FMLA Law Blog

Do Employers Run Afoul of the Genetic Information Nondiscrimination Act When Requiring FMLA Certifications?

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 17 Nov 2009 09:30:00 -0500

Guest Post: by Erin Fitzgerald, Esquire

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 ("GINA") into law. Title II of GINA, which goes into effect on November 21, 2009, covers private, state, and local government employers with 15 or more employees, as well as employment agencies and labor organizations. Title II restricts the deliberate acquisition of genetic information by covered entities, prohibits the use of genetic information in employment decision-making, requires that genetic information be kept confidential, and places limits on disclosure of genetic information. However, several exceptions apply to an employer's acquisition and disclosure of information under the FMLA.

GINA defines genetic information as information regarding:

an individual's genetic tests;
the genetic tests of an individual's family members;
the manifestation of disease or disorder in family members of the individual (family medical history);
an individual's request for or receipt of genetic services or the participation in clinical research that includes genetic services by the individual or a family member of the individual; and
the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Although GINA generally prohibits employers from acquiring genetic information of an employee (including family medical history), the Act provides that the prohibition does not apply to the extent such a disclosure is made inadvertently by an employee when submitting a certification requested under the FMLA. For example, an individual requesting FMLA leave to care for a seriously ill relative may disclose family and medical history when completing the certification required by the FMLA. An employer who receives that genetic information would not be in violation of GINA. However, the genetic information disclosed is still subject to GINA' s confidentiality requirements, and must be placed in a file separate from the employee's personnel file. The Americans with Disabilities Act ("ADA") also requires that employees' medical records be maintained in a file separate from the personnel file, and an employer may maintain GINA-protected information in the same file in which it maintains an employee's medical information under the ADA.

A second exception permits disclosure of genetic information when that disclosure is made in support of an employee's compliance with the certification provision of Section 103 of the FMLA. For instance, if an employee's supervisor receives a request for FMLA leave from an employee who wants to care for a family member with serious health condition, that supervisor may forward that request to individuals with the need to know the information because of responsibilities relating to handling FMLA requests.

Employers should become familiar with GINA's requirements to ensure that they are not requesting, maintaining, or disclosing genetic information in violation of the Act.

Erin Fitzgerald is an Attorney in the Labor and Employment Department of Fox Rothschild LLP.

Employers Need To Remember Their FMLA Obligations When Faced With Absences Due To Swine Flu

cbarbieri@foxrothschild.com (Catherine Barbieri) — Sat, 31 Oct 2009 20:58:34 -0500

Happy Halloween!

While trick-or-treating with my children tonight, I saw several people dressed as the swine flu, replete with pig noses, bathrobes, and TAMIFLU. Swine flu, or more accurately the H1N1 virus, has certainly captured the nation's attention. Recently, President Obama declared the H1N1 flu outbreak a national emergency. Despite this, swine flu vaccine is still in short supply, and the number of H1N1 flu cases is expected to rise.

Many employers have implemented H1N1 preparedness plans that require their employees to stay home if the employees or their family members have the H1N1 virus. Employers need to ensure that they remember their obligations under the FMLA when requiring, or granting, leave time in connection with the H1N1 virus. Earlier this year, I discussed in a post whether swine flu cases qualify for FMLA leave. If an employee or an employee's family member with the H1N1 virus has a serious health condition within the meaning of the FMLA, and the employee otherwise qualifies for FMLA leave, covered employers need to ensure that they provide the employee with the required FMLA notices, make available up to 12 weeks of FMLA leave, reinstate the employee at the conclusion of the leave, and avoid retaliation. In addition, employers should ensure that their H1N1 preparedness plans provide that any leave due to swine flu runs concurrently with FMLA leave for qualifying employees.

The Fiscal Year 2010 National Defense Authorization Act Expands Military Leave Under the FMLA ... Again

cbarbieri@foxrothschild.com (Catherine Barbieri) — Thu, 29 Oct 2009 21:38:28 -0500

Yesterday, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act, which provides, in part, for additional exigency and caregiver leave provisions for military families. The Act amends the military leave provisions of the FMLA, which were adopted in 2008. The changes took effect immediately.

The exigency leave benefit (of up to 12 weeks) now will be available to family members of active duty service members in the Armed Forces who are deployed to a foreign country. Formerly, this exigency leave was available only to family members of National Guard members and reservists.

In addition, under the Act, the caregiver leave benefit (of up to 26 weeks) now includes leave to take care of a child, spouse, parent or next of kin who (1) is a veteran, (2) is undergoing medical treatment, recuperation or therapy for serious injury or illness, and (3) was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date of treatment. The medical treatment must be related to a serious injury or illness incurred while in the line of duty on active duty in the Armed Forces or which existed before the beginning of military service, and which was aggravated by service in the line of duty while on active duty.

Employers should revise their FMLA policies and notices to reflect these new amendments and comply immediately.

Employers Beware: Granting An Ineligible Employee FMLA Leave May Bar An Employer From Later Asserting A Defense of Non-Coverage

cbarbieri@foxrothschild.com (Catherine Barbieri) — Thu, 22 Oct 2009 10:00:00 -0500

A federal court recently considered whether an employer that granted an employee's request for FMLA leave was later equitably estopped from arguing that the employee was ineligible for leave under the FMLA because the employee had relied on the leave designation to his detriment.

In Harvey v. Wal-Mart Louisiana LLC, 2009 WL 3171099 (W.D. La. 2009), the plaintiff suffered from degenerative arthritis in his lower back. He took two leaves of absence in 2005. The first leave from February 22 to April 12 was due to back pain, and the plaintiff wanted to evaluate whether to have surgery. The plaintiff decided not to have surgery, and his leave was characterized as a "personal", not medical, leave. The second leave began on September 1 and was scheduled to end on November 19. The plaintiff requested to return to work early, but his request was denied. He took the second leave to career his 38-year-old daughter, who was suffering from intracranial hypertension, which inhibited her ability to care for her two minor children. The leave was counted as FMLA leave, and approved as such by the plaintiff's supervisor. Despite this, the plaintiff was not restored to his prior position for six weeks following his leave, and he sought back pay for the break in service, which was denied by his employer.

The plaintiff filed suit against Wal-Mart alleging, among other things, that it violated the FMLA by failing to restore him immediately to his prior position following his second leave of absence. Wal-Mart argued in its motion for summary judgment that the plaintiff was not eligible for FMLA leave for his second leave of absence because he had not worked 1,250 hours during the 12-month period prior to his leave, and that the reason for his leave--to care for his grown daughter and her children--did not qualify for FMLA leave. The plaintiff countered, in part, that Wal-Mart was equitably estopped from asserting a defense of non-coverage because it had previously approved his second leave of absence as FMLA leave and he had relied on the designation to his detriment.

The Harvey court held that Wal-Mart was not equitably estopped from asserting the plaintiff's non-coverage as a defense. In so holding, the court relied upon the fact that the plaintiff was not aware until after his second leave of absence that his leave had been designated as FMLA leave. Accordingly, the court held that he did not rely upon any representation by Wal-Mart in deciding to take his second leave of absence. Moreover, the court held that the fact that Wal-Mart did not approve the plaintiff as an "eligible employee" under the FMLA, and only counted the leave as FMLA leave, further required a finding that Wal-Mart could assert a defense of non-coverage. Ultimately, the court held that the plaintiff had not established that he had worked 1,250 hours in the 12-month period prior to his second leave of absence, and he therefore had no rights under the FMLA.

This case is instructive not so much for its holding, as for its discussion of the instances in which equitable estoppel would apply and bar an employer from asserting a defense of non-coverage. If the plaintiff had been aware prior to or during his second leave of absence that his leave had been designated as FMLA leave, and that he was determined to be an eligible employee under the FMLA, and he did not return to work as a result, this case suggests that Wal-Mart would have been barred from subsequently arguing that the plaintiff was not eligible for FMLA leave. Employers need to ensure that, when confronted with a request for potentially FMLA-qualifying leave, they assess carefully whether the employee is eligible for leave, and whether the reason for the leave is FMLA-qualifying. If not, they may be barred from subsequently arguing in a lawsuit that the employee was ineligible for FMLA leave.

Third Circuit Holds That Hours Worked At Home Count Towards the 1,250-Hour Eligibility Threshold If the Employer Had Actual or Constructive Notice of the Hours Worked

cbarbieri@foxrothschild.com (Catherine Barbieri) — Wed, 23 Sep 2009 16:46:51 -0500

Today, in Erdman v. Nationwide Insurance Co., the United States Court of Appeals for the Third Circuit reversed summary judgment for the defendant on the plaintiff's FMLA interference and retaliation claims, holding that a reasonable jury could have concluded that the defendant miscalculated the plaintiff's hours worked when it determined that she did not meet the 1,250-hour threshold.

To be eligible for leave under the FMLA, an employee must have worked at least 1,250 hours during the previous 12-month period. In Erdman, the plaintiff initially requested to use her vacation time in August to prepare her child with Down Syndrome for school. When her request was denied, she requested FMLA leave for the period of July 7 to August 29. Approximately one month after she requested leave, but before she took any leave time, she was terminated after she used profanity during a telephone conversation that was monitored for quality control purposes. The plaintiff alleged that the employer's motives for terminating her were pretextual, and that she was actually fired for requesting FMLA leave.

The district court granted summary judgment to the employer on the FMLA claims on the grounds that the plaintiff had not met the 1,250-hour threshold to be eligible for leave under the FMLA. In calculating the plaintiff's hours worked during the previous 12-month period, the district court declined to include certain hours that the plaintiff worked at home after the employer had advised her to simply "put in the hours that . . . you're supposed to put in and nothing more than that," and found that the employer could not have had constructive notice of those hours.

Under the FMLA, all work that "the employer knows or has reason to believe . . . is being performed" counts toward the 1,250-hour threshold requirement. See 29 C.F.R. Section 785.12. Hours worked off-site or beyond an employee's schedule count if the employer "knows or has reason to believe that an employee is continuing to work extra hours." See 29 C.F.R. Section 785.11. Actual knowledge is not required; constructive knowledge will suffice.

In Erdman, the Third Circuit found that a reasonable jury could conclude that, although the employer had communicated to the plaintiff that she would not be paid for any hours worked at home, she understood that she could continue to accrue "comp" time by working extra hours. Moreover, the court concluded that her employer had actual and/or constructive notice that she was continuing to work from home until it explicitly prohibited her from working more than her regularly scheduled hours on February 10,2003. Counting all of the hours that the plaintiff worked at home prior to February 10, 2003, the Third Circuit found that she had accumulated 1,282.25 total hours during the prior 12-month period.

The Third Circuit also considered the defendant's argument that, because the plaintiff had never taken FMLA leave, she could not pursue a retaliation claim. The defendant relied, in part, on the language of the statute, which provides that employers are prohibited from "discriminating against employees or prospective employees who have used FMLA leave." See 29 C.F.R. Section 825.220(c) (emphasis added). The Third Circuit held that there is no requirement that the employee "use" FMLA leave in order to bring a claim of retaliation; the employee need only have invoked his or her FMLA rights. As such, the Third Circuit held that firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee.

The Erdman decision is instructive for several reasons. First, it puts employers on notice that, if they have actual or constructive notice that an employee is working from home or otherwise putting in extra hours, those hours must be included for purposes of calculating the employee's eligibility for FMLA leave. Broken down by week, an employee needs to work only approximately 24 hours per week to meet the 1,250-hour threshold. If the calculation is close, prudent employers will err on the side of assuming that the employee is eligible for FMLA leave. Second, the decision makes it clear that an employee need not use FMLA leave in order to preserve a retaliation claim; the employee need only request FMLA leave or otherwise invoke his or her FMLA rights in order to bring a retaliation claim. Employers need to be aware of the significant risk that they will be faced with a retaliation claim if they terminate or otherwise take some adverse employment action against an employee who has invoked his or her FMLA rights, and there is some causal connection between the two events.

Employers Need Not Be Mind Readers: Recent Case Law Provides Guidance Concerning What Constitutes Sufficient Notice of the Need for FMLA Leave

cbarbieri@foxrothschild.com (Catherine Barbieri) — Thu, 10 Sep 2009 21:54:41 -0500

In Scobey v. Nucor Steel-Arkansas, 2009 U.S. App. LEXIS 19094 (8th Cir. Aug. 25, 2009), the United States Court of Appeals for the Eighth Circuit recently affirmed the dismissal on summary judgment of FMLA claims brought by an employee who allegedly notified his employer that he had a drinking problem, but did not initially request a leave of absence for treatment.

The plaintiff worked in the defendant employer's steel mill for seven years. Initially, he requested leave to attend the funeral of his former father-in-law. The next day, he called the employer while intoxicated, and said that he was "done, through" and intended to resign. On the following day, he spoke with his direct supervisor, told him that he had had a nervous breakdown, and hung up the telephone. The supervisor had the impression that the plaintiff was intoxicated. The plaintiff called the shift manager the same day and reported that, due to the death of his former father-in-law and some personal problems, he would not be back at work for a while. He missed work the next two days for a total of four days.

The next day, the plaintiff called another supervisor and told him that he could not recall the previous four days and needed help. He subsequently treated with a physician, and notified the employer's HR manager that he had an alcohol problem and was depressed. He received in-patient treatment for alcoholism and depression, and was later discharged to outpatient care. While the employer did not designate the leave time as FMLA leave, it paid the plaintiff for his leave of absence.

Subsequently, the plaintiff was suspended for three days and demoted for having had four consecutive, unexcused absences. He later stopped reporting for work, and sued his employer for FMLA interference and retaliation. The district court granted the employer's motion for summary judgment on the ground that the plaintiff failed to provide notice that his 4-day absence was covered by the FMLA.

In evaluating the plaintiff's claims, the Eighth Circuit noted that, under the regulations in effect at the time of the leave of absence and prior case law, the plaintiff needed to provide notice of the need for FMLA leave. (Employers should note that the current language of 29 C.F.R. Section 825.303(b), which became effective on January 16, 2009, is more restrictive, and requires employees to specifically reference either the qualifying reason for leave or the need for FMLA leave.) Specifically, the plaintiff needed to provide information to his employer to suggest that his health condition could be serious.

The Eighth Circuit held that the plaintiff did not provide notice of the need for FMLA leave with respect to his four -day absence. The court explained that initially the plaintiff requested time off to attend a funeral, which is not protected by the FMLA. Later, he called while intoxicated and said that he wanted to resign, which was not notice that he needed time off from work. Moreover, the court explained that, while absences for treatment for alcoholism are covered by the FMLA, absences caused by the use of alcohol are not. The Eighth Circuit's discussion of the "constructive notice" doctrine is also instructive.

While employers need to be proactive about designating leaves of absence as FMLA-eligible where employees notify them of the need for time off due to a serious health condition, the FMLA does not require them to be mind readers. Prudent employers will document the reasons provided by employees for their absences from work, and offer FMLA leave as soon as it becomes apparent that an employee is eligible for such leave.

U.S. Office of Professional Management Issues Proposed Regulations Implementing Military Family Leave under the FMLA for Federal Employees

cbarbieri@foxrothschild.com (Catherine Barbieri) — Sun, 30 Aug 2009 23:26:42 -0500

On August 26, 2009, the U.S. Office of Professional Management issued proposed regulations implementing military family leave under the FMLA for federal employees. The proposed regulations would provide eligible federal employees up to 26 administrative workweeks of leave under the FMLA to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is injured in the line of duty while on active duty; amend the rules on advancing sick leave; and make organizational changes to the existing sick leave and FMLA regulations to enhance reader understanding and administration of these programs.

Comments must be received on or before October 26, 2009.

See my prior postings for links to the Revised FMLA Regulations concerning military leave for employees of private employers.

As Students Return to School, CDC Issues Updated Guidance for Employers on H1N1 Flu

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 25 Aug 2009 14:29:38 -0500

As children and young adults return to school, it's time to prepare for flu season again.

On August 19, 2009, the U.S. Department of Health and Human Services' Center for Disease Control and Prevention (CDC), with input from the U.S. Department of Homeland Security, issued updated guidance for businesses and employers to plan and respond to the 2009-10 flu season.

In its guidance, the CDC recommends that sick employees stay at home. Consistent with this recommendation, the CDC suggests that employers should develop flexible leave policies to allow workers to stay home to care for themselves and sick family members, or to care for children whose schools are closed due to influenza. The CDC advises employers to expect that employees with the flu will be out of work for 3 to 5 days in most cases, and that students in schools that are dismissed will be out of school for at least 5 to 7 calendar days.

As I discussed in a prior posting, cases of H1N1 flu may rise to the level of a serious health condition, as defined in the FMLA. Accordingly, employers need to be prepared to be proactive about offering FMLA leave to employees who qualify.

As the CDC recommends in its guidance, now is the perfect time for employers to review their existing leave policies to ensure that they comply in all respects with state and federal law. Prudent employers also will develop a flexible influenza pandemic plan to respond promptly should H1N1 or other serious flu cases arise in the workplace or their community.

Senators Introduce Measure That Passed House To Allow Airline Crews To Take FMLA Leave

cbarbieri@foxrothschild.com (Catherine Barbieri) — Mon, 13 Jul 2009 20:40:59 -0500

On July 9th, Senator Patty Murray (D-Wash) and a group of five other bi-partisan senators introduced legislation--The Airline Flight Crew Technical Corrections Act--that would permit flight attendants and pilots to qualify for leave under the FMLA. The proposed legislation is similar to H.R. 912, which I discussed in a prior blog, and which passed the House by voice vote on February 9th.

Requesting Doctors' Notes for Intermittent Leave Absences Within Three Days Can Get Employers Into Hot Water

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 30 Jun 2009 11:10:40 -0500

Employers continue to be frustrated with the limited options they have to curb apparent abuses of intermittent FMLA leave. One of the most common scenarios involves an employee who is certified as eligible for intermittent leave, has repeated absences, and takes the position without documentation that the absences qualify as intermittent FMLA leave. To counteract this fact pattern, some employers require employees to submit doctors' notes confirming that the absences in question are covered by the FMLA.

A recent opinion from the United States District Court for the Southern District of Ohio calls into question the practice of requesting doctors' notes within a short timeframe to establish that absences are covered by the FMLA. In Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009), the plaintiff presented a certification from her health care provider and was approved for intermittent FMLA leave due to her chronic major depressive disorder and dysthymic disorder. The defendant employer used a point system that governed not only employee attendance, but other infractions and performance-related issues. Under the point system, an employee received a written notification once she accrued four points. Once she accumulated five points, she received a written warning and, at six points, she was subject to termination. The plaintiff received several notifications that she had reached the six-point level due to her absences. Under the system, the points could be removed for FMLA-related absences if the plaintiff brought in a doctor's excuse, even if the note excused several absences retroactively.

After accumulating 6.75 points, the plaintiff was advised on May 28, 2006 that she would be terminated unless by May 31, 2006 she reduced her point level below six by providing a doctor's verification that at least some of her absences were the result of her medical condition. The plaintiff told her supervisor that she would not be able to obtain the necessary documentation within three days. The plaintiff stopped reporting to work after May 31, 2006, and was terminated.

The plaintiff sued, in part, under the FMLA, alleging that the defendant interfered with her FMLA rights. The court denied the defendant's motion for summary judgment as to her FMLA claim. The court held that, while the defendant "clearly was entitled to some form of medical documentation for [the plaintiff's] absence even through she had been approved for FMLA leave . . . and had verbally informed her supervisor that her absences were related to her condition," the FMLA requires only that an employee provide medical documentation in a timely manner. While the court did not require that the plaintiff be afforded 15 days to provide the doctors' notes (as would be required for a certification from a health care provider), it held that she needed to be provided with a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor. The court further held that allowing the plaintiff only three days to obtain medical documentation for her absences was unreasonable as a matter of law.

While this case appears to sanction the practice of requiring doctor's notes to substantiate the need for intermittent FMLA leave when those notes are requested pursuant to company policy, it also teaches that employers need to provide employees with a reasonable time period in which to comply with the request. Given the court's reliance on the 15-day certification period as a patently reasonable timeframe, prudent employers would permit employees to submit doctors' notes within 15 days to avoid termination pursuant to company attendance policy.

Seventh Circuit Holds That Termination of Employee Whose Performance Deficiencies Are Discovered During His FMLA Leave Does Not Violate FMLA

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 23 Jun 2009 22:26:11 -0500

It's the age-old story: an employee goes on FMLA leave, and the employer discovers that the employee has serious performance problems. More often than not, the employer makes the discovery when it hires a temporary employee to perform the employee's duties in her absence.

A recent case tackled this precise scenario. In Cracco v. Vitran Express, the United States Court of Appeals for the Seventh Circuit held that an employer that terminated an employee for performance problems that it discovered while the employee was on FMLA leave did not violate the FMLA. The employee, who was a manager for a trucking company, requested and was granted FMLA leave for his own serious health condition. During his absence, the company hired temporary replacements, who uncovered numerous problems in the manager's department. A subsequent investigation revealed that the manager had deliberately disguised late and damaged deliveries. On the day that the manager was to return from FMLA leave, the company terminated his employment.

The manager sued the company, alleging retaliation and interference with his FMLA rights. The district court granted the company's motion for summary judgment. The Seventh Circuit affirmed. With respect to the retaliation claim, the court held that there was no causal link between the request for leave and the termination. Moreover, the court explained that the fact that the leave permitted the employer to discover the manager's performance deficiencies could not be a bar to its ability to terminate the manager. The court also held that the manager failed to establish a prima facie case under the indirect method of establishing retaliation, because he failed to prove that he met his employer's legitimate job expectations at the time he was terminated. As to the interference claim, the court explained that an employee is not entitled to reinstatement if the employer can present evidence to show that the the employee would not have been entitled to his position even if he had not taken leave.

In a recent blog, I discussed the circumstances in which an employer can terminate an employee who has requested FMLA leave. The Cracco decision reinforces, in particular, the fact that documentation is key to defending the termination of an employee who is on FMLA leave. The Seventh Circuit relied heavily on the fact that the company presented sufficient evidence, after a thorough investigation, of the manager's misconduct. Employers would be wise to ensure that their reasoning for terminating an employee on FMLA leave, and their documentation of the basis for the decision, are iron-clad.

Proposed Domestic Violence Leave Act Would Expand the Scope of the FMLA

cbarbieri@foxrothschild.com (Catherine Barbieri) — Sun, 31 May 2009 21:34:40 -0500

Recently, Rep. Lynn Woolsey (D-CA) introduced the Domestic Violence Leave Act (H.R. 2515). The Act would amend the FMLA to permit victims of domestic violence, sexual assault, and stalking (as those terms are defined in the Violence Against Women Act) and their family members to take leave as a result of the violence. Specifically, the Act would permit a qualified employee to take leave to seek medical attention, legal assistance, or psychological counseling, or to attend support groups, as a result of domestic violence, sexual assault, or stalking directed at the employee or a family member. In addition, the Act would permit leave to participate in safety planning or other activities necessitated by domestic violence, sexual assault, or stalking. The employer could require a certification that the employee requires leave for the reasons outlined in the Act. Court or police records, or other records substantiating the domestic violence, sexual assault, or stalking, would meet the certification requirement.

If the legislation is signed into law, it would not be the first time that leave unrelated to medical care or childbirth would be made available to eligible employees. Under the amendments to the FMLA occasioned by the National Defense Authorization Act, eligible employees are entitled to up to 12 weeks of leave due to "any qualifying exigency" arising out of the fact the spouse, son, daughter, or parent of the employee is on active duty, or has been notified of an impending call to active duty status, in support of a contingency operation. Under those amendments, qualified employees can take leave to meet with legal counsel, make childcare arrangements, and take other similar actions necessary to deal with the family member's active duty status.

The Domestic Violence Leave Act also would amend the FMLA by adding the phrase "or domestic partner" wherever the word "spouse" appears in the Act. This change previously was proposed in H.R. 2132, which I discussed in my post on May 12, 2009, and which has been referred to Committee. We should anticipate that any upcoming bills to amend the FMLA will include a provision expanding the definition of "family member" to include a domestic partner.

Focus on Revised FMLA Regulations: When Do Employers Count A Holiday As FMLA Leave?

cbarbieri@foxrothschild.com (Catherine Barbieri) — Wed, 20 May 2009 17:44:42 -0500

With the Memorial Day holiday approaching, I am being asked by employers whether the holiday counts against the 12-week FMLA leave entitlement of employees who have requested FMLA leave.

The answer depends upon the length of the leave. Under the Revised FMLA Regulations that went into effect earlier this year (see 29 C.F.R. Section 825.200(h)), if an employee takes a full workweek of FMLA leave during which a paid holiday falls, the holiday counts against the employee's FMLA entitlement. If the employee takes FMLA leave in increments of less than a full workweek, and a holiday falls on a leave day, that day does not count against the employee's 12-week FMLA leave entitlement.

For example, if an employee requires FMLA leave for the full week of Monday, May 25, through Friday, May 29, 2009, for surgery due to a serious health condition, Memorial Day will count as an FMLA leave day. However, if the employee only requires FMLA leave for Tuesday, May 26, and Wednesday, May 27, 2009, for continuing treatment related to a serious health condition, Memorial Day would not be counted against the employee's FMLA leave entitlement.

Employers should keep these rules in mind as the other summer holidays--Fourth of July and Labor Day--present similar scenarios.

Proposed Legislation Would Make FMLA Leave Available to Care for a Domestic Partner, Same-Sex Spouse and Other Extended Family Members

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 12 May 2009 23:11:19 -0500

On April 28, 2009, Representative Carolyn Maloney of New York introduced H.R. 2132, entitled the Family and Medical Leave Inclusion Act, which would amend the FMLA to permit leave to care for same-sex spouses, domestic partners and other extended family members. Specifically, the Act would permit leave to care for a domestic partner, child of a domestic partner, same-sex spouse, parent-in-law, adult child, sibling, or grandparent with a serious health condition.

Currently, the FMLA permits eligible employees to take family leave to care for a spouse, minor child, adult child who is incapable of self-care, or parent (not in-law) with a serious health condition. Under the federal Defense of Marriage Act, the term "spouse" is defined as a spouse of the opposite sex. The proposed Act would define spouse to include a same-sex spouse as determined under applicable state law. You can access the full text of the proposed Act here

Although the proposed Act would not provide employees with additional leave time, it would expand significantly the instances in which eligible employees could invoke their FMLA rights.

The Catch-22 of Timing: Can You Still Terminate An Employee Who Has Requested FMLA Leave?

cbarbieri@foxrothschild.com (Catherine Barbieri) — Mon, 04 May 2009 13:02:23 -0500

An employer client recently told me that the company was poised to terminate an employee for a serious violation of one of the company's policies, when the employee's spouse called the employer and advised that his wife was being checked into a drug rehabilitation facility. Should the employer move forward with the termination, or wait until the employee completes rehabilitation, returns to work, and then terminate her?

Of course, the company was concerned about the well-being of its employee, but it also knew that it would be delaying the inevitable if it were to wait to terminate the employee. Also, it knew that, by waiting, it might later run the risk should the employee dispute her termination that the termination would appear to be fabricated and a pretext for retaliation.

In this scenario, the employer could be damned if it did, and damned if it didn't. The FMLA does not preclude an employer from terminating an employee on FMLA leave who would have been terminated regardless of her FMLA leave status. However, if the company terminated the employee on the heels of her request for FMLA leave, she still might be able to claim interference with her FMLA rights and/or retaliation. If the company terminated her following her FMLA leave, she also could claim retaliation. What should an employer do in this situation?

1. Ensure that the reason for termination is as iron-clad as possible. The company should confirm that the conduct in question contravenes its policies, and evaluate what it has done in the past when faced with similar violations. In this case, the company had terminated another employee (who had not requested FMLA leave) recently for the same violation. Evidence that other employees who did not request FMLA were treated the same is very helpful in defending against potential FMLA claims. Of course, if other employees who engaged in similar conduct had simply received a "slap on the wrist," the company would need to reevaluate why it was moving forward with termination in this instance.

2. Document, document, document. Document the policy violation clearly as soon as it occurs. If the company decides to move forward with the termination now, the company should send a termination letter to the employee detailing the reason for the termination.

3. Be decent. We hear so often from laid off employees and jurors alike that they want to punish the employer in question because the termination was communicated in a nasty, impersonal way. The scenario described above presents a difficult dilemma, because the employee is not available to talk now, but the company does not necessarily want to postpone the termination. The company could send a termination letter, but ask in the letter that the employee let them know when the employee is available to discuss the decision, and then follow up to discuss the termination with the employee. In addition, the company could send its assurances to the employee that it would continue to cover her under its health insurance plan, if feasible and permitted under the health plan, for the remainder of the month. (In the scenario above, under the employer's health insurance plan the employee's coverage would not terminate until the end of the month). Another alternative is offering the employee some severance, or payment for a period of time of premiums for health insurance continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), in exchange for the employee signing a release of any claims against the company.

Whether the timing is right requires an individualized analysis. By following the tenets above, employers should be able to reduce the risk that they will be sued for violating the FMLA.

(If you know someone who would benefit from this Blog, please pass it along.)

Do Swine Flu Cases Qualify for FMLA Leave?

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 28 Apr 2009 11:38:38 -0500

Yesterday, the World Health Organization raised the worldwide pandemic alert level to Phase 4 in response to the growing number of international cases of swine flu. The CDC is reporting that there are 64 laboratory-confirmed cases of the swine flu in the United States.

With the number of suspected swine flu cases in the United States continuing to rise, there will be employees who will be requesting FMLA leave because they have or are suspected of having swine flu, or need to care for a family member with an actual or suspected case of swine flu. Does swine flu qualify as a serious health condition under the FMLA?

The swine flu may be sufficiently serious to constitute a serious health condition. Under the Revised Regulations, a serious health condition must involve: (1) inpatient care in a hospital or medical care facility, or (2) continuing treatment by a health care provider. To qualify as "continuing treatment", the employee must have a period of incapacity of more than three consecutive, full calendar days. In addition, the employee must receive subsequent treatment, or have a period of incapacity relating to the same condition, that also involves treatment two or more times within thirty days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider or under the orders or referral or a health care provider, or treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment. A "regimen of continuing treatment" includes a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition.

While the run-of-the-mill flu often does not meet the definition of a serious health condition (see 29 C.F.R. Section 825.113(d)), courts have held that the flu may qualify for FMLA leave if the condition otherwise meets the definition of a serious health condition. See, e.g., Miller v. AT & T Corporation, 250 F.3d 820 (4th Cir. 2001). Given the current press concerning the swine flu, one could envision a scenario in which an employee is hospitalized as a result of the swine flu, and/or is absent from work for more than three consecutive days, and treating with a physician while taking anti-viral medications.

As always, employers are encouraged to require the employee requesting FMLA leave to submit a completed Certification of Health Care Provider for Employee's Serious Health Condition, or Certification of Health Care Provider for Family Member's Serious Health Condition, as appropriate.

Proposed Legislation to Extend Paid Family Leave to Federal Employees: Are Private Employers Next?

cbarbieri@foxrothschild.com (Catherine Barbieri) — Mon, 06 Apr 2009 22:35:32 -0500

Congress has proposed legislation that would make four of the twelve weeks of parental leave available under the FMLA for the birth or adoption of a child paid for federal employees. There are two proposals currently pending--S. 354 and H.R. 626.

Some have predicted that paid family leave for federal employees is a harbinger of legislation that would require private employers to provide paid leave.

Read what I had to say about this recently in the National Law Journal.

Feel free to comment.

If you know someone who would benefit from this blog, please forward this to them. Thank you.

Proceed With Caution: Laying Off Employees On FMLA Leave

cbarbieri@foxrothschild.com (Catherine Barbieri) — Tue, 10 Mar 2009 22:44:33 -0500

It's something no employer wants to do, but layoffs have become a reality in these stark economic times.

There is a fair amount of uncertainty among employers about whether they may lay off employees while the employees are on leave under the Family and Medical Leave Act. Generally, an employee on FMLA leave (other than a key employee who receives the appropriate notification) must be reinstated to the same or an equivalent position at the conclusion of his or her FMLA leave. Under the Revised FMLA Regulations, and the prior Regulations, an employee whose position is eliminated, and would have been eliminated regardless of his or her FMLA leave status, need not be restored to the same or an equivalent position at the conclusion of FMLA leave. The employer's obligations to continue FMLA leave, maintain group health plan benefits, and restore the employee cease when the employee is laid off, provided the employer has no continuing obligation under a collective bargaining agreement or otherwise. The employer has the burden of proving that the employee would have been laid off during the FMLA leave and therefore is not entitled to restoration.

Of course, the position must actually be eliminated--not filled by the person who was filling the role temporarily while the incumbent was on leave or reinstated within a week of notifying the employee on leave that the position had been eliminated, etc.

Employers should proceed with caution when laying off employees on FMLA leave. Employers who are unable to establish that an employee who is not reinstated following FMLA leave would have been laid off during the leave face potential claims of interference with FMLA rights and retaliation.

See Section 825.216 for the applicable Regulation

(Who do you know who would find these Blog posts useful? Please pass this on to them.)

House Passes Bill for Second Time to Cover Airline Crews

cbarbieri@foxrothschild.com (Catherine Barbieri) — Wed, 11 Feb 2009 11:47:40 -0500

On February 9, 2009, the House passed the Airline Flight Crew Family and Medical Leave Act (H.R. 912), which would make it easier for flight attendants and pilots to meet the hours of service requirements of the FMLA. The measure aims to close a loophole that reportedly excludes more than 200,000 flight attendants and pilots from FMLA coverage.

Under the FMLA, to qualify for leave employees must have worked at least 1,250 hours in the 12 months preceding the leave. Currently, hours spent by airline employees in flight count towards the hours of service requirement, but hours spent on the job between flights or on mandatory standby do not. Under the House bill, a flight attendant or pilot would meet the hours of service requirement if he or she worked or was paid for 60% of the "applicable monthly guarantee", or the equivalent annualized over the preceding 12-month period, and for a minimum of 504 hours during the same period. An "applicable monthly guarantee" is the time employers schedule flight crews, including time spent on the job between flights or on mandatory standby. Under the bill, the Secretary of Labor would issue regulations providing a method of calculating leave for airline flight crews.

The House passed a similar bill in May, 2008, but the Senate did not act on it before Congress adjourned. A similar bill is expected to be introduced by Senator Patty Murray (D-Wash).

Focus on Revised FMLA Regulations: Revised Notice and Certification Forms

cbarbieri@foxrothschild.com (Catherine Barbieri) — Wed, 14 Jan 2009 10:18:25 -0500

I have received a number of requests for a link to the Department of Labor's new Notice and Certification Forms.

Under the "Additional Information on the Final Regulations" section of the site, you will find the following forms developed by the Department of Labor:

WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition
WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition
WH-381 Notice of Eligibility and Rights & Responsibilities
WH-382 Designation Notice
WH-384 Certification of Qualifying Exigency for Military Family Leave
WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave

Generally, using the Department of Labor's forms creates a "safe harbor" for employers. Assuming that the employer completes the forms correctly and otherwise complies with the applicable notice requirements set forth in the Regulations, the employer will not be liable for an FMLA violation premised upon a failure to provide adequate notice and/or request an appropriate certification.

That said, I recommend that employers have their legal counsel review, in particular, their Notices of Eligibility and Rights and Responsibilities and Designation Notices to ensure that they are completing them in a manner consistent with the Revised FMLA Regulations and their company's practices and policies. Each form has a number of options which the employer must select in order to complete the form. For example, the employer will need to notify the employee requesting leave of any accrued paid time off that will be substituted for unpaid FMLA leave time, and how benefit payments will need to be made. Moreover, if, for example, the employer fails to notify the employee of the need to provide a fitness-for-duty certification, or that the employee is considered a "key employee", the employer will not be able to elect those options at a later date.

I will be explaining each of the forms in more detail over the next few weeks. Please check back for additional guidance regarding the various pitfalls to avoid when completing the new forms.