What Am I Doing Wrong?? Common FMLA Mistakes.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly seeking FMLA recertification when there is a change in circumstances. 

Generally, an employer may request recertification if an employee requests an extension of FMLA leave, if circumstances described by the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification. An employer should notify the employee of the need for recertification, and ask the employee to provide the supporting certification within 15 calendar days. Failing to properly request a recertification when a change in circumstances occurs can result in a claim of FLMA interference.

In Hansen v. Fincantieri Marine Group, LLC, Case No. 13-3391 (7th Cir. Aug 18, 2014), an employee’s doctor estimated the frequency and duration of the employee’s medical flare-ups to be 4 episodes every 6 months, each lasting between 2 and 5 days. When the employee exceeded this estimate, the employer sent the recertification request directly to the doctor without informing the employee of the need for recertification. The recertification completed by the healthcare provider contained what the employer believed to be “errors” and the employer refused to accept the recertification. The employer then counted all absences that exceeded the original estimate against the attendance policy, which resulted in the employee’s termination.

The court took issue with the fact that the employer never gave the employee notice of the need for recertification, and instead sent the certification directly to the doctor. Because the employer did not properly seek recertification, the court considered the employer to have not sought recertification at all. The court found in favor of the employee, stating that an employer needs to seek proper recertification when an employee’s circumstances change; it is not entitled to simply add up what it sees as additional absences, count them under its attendance policy, and terminate the employee.

In Smith v. City of Niles, Case No. 11-2394 (6th Cir. 2012), an employee alleged that the employer engaged in “certification harassment” – repeated requests for certifications that interfered with the employee’s FMLA rights. The employee’s original certification estimated that he would need FMLA leave 1 day every 3 months, but in a 5 month time period, he took 6 days. The employer requested recertification just shy of 6 months from the initial leave. The employer again requested recertification 4 months later, when the employee voiced limitations that were not addressed in his prior certification. The employee took issue with the fact that these multiple requests came within six months of each other. The employer argued that the proximal recertification requests were proper because the employee’s circumstances had changed. The court found that the employer’s recertification requests fell squarely within the rule on changed circumstances, in favor of the employer.

Without careful attention to specific reasons for recertification and the proper process to request recertification, an employer can run afoul of the FMLA. An employer should carefully analyze each request for recertification to be sure it falls within the permissible reasons to request FMLA recertification, and follow the proper process to request recertification.



Businesses Face Conflicting State and Federal Accessibility Requirements


Many states and localities have their own distinct accessibility laws and regulations for businesses. Often these are not analogous to the ADA.  For instance, businesses operating in New York must use the disability access symbol designated by the state, but the U.S. Access Board (which sets standards of accessibility for federal agencies and drafts the ADA Accessibility Guidelines that the Department of Justice (DOJ) incorporated into its ADA Title III regulations) recently issued guidance that makes it more difficult to argue the state Accessibility Icon is an “equivalent facilitation” under the ADA.

Under New York law, usage of the “Accessible Icon” (an attempt to portray a more dynamic, active and positive figure) is mandated in new construction and alterations installed or replaced after November 22, 2014, where accessibility is required by law, not the more traditional, static figure displayed in the International Symbol of Access (ISA) in use for almost 50 years. Similar legislation recently passed in Connecticut.  On the other hand, Title III of the ADA and the Architectural Barriers Act (ABA) (which applies to public accommodations facilities and federally-funded facilities), as well as other state and local laws, still mandate usage of the ISA for accessible entrances, parking spaces, and bathrooms, among other things.  The conundrum for businesses subject to these conflicting laws: Display the ISA as the ADA requires?  Display the Accessible Icon, as some state or local laws require?  Display both?  This last option, of course, is the safest course.  However, downsides include possible increased costs, confusion, and perhaps unwanted aesthetics.

One possible solution: the New York business could display the Accessible Icon as required by state law, then rely on the “equivalent facilitation” language in Section 103 of the 2010 ADA Standards for Accessible Design. This provision authorizes “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.”  If the Accessible Icon were deemed such an equivalent facilitation, its use instead of the ISA would be permissible.  To date, no court or agency has ruled on this issue.

While the DOJ — the federal agency responsible for enforcing Title III of the ADA — has not issued any formal guidance, in April, the U.S. Access Board issued its own guidance (stating “the ISA must be used even where a state or local code or regulation specifies a different symbol.”  (Emphasis added.)  The Access Board also stated that the ISA has become a worldwide symbol “reflect[ing] considerable analysis by, and consensus of, an international collection of technical experts.”  The guidance further suggests that the ISA “promotes legibility, especially for people with low vision or cognitive disabilities.”  These were some of the Access Board’s rationales justifying its conclusion that businesses display the ISA where required by federal standards, even contradictory state or local requirements exist.  Like the ADA Standards for Accessible Design, the Architectural Barriers Act and the U.S. of Transportation’s ADA Standards, among others, also mandate use of the ISA.

Even though the Access Board does not address directly whether the Accessible Icon is an “equivalent facilitation” and defers to the courts, it is nonetheless problematic for businesses. In a lawsuit filed under the ADA against a business that elected to display the Accessible Icon, a court might defer to the Access Board’s guidance given the agency’s expertise in this area. Moreover, the burden is on the business to prove the Accessible Icon provides equivalent facilitation.

Clarification from the courts or DOJ would be welcomed. Meanwhile, businesses should seek appropriate guidance on navigating through this quagmire and perhaps even seek a waiver from local authorities of the Accessible Icon obligation where appropriate.

Employer’s Enforcement of Its Call-In Policy Was Reasonable Vis-à-Vis a Disabled Employee


Employers frequently struggle with enforcement of call-in and job abandonment policies when there has been a lack of communication by a disabled employee. In Alejandro v. ST Micro Electronics (N.D. Cal.) 178 F.Supp.3d 850, the court offers a favorable ruling for employers seeking to enforce such a policy respective to a disabled employee who had been non-communicative about his whereabouts in violation of company policy.

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A Primer on Substituting Paid Leave for Unpaid Disability Leave Under Federal and California Law

Among the many questions California employers face when navigating the ins and outs of various disability leave laws is under what circumstances an employee may choose or be required to utilize paid time off for an otherwise unpaid leave of absence. When dealing with these issues, it is important to consider some nuanced differences between various federal and California state laws.   The following are some guidelines for employers to keep in mind:

Federal Family and Medical Leave Act (FMLA)

  • An employee may choose to use accrued paid time off during an unpaid FMLA leave of absence.
    • Where the leave of absence is for the birth or placement of a child for adoption or foster care, an employee may use paid vacation or personal leave but not sick leave during an otherwise unpaid FMLA leave.
    • When an FMLA leave is for the serious health condition of an employee or an employee’s covered family member, the employee may use paid vacation, personal, or sick leave, with the caveat that sick leave may not be used where the employee otherwise would not be able to use sick leave pursuant to the employer’s policies.
  • An employer may require an employee to substitute paid leave for unpaid FMLA leave if the employee does not voluntarily opt to do so. In such circumstances, an employer is required to notify an employee of the requirement to use paid leave during an FMLA leave within 5 business days after the employee provides notice of the need for leave.

California Family Rights Act (CFRA)

  • An employee may opt to use – and an employer may require that an employee use – accrued vacation or PTO during an otherwise unpaid leave under the CFRA. (Pregnancy-related leaves of absence are not covered under the CFRA.)
  • An employer may not require an employee to use accrued sick leave during an otherwise unpaid CFRA leave unless the leave is for the employee’s own serious health condition or for another mutually agreed-upon reason.

California Pregnancy Disability Leave Law (PDLL)

  • An employee who takes a pregnancy-related leave of absence under California’s PDLL may choose to use paid time off during such a leave.
    • An employee may elect to use accrued paid vacation or PTO (even when the PTO is undifferentiated) during a leave of absence otherwise unpaid under the PDLL.
    • An employee may choose to use accrued paid sick time during an unpaid PDLL leave.
  • An employer may require an employee to use paid time off during a leave under the PDLL.
    • An employer may require an employee to use accrued paid sick time during a PDLL leave.
    • An employer may not require an employee to use vacation or PTO during a leave under the PDLL.

Oklahoma Case Serves as Reminder that Pregnancy Alone, Without More, Is Not an ADA Disability

A former employee’s claim that she was pregnant and subject to lifting restrictions failed to allege a valid claim under the Americas with Disabilities Act (ADA), according to the U.S. District Court for the Northern District of Oklahoma. LaCount v. South Lewis SH OPCO, LLC, Case No. 16-CV-0545-CVE-TLW (N.D. Okla. May 5, 2017).

When the employee, a certified nursing assistant, was approximately 13 weeks pregnant, she provided the defendant with a doctor’s note restricting her from lifting more than 25 pounds. The defendant placed the employee on medical leave, and terminated the employee’s employment after she exhausted her Family and Medical Leave Act leave. The employee filed suit alleging disability and pregnancy discrimination under federal and state law. The court dismissed the employee’s ADA claim, finding, “Plaintiff has not alleged that she was pregnant and that she had a related mental or physical impairment. Instead, she alleges that she was pregnant and her doctor imposed a lifting restriction, but she does not claim that she had an abnormal or high-risk pregnancy.”

Pregnancy accommodation can be a confusing area of law for many employers, and this case serves as a reminder that pregnancy alone is not a disability under the ADA. The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues provides helpful guidance about situations in which a pregnant employee may be entitled to reasonable accommodation. Per the Enforcement Guidance, an employer’s obligation to accommodate a pregnant employee is triggered with respect to “limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.” https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

Although a pregnancy, by itself, is not a disability under the ADA, employers must also bear in mind their obligations under the Pregnancy Discrimination Act (PDA) and applicable state law. For example, the PDA requires employers to treat pregnant employees the same as other employees who are similar in their ability or inability to work due to an impairment. A number of states require employers to provide reasonable accommodations to pregnant employees, regardless of whether there is an underlying medical condition.

The Future of the ACA and Break Time For Nursing Mothers

Among the many changes recently proposed to the Patient Protection and Affordable Care Act (“ACA”), one that has not yet occurred is a repeal of the requirement that certain employers provide break time for nursing mothers.

ACA Amendment To The FLSA

Effective March 23, 2010, the ACA amended the Fair Labor Standards Act (“FLSA”) to create a requirement that all employers covered by the FLSA provide reasonable break time, as necessary, and a private place, other than a bathroom, for non-exempt employees to express breast milk for their infant child for up to a year after the child’s birth, with limited exception. Covered employers with fewer than 50 employees are exempted from the requirement if providing such break time would cause an undue hardship.

This break time requirement is currently codified at 29 U.S.C. § 207 and no supporting regulations were enacted.  The U.S. Department of Labor issued a Fact Sheet and Frequently Asked Questions that provide basic information on the requirement and encouragement for employers to provide the same break time to exempt employees as well.

AHCA Bill Passed On May 4, 2017

The American Health Care Act of 2017 (“AHCA”) bill passed by the U.S. House of Representatives on Thursday May 4, 2017 did not include repeal of the ACA’s break time amendment to the FLSA. Of course, this bill is not yet law and has yet to be reviewed by and voted on by the U.S. Senate, which will likely change the text of the bill prior to any vote.

So, in short, a repeal of the break time requirement is still possible in the future, but is not on the horizon today.

What Should I Tell Employees on Leave About Their FMLA Usage? Everything!

When it comes to FMLA leave administration, “don’t sweat the details” is rarely a wise axiom.  Details matter.  A lot. 

A recent decision by an Illinois federal court reinforces that lesson.  In March 2015, Amanda Dusik contacted her employer, Lutheran Child and Family Services (LCFS), to request time off for knee surgery.  She explained that, according to her doctor, she would need three to six months of leave to recover.  LCFS notified her that it would designate her absence as FMLA leave beginning March 31, 2015. 

On July 15, 2015—three weeks after she exhausted her 12 weeks of FMLA—LCFS terminated Dusik.  She sued, alleging the termination came without notice, LCFS never told her how much leave she had remaining, and had she known her time was about to expire, she would have returned to work.  By not informing her how much leave would be counted against her FMLA entitlement, LCFS unlawfully interfered with her FMLA rights, Dusik claimed.  She also alleged LCFS failed to accommodate her disability because it never discussed with her whether she could resume her duties with an accommodation.  She maintained a knee brace would have been sufficient.

The FMLA regulations require employers to notify employees, at the time an absence is designated as FMLA leave, of how many hours, days or weeks will be counted against the employee’s FMLA leave entitlement, if the amount of leave needed is known.  If it is not possible to do so—for example, if the employee took unforeseen intermittent leave—then the employer must tell the employee how much time off it counted against the employee’s FMLA leave entitlement upon the employee’s request.

LCFS asked the court to dismiss Dusik’s FMLA claim. LCFS argued that it was not required to provide notice regarding FMLA usage because the amount of leave Dusik would need was unknown and she never asked how much time she had used up.  But in the court’s view, these considerations were not enough to warrant dismissal.  In deciding a motion to dismiss, the court can consider only the allegations in the plaintiff’s complaint and must assume that they are true.  Dusik alleged that, when she requested time off, she provided an estimate of the duration of her leave and asked that a manager update her about how much leave she had left.  Construing these allegations liberally, the court held that at this early stage, they were sufficient to make a claim of FMLA interference plausible.  The court also declined to dismiss Dusik’s separate failure-to-accommodate claim since Dusik alleged LCFS had afforded her no opportunity to bring up the knee brace accommodation.

Courts tend to be cautious about dismissing cases before fact discovery, and the court’s lenient ruling here is no indication that Dusik will win on the merits.  But regardless of what Dusik may prove, decisions such as this remind us that omitting information from required FMLA notices is a risky proposition. To minimize the risk, consider using the form notices provided by the Department of Labor, and err on the side of over-communication.  Keep employees regularly apprised of the status of their leave, and keep in mind that the end of FMLA leave does not end the duty to accommodate.

Both the City of San Diego and the State of California “Clarify” Their Sick Leave FAQs

CaliforniaAs we recently reported regarding the City of Los Angeles, both the City of San Diego and the California Department of Labor Standards Enforcement (“DLSE”) have updated their “Frequently Asked Questions” (“FAQs”) related to the respective local and state sick leave requirements. Below are some of the more salient points from each.


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EEOC and Orion Energy Systems, Inc. Settle Wellness Case

On April 5, 2017 the Equal Employment Opportunity Commission (EEOC) announced that it had reached a settlement with Orion Energy Systems, Inc. (Orion) relating to the EEOC’s claims that Orion’s wellness program violated the American with Disabilities Act (ADA) because participation was involuntary, and that Orion retaliated against an employee who objected to the program. See https://www.eeoc.gov/eeoc/newsroom/release/4-5-17a.cfm.

This settlement comes after the mixed ruling by the U.S. District Court for the Eastern District of Wisconsin. See Federal Court Simultaneously Rejects and Upholds EEOC’s Positions on Wellness Programs – Rejects Employer’s ADA “Safe Harbor” Defense.  Although U.S. District Judge William C. Griesbach ruled in September that the wellness program was voluntary—because the employee had a choice between participating in the program or paying full price for health benefits—the Court determined that there was a factual issue regarding whether Orion retaliated against the employee who objected to the program.

Under the terms of the settlement, Orion will pay $100,000 to the terminated employee and has agreed to refrain from implementing a wellness program that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA, or maintaining a program that imposes an incentive upon the worker of more than 30% of the premium cost for self-only insurance coverage. In addition, Orion has agreed not to retaliate or make threats against any employee for raising questions as to whether the wellness program is compliant, and it will train Orion executives and employees on the scope of the settlement.

The settlement is the result of lengthy negotiations and a significant exchange of information. According to Greg Cochanour, regional attorney for the Chicago District Office of the EEOC, “The EEOC has always maintained that wellness programs, done right, are a good thing.  But they have to be voluntary.  Through this settlement, Orion agrees that its future wellness programs will be done right.”

“Goldilocks” Work Environment Not Required Under the ADA

Just over two decades ago, when the ADA was in its infancy and this blogger was a summer associate heading into his final year of law school, I attended a hearing in federal court where the judge was considering a motion to dismiss the ADA claims of a plaintiff-employee.  The plaintiff was claiming, among other things, that his employer had failed to reasonably accommodate him under the Act.  His contention was that the job for which he was hired was too stressful and therefore exacerbated his alleged disability, rendering him unable to effectively perform the job.  When he asked for an accommodation, the employer reassigned him to a considerably less stressful job.  However, the plaintiff complained, the new job wasn’t stimulating enough to keep him motivated to work; in other words, it wasn’t stressful enough.  The judge didn’t buy the plaintiff’s Goldilocks-based theory that he was entitled to a job with a “just right” amount of stress and, in fact the judge’s clerk, paraphrasing an Eagles song popular at the time, commented afterward that the plaintiff should just “get over it.” Fortunately, twenty years later the courts still don’t buy the theory that a generally stressful environment warrants an ADA accommodation.

For example, in Hargett v. Florida Atlantic University Board of Trustees, 2016 U.S. Dist. LEXIS 154822 (S.D. Fla. Nov. 8, 2016), the plaintiff, a university employee, suffered from epileptic seizures.  When the plaintiff began reporting to a new supervisor, she concluded that he was treating her in a uniquely harsh manner, scrutinizing and micromanaging her work and causing her to have seizures.  Over the next several years, the relationship between the plaintiff and the supervisor continued to deteriorate.  Ultimately, the plaintiff requested a multi-pronged accommodation for her epilepsy including, but not limited to, a request that the supervisor “cease his hostile confrontations” and that either the university “sensitize” the supervisor as to his dealings with women with epilepsy or move the supervisor out of her chain of command.  The university agreed to some of the plaintiff’s requests but not to any of these.  The plaintiff then filed an EEOC charge, followed by a lawsuit.

In granting the university’s motion for summary judgment, the trial court noted that although specific stressors may in some cases be legitimate targets of accommodation, an employee cannot immunize herself from stress and criticism in general; that appeals to work in a more nurturing work environment, not directed at any particular person, are not sufficiently specific accommodation requests; and that the obligation to make a reasonable accommodation does not extend to providing an “aggravation-free” or “peaceful calm” environment.  In this particular case, the plaintiff did not identify any specific stressors that her supervisor created; rather, she generally characterized his management style as a series of “hostile confrontations.”  Thus, her corresponding request for “calm, fair, non-confrontational treatment” was deemed unreasonable and insufficiently specific to constitute a valid ADA accommodation request.

Therefore, while employers need not provide employees with a stress-free working environment or, as Goldilocks might desire, one with “just the right amount” of stress, care nevertheless should be taken to ensure that management is not creating undue stress on, or hostility toward, an employee in response to a known (or perceived) disability because, even if “de-stressing” the workplace doesn’t constitute a reasonable accommodation, the treatment of the employee might be deemed unlawful disability-based harassment.  Accordingly, employers are encouraged to thoroughly examine and respond to any accommodation request, preferably with the guidance of human resources professionals and/or legal counsel.