption, and some other guy at Time Warner adopted her, he would get 10 weeks off, paid, to take care of her. I, however, her biological father, can’t.

The visceral reaction to a story such as Levs’s is to say, “Time Warner is treating men and women differently; therefore, it’s sex discrimination. Case closed.” The question, however, isn’t whether the policy is fair, but whether it’s legal.

There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy. As Time Warner points out, its policy provides 10 weeks of paid leave, more generous than the medical standards and the FMLA’s guarantee of unpaid leave.

Yes, Time Warner’s policy can lead to absurd results in extreme situations, as Levs points out. But, before we jump the gun and lynch the company from the sex-discrimination gallows, we need to consider that there might be an explanation that justifies its policy other than discrimination.

How to handle the malingering FMLA abuser

Let’s say you have an employee who claims to be suffering from a chronic back injury. He even has doctor’s notes certifying that his back pain impairs his “ability to lift, to carry heavy objects, to bend repeatedly, or actually bend at the waist.” So, you grant the employee intermittent leave under the FMLA, which the employee uses several times each month. But, you start to notice a pattern. The employee’s FMLA-protected days off always seem to bookend weekends and holidays. As a result, HR initiates an investigation, which includes surveillance of the employee. That surveillance uncovers that while the employee is home supposedly resting his painful back, he is actually going out for coffee, shopping, and working in his garage repeatedly bending down, lifting pieces of wood, and carrying them into his house. When confronted, the employee suggests that “‘maybe’ his doctor had given him a shot of Cortisone earlier in the day.” Unimpressed, the employer ultimately terminates the employee for “fraudulent or illegal conduct.”

In Tillman v. Ohio Bell Tel. Co. [pdf], the 6th Circuit affirmed the trial court’s dismissal of the employee’s FMLA retaliation and interference claims. The court concluded that Tillman could not pursue his retaliation claim because the company “held an honest belief that Tillman had abused his FMLA leave and violated the company Code of Business Conduct,” and could not pursue his interference claim because, whether or not the “honest belief rule” applies to interference claims, Tillman was not entitled to FMLA leave on days on which he was not actually suffering from a serious health condition.

This case is a great lesson for employers on how to build a case to support a termination decision. If you believe that an employee is abusing FMLA leave, build your case. Uncover enough facts to support your belief that that employee is committing fraud and otherwise not entitled to leave. Armed with that evidence, a court is unlikely to overturn your decision. While it may cost you a little extra up front in investigatory costs, you will save money on the backend both in litigation costs and future abuses by employees deterred from malingering.

FMLA now covers same-sex spouses (sort of)

Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor, there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws.

Windsor held that DOMA’s interpretation of “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional. Because this decision is limited to one provision of one federal statute, many have wondered how it will be applied to private insurance plans, and to other federal statutes, such as the FMLA.

Last month, we started to get an answer.

The Department of Labor’s Wage and Hour Division amended its Fact Sheet 28F, entitled Qualifying Reasons for Leave under the Family and Medical Leave Act. As best as I can tell, the DOL amended the Fact Sheet to make one material change — to add “same-sex” marriage to the definition of spouse. Thus, according to the DOL’s definition of “spouse,” an otherwise eligible employee of a covered employer is now entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.

It is important to note that this Fact Sheet is not the law. It is not part of the text of the FMLA, or even part of the DOL’s regulatory interpretation. It is merely the agency’s informational interpretation of the statute in light of Windsor.

Because courts do not have to accept this Fact Sheet as gospel on the meaning of “spouse” under the FMLA, neither should employers. It is an important first step, however, in the evolution of this issue and the development of same-sex leave rights under the FMLA.

While this issue develops in the DOL and the courts, employers need to remember that the FMLA is a floor, not a ceiling. Employers are free to provide leave of absence rights greater than the baseline the FMLA requires. Thus, employers that want to extend leave of absence rights, and other rights (such as benefits or employment-discrimination protections), to same-sex couples, need not wait for a legislative blessing. They were free to do so before the Windsor decision, and remain free to do so now. This Fact Sheet, however, signals that we are thankfully moving down a path to where someday, thankfully, this issue will no longer be open to debate or discussion.

6th Circuit permits employers to enforce reasonable call-in rules for FMLA leave

In Cavin v. Honda of America Manufacturing, he 6th Circuit held that “the FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.” Six years later, however, the Department of Labor amended the key FMLA regulation that underpinned the Cavin decision. 

That regulation, 29 C.F.R. § 825.302(d) now reads as follows:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.… Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

So, what happens now when an employer has a call-in rule that is more strict than the FMLA? According to White v. Dana Light Axle Manuf. (6th Cir. 8/7/13) [pdf]:

An employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements.

What does this case mean for you? It means that you should consider implementing reasonable call-in requirements to help curb FMLA abuse and over-use. If the statute allows you to take advantage of these policies, why not help level the playing field against a statute that, more often than not, favors the employee.

Is this the worst fake doctor’s note ever? And what could you do about it?

Buzzfeed recently published the above note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with the caption, “How NOT to fake a doctor’s note.”

Even though an employer might have every reason to believe that a doctor’s note is fake, an employer runs the risk of an FMLA violation by summarily denying time off without following the FMLA’s procedures for authenticating a medical certification.

Authentication

• The FMLA permits an employer to contact the medical provider who purported to provide the certification to authenticate the document.
• Authentication means providing the health care provider with a copy of the certification and requesting verification that the health care provider who signed the document completed or authorized it.
• An employer may not request any additional medical information.
• An employer must first provide the employee with the opportunity to authenticate the note.
• If, however, the employee fails or refuses, the employer, through a health care provider, human resources professional, leave administrator, or management official—but not the employee’s immediate supervisor—may contact the employee’s health care provider directly for purposes of authentication.

Second and Third Opinions

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second (and possibly third) opinion:

• The second opinion must be at the employer’s expense.
• Pending receipt of the second opinion, the employee is provisionally entitled to all of the benefits of the FMLA, including intermittent leave. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the employer then has the right to retroactively designate the leave as non-FMLA.
• An employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider must be one that it does not regularly contract with otherwise regularly use the services of.
• 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 third health care provider, again at the employer’s expense. This third opinion is final and binding.
• Upon request by the employee, an employer is required to provide the employee with a copy of the second and third medical opinions within five business days of such request.

Your gut instinct might say fire this employee, but following that instinct could get you in trouble under the FMLA if note turns out to be legit. Following the FMLA’s rules for authentication, and second and third opinions, will give you the legal ammo to fire the offending employee. In the meantime, place the employee on conditional FMLA leave, which is unpaid. A few weeks down the road, once you confirm that the note is inauththentic, you can fire the employee without having incurred much expense or burden in the interim (save a couple of medical exams if you have to go the route of second and third opinions).

For more on verifying FMLA leaves of absence, I recommend Jeff Nowak’s recent post on his FMLA Insights Blog, entitled, Is Your Employee Paying a Deception Service to Provide You a Fake Doctor's Note or FMLA Certification?

The FMLA, the ADA, and no-fault attendance policies

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy.

• In Green v. Wal-Mart Stores (S.D. Ohio 6/25/13), the district court denied the employer’s motion for summary judgment on an employee’s FMLA claim because the employer admitted to counting FMLA-days for purposes of progressive discipline under its no-fault attendance policy.
• In July 2011, the EEOC reached a $20 million settlement with Verizon Wireless over claims that the wireless company denied reasonable accommodations to disabled employees by disciplining or firing them pursuant to its no-fault attendance policy.

Employers have a lot to gain from no-fault attendance policies, both in ease of personnel management and certainty in attendance calculations. In deciding whether to adopt or continue a no-fault attendance policy,however, employers must carefully to balance those benefits against the risk of FMLA or ADA violations. Moreover, with a no-fault attendance policy in place, employers must be careful to train those responsible for administering the policy with the exceptions required by the FMLA and ADA for protected absences.

There are no magic words to invoke the FMLA

The Family and Medical Leave Act does not require an employee to use the word “FMLA” to request leave under, and invoke the protections of, the FMLA. Instead, an employee only needs to do the following:

• For foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.”

• For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”

In either instance, this informal notification triggers an employer’s designation obligations under the FMLA.

How vague can verbal notice by an employee be to trigger an employer to consider the notice a request for FMLA leave? In Wiseman v. Awreys Bakeries LLC (6th Cir. 5/22/13) [pdf], the plaintiff, an employee with a history of back problems, verbally complained that he was “injured” and “couldn’t work.” The company fired him for unexcused absences, claiming that he provided no explanation or medical reason.

The appellate court reversed the trial court’s dismissal of the FMLA claim, finding that an issue of fact existed over whether the employee provided FMLA-qualifying notice. The court held that the employee’s verbal statement that he was “injured” and “couldn’t work,” coupled with the company’s knowledge of his history of back injuries and the employee’s request to see the company’s doctor, could lead a jury to conclude that the employee had invoked the FMLA.

Cases like Wiseman should rarely happen. The FMLA provides protections for employers who, in good faith, doubt whether the FMLA covers an employee’s request for time off. When there exists any doubt over whether an employee is seeking time off for a reason that could qualify under the FMLA, there is no harm in treating the request as one for FMLA leave. In fact, an employer has greater protection in an FMLA-covered scenario than not.

• If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

• If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

photo credit: ShellyS via photopin cc

28 days later? Passage of time justifies recertification of intermittent FMLA leave

The FMLA permits an employer to “require that [an] eligible employee obtain subsequent [medical] re-certifications on a reasonable basis.” The FMLA’s regulations define what constitutes a “reasonable basis.” Under the regulations, and employer cannot ask for a recertification more than once every 30 days, unless “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).”

In Graham v. Bluecross Blueshield of Tenn., the 6th Circuit recently held that the passage of time alone can constitute sufficiently changed circumstances to justify an employer’s early request for a recertification:

We agree with the district court's ruling as to the reasonableness of BCBST’s request for recertification after Graham’s 28 consecutive absences, in that they constituted “significantly changed circumstances….” As the district court observed, this period of absenteeism was twice as long as Graham’s longest previous episode in March 2007.

Because the employee failed to respond to a lawful recertification request, the leave was not FMLA leave, and the employer was entitled to consider the absences as unexcused.

Managing FMLA leave, and particularly managing intermittent FMLA leave, is one the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence. Instead, consult with your employment counsel to determine the best course of action before your hasty actions get you in trouble under the FMLA.

Who's the "knucklehead?" Employee loses retaliation claim after slurring co-worker

The original "knucklehead"

Noreen Wilson worked as a pharmacist for The Cleveland Clinic. From August 24 through November 4, 2010, she racked up three corrective actions -- the first for calling a coworker a "knucklehead," the second for sending an improper email to a job applicant, and the third for disconnecting a telephone while a coworker was on a call. After the last corrective action, the hospital transferred Wilson to a different shift. Three days later, she applied for, and was granted, FMLA leave. She then appealed the corrective actions through the Clinic's internal processes. After the hospital rejected her appeal and upheld the correction actions, she resigned to take a job with a different employer. She then sued the Clinic for, among other things, FMLA retaliation relating to the corrective actions.

In Wilson v. CCF (N.D. Ohio 2/6/13), the district court concluded that the corrective actions were not "adverse" to support a claim of retaliation under the FMLA.

The Court finds that the corrective action Plaintiff received for calling a customer/coworker a "knucklehead" is not an adverse employment action.... Plaintiff received a corrective action for calling a coworker a "knucklehead." Plaintiff does not dispute doing so and therefore, cannot rely on this as evidence of constructive discharge when it was based on her own misconduct.

Exercising control to dole out legitimate discipline is not retaliation or discrimination. It's sound management of your people. Provided the punishment fits the crime, and provided the punishment is consistent with your past practices, you can discipline without fear of retribution.

Is an employer obligated to provide light duty to an employee returning from FMLA leave?

Many employers use temporary light duty assignments to enable ill or injured employees to return to work before they are fully healed. In fact, rehabilitation specialists will tell you that it is better for both the employee and the employer for one to return to work sooner on a modified assignment than to wait until full recovery. Is an employer required to offer light duty to an ill or hurt employee out on FMLA leave, or can an employer require an employee to remain on FMLA leave until full recovery? According to James v. Hyatt Regency Chicago (7th Cir. 2/13/13), light duty is not a right to which employees can insist under the FMLA.

Carris James spent his 22-year career with the Hyatt Regency Chicago as a banquet steward. In March 2007, he suffered a non-work-related eye injury and required surgery. The company offered him FMLA leave, which he accepted. Before his medical leave ended (which his collective bargaining agreement had extended beyond the FMLA’s required 12 weeks), James faxed a note from one of his physicians, which stated that James could return to work with certain lifting and bending restrictions. Those restrictions would have prevented him from returning to his banquet steward position. When Hyatt refused to offer light duty, James sued.

James argued that Hyatt interfered with his FMLA entitlement when it did not reinstate him to a light duty position. The court disagreed. It relied on the plain language of the FMLA’s regulations: “If the employee is unable to perform an essential function of the position because of a physical or mental condition … the employee has no right to restoration to another position under the FMLA.” Because light duty is not an “equivalent” position, the FMLA does not mandate restoration to a light duty position. It only protects employees who can return and perform all of the essential functions of their position. Because James’s doctor only released him to light duty, the company had no obligation under the FMLA to bring him back to work.

While the answer to this issue under the FMLA is fairly straight forward, often times the ADA will dictate a different result. Before denying light duty to an employee returning from FMLA leave, you must consider whether the ADA requires the light duty as a reasonable accommodation. If you have light duty available, and do not have to create a light duty position to accommodate the employee, the ADA will likely require the consideration of temporary light duty as a reasonable accommodation.

BREAKING: FMLA compliance is not as easy as the DOL says [poll results]

In celebration of the FMLA’s 20th anniversary, the Department of Labor released the results of a survey of employers on their experiences managing the statute. According to the DOL, “employers generally find it easy to comply with the law, and … the vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations….”

That conclusion sounded so out of touch with reality that I decided to run my own (not so scientific) poll. I asked one simple question:

How difficult has it been for your company to comply with the FMLA?

200 responded (thanks to Jeff Nowak, the Evil HR Lady, and Robin Shea for the link-love). The results are not pretty for the DOL’s credibility. Not so surprisingly, my poll reached the exact opposite conclusion.

• Only 9.5 percent of respondents report that the FMLA compliance is very easy or somewhat easy.
• Conversely, a whopping 68 percent report that FMLA compliance is very difficult or somewhat difficult.

The complete results—

Very difficult	20.5 %
Somewhat difficult	47.5 %
Average difficulty	22.5 %
Somewhat easy	6.5 %
Very easy	3 %

What do these resultsmean? It means that either the DOL found the only sample of employers in the country who have no issues managing FMLA compliance, or the DOL put so much spin on its survey results that its conclusions are not credible. Do I need to tell you that I think it’s the latter?

I am saddened by the DOL’s apparent chicanery. These tactics do not help raise FMLA awareness; they lower the DOL’s credibility. It is no secret that (1) the United States lags behind the rest of world in workplace leave rights; and (2) the FMLA’s mission is noble, albeit one that poses an administrative nightmare for conscientious employers. Surveys that rob the DOL of its credibility in enforcing this statute do not help employers comply with this law. Instead of creating surveys that mislead everyone into thinking that the FMLA is working, the DOL should recognize that FMLA compliance is difficult and put its resources into helping employers meet its complex maze of requirements.

DOL: Employers find it easy to comply with the FMLA. What?!?! [poll]

Twenty year ago today, President Clinton signed the Family and Medical Leave Act into law. To commemorate this anniversary, the Department of Labor has released the results of a survey of employers on the status of this law.

According to the DOL:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale.

Did I read that right? Does the DOL really conclude that “employers generally find it easy to comply with the” FMLA? I started practicing law in 1997; I’ve spent my entire career advising employers on the FMLA. I am not aware of any company that finds it “easy to comply with” the FMLA. In fact, most companies whom I have counseled would tell you that FMLA administration is among the most complicated of all HR functions.

Either the DOL found the only 1,649 employers (91 percent of the 1,812 worksites surveyed) who “find it easy to comply with” the FMLA, the DOL is putting some major spin on its survey results, or my read on FMLA administration is way off.

To find out for sure, I’m running my own poll, which asks the question, How difficult has it been for your company to comply with the FMLA?

[Hat tip: Eric Welter]

Requests for unpaid medical leaves should be stamped, “Handle With Care”

If I had to rank questions I get from clients in order of frequency, questions on medical leaves would be near, if not at the top of, the list. These questions usually take the form of, “Sally has been out of work on a medical leave for a few weeks (or months), and tells us she needs to be out for a few more. We need to get her work done. Can’t we just replace her and move on?” The easy answer, whether or not you are covered by, or the employee is eligible under, the FMLA, is a big fat “no.”

Regardless of the FMLA, the ADA will require that you consider, and likely grant, an unpaid leave of absence as a reasonable accommodation for a disability. How long is too long? Bimberg v. Elkton-Pigeon-Bay Port Laker Schools (6th Cir. 1/17/12) [pdf] provides some guidance.

Cynthia Bimberg took an unpaid leave of absence from her teaching position to care for her husband, diagnosed with metastasized melanoma. The employer granted her 12 weeks of leave under the FMLA, extended that leave by 6 months until the end of the school year, and again extended it to the one-year anniversary date of her leave. When she then failed to return to work, the school district terminated her employment.

In affirming the decision dismissing Bimberg’s ADA lawsuit, the 6th Circuit commented on the duration of her leave in relation to the legal merits of her discrimination claim:

The alleged factual dispute concerns Bimberg’s insistence that her year of unpaid leave ended on January 4, 2010, not on December 18, 2009. But Bimberg conceded in her deposition testimony that she would not have returned to work in January 2010 in any event, because she could not leave her terminally ill husband in Houston. Indeed, she did not return to Michigan permanently until a week after his death on February 11, 2010….

It is apparent that Cynthia Bimberg was motivated by the hope that Laker Schools would relent and, on humanitarian grounds, allow her to take what, from their point of view, constituted an indefinite leave. The school district’s failure to do so clearly did not constitute a violation of the ADA.

What should you take away from this case?

• An indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA.

• You must consider a finite unpaid leave as an accommodation. Even finite leaves, however, can reach a point that tips the leave from reasonable to unreasonable.

• If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to have an open dialogue with the employee about a return date, and prepare to be flexible (to a point). What is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company. Then, when the employee asks for “one more extension” to his or her leave of absence, no one will fault you as an unreasonable ogre if you decline.

[Photo credit: jenny louise johnson via photopin cc]

Putting the human back in human resources, redux

As a parent of a child with some medical issues, I am very sensitive to the needs of working parents. Luckily for me, I work at business that understands these needs and has never batted an eye when my son spent 19 days in the hospital, or I want to attend an echocardiogram or some other appointment with one of his doctors. Some employees, however, are not as blessed.

Consider, for example, the case of Wegelin v. Reading Hosp. & Med. Ctr. (11/29/12). Rachel Wegelin’s daughter, Carolyn, suffers from pervasive developmental disorder, which manifests by delays in social and emotional functioning, sensory integration difficulties, and attention deficit. Carolyn attends before and after daycare at a facility to and from which she can be transported to school. When the hospital moved Wagelin’s parking space to a more distant lot, she no longer had sufficient time to pick up Carolyn from the daycare before it closed. So, she requested FMLA leave for the express purpose of finding a suitable daycare that would accommodate her new work schedule and her daughter’s medical needs. The employer refused and fired the employee when she took off the time anyway.

In defending against the inevitable FMLA lawsuit, the employer argued that the FMLA does not provide leave for a parent to locate childcare. The court, in denying the employer’s motion for summary judgment, vehemently disagreed:

Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available. Therefore, when Reading Hospital changed Wegelin’s parking assignment, she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.

I’ve written before about the importance in putting the human back in human resources. I also discuss this idea in detail in my latest book, The Employer Bill of Right: A Manager’s Guide to Workplace Law. This case perfectly illustrates this principle. How hard would it have been to accommodate this employee? And, no, I’m not suggesting that the hospital should have given her back her old parking space. As someone whose first question after making partner was, “Do I get a better parking space,” I understand the turmoil that accommodation would almost certainly cause. All kidding aside, this employee did everything she could to balance her job and the unique needs of her family. All she requested was some small amount of unpaid time off to find a childcare solution to accommodation her new work schedule and her child’s serious medical needs.

Or, let me put it this way for those of who are more dollars-and-cents oriented in your thinking. Employers, what do you think costs more? Accommodating a few days of unpaid time off, or defending this lawsuit?

[Hat tip: Pennsylvania Family Law Blog, c/o Employment Discrimination Report]

Certification harassment? 6th Circuit rejects claim under FMLA

Have you ever heard of certification harassment? Me neither, until I read Smith v. City of Niles [pdf] last week.

According to Leddrew Smith, from 2002 to 2009, the city asked him to provide six separate medical certifications for his 2001 back injury. Those repeated requests, per Smith, exceeded the FMLA’s limits, and therefore interfered with his right to medical leave.

Here is what the 6th Circuit said about Smith’s claim:

He is right about one thing: An unreasonable demand for recertification may interfere with FMLA rights. He is wrong about another: The City’s requests all fit comfortably within the regulatory boundaries.

The FMLA has a maze of regulations that define when an employer can ask for a recertification of a serious health condition. Critical to this case is the rule that permits an employer to require a recertification any time that the “circumstances described by the previous certification have changed significantly.”

In this case, the court relied upon Smith’s changed circumstances to conclude that the city had not harassed him with its recertification requests.

• In one instance, Smith took six days of medical leave, instead of the two days estimated in his prior certification. Per the 6th Circuit, “If an employee desires more time off than described in the prior certification, the employer may require updated information from a physician. That is all that happened.”
• In another instance, Smith sought to change his work restrictions to accommodate a new physical limitation. Per the 6th Circuit, “The City responded with a request for recertification because the new limitations were not listed on the previous certification. That is the epitome of a reasonable recertification request.”

In other words, following the rules does not equate to harassment. Now if we can all just figure out those annoying rules…

Facebook foible foils FMLA fight

Wendy Barnett worked as a nurse in the psychiatric unit at Aultman Hospital. When her boss, for whom she did not care, was fired, Barnett sent the following email through Facebook to at 14 people, including 9 present or former coworkers:

Lisa got officially ax (sic) today! I am singing DING DONG THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years...including turning me into the board...God does grind a fine mill when revenge is taken on by him...back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

The hospital undertook a full investigation upon learning of the email, which Barnett initially denied writing. When one of the hospital’s vice presidents contacted Barnett for a meeting, Barnett, sensing that her termination was on the horizon, called in sick and asked for a medical leave. Despite receiving a medical certification from Barnett’s doctor, the hospital proceeded with the termination.

The trial court rejected Barnett’s FMLA claim, both because it made its decision to terminate before she had ever requested a medical leave, and because she lied about being the author of the email rant during the hospital’s investigation.

As the Sixth Circuit said … bluntly, “[A]n employee may not insulate [herself] from a pending dismissal by opportunistically invoking the FMLA.” … In this case Defendant has put forth uncontroverted evidence that Plaintiff lied repeatedly to her superiors regarding her conduct, and that she was terminated for her dishonesty…. The uncontroverted evidence in the case is that her lying was the motivation for her termination.

Yesterday, I made the point that even though people like to treat social media as the new kid on the block, it is really nothing more than a communication tool, to which all of the old rules of the workplace apply. This case helps illustrate that point. The hospital fired Barnett not because of her email rant, but because when confronted with the email, she compounded her problems by lying about the authorship of the email.

Old rules + new technology = same result.