One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.
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| http://dilbert.com/strip/2015-09-08 |
While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.… Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.
Yesterday, we looked at the DOL’s recent guidance on joint employment under the Fair Labor Standards Act. Simultaneously with its FLSA guidance, the DOL also published guidance on joint employment under the FMLA, and it’s definitely worth you time.Does an employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or, what if an employer fires an employee who misses work because of an FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer violated the statute?
In Festerman v. County of Wayne (6th Cir. 5/8/15) (h/t: Eric Meyer), a police officer felt chest pains at left work for the emergency room. Five days later, he submitted an incident report, and, a day after that, a doctor’s note that stated, “Patient is advised to limit working hours to 8 hrs/day.” At no time, however, did the employee specifically request FMLA leave, or invoke the statute for his time off from work.
The 6th Circuit concluded that neither the hospital visit nor the doctor’s note were individually sufficient to place the employer notice that the employee qualified for FMLA leave. However, the court concluded that, presented with the total picture, a fact issue existed as to whether the FMLA covered this employee’s leave.
This Court is confronted with a doctor’s note that expressly discloses a requirement of limiting the employee’s work hours per day, but fails to disclose the condition that gives rise to this requirement or any additional prescribed treatment. Consequently, the doctor’s note submitted by Festerman, in isolation, may not have provided sufficient notice to Wayne County of a qualifying condition under the FMLA. The circumstances surrounding Festerman’s initial qualifying leave, however, provided additional context to the doctor’s note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying condition….
Given Wayne County’s knowledge of a serious health-related incident that occurred in the workplace and the doctor’s note which advises that Festerman’s workday should be limited to eight hours per day, a reasonable jury could find that Festerman provided sufficient notice to Wayne County of a FMLA-qualifying serious health condition.
I’ve previously discussed how an employer should handle an employee’s potential or questionable request for leave under the FMLA.
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.
In other words, employers, err on the side of caution. Use the FMLA’s checks and balances. When in doubt, offer conditional FMLA leave, and confirm with the statute’s medical certification process. And, just, as importantly, train your supervisors to recognize a potential FMLA issue so that they do not get in the way of this process working.
Today, the new rule that would permit FMLA benefits for same-sex spouses was to take effect. However, late yesterday, a federal judge in Texas granted a preliminary injunction [pdf] temporarily halting the rule.
The plaintiffs—the attorney generals of four states that do not recognize same-sex marriages—successfully argued that they were likely to succeed on the merits of their claim that the FMLA rule infringed on their states’ rights under section 2 of the Defense of Marriage Act to ignore same-sex marriages lawfully entered in other states.
This is only a temporary victory for the plaintiffs in this case. And, while it legally only impacts the four states that are plaintiffs in this action, practically, the DOL will hold any implementation of this rule until this case plays itself out.
As for the merits of the case itself, as Robin Shea points out, this case could become moot (clearing the way for the FMLA rule-change) if the Supreme Court legalizes same-sex marriage later this term. Fingers crossed.
Same-sex spousal rights in this country are a mess. There is hope that the Supreme Court will clear it all up later this year when it hears the issue. In the meantime, the Department of Labor has proposed a change to the FMLA’s definition of “spouse.” From the DOL:
We announced a rule change under the FMLA to make sure that eligible workers in legal, same-sex marriages, regardless of where they live, will have the same rights as those in opposite-sex marriages to care for a spouse. We’ve extended that promise so that no matter who you love, you will receive the same rights and protections as everyone else.
For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This is called a “place of celebration” rule. That means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.
Thus, as proposed, the meaning of “spouse” under the FMLA would depend on the law of state in which the marriage was celebrated, not the law of the state where the employee lives or works. So, if your business is in Ohio and your employee lives and works in Ohio (which does not currently permit same-sex marriages), but travels to New York for a lawful and valid same-sex wedding ceremony, you would have to grant that employee the same FMLA benefits as you would to any other “spouse.”
This rule takes effect March 27, which means you have only 30 days to prepare your FMLA policies and practices for this important change. What should you be doing to prepare? Jeff Nowak offers three really good ideas:
Train your leave administrators and supervisors on the new rule. If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.
Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.
Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation. That said, employers are free to provide greater rights than those provided for under the FMLA.
Of course, as Robin Shea correctly points out, if the Supreme Court rules later this year that states must recognize valid same-sex marriages entered in other states (as it should), then the necessity of this DOL regulatory change is short lived.
Courtesy of the DOL, here are all of the resources you need on this important issue:
Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.The employer, however, denied Tilley’s request for FMLA leave because he did not work at a location that employed 50 or more employees within a 75-mile radius. Based on the employer’s unambiguous policy, however, the court concluded that the employer waived any ability to rely upon the 50-employee threshold.
This is an unambiguous and unqualified statement that Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits….
The Road Commission could have qualified its statement concerning employee eligibility by adding that its full-time employees would only be covered by the FMLA if they worked at, or within 75 miles of, a site at which the Road Commission employed at least 50 employees. That is precisely what other employers have done….
And we are unwilling to conclude as a matter of law that Tilley was unreasonable in relying on the Manual’s statement that employees in his position were eligible to apply for FMLA benefits. Simply put, a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA.Bottom line? Courts will hold you to your word if you mis-represent FMLA eligibility to an otherwise ineligible employee. If you, as an employer, do not want to go beyond the FMLA’s baseline requirements, you need to check, and then double-check, your leave policies, to make sure you are not promising your way into more coverage than intended.
The honest-belief rule is one of most effective shields available to employers in discrimination cases:
As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.
What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”
The case involved an employee whose newborn daughter had Down syndrome. He got stuck on vacation in Florida because of medical complications with the daughter, which delayed his post-vacation return-to-work date. The employer, based on pattern of similar prior non-medical issues with extended vacations, believed he was malingering and fired him.
The employer claimed as its defense to Yontz’s FMLA claim that it had an “honest belief” that Yontz “misused his pre-approved, intermittent FMLA leave.” The court disagreed, and rejected the application of the honest-belief defense in FMLA interference cases:
Dole may not use an honest mistaken belief that Yontz misused FMLA leave as a legitimate non-discriminatory reason for his termination. That Yontz received attendance points for using what may have been legitimate intermittent FMLA leave is the problem, not a legitimate, non-discriminatory excuse for the problem. The Sixth Circuit has not decided whether the rule applies to FMLA interference claims. To so rule would be to reward and encourage ignorance of a law our democratic process has seen fit to enshrine in law.
Per this case, the FMLA requires more than an honest belief to deny an employee FMLA leave. Thankfully, the FMLA provides employers myriad tools to check and double-check the legitimacy of an employee’s claim for leave. Employers have medical certifications, re-certifications, checks for authenticity and clarification, and second and third opinions. As this case shows, an “honest belief” will not save an employer who denies an employee’s FMLA request without first exhausting all available avenues of communication and clarification with the employee.
With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no.
When Tondalaya Evans, a pregnant payroll manager for Books-a-Million, requested FMLA paperwork for her impending September 1 due date, her employer told her that she “would not go on leave but would work while on maternity leave.” She protested, but was told that she had no choice because the "go-live" date for the new payroll system on which she had been working had been delayed until November. Evans gave birth on August 30, and immediately starting working (full-time, and with full pay) upon arriving home from the hospital with her baby on September 1. When she eventually returned to the office, she was transferred to a new position. Unhappy with the transfer, Evans quit and sued, claiming, among other things, FMLA interference.
The court concluded that requiring an employee to work (even for pay) in lieu of requested FMLA leave for which the employee was entitle to take violates the FMLA. In doing so, it rejected the employer’s argument that it could not have violated the FMLA because it paid Evans for her time off.
It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.
What lesson can employers learn from this case? Don’t suggest or require that an employee work during an FMLA-eligible leave (even if it’s paid). The purpose of the FMLA is to enable employees to take time off from work for certain qualifying medical and other reasons without from the encumbrance of work responsibilities and the fear of losing one’s job while away from work. Telling an employee that she cannot take an FMLA, but instead can (must?) work from home, undercuts both of these purposes. It both forbids an employee from taking time off, and puts the employee’s job at risk because of slipped performance as a result of divided attention. FMLA leave is federally guaranteed for a reason. Don’t mess with that reason by requiring work (albeit paid and at home) in lieu of bona fide leave of absence.