Tag Archives: FMLA

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.

NEW LAW: California Passes Parental Leave for Small Employers

Attention California employers … on October 12, 2017, California Governor Jerry Brown signed the New Parent Leave Act (SB 63) into law.  Under this new law, starting January 1, 2018, certain California employers are required to provide eligible employees with 12 weeks of unpaid, job-protected parental bonding leave.

Which employers are covered under this law (and required to provide this new leave)?

California employers who employ 20 to 49 employees within 75 miles of each other are covered by this law and required to provide this new benefit.

Does this new law extend FMLA/CFRA baby-bonding leave time?

No, this law does not apply to employees who are covered under the FMLA/CFRA, as these laws already provide 12-weeks of baby bonding leave.

However, an FMLA/CFRA-employer that has smaller locations (e.g. locations where the employees are not FMLA/CFRA-eligible due to not meeting the 50 employees within 75 miles requirement) are required to provide baby bonding leave to those employees who work at a worksite with between 20 or more employees in a 75-mile radius.

What employees are eligible for California Parental Leave?

The eligibility requirements are extremely similar to those under the FMLA/CFRA.  In other words, an employee is eligible for Parental Leave if he/she meets the following requirements:

  • The employee has worked for the employer for at least 12 months,
  • The employee has worked at least 1,250 hours in the 12-month period preceding the use of leave, and
  • The employee works at a worksite with 20 or more employees in a 75-mile radius.

How much leave is available to eligible employees?

Eligible employees may take up to 12 weeks of unpaid, job-protected leave during a 12-month period to bond with a new child within one year of the child’s birth, adoption, or foster care placement.

Is this leave paid leave?

No, the leave itself is unpaid.  However, employees are entitled to use accrued paid time off, such as paid vacation and sick leave, during the leave.  In addition, employees may also use California Paid Family Leave benefits for 6 weeks of this leave.

Do employers have to maintain an employee’s health benefits under this leave?

Yes, in addition to providing the leave of absence, employers are required to maintain and pay for the employee’s continued coverage under a group health plan at the level and under the same conditions that coverage would have been provided had the employee continued to work. Yet, if the employee fails to return to work following the leave, the employer is able to recover their portion of the premium provided that the employee’s failure to return is not due to the continuation, recurrence or onset of a serious health condition, or “other circumstances beyond the control of the employee.”

What if both new parents work for the same employer?  How does the leave work in that case?

In a case where both parents work for the same employer, both parents are entitled to a combined total of 12 weeks of unpaid parental leave.  The employer may, but is not required to, grant simultaneous leave to both employees.

What steps should employers take to prepare for this new leave?
Before this new law takes effect on January 1, 2018, California employers should first determine if they are covered employers under this law.  If yes, then affected employers should take steps to develop new policies and procedures relating to this leave of absence.  In addition, employers should train their managers and supervisors on how to comply with these new requirements.

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.

DOL Releases New Employer FMLA Guide and Poster

On April 25, 2016, the US Department of Labor released the “Employer’s Guide to the Family and Medical Leave Act” which, according to the DOL, is designed to “provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.”

The new guide is designed to help employers better navigate the FMLA leave process. Among the information provided in the guide are the following:

  1. A breakdown of the FMLA regulations and the leave request process in chronological order (from employer eligibility to leave request to return from leave);
  2. A variety of flowcharts and cartoons to help employers better understand the leave process;
  3. “Did you know” sections, which highlight lesser known provisions of the FMLA;
  4. Charts to help employers better understand the medical certification process; and
  5. An overview of the military family leave requirements.

In addition to releasing new guidance materials, the DOL has also released a revised General FMLA Notice for employers to post in the workplace. This poster is not intended to replace the existing General FMLA Notice (published in February of 2013).  Instead, employers are able to choose between posting the old version or the new version.

The new poster does not include any new information, it simply reorganizes the old information in a more reader-friendly manner.  It is recommended that employers review the new poster and decide whether they want to post the new poster.

Recommendation For Employers

If you are confused about your obligations under the FMLA, it is recommended that you review the new guidance materials.

HR Directors Beware … According To One Court You Could Be Held Individually Liable For FMLA Violations

HR professionals generally assume that they are shielded from personal liability for their company’s employment law violations. However, according to a recent US Court of Appeals, Second Circuit case (Graziadio v. Culinary Institute of America, Shaynan Garrioch, and Loreen Gardella) a company’s HR Director can be held individually liable for Family and Medical Leave Act violations.

The Facts

The plaintiff had taken FMLA leave on two separate occasions to care for her sick children. During the plaintiff’s second FMLA leave period, the employer questioned the paperwork the plaintiff had submitted in support of her need for FMLA leave and refused to allow the plaintiff to return to work until she provided new documentation. The plaintiff asked the company to clarify what type of paperwork it required, but the company never provided clarification. Ultimately, the plaintiff was terminated for job abandonment.

Following her termination, the plaintiff filed a lawsuit against the company and against two individuals — the company’s HR Director and her immediate supervisor — alleging interference and retaliation under the FMLA, and discrimination under the Americans with Disabilities Act (ADA).

Why Individual Liability May Be Possible

An individual may be held liable under the FMLA only if she is an “employer,” which is defined as encompassing “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” 29 U.S.C. § 19 2611(4)(A)(ii)(I); see also 29 C.F.R. § 825.104(d).

The court looks at least four factors when determining if a manager or supervisor can be individually liable for FMLA violations:

  1. Whether the manager or supervisor had the power to hire and fire the employees;
  2. Whether the manager or supervisor supervised and controlled employee work schedules or conditions of employment;
  3. Whether the manager or supervisor determined the rate and method of payment; and
  4. Whether the manager or supervisor maintained employment records.

In this case, the court found the HR Director met enough of the factors. Specifically, the HR Director:

  1. Reviewed plaintiff’s FMLA paperwork;
  2. Determined the adequacy of the plaintiff’s FMLA paperwork;
  3. Controlled plaintiff’s ability to return to work and the conditions under which she would be allowed to return;
  4. Sent nearly every communication regarding her leave and employment (including the letter that ultimately communicated her termination); and
  5. Admitted that the decision to terminate the plaintiff was jointly decided between her and another employee.

The Court found that these factors were enough to establish that the HR Director exercised sufficient control over the plaintiff’s employment to be subject to personal liability under the FMLA.

Impact on Employers

While this decision is only binding in the Second Circuit (New York, Vermont, and Connecticut), employers nationwide should consider the ramifications of this case when analyzing their organizational structure, chain-of-command, policy, procedures, and training systems and should take steps to avoid inadvertently subjecting individual employees to personal liability for potential violations of employment laws.

Constructive Discharge Considered Adverse Action Under the ADA

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity.  Employers should be aware that this also includes anxiety and depression.  Employers are also required to provide a reasonable accommodation to employees who are qualified individuals with disabilities unless to do so would cause an undue hardship.

In the case of Hurtt v. International Services, Inc. (6th Cir. Sept. 14, 2015), Hurtt was hired as a business analyst with a $70,000 annual draw and a 12% commission. Additionally, the company prepaid his travel expenses and allowed a $40 per diem food allowance. Several months after Hurtt was hired, he provided a therapist letter stating that he had acute anxiety and depression and he requested FMLA leave.  One day after he requested FMLA leave, the company terminated his $70,000 annual draw and placed him solely on commission and also stopped providing prepaid travel expenses. Hurtt quit and sued, claiming constructive discharge under the ADA and FMLA. Case can be found here.

The court ruled that the case could go to trial. The employee made a good faith request for accommodation, which is a protected activity under the ADA.  Even though the employee quit, the court ruled that Hurtt’s evidence was sufficient to raise a jury issue of constructive discharge.  A jury could find that the change and modification of the employee’s pay and work condition immediately after his request for FMLA could be considered retaliation for requesting leave.  An employee may use a constructive discharge claim to show that he or she has suffered an adverse action in violation of the ADA.

Avoid This Employer’s Costly Mistake With Employees Returning From FMLA Leave

Does your company require that an employee out on medical leave be released to return to work without any restrictions whatsoever before you allow the employee to return to work? The following cautionary tale may lead your company to change its policy.

In 2009, Bernadine Adams began working full-time for Brookdale Senior Living Communities in 2009 in Denver, Colorado. In July of 2011, Ms. Adams was diagnosed with fibromyalgia and went on FMLA leave until January of 2012.

When Ms. Adams returned to work in January 2012, she returned without restrictions but two days later, her fibromyalgia flared up and her doctor revised her work release and recommended that Ms. Adams work from home on a half-time basis. Ms. Adams then requested that her employer provide her with an ergonomic chair, a workplace lighting adjustment, and a flexible work schedule as a reasonable accommodation for her disability. The employer and Ms. Adams then engaged in the interactive process and tried to work out a reasonable accommodation. After much discussion, the employer determined that the reasonable accommodation was to place Ms. Adams on full FMLA leave until she was “fully released” by her doctor to work without restrictions and accommodations. Ms. Adams then filed a complaint with the EEOC claiming disability discrimination.

In late March of 2012, Ms. Adams advised her employer that she remained unable to return to work without restrictions or accommodations and, in response, the employer terminated Ms. Adams.

In September of 2014, the EEOC filed a lawsuit on Ms. Adams’ behalf against her former employer with two claims: discrimination by failing to accommodate and retaliation in violation of the ADA. The employer ultimately reached a settlement with the EEOC wherein it agreed, among other things, to pay Ms. Adams $112,500 as back pay and compensatory damages.

This story serves as a cautionary tale for employers with a similar practice in place. “The ADA requires that employers try to find a way to help an employee with a disability perform his or her job,” said EEOC Regional Attorney Mary Jo O’Neill in an EEOC press release. “As we celebrate the 25th anniversary of the ADA, employers need to know that snap judgments and refusals to consider reasonable accommodations can lead to violations of the law. Sometimes the employer and employees will have to engage in a number of conversations and discussions of options in order to arrive at an effective reasonable accommodation. Employers should also know that imposing a requirement that employees be without any restrictions whatsoever in order to return to work is a recipe for disaster.”

New FMLA Forms

The Department of Labor issued revised Family Medical Leave Act “Certification of Health Care Provider” forms.  The forms are to be provided to employees needing leave for their own serious medical condition or the serious medical condition of an employee’s family member.  The new forms expire on May 31, 2018.  The only significant change is the fact that the new forms expressly state that the employer is not seeking any information about genetic testing, genetic disorders or genetic services (inquiries prohibited by GINA).