Category Archives: FMLA

Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

When administering FMLA , employers are generally advised to run FMLA concurrently with other leaves for which the employee may be eligible– as this practice prevents leave stacking.

However, when drafting FMLA policies, how an employer handles the use of paid leave during FMLA is commonly overlooked.  While most leave policies require employees to use their earned vacation, sick or PTO time concurrently with FMLA leave, employers tend to overlook the FMLA regulation that prohibits employers from requiring employees to use paid leave during FMLA.

Employers should consider how to handle situations where an employee who is requesting FMLA also has some type of paid leave available for his or her use. Continue reading Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

NEW GUIDANCE: Department of Labor Publishes 6 New Opinion Letters

The US Department of Labor has certainly been busy as of late.  In addition to creating a new agency and developing two new websites, the DOL has also issued six new opinion letters, which interpret various issues under the federal Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA).

FMLA Opinion Letters

#1.  Can organ-donation surgery qualify as a “serious health condition” under the FMLA?

In the first letter, the DOL addressed the question of whether an organ donor qualifies as an individual with a serious health condition for purposes of the FMLA.

The DOL concluded that organ donation does qualify as a serious health condition because the donor often will often require an overnight stay in the hospital.

#2.  Does this employer’s no-fault attendance policy violate the FMLA?

In the second letter, the DOL addressed the question of whether a no-fault attendance policy that “freezes” during an employee’s FMLA leave (i.e. remains at the number of attendance points that the employee accrued prior to taking FMLA leave) violates the FMLA. Continue reading NEW GUIDANCE: Department of Labor Publishes 6 New Opinion Letters

NEW FORMS: Department of Labor Publishes New FMLA Forms

The US Department of Labor recently published new model FMLA notices and medical certification forms on their website.

The newly updated forms are as follows:

Notices

Certification forms

It is recommended that all FMLA-employers download these new forms as soon as possible

NEW CASE: $4.5 Million Reasons to Engage In the Interactive process (and Provide reasonable Accommodation) to your disabled employees

In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee.  California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.

The Case

In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm.  Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.

Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired.  The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.  The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.

The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).

Take Home for Employers

While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process).  This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers.  Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.

The following are important steps to follow when engaging in the interactive process with an employee:

  • Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request.  Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
  • Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer.  Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
  • Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
  • Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum.  Also, follow up with the employee to check the status of his action items.  Do not assume that the employee will simply complete them, periodically touch base with the employee.  And, as always, document both the company’s actions, but also the follow up conversations with the employee.
  • Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible.  Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.

Remember, the interactive process is a continuing process with your disabled employees.  Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process.  Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position).  If it isn’t, then the company will need to start the interactive process all over again.

PENALTY INCREASE — STOP Before Violating These Laws

The US Department of Labor recently announced that it is increasing the penalties associated with violations of several employment laws.  The penalty increase applies to all penalties assessed after January 2, 2018 for violations that took place after November 2, 2015.

The increase in penalties applies to the following violations, among others:

Law Violation Type Old Maximum Penalty New Maximum Penalty
Family Medical Leave Act Failure to post required FMLA notices $166 $169
Fair Labor Standards Act Willful or repeated violations the FLSA minimum wage and/or overtime provisions $1,925 $1,964
Violations of the FLSA child labor law provisions $12,278 $12,529
Violations of the FLSA child labor law provisions that result in serious injury or death $55,808 $56,947
Willful or repeated violations of the FLSA child labor law provisions that result in serious injury or death $111,616 $113,894
Occupational Safety and Health Act Violations of the OSHA provisions $12,675 $12,934
Willful or repeated violations of the OSHA provisions $126,749 $129,336
Failure to post required OSHA notices $12,675 $12,934
Failure-to-abate violations of the OSHA provisions $12,675 $12,934

In addition to the above-listed laws, the DOL also increased the penalties for violations of several other laws, including the Employee Retirement Income Security Act, the Immigration and Nationality Act, and the Employee Polygraph Protection Act, among others.

For a complete table of the increased penalties, click here.

NEW CASE: Connecticut Court Finds Providing Indefinite Leave Is Not A Reasonable Accommodation

In a recent case, Thompson v. Department of Social Services, the Connecticut Appellate Court held that an employer is not required to grant an employee a leave of absence as a reasonable accommodation where the employee requests an indefinite leave and does not respond to the employer’s request to contact her regarding her leave.

The Case

The plaintiff was a long-term employee of the Connecticut Department of Social Services and suffered from a chronic health condition that caused her to take medical leaves of absence (including FMLA leave) throughout her employment.

Following the expiration of an FMLA leave in February of 2013, the plaintiff left a note for the HR department advising that she would be taking additional medical leave starting the next day and lasting “over thirty days depending on my lung condition as I need to get well and my lungs better.”  The plaintiff did not speak to the HR Director in person, but left her contact information along with the instruction to “call me if you have any questions.”

The plaintiff also left the completed paperwork requesting additional leave under short-term disability policies.  However, the information on the two forms was conflicting.  On one form, the plaintiff stated that she was unable to return to work until reevaluated by her physician and that the physician expected “significant improvement in her medical condition” in one to two months. On the other form, the physician claimed that the plaintiff’s need for leave would be “ongoing” and she would be able to return to work “when reevaluated”, although no date was provided for the reevaluation.

Upon receipt of the note and the two forms, the HR department informed the plaintiff via certified mail that she was ineligible for extended leave because she did not provide sufficient information to support her need for additional leave.  The letter further advised the plaintiff that her current time off was unauthorized.  The letter also gave the plaintiff 15 days to provide additional medical certification to support her need for additional leave.

The plaintiff did not respond to this letter and her employment was terminated after the expiration of the 15-day period.  The plaintiff subsequently filed a lawsuit for disability discrimination.

The Holding

The Court that in this case the employer acted properly and that it was not required to provide her with an extended leave of absence when she had, for all intents and purposes, requested an indefinite leave of absence.  Specifically, the court found that her request for leave was not a reasonable accommodation because the plaintiff failed to provide the employer with any time frame for her return and then failed to respond to the employer’s subsequent attempts to contact her regarding her request for leave; thereby depriving the employer of the opportunity to engage in the interactive process with the employee.

Take Home For Employers

This case is significant because it confirms that extending an indefinite leave of absence is not a reasonable accommodation under the ADA.  However, this holding should be taken with a large grain of salt.

Even though this case was ultimately favorable to employers, it does not mean that employers are not required to extend a leave of absence following the expiration of FMLA as a reasonable accommodation.  Instead, it reminds employers of their obligation to engage in the interactive process with an employee who is seeking an extension of FMLA leave to determine whether extending the leave is a reasonable accommodation.  It further confirms that employers have the right to request that an employee provide reasonable documentation relating to their request for accommodation and they have a duty to explore various accommodations with the employee – one of which may be an extension of a leave of absence.

Finally, here the Court found that the employer’s attempts to engage in the interactive process with the employee (by sending two letters) were enough to make a good faith attempt to communicate with the employee.  However, did the employer really go far enough?  This Court thought yes, but other Courts in other jurisdictions have found that merely sending a letter to an employee is an insufficient attempt and employers should attempt to exhaust other lines of communication as well – like calling the employee on the phone.

If faced with a similar situation (an uncommunicative employee), we recommend that employers try multiple ways (phone, email, text message, letter) to contact the employee before reaching the conclusion that the employee is refusing to cooperate.

Remember “Magic Words” are not necessary when requesting FMLA or reasonable accommodation

In a recent decision (Molina vs. Wells Fargo Bank, N.A.), the Utah federal district court issued an important reminder to employers nationwide regarding employee requests for reasonable accommodation based on a disability and/or FMLA leave. Simply put – employees are not required to utter any “magic words” when seeking a reasonable accommodation or when requesting FMLA leave. Merely providing an employer with information to place the employer “on notice” that the employee might need a reasonable accommodation or FMLA leave is sufficient.

What happened?

In this case, an employee of Wells Fargo Bank (who has epilepsy) had requested time off because she was concerned that the stress from her job could trigger her medical condition and cause her to have a seizure.

Instead of engage in the interactive process with this employee and discuss her request, Human Resources denied her request and told the employee that her epilepsy was not a disability and that she did not qualify for leave under the FMLA.   The employee also approached her manager with her request and he also denied her request (although, he did suggest that leave may be possible in a couple of months).

The employee resigned and filed a lawsuit against Wells Fargo claiming, among other things, disability discrimination and interference with her FMLA rights.

Wells Fargo attempted to dismiss the claim on demurrer (essentially claiming that the employee failed to plead sufficient facts to support her claims). The Court disagreed finding that the plaintiff had properly plead a claim for disability discrimination. While this case is far from over (and at this point the Court’s decision has no bearing on the strength of the plaintiff’s claims), the Court did criticize Wells Fargo for denying her requests without attempting to explore possible accommodations.

Significance for Employers

The mistake made by Wells Fargo is a mistake that employers commonly make. There is a mistaken belief that an employee must specifically ask for a “reasonable accommodation because of their disability” or specifically reference “FMLA” (or the state equivalent) leave before an employer’s obligations to engage in the interactive process and/or notify an employee of his/her rights under FMLA are triggered.

This is not the case. Instead, employers are required to engage in the interactive process and/or provide the appropriate leave information to an employee when the employer receives enough information to put the employer on notice that accommodation or leave may be required for this employee. Information provided by the employee may specifically reference a medical condition (e.g. I have epilepsy); or, it may be as vague as “I need time off to help my mom.” In both cases, the employer has a legal obligation to begin a conversation with the employee about possible accommodation(s) and/or leave rights that may be available.

It is recommended that employers remind their managers and HR staff about the scope of the company’s obligations to employees with respect to both providing reasonable accommodation to employees and advising employees of their leave rights.

 

Dear Employee … Please Be Advised that your FMLA leave expires on …

A recent federal case (Ross v. Youth Consultation Service, Inc.) send an important reminder to employers regarding their obligations under the FMLA – specifically those relating to the scope of an employer’s obligation to notify employees about their Family and Medical Leave Act rights. This case reminds employers that this notice must include a calculation of the employee’s available leave and when that leave will expire.

The Case

In September, the plaintiff requested FMLA leave. On her request, the plaintiff told the employer that her return date was “unknown.” The employer granted the employee’s request for FMLA leave and the leave was designated as such.

A couple weeks later, the employee provided the employer with an updated return to work date of April 2013, which was well-beyond the 12-week FLMA period. The Company did not provide any response to the plaintiff and, most significantly, employer did not provide her with an updated calculation of leave or inform her when her leave would expire.

Instead, when the employee’s 12-weeks of FMLA expired, the employer contacted the employee and asked if return to work date had changed. When the employee responded no, the employer terminated her employment. The plaintiff later filed a lawsuit claiming that her employer failed to provide her with proper notice of her FMLA rights after she informed it about a change in her status.

The Court agreed with the plaintiff’s position. The Court reminded the employer that it had the burden of calculating the plaintiff’s leave allowance and informing the plaintiff that the change in her status altered the available leave. Here, the employer made three critical mistakes:

  1. The employer failed to tell the plaintiff what specific amount of time was available to her,
  2. The employer failed to provide a change-in-designation notice to the plaintiff after receiving the doctor’s note, and
  3. The employer failed to communicate the “critical information” that the FMLA would not protect all of the requested leave.

Take home for employers

It is important for employers to remember that they have an obligation to provide employees with enough information about FMLA leave so that they can make an informed decision about how to structure their leave time. This includes informing an employee of any remaining available leave and communicate any consequences of the updated designation.

Also, while not addressed in this case, employers should remember that when an employee’s FMLA leave benefits expire, that is not necessarily automatic grounds for termination. Instead employers may have obligations to extend the leave under other laws, like the Americans with Disabilities Act.

Stop – Read this before you call an employee who is on FMLA Leave

It’s a common scenario faced by employers. An employee is on FMLA leave and an important question arises that only this employee can answer.

What happens next? Generally someone from work calls the employee who is on leave to ask that question, but is this the best practice?

It depends on the extent of the contact with the employee. According to several federal court cases, a few de minimis (or “minor”), work-related communications with the employee to “pass on institutional knowledge or documents”, or as a “professional courtesy”, may be permissible.  However, anything too “excessive” could expose an employer to an FMLA interference lawsuit.

What’s the balance?

According to the Court in Smith-Schrenk v. Genon Energy Services, L.L.C. (2015), “there is no right in the FMLA (for an employee) to be ‘left alone’ or be completely relieved from responding to an employer’s discrete inquiries. … On the other hand, asking or requiring an employee to work while on leave can cross the line into interference.” In other words, employers must find a good balance between minimal contact and excessive conduct and, unfortunately, there is no bright-line test for what is permissible vs. impermissible contact. Instead, court cases have given examples of what might constitute “permissible” contact: occasional phone calls inquiring about files; a modest “unburdensome” request for materials; or an inquiry to close out a completed assignment.

What should employers do?

The best practice is for employers to avoid contacting employees who are on FMLA leave about work matters. Before contacting the employee, first determine if there is anyone else who might have the information. However, if the question is truly urgent and you have determined that the employee on leave is the only person who can answer the question, then contact the employee, but keep the communication brief.

To avoid unnecessary communications with employees who are on leave, develop protocols for contacting employees in this situation.  Designate one individual  (i.e. the employee’s manager or supervisor) who is the “point of contact” with the employee for these situations and instruct all other employees to approach the designated person with questions that involve the employee who is on leave.  That designated person can then make the determination if a call to the employee is truly necessary.

NOTE: “Touching base” with the employee about his/her return date when the leave time is close to expiration would likely be permissible.

Coming Soon from the DOL – Worker.gov

On October 28, 2016, the U.S. Department of Labor (DOL) announced that it has launched the beta version of worker.gov, the DOL’s new website. This new website is intended to give employees “access to information about their rights that responds directly to their challenges” while removing the guesswork for the employee as to which law might apply in the employee’s situation.

According to the DOL, the new website is designed to provide workers access to critical information about their rights . . . in a way that makes sense for them.” Rather than asking employees to identify the violation, the new website asked employees to “answer a few simple questions about their lives and jobs” and then will “guide them to the information they need” without workers needing “to know the name of a single statute or government agency.”

At the present time, the DOL is beta-testing the new website, but even this beta-test sends an important message to employers. The DOL is using technology to enable employees to be more proactive in identifying potential legal violations in their workplace. Employers need to be aware of this new tool and be prepared for a potential increase in claims once employees start using this tool.