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FMLA Master Class: Feb. 12

Posted by Molly DiBiancaOn November 5, 2013In: Family Medical Leave, Seminars

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Back by popular demand!  Our FMLA Master Class, presented in conjunction with BLR and HR Hero, is always the most requested seminar from clients and seminar participants.  So, at your request, we’ve brought it back. 

If your organization is subject to the Family Medical Leave Act or if you are nearing 50 employees, you should consider joining us on February 12, 2014, for this in-depth, full-day program. 

You can learn more about the program and register online.  We’ll look forward to seeing you then!

New FMLA Forms and Poster Now Available

Posted by Molly DiBiancaOn February 19, 2013In: Family Medical Leave

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The Family and Medical Leave Act (FMLA) took effect 20 years ago.  To celebrate, the DOL released a survey on the impact and use of the FMLA.  According to the DOL, the survey found that “misuse of the FMLA is rare.”

Now, for those of you who have not laughed yourself right out of your chair, congratulations. For the rest of us, the reality is that FMLA abuse is, in many, many workplaces, a significant problem and, I bet many employers would say, maybe the most misused workplace law today.  Of course, I don’t have a survey to back up my conclusions. But there you have them, anyway.

Putting aside the issue of employee misuse and abuse, employer compliance with the FMLA is difficult, to say the least. It’s a very technical statute and seemingly harmless oversights can land an employer in court. 

One of the easiest ways to improve your odds of not getting it wrong with the FMLA is to use, consistently, the DOL’s standard forms.  Use of the forms is voluntary—you may, lawfully, use your own forms and/or create your own letters and abandon forms altogether.  But, really, why?  The FMLA is not a law for which creativity will be rewarded. 

The DOL has just released updated FMLA forms.  Download the forms and, if you don’t use them (and, really, why wouldn’t you?), at least take this opportunity to review your own forms and letters to be absolutely sure that you have encompassed every aspect of the DOL’s versions. 

Forms relating to military caregiver leave for a veteran are not included in the revised forms.  That rule does not take effect until March 8, 2013.  In conjunction with that effective date, though, comes another important requirement— a new FMLA workplace poster.  The new poster has an updated section regarding Employee Rights and Responsibilities.  You can download the poster from the DOL’s website.

Until then, you can download the rest of the forms (in PDF) for your review and use using the links below or, if you prefer, download the whole lot in a single PDF containing all of the new FMLA forms.

Posting Vacation Pics on Facebook While On FMLA Is a Bad Idea

Posted by Molly DiBiancaOn February 12, 2013In: Family Medical Leave, Leaves of Absence

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The FMLA turned 20 last week and there has been a flurry of articles and posts discussing how the FMLA has changed the workplace, whether it imposes too high of a burden on employers, and predicting how it will likely continue to evolve. All of the academic commentary aside, though, we all know that the FMLA is no easy row to hoe. The truth is that the law is a very technical one and its application must comply with very detailed technical requirements.

Which is why we get all sorts of excited over FMLA cases that are resolved in favor of employers. The case du jour is precisely that--a win for the employer. It's such a great set of facts, though, that I'm going to switch up the normal order of things and start today's post with my "lessons learned." Admittedly, they're a bit snarkier than usual. But, I dare say, spot on.

5 lessons for employees to learn from Lineberry v. Richards:

1. Give serious consideration to whether you should be Facebook friends with your coworkers. They'll rat you out in a heartbeat and you're a fool if you think otherwise.

2. Don't demand or request sympathy from your "friends." If they really are your friends, you wouldn't be asking. Whining about why you have not received a get-well card constitutes a request for sympathy.

3. Do not press "Send" until you have cooled off. Getting into an email flame war is never a good idea. It is a very, very bad idea when your boss is the target of your flames. It is an even worse idea when you tell tall tales in the inflammatory email. After all, what you type can and will be used against you in a court of law (and by your employer).

4. Don't lie, dummy. You'll get caught. There are cameras everywhere, including at the airport and in your friend's hands as they snap your vacation photos.

5. Don't sue your employer after you've been fired for lying. If your employer wins, information about your case and related acts of deceit will be posted all around the Internet. It may be embarrassing.

The Facts

The plaintiff-employee was working as a full-time R.N. for the defendant-hospital when she was injured on the job. She was approved for FMLA leave for the maximum 12-week period. By all accounts, she was a good employee with satisfactory performance.

While on FMLA leave, the employee took a prepaid, planned vacation to Mexico. Her physician (who worked at the hospital), approved the vacation and testified that it would not conflict with her recovery.

During her leave, her co-workers saw pictures of the employee on her Facebook page, which showed her on vacation, riding in a motorboat, drinking, etc. She also posted pictures of herself holding her infant grandchildren--one in each arm as she stood. In her status updates she talked about trips to Home Depot, babysitting her grandkids, and taking online classes.

Her co-workers complained to their supervisors about what they considered to be a misuse of FMLA leave. About half-way through her leave, the employee sent her supervisor an email complaining that she had not received a get-well card from coworkers. Her supervisor responded:

[T]he staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.

The employee, apparently unable to hold back, sent the following email reply:

As far as the airport, customs, etc., goes, I was in a wheelchairbecause I couldn't stand for that long. As far as the plane goes (3.5 hour flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.
* * * * *
I want to come back to work as soon as possible and wouldn't have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

The next week, her supervisor reported her belief that the employee was misusing her leave. On the same day the employee was approved by her physician to return to work, the hospital's HR and Loss Time Management departments decided she would be terminated.

In accordance with the hospital's progressive-discipline policy, the employee was called in for an investigative meeting prior to her termination. At the meeting, the employee reiterated that she had used a wheelchair in all airports on her trip. When the hospital's Director of Security Investigations presented the employee with the Facebook pictures, she admitted that she had lied and, in fact, had never used a wheelchair on her vacation.

She was fired for violating the hospital's policy prohibiting "dishonesty, falsifying, or omitting information." The employee sued, alleging that the hospital unlawfully interfered with her FMLA rights by denying her reinstatement upon return from leave and by retaliating against her for taking FMLA leave.

The court granted summary judgment to the employer on two alternative grounds. First, the court found that there was no evidence that the employee was terminated as a result of her FMLA leave. Instead, she was terminated because she violated the hospital's policy against dishonesty.

Alternatively, the court found that the employer was entitled to summary judgment under the "honest-belief" doctrine because the employer honestly believed, based on particularized facts, that the employee lied and misused her FMLA leave.

For those of you who may be keeping score, this counts as a "W" in the Employers' column.

Lineberry v. Richards, No. 11-13752 (E.D. Mich. Feb. 5, 2013).

[H/T to the Disability Leave Law Blog]

Party Like It's the FMLA's Birthday

Posted by Molly DiBiancaOn February 8, 2013In: Family Medical Leave, Leaves of Absence, National Defense Authorization Act (NDAA)

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The Family Medical Leave Act (FMLA) celebrated its 20th birthday this week. And boy, oh boy, was the DOL was ready to celebrate!

And what kind of birthday would it be without a party? Acting Secretary of Labor Harris hosted a commemoration program that featured celebrity special guests, including former President Bill Clinton, former Senator Christopher Dodd, and former labor secretary Hilda Solis, among others. The entire program, which lasts about an hour, is viewable on YouTube.

But wait, there's more!! On February 5, the actual anniversary of the day the FMLA was signed into law, the DOL issued a final rule implementing expansions that cover military families and airline flight crews. Under the rule, military family members can take leave to care for a covered veteran who is seriously ill or injured. They can now take additional time, up to 15 days of leave, to be with a service member who is on leave from active duty. Additionally, the rule expands the FMLA's protections to airline pilots and flight crews who were frequently ineligible for FMLA due to their unique work schedule.

And, for those who really can't get enough of the FMLA, there is a new survey, "Family and Medical Leave Act in 2012: A Final Report," which was released just in time for the big celebration. According to the DOL, the survey shows that the FMLA "has had a positive effect on the lives of millions of workers and their families without imposing an undue burden on employers."

And, now, one for the road. Last month, the Wage and Hour Division issued an Administrator Interpretation providing guidance on the definition of "son or daughter" under the FMLA as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. Fact Sheet, FAQs

That ought to satisfy your FMLA thirst this Friday. Have a great weekend!

Return-to-Work and Fitness-for-Duty Examinations Following an Employee's Medical Leave

Posted by Adria B. MartinelliOn June 7, 2012In: Family Medical Leave

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Yesterday, I presented a section of the FMLA Master Class. In my session, we discussed mandatory return-to-work exams done by the employer's selected doctors. There were lots of questions on this issue as many employers continue to require return-to-work exams as a matter of course before employee can return to work after FMLA leave. In many instances, such a practice will be in violation of the ADA and the FMLA. I promised a more thorough discussion of the issue, so here it is.

FMLA Regulations on Return-To-Work and Fitness-for-Duty Exams

The FMLA regulations state the following:

  • As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition), who take leave for such conditions to obtain and present certification from the employee's health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process. See §825.305(d).
  • An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave. The certification from the employee's health care provider must certify that the employee is able to resume work. Additionally, an employer may require that the certification specifically address the employee's ability to perform the essential functions of the employee's job. In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee's job no later than with the designation notice required by §825.300(d), and must indicate in the designation notice that the certification must address the employee's ability to perform those essential functions. If the employer satisfies these requirements, the employee's health care provider must certify that the employee can perform the identified essential functions of his or her job. Following the procedures set forth in §825.307(a), the employer may contact the employee's health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee's return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required. 29 CFR § 825.312

These regulations make clear that the normal fitness-for-duty certification as prerequisite to return to work after FMLA leave is to be completed by the employee's own health care provider, not the employer's doctors. And a second opinion may not be requested. The requirements that it is uniformly applied and employee receives notice, relate to a fitness-for-duty certificate coming from the employee's HCP, not a return-to-work exam conducted by the employer.

Therefore, what is an employer to do when it has a genuine concern about an employee's ability to effectively perform the functions of his or her position, notwithstanding a cursory note from the employer's doctor stating otherwise? Under the FMLA, it appears the employer is out of luck.

ADA Comes to the Rescue - Sometimes
Here's where ADA may come to the rescue. The FMLA regs state that ADA requirements apply, and under the ADA employers have the right to conduct medical examinations to determine whether an employee can perform the essential functions of his or her job (with or without reasonable accommodation) in certain situations. Therefore, after an employee returns from FMLA leave, a medical examination at an employer's expense by the employer's health care provider may be required if it is job-related and consistent with business necessity. A number of cases have explored what qualifies as "job related and consistent with business necessity." The key criteria are as follows:

There is a reasonable basis for the exams.
The employer must have a "reason to doubt the employee's ability to perform the essential functions of the job." For instance, a discrepancy between the doctor's original letter and return-to-work certificate would be a reasonable basis. But, short of information from the employee's own provider which leaves doubt, what will at court consider a "valid reason to doubt the employee's ability to perform the job?" Certainly, direct observation of the employee's physical restrictions, on or off the job, would be sufficient. Many employers, however, seem to feel it is their right to have their own HCP conduct an exam, when there is little or no objective basis for doubt of what the employee's HCP is telling them. It appears that courts in very limited circumstances have found such exams as "job related and consistent with business necessity - when the reason for leave directly related to and impacted the employee's ability to safely perform the job. For example, a police officer who breaks his arm. His ability to carry and discharge a gun is so critical to his safe performance if his job duties, that if his employer required a RTW exam narrowly tailored to the use of his arm, this would probably be upheld even if there was not a reasonable basis to doubt the officer's HCP opinion that his arm was fully functioning.

The exams are narrowly focused.
The medical exam should seek only information about the effect of the particular injury or illness that necessitated the leave on the employee's ability to return to work. Don't request a general physical or a return-to-work certificate stipulating the employee is in "good health." This again, is where many employers get into trouble. Many employers require the employees to provide medication information far beyond the original condition generating the leave. The more narrowly focused the RTW exam is, the less likely a court will delve into whether or not there was a reasonable basis for the exam in the first place.

The medical examination requirements are applied consistently.
Of course, as with all employment best practices, similarly situated workers must be treated the same.

Bottom Line
If your organization requires return-to-work physicals by its own health care provider as a matter of course for employees returning from FMLA leave, you need to take a close look at this practice. If you don't have a reasonable basis to believe the employee is unable to perform their duties safely, then you should not be requiring these exams. If you maintain this practice despite my advice otherwise, you should ensure that they are narrowly tailored to the injury or illness that necessitated the leave. Failure to narrowly focus the exams or to have a reasonable basis to conduct them in the first place will leave your organization exposed under both FMLA and ADA.

Redefining "Eligible Employee" under the FMLA

Posted by Molly DiBiancaOn February 27, 2012In: Family Medical Leave

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An employee does not become eligible to take FMLA leave until he or she has worked at least 1,250 hours and 12 months. But, according to the 11th Circuit, being eligible to take leave is not the same as being eligible to request leave. Employers should be mindful of the court's recent opinion when a recently hired employee submits a request for FMLA.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff-employee submitted a request to take FMLA. At the time the request was made, she had not yet passed her one-year anniversary, making her ineligible to take leave. However, the requested leave would have begun after the 12-month mark, when she would have been eligible for FMLA. The employer terminated her before the end of her first year.

The 11th Circuit was asked to decide whether the employee could pursue a claim under the FMLA. In order to make that decision, the court had to determine whether the employee could be considered an "eligible employee" for purposes of the FMLA. As you may imagine, the employer argued that the employee was not an "eligible employee" at the time she was terminated and, therefore, was not protected by the statute.

The court disagreed, finding that eligibility is determined at the time the employee would have taken leave. Here, she would have been eligible for leave because, by that time, she would have been employed for the full 12 months. According to Hunton Labor & Employment Perspectives Blog, the 11th Circuit is the first federal court of appeals to have faced this question.

Although the ruling may come as a surprise to many employers, I think that common sense and good intent would deliver the same outcome. An employer would be well advised to be aware of the message it would be sending by terminating an employee who gives timely notice of her need for FMLA leave. In other words, the employer would be encouraging employees who had a legitimate need for leave to keep mum about the need until completing the first year of employment. It seems that employers would want to have as much notice as possible so it could make the necessary arrangements in planning for the employee's absence.

Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).

(FMLA) Form Over Function

Posted by Lauren Moak RussellOn February 7, 2012In: Family Medical Leave, Genetic Information (GINA)

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New FMLA forms appear to be around the corner. In 2008, the U.S. Department of Labor issued a set of forms, which were intended to assist employers in reviewing and granting requests for leave under the Family Medical Leave Act (FMLA). Updated forms have been submitted to the federal Office of Management and Budget (OMB), but have not yet been approved.

Until new forms are issued, the U.S. DOL has indicated that the old forms may continue to be used. However, employers should note that the 2008 forms do not account for recent changes in the law. The most significant change since the forms were issued is the publication of regulations implementing the Genetic Information Nondiscrimination Act (GINA). The GINA regulations were issued in 2010 and took effect in January 2011.

GINA generally prohibits employers from obtaining employees' genetic information, except in limited circumstances. Because of the broad scope of GINA's prohibition, many employers were concerned about its impact on their businesses. The regulations issued in 2010 addressed many of these concerns, and created an exception where employers inadvertently obtain an employee's genetic information. In order to take advantage of this exception, employers are advised to include "safe-harbor" language in medical forms, including FMLA documentation. We've addressed the FMLA-GINA safe-harbor issue and provided sample language in previous posts. The 2008 FMLA forms issued do not contain this safe-harbor language, so employers should consider adding it as a temporary solution until new forms are approved.

3d Cir. Finds Individual Supervisor Liable Under FMLA

Posted by Molly DiBiancaOn February 1, 2012In: Cases of Note, Family Medical Leave

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Can an individual supervisor be held liable when an employee files suit? Well, like all legal questions, it depends. The Third Circuit Court of Appeals issued an opinion yesterday expanding the instances when the answer to this question is yes in Haybarger v. Lawrence County Adult Probation & Parole, No. 10-3916 (3d Cir. Jan. 31, 2012).

Background
The plaintiff, Debra Haybarger, was the office manager for Lawrence County Adult Probation and Parole, an agency of the Lawrence County of Court of Common Pleas. Haybarger reported to Director William Mancino who, turn, reported to Court Adminstrator Michael Occhibone. Occhibone reported to the President Judge of the Court, Judge Dominick Motto.

Hayberger missed a lot of work due to various illnesses. Her boss, Mancino, was "displeased" by the absences, writing on her performance evaluations that she needed to "improve her overall health and cut down on the days she misses due to illness." He also commented about her health and suggested that she need to "start taking better care of [her]self." Yikes.

Mancino put Haybarger on a six-month probation, which required weekly progress reports and formal monthly meetings. In a disciplinary letter, he wrote that Haybarger's "conduct, work ethic and behavior [were] non-conducive to the Adult Probation Office." He also wrote that she demonstrated a "lack of leadership," and "no clear understanding of the subordinate positions" that she supervised. Gulp.

At the end of the six months, Mancino told his superiors that Haybarger's performance had not improved and recommended that she be terminated. They followed his recommendation.

The Suit
Haybarger sued the agency, the county, and Mancino under the ADA, Rehabilitation Act, Pennsylvania's state discrimination statute, and the FMLA. Initially, the District Court dismissed all of the claims except for the Rehabilitation Act claim against the agency and the FMLA and state-law claims against Mancino.

After limited discovery, the agency moved for summary judgment, alleging it was immune from suit pursuant to the 11th Amendment. The motion was denied and the Third Circuit affirmed.

On remand, the agency again moved for summary judgment, as did Mancino. The agency's motion was denied but the parties subsequently settled, leaving only the FMLA claim against Mancino in his individual capacity.

The District Court held that, while the FMLA permits individual liability against supervisors at public agencies, the plaintiff failed to show that Mancino had "sufficient control over [her] conditions and terms of employment" because he did not have authority to hire and fire and, therefore, was not a supervisor.

The Holding
The Third Circuit determined, as a matter of first impression, that supervisors at public agencies are subject to liability under the FMLA was one of first impression. The court then went on to find that Mancino could be considered a supervisor and, in turn, an "employer" for purposes of the FMLA.

In its first finding, the court rejected the positions of the 6th and 11th Circuits, both of which have found that the FMLA does not provide for individual liability for supervisors and, instead, adopting the reasoning of the 5th Circuit. This conclusion was based on the determination that the language of the FMLA and its implementing regulations are more like the FLSA, which permits individual liability, rather than Title VII, which does not.

The court then turned to the facts that could support a finding that Mancino could be considered to be an "employer" for the purposes of the FMLA. In sum, the court explained, "an individual is subject to FMLA liability when he or she exercises 'supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation' while acting in the employer's interest."

The Impact on Supervisors
There are several lessons to be learned from this case--some more obvious than others. First, do not comment (or care) about the reasons for an employee's absence. If an employee is absent and is permitted to be absent--because of your leave policy, because of the FMLA, or otherwise--then the reason(s) for the absence is irrelevant. Do not care and do not comment about why an employee is taking leave when she is permitted to do so.

Second, learn how to write a better performance evaluation. Ambiguous comments like, "employee demonstrates poor leadership skills" do not help the employee improve because they do not identify the underlying conduct that you want her to change. Give an example of how she fails to be a good leader. If you cannot articulate a specific example of what you consider to be poor performance, it is not poor performance under the law.

Third, to avoid being held individually liable under the law, supervisors are best advised to let HR do what they do best--including administering FMLA leave. Simply turn it over to HR and then get the pros involved when writing performance evaluations and considering disciplinary action for any employee who has been approved for FMLA leave. This stuff isn't easy--get help from the pros.

Extreme Makeover: FMLA Edition

Posted by Lauren Moak RussellOn August 8, 2011In: Family Medical Leave

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The Parental Bereavement Act is the latest in a series of proposed amendments to the Family and Medical Leave Act (FMLA). The Act, as drafted, would permit an employee to take unpaid bereavement leave for the death of a child. This is just the latest change to the FMLA proposed in the last two years. Other proposals have included:

1. The Family Fairness Act (2009), which would remove the requirement that an employee perform 1,250 hours of work for an employer prior to becoming eligible for FMLA leave;

2. The FMLA Inclusion Act (2011), which would expand FMLA coverage to allow leave to care for same-sex partners, adult children, siblings, grandparents, and other more attenuated family relationships;

3. The Healthy Families Act (2011), which would require employers to provide 56 hours of paid sick leave per year;

4. The aptly-named Paid Vacation Act (2009), which would require employers to provide one workweek of paid vacation per year; and

5. The pièce de résistance, the Balancing Act of 2009, which incorporates all of the foregoing, plus expanding the FMLA to cover employers with 25 or more employees!

It is generally agreed that none of these bills--with the exception of the Parental Bereavement Act, is likely to have any success in the legislature. Either way, we'll be sure to keep you posted as the effort to makeover the FMLA continues.

3d Cir: No FMLA Protection for Employees Who Lie

Posted by Lauren Moak RussellOn July 27, 2011In: Family Medical Leave

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The FMLA requires an employee to receive (unpaid) leave for certain family and medical reasons. Employers must provide certain notices to employees, determine employees' eligibility for FMLA leave, and track leave time in accordance with the FMLA's complex regulations. A recent opinion from the Third Circuit, though, makes clear that the employer isn't the only one obligated to follow the FMLA's many rules.

In Prigge v. Sears, the employee applied for FMLA leave, telling his employer that he was suffering from prostrate cancer, which had been in remission. In fact, though, the employee needed the leave for seek treatment for Bipolar Disorder. About 8 months after he was hired, he was hospitalized due to depression, at which time he confessed to his employer the real reason he had been missing work.

Before returning to work, the employee was supposed to provide documentation to support his absences. Although he provided some of the medical certification, he never complied fully with his employer's request for information. He was subsequently terminated and later filed suit.

In defending against the lawsuit, the employer offered two reasons for terminating the plaintiff-employee: (1) the employee's failure to provide the required documentation; and (2) the false reasons offered by the employee as the basis for the leave.

The district court ruled in favor of the employer, finding that, although the employee may have been entitled to the leave that he took had he been honest about the reasons for it, he became ineligible for the protections of the FMLA when by lied about his illness. Without the protections of the FMLA, there was no basis for liability and the case was dismissed.

Here's what this case teaches us--employees must tell the truth to be protected by the FMLA. And by "truth," the court means, the "whole truth," including the reason that leave is needed, as well as the underlying illness.

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Who's Your Daddy? Under the FMLA, It's a Tough Question

Posted by William W. BowserOn July 20, 2010In: Family Medical Leave

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Maury Povich has made a good living hosting a TV show which often focuses on determining paternity. The show follows a familiar pattern. A woman comes on and declares that a man, waiting back stage, is the father of her baby. The child is then shown on the screen for the audience in the studio and at home to adore. The putative father is then marched onstage to loud boos.

He, of course, vociferously denies paternity using a series of arguments used by men through the ages like “the kid don’t look like me” or “she slept with lots of other men.” The man and woman then go back and forth for a bit. No physical violence. This isn’t Jerry Springer. The crowd loves it anyway.

Maury then produces a manilla envelope with the result of a DNA test. After the requisite commercial break, Maury dramatically reads the results of the test. The studio audience erupts. If the man is the father, he pledges to live up to his obligations. Sure, buddy. If he is not, the mother runs off the stage to his taunts. The whole sad affair is wrapped up in ten minutes.clip_image002

Determining parenthood often critical under the FMLA. The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, “[b]ecause of the birth of a son or daughter”, “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and “to care for a son or daughter with a serious health condition.”  See 29 U.S.C. 2612(a)(1)(A)-(C).

Fatherhood, or motherhood, for that matter, is not always clear under the Family and Medical Leave Act (“FMLA”). While in Maury’s world, a child has only one father, under the FMLA there can be many. A parent is defined as “a biological, adoptive, step or foster father or mother or any other individual who stood in loco parentis” to a child.

While Maury uses a DNA test to determine a biological father, it is not necessary for FMLA purposes. Under the FMLA, a birth certificate will suffice. Similarly, court documents will work for adoptions and foster care. But what about “in loco parentis”? Now that’s a tough one. The U.S. Department of Labor recently issued an Administrator’s Interpretation that may make it even tougher.

The FMLA regulations state that “[p]ersons who are ‘in loco parentis’ include those employees with day-to-day responsibilities to care for and financially support a child….” The Interpretation, however, sees this definition as providing only an example of an “in loco parentis” arrangement, not establishing the requirements. Despite the use of word “and” in the regulation, the Interpretation states that an employee need not establish both day-to-day care and financial support. Rather, it sufficient for an employee to provide only day-to-day care. The Interpretation also gives a series of other scenarios which may qualify for in loco parentis status. For example, an employee who will be raising an adopted child with a same sex partner, but who does not have a legal relationship with the child, will still be eligible for FMLA. Good luck confirming these relationships.

The Interpretation concludes by stating the determining whether an employee stands in loco parentis to a child “will depend on the particular facts.” Unfortunately, those particular facts may be hard for an employer to determine or confirm.

Are You an Employer Covered by the FMLA?

Posted by Molly DiBiancaOn September 8, 2009In: Family Medical Leave

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The answer to this question is critical. If the answer is “yes,” the employer must comply with the myriad of obligations imposed by the FMLA. The answer is “yes” if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year.[1]  

The determination of whether an organization meets this 50-employee requirement is not an easy one, though, especially for employers with a high turn-over rate and employers who utilize temporary or seasonal help. Here’s a short breakdown of the analysis to help you determine if your organization is a “covered employer” for purposes of the FMLA. 3d man with calculator.jpeg

  • Start with the correct time period. You should look to the payroll records of the current and preceding calendar year. (For example, if we were to perform the calculation today, we would need to look at the records for 2008 and 2009).
  • For this period, determine how many employees the organization had who were employed for a total of 20 or more weeks. The week is based on a calendar workweek. Workweeks need not be consecutive.
  • From this number, remove employees who were subject to layoff, whether temporary, indefinite, or long-term.
  • Do not remove an employee who was on leave of absence or suspension but who has a reasonable expectation of returning to active employment.
  • Remove any employee working at a location outside of 75 miles from the location for which the determination is being made.

Once a private employer satisfies the 50-employee and 20-week threshold, the employer remains covered until it no longer has 50 employees during 20 workweeks in both the current and preceding calendar years.


[1] Joint employers and successors in interest of covered employers, public agencies, and private elementary and secondary schools are also covered.

See other posts on the FMLA's requirements and prohibitions:

New FMLA Regulations Restrict Substitution of Paid Leave for FMLA
So You Thought You Understood the Final FMLA Regs?

Employer Notice Requirements Under the Final FMLA Regulations

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

10 Most Important Changes to the FMLA Regulations

New FMLA Regulations Restrict Substitution of Paid Leave for FMLA

Posted by William W. BowserOn July 17, 2009In: Benefits, Family Medical Leave, Leaves of Absence

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The substitution of paid leave for unpaid FMLA leave occurs often.  A employee eligible for FMLA leave will substitute accrued vacation, sick, medical, or other similar types of paid leave so that he avoids a loss of pay during the leave.  In most circumstances, employers also benefit because, when substitution occurs, the time counts against both the employee’s FMLA and paid time off 3d man sick with red crossentitlements.

Under the prior FMLA regulations, substitution of paid leave could be abused.  For example,  vacation leave was required to be substituted for any FMLA leave.  Common restrictions imposed on the use of vacation such as advanced notice or requiring it to be used in minimum blocks of time could not be imposed to prevent substitution.  This ready availability of paid leave surely was very tempting to some employees that could not otherwise use such time.

The new FMLA regulations, however, give employers the ability to reduce abuse.  Under the new 29 C.F.R. § 207, employers can require employees to meet all of the normal requirements of paid leave policies before permitting substitution.  For example, if a policy requires that vacation be taken in full day increments, an employer can deny substitution for an employee’s one-half day FMLA leave.  Similarly, if vacation time cannot be taken during a particular month, substitution could be denied during that time period.

The consequences of the new rule are obvious.  Employees might now be required to take unpaid FMLA leave rather than substitute paid leave.  As a result, the temptation to use the FMLA to obtain paid leave that they otherwise would not be entitled is eliminated.

So You Thought You Understood the Final FMLA Regs?

Posted by Molly DiBiancaOn May 19, 2009In: Family Medical Leave

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When the FMLA final regulations were promulgated in January, employers (and their lawyers) around the country got to work.j0387196  We poured over the two hundred pages of tiny print, deciphering the requirements and determining what had and had not changed.  It was a lot to review and it's a lot to understand.  I've taught something around 15 seminars on the new regs since they were published and I still need to reference the regulations when presented with unusual questions or factual scenarios.  

So I know it can't be easy for employers to manage the complex ins and outs of the new law.  Well, don't get too comfortable with the regulations--more change may be on its way.

Last month, a new bill was introduced (H.R. 2161), which, according to its sponsor, is intended to "restore the [FMLA] to its original intent and spirit."  The bill, To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act, would repeal some sections of the regs and modify others.  For a comprehensive review of the most important changes, jump over to The FMLA Blog

But, for those who are more interested in the summary, here it is:  the bill would be bad for employers. The bill would eliminate the (few) changes in the latest regs that are favorable to employers. 

Employer Notice Requirements Under the Final FMLA Regulations

FMLA Seminar Materials: PowerPoint Slides, Handout, and DDOL Forms

10 Most Important Changes to the FMLA Regulations

Employer Notice Requirements Under the Final FMLA Regulations

Posted by Molly DiBiancaOn May 7, 2009In: Family Medical Leave, HR Summer School

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The FMLA has undergone major change in the past 18 months. First, there was the National Defense Authorization Act (NDAA), an amendment to the FMLA, which took effect in January 2008.  Then, in February, the U.S. Department of Labor (DOL), released its proposed regulations for public comment.  The comments were collected and the FMLA's final regulations were published in November.  Then, on January 16, 2009, the final regulations took effect.  And, since then, employers have been operating under this new--and substantially different--set of regulations.  Whether or not they realize that there's a new set of rules in town is a different question.

For those of you who are aware that the FMLA's final regulations are now in place, you also probably know that the regs impose a set of new responsibilities on employers. I've spoken to Human Resource professionals about the final regulations several times since they were first promulgated, including at our annual employment law seminar last week, where William W. Bowser and I presented an FMLA update twice in the same day to accommodate the large number of attendees.  A single blog post is not the best way to share the many ins and outs of the new law. But I can address one topic that I consider to be critical for employers to understand: FMLA Notices.

FMLA Demonstrative

The final FMLA regs contain substantial changes in the conditions in which an employer can and must give certain FMLA-related notices to employees.  Each of these notices have a great number of complexities that employers are best advised to come to terms with now.  The new regulations are unforgiving when it comes to employer delays.  

Here's the run-down for what employers must know about the required FMLA notices. 

General Notice 

Under the new regulations, this includes the traditional posting requirement.  If the employer has a written policy on leave and benefits or an employee handbook that includes such a policy, the same posting notice must be included.  Employers without a handbook should call me.  Then they should start providing each new employee with the general notice (posting) at the time of hire.

A few points of interest with respect to the General Notice. First, if a significant portion of your workforce is not English literate, the posting must be translated into their language(s).  Second, an employer who is FMLA covered must post the General Notice at all work sites, regardless of whether a work site has any FMLA-eligible employees.

Eligibility Notice and Rights and Responsibilities Notice

Once an employee requests leave, or the employer becomes aware that an employee may qualify for FMLA-protected leave, the employer must give two more notices:  the Eligibility Notice and the Rights & Responsibilities Notice.  Eligibility Notice must be given within 5 business days and must tell the employee whether or not he or she is eligible for FMLA.  If the employee is not eligible, the Notice must provide at least one reason why not.  If the employee has another request for leave in the same 12-month period, the Eligibility Notice need not be issued again unless the employee's eligibility status has changed.

At the same time, the employer must inform the employee of his rights and responsibilities as provided by the FMLA.  Specifically, the notice must state that the leave may be designated as and deducted from any existing FMLA entitlement and it must identify the 12-month period being used when making an FMLA determination.  Most critical, though, is the requirement that the employee be notified of his responsibilities, if any, with respect to providing a medical certification. 

If the employee will be required to provide a medical certification of his or his family member's serious health condition or, in the case of military family leave, certification of a qualifying exigency, he must be informed of this requirement now.  The DOL's certification form can (should) be included with the rights and responsibilities notice. 

Designation Notice

If the employee does not return a medical certification, the employer has no further obligations with respect to notices.  But, if the employee does come back with the certification as requested, the employer's final notice requirement is triggered.  Once the employer has sufficient information to make a determination about whether FMLA will apply to the leave, it must notify the employee of its designation. 

If the leave will not be designated as FMLA, the notice must tell the employee why the leave is not deemed qualifying.  If the leave will be designated, the employee must be notified of the number of designated hours, days, or weeks. 

Key at this stage is the requirement that the notice include information about a fitness-for-duty certification requirement if the employer has one.  And a list of essential job duties if the FFD must address the employee's ability to perform essential job functions. Just to recap this critical requirement, let me point out that, along with a designation notice, the employer must inform the employee that a FFD will be required or waive the ability to require it.  And, to top it off, if you fail to include a list of essential job duties, the FFD will be based on the employee's own description of his or her job duties.  Not ideal.

Summary

In case you missed it, here's what you need to know when it comes to FMLA leave notices.  Using the handy-dandy image, above, here's the timeline.  First, you've got to comply with the General Notice requirements--in the form of a posting and policy.  Second, once the employee gives notice of the need for FMLA leave (or you learn of the need otherwise), you must give an Eligibility Notice, informing the employee of his or her eligibility status.  At the same time, you must provide the Rights & Responsibilities Notice, including a notice to the employee that he must provide a certification if one is going to be required.  Assuming the employee returns the required certification, then you must designate the leave as FMLA, non-FMLA, or inform the employee that you do not have sufficient information to make the designation.  And, if you will require the employee to provide a fitness-for-duty certification, you must put him on notice now. 

These now-or-never requirements of the FMLA final regulations require employers to do some real advance planning.  Employers must determine when they will require an employee to provide a certification and under what conditions a fitness-for-duty certification will be necessary.  As if that's not enough work to do, you must also have the essential job functions prepared and ready to go when you send out the FFD information.  That's a lot of planning so if you haven't gotten started, there's no time like the present.