Think Before You Call: Contacting Employees On FMLA Leave

Call centerHow many employers have had this situation arise?  An employee requests and receives FMLA leave.  While they are out, the employee’s supervisor needs to locate a document, find out the status of a project the employee was working on, or a crucial question comes up that only the employee on leave can answer.

According to the courts, a few de minimis, work-related communications with the employee to “pass on institutional knowledge or documents”, or as a “professional courtesy”, may be permissible.  See Massey-Diaz v. University of Iowa Community Medical Services, Inc. (2016).  Any more than that, and the employer may be facing an FMLA interference lawsuit.

Under the FMLA regulations, interfering with an employee’s FMLA leave includes not only refusing to authorize FMLA leave, but also discouraging an employee from using leave.  As the Court stated in Smith-Schrenk v. Genon Energy Services, L.L.C. (2015), “there is no right in the FMLA to be ‘left alone’ or be completely relieved from responding to an employer’s discrete inquiries.”  However, this statement has to be balanced against the court’s other statement:  “On the other hand, asking or requiring an employee to work while on leave can cross the line into interference.”

Unfortunately, there is no bright-line test for what is permissible vs. impermissible contact, but court cases give a catalog of good examples of permissible contact:  occasional phone calls inquiring about files; a modest “unburdensome” request for materials; or an inquiry to close out a completed assignment.  In contrast, it may be impermissible to require an employee to substantially update files, or to complete tasks the employee should have completed prior to the leave.

Based on these cases and the FMLA regulations, it is best not to contact an employee on FMLA leave.  However, if you have an urgent question that cannot wait until the employee returns and it must be answered by that employee, then contact the employee but keep the communication brief.  It is also best not to allow the employee to work while on leave, even if the employee voluntarily wants to do so, because the employee may later claim it was involuntary.

DC Mayor Declines to Veto DC’s Paid Family Leave Bill

Back in December 2016, we wrote an article discussing the passage of the District of Columbia Universal Paid Leave Amendment Act of 2016 (“the Act”) by a 9 to 4 DC City Council vote on December 20th.  We explained that the next step was for the Act to be presented to Mayor Muriel Bowser. At that time, Mayor Bowser had expressed concerns about the Act and stated that she would not sign it.

On Wednesday, February 15th, Mayor Bowser elected not to veto the Act, allowing it to advance unsigned. In a letter to DC Council Chairman Phil Mendelson, Mayor Bowser explained that although she supports paid family leave for DC residents, she has a number of grave concerns about this law. These include: (1) the cost of the Act on DC businesses (at an estimated $250 million in additional taxes per year), (2) the cost of a first of its kind technology infrastructure that will cost between $40 to $80 million for DC to implement — before it can collect the new tax (3) the establishment of one of the largest DC government agencies in order to distribute benefits (although 2/3 of the benefits will go to non-DC residents), (4) the lack of benefits for DC residents who work outside of the city or for the federal government,  and (5) the fact that benefits won’t be distributed until the year 2020. Following receipt of the mayor’s letter, Chairman Mendelson said he was committed to working to improve the Act to address Mayor Bowser’s concerns, as well as concerns from DC’s business community regarding the expense of the new legislation. Thus, the Act may undergo additional changes before it is fully implemented by the DC government.  At this point, the next step is for the Act to be submitted to Congress for final review.

Breaks and Flexible Hours Not a Reasonable ADA Accommodation for Frequently Absent Employee, Court Holds

Employers can easily feel overwhelmed when it comes to enforcing employee attendance standards while providing reasonable accommodation to employees with chronic health conditions. Increasingly, however, court decisions such as Williams v. AT&T Mobility Services LLC are providing much-needed guidance regarding the scope of an employer’s duty to accommodate. The Williams case illustrates how carefully-designed policies, frequent communication, and a generous sprinkling of patience form key ingredients in the recipe for avoiding liability under the Americans with Disabilities Act (ADA). Read More

Employer Comes Up Smelling Like Roses in Reasonable Accommodation Case: Court Reminds Employee That She Can’t Always Get What She Wants

An employer’s failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation or an adverse action against an employee, according to the District Court for the Northern District of Illinois in Alanis v. Metra.   In fact, this case reiterates that employers are not required to provide every accommodation requested by an employee.

While at work in November 2011, after almost 10 years of work, Alanis began suffering from a variety of fragrance-sensitivity symptoms such as difficulty breathing and speaking.  Alanis was seen by Metra’s medical provider who concluded that she would return to work but gave her 30 days to obtain a psychological clearance exam.  The next week, Alanis again experienced symptoms and claimed that she was unable to speak and could only communicate through text messages, in writing or by whispering.  She once again saw Metra’s medical provider who determined that the speaking issues prevented her from performing her job and she was “medically disqualified” from working.

Alanis took FMLA leave and applied for short-term disability.  In early January, her treating physician released her to return to work.  However, because she had not completed the physiological examination and received clearance, Metra did not allow her to return.  Alanis submitted to this examination and was diagnosed as having a fragrance sensitivity, but was cleared to return to work in April.

Upon her return, Alanis requested the following accommodations: flexible work hours, a modified dress code, limitation on extended talking, periodic rest breaks, self-paced work-load, a fragrance-free workplace, and a private office.  Metra provided every accommodation request except for the private office and fragrance-free workplace.  Metra was unable to provide Alanis with a private office because the only two private offices that it had were being used by employees who handled confidential employee information, which required a private office space.  Furthermore, Metra was unable to ensure that the office was completely fragrance-free, it took a number of steps and implemented new policies to ensure that the amount of fragrances were limited.  For example, Metra changed the cleaning products which were used in the office and bathroom, moved Alanis’ cubicle so that it was further away from the kitchen, and requested that employees not wear perfume or cologne.  Finally, Metra invited Alanis to notify it of any odor issues, and when Alanis reported an issue, Metra intervened and asked the employee to refrain from wearing perfume.

Unsatisfied, Alanis filed suit against Metra alleging that she was discriminated against based on the fact that she was Hispanic and retaliated against because of her disability.  The Court found that there was no evidence of discrimination or retaliation because no adverse employment action was taken against Alanis.  Furthermore, the Court found that Metra had gone above and beyond to grant her requests for accommodation, specifically noting the changes Metra made to reduce the existence of odors in the workplace.  This case serves as a good reminder that you just can’t satisfy every employee.  And sometimes that’s ok!

Beware What You Share – Disclosure of Medical Information Results in Retaliation and Interference Claims

A United States District Court in Florida thwarted an employer’s attempt to toss the FMLA claims of an employee who sued after his medical condition was disclosed to co-workers who subsequently made fun of him.  The employee requested FMLA leave after he developed a chronic condition with his genito-urinary system.  The leave request was approved and the employee received all of the time off he needed.  However, Plaintiff claims that after a manager disclosed his condition to co-workers at a staff meeting he was the target of jokes and obscene gestures.    

In Holtrey v. Collier County Board of Commissioners the Plaintiff alleged that the breach of his right to confidentiality was an unlawful interference with his FMLA rights.  He also claimed retaliation because the ridicule by his coworkers was a material adverse employment action arising out of his exercise of FMLA rights.  The employer moved to dismiss the interference claim on the grounds that the employee was not denied leave, therefore it could not have interfered with his right to FMLA benefits.  Interference claims under the FMLA arise when an employer restrains or denies the exercise or attempted exercise of rights or benefits under the FMLA.  The issue, however, was not whether the right to leave was violated, but rather the right to confidentiality which is provided by the regulations.  Plaintiff had a right to confidentiality of his medical condition, therefore the Court concluded, an allegation that the employer violated that right is enough to establish an interference claim.  The Court noted that this decision conflicts with other district courts that declined to find sufficient basis for an interference claim where the employer discussed the employee’s condition with coworkers. 

As to the retaliation claim, the issue was whether Plaintiff could establish that he suffered an adverse employment action.  The Court concluded that the Plaintiff’s allegations of coworkers’ repeated and frequent jokes and gestures about his condition was enough to show that there was a material impact on his working conditions.  Because Plaintiff alleged that the ridicule was caused by his exercise of FMLA rights the retaliation claim survived.

Employers are often in a difficult position regarding disclosure of medical information.  For example, an employee’s absences may have a negative impact on coworkers because others have to work harder to cover for her/him.  The employer may be tempted to explain why the employee is out of work but there is a risk of violating the employee’s confidentiality rights when doing so.  Any time an employee’s medical condition is shared beyond those who administer leave for an organization there is a risk that the disclosure results in adverse treatment of the employee.  Employers should assess on a case by case basis what information needs to be shared and with whom. 

Is Federal Paid FMLA Any Closer to Reality?

On Tuesday, February 7, 2017, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rosa DeLauro (D-Conn.) reintroduced the Family And Medical Insurance Leave (FAMILY) Act, which would create a national system of paid leave for employees. This is the third attempt in the last five years by these same legislators to create federal paid leave.  But, with Republicans in control of the Executive and Legislative branches of our government, does the FAMILY Act stand a chance of becoming reality?

The FAMILY Act, which is modeled on existing paid leave systems in California, New Jersey, and Rhode Island, would provide employees with up to two-thirds of their pay for up to 12 weeks when they take time off for covered reasons under the FMLA. However, unlike the FMLA, the FAMILY Act provisions would extend to covered employees of all employers, regardless of their size.  The system would be funded by both employee and employer payroll contributions of two-tenths of 1 percent each, an amount which the National Partnership for Women & Families estimates would be less than $1.50 per week for a typical employee.  The Act would create a new Office of Paid Family and Medical Leave to administer the law.

When the FAMILY Act was introduced by Senator Gillibrand and Representative DeLauro in 2013 and 2015, the proposed legislation never made it out of committee. So why should we expect things to be different in 2017, when the Republicans are in complete control in Washington?  For starters, President Trump has already indicated that he supports paid leave, albeit only for new mothers.  In addition, given the recent proliferation of local and state-enacted paid leave laws, multi-location employers are increasingly challenged by compliance with a wide variety of paid leave programs.    As Republicans in the Senate and House continue to hear compliance horror stories from their constituent employers, the adoption of a federal paid leave system may be viewed as a potential solution to this compliance challenge.  If President Trump is in need of a bipartisan victory sometime this year, then perhaps the third time will truly be the charm for the FAMILY Act.

More information, including the current status, related to the FAMILY Act legislation proposed in the House and Senate can be obtained through the following links:


Weighty Issues: Obesity And The But-For Test Under The ADAAA

Obesity is still a hot topic both in our health conscious culture and in our courtrooms where we continue to see ADAAA claims based on the notion that an employer fired an employee because the employee was obese. After the ADA was amended, there was some question about how the courts would treat obesity under the ADAAA, especially claims alleging that the employer regarded the employee as disabled.  Fortunately, most federal courts to have considered the issue have concluded that obesity that is not a caused by an underlying physiological disorder is not a disability under the ADAAA.  On February 3, 2017, an Arizona district court joined the Eighth, Sixth, and Second Circuits in holding that obesity (including even morbid obesity) cannot qualify as a disability under the ADAAA unless it falls outside the normal range and occurs as the result of a physiological disorder.  In doing so, the Arizona court added its voice to the growing majority view expressly rejecting the EEOC’s contrary position on this issue. Read More

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 fifth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not providing an employee with a sufficient Notice of Eligibility and Rights & Responsibilities.

When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, an employer must notify the employee of the employee’s eligibility to take FMLA leave and rights and responsibilities within 5 business days, absent extenuating circumstances. This “Eligibility and Rights & Responsibilities Notice” must be in writing and must state whether the employee is eligible for FMLA leave (and if not, the reason why). The Notice also must provide details regarding the specific expectations and obligations of the employee and must explain any consequences of a failure to meet the obligations.

A failure to issue a proper Eligibility and Rights & Responsibilities Notice can result in a FMLA interference claim. Generally, an employee must show that “harm” resulted from an employer’s failure to provide proper notice, in the form of an “impairment of rights and resulting prejudice.”

In Bellone v. Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418 (1st Cir. 2014), the employee requested FMLA leave, which the employer granted.  Ultimately, the employee failed to report back to work on the anticipated return to work date, and was terminated. The employee sued, arguing in part that he received an insufficient Eligibility and Rights & Responsibilities Notice at the beginning of the FMLA process. The lower court agreed that the Notice was insufficient, as it did not contain any of the required information and only instructed the employee to fill out a FMLA medical certification form.  Fortunately for the employer, the employee was unable to establish that he was actually harmed by the employer’s insufficient Notice, and the court affirmed summary judgment in favor of the employer on the issue.

In Ross v. Youth Consultation Services, Civil No. 2:14-2229 (KSH)(CLW), 2016 U.S. Dist. LEXIS 179693 (D. N.J. Dec. 29, 2016), an employee alleged that her employer failed to provide her with proper Notice.  After the employee initially provided her employer with a doctor’s note supporting the need for leave, the employer sent the employee a packet containing information about FMLA leave benefits, a leave request form, a “Leave Designation/Employee Acknowledgment of Obligations” form, and a medical certification form. The employee provided additional notes from her doctor indicating the need for additional time off, which was in excess of 12 weeks.  The employer ultimately terminated the employee, because it determined that she had exhausted her 12 weeks of FMLA leave and could no longer hold open the employee’s job.  The employee argued, in part, that her employer never gave her proper Notice, and if it had, she would have structured her leave differently.  The court determined that while the employer met the “eligibility” notice requirements, the employer did not satisfy the individualized notice required in the “rights and responsibilities” notice.  This resulted in the employer’s failure to adequately inform the employee of her FMLA rights.  The court stated that “[t]he overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations.”  The employee suffered prejudice because she did not have the opportunity to structure her leave differently and save her job.

Employers should not overlook the crucial step in the FMLA process of providing employees with a proper Eligibility and Rights & Responsibilities Notice within 5 business days. There are resources available to help employers meet the eligibility notice requirements. Employers may use Form WH–381 (Notice of Eligibility and Rights & Responsibilities), which is available cost-free at

Third Circuit Says “Last Call” for Employee Terminated After Caught Drinking While on FMLA “Bed Rest”

On January 31, 2017, the United States Court of Appeals for the Third Circuit joined the Seventh, Eighth and Tenth Circuits in holding that an employer’s honest belief that its employee was misusing FMLA leave is enough to defeat an FMLA retaliation claim. The court’s opinion in Capps v. Mondelez Global, LLC also serves as a reminder to employers that an employee’s request for intermittent FMLA leave may also trigger the employer’s obligation to engage in the interactive process with the employee under the ADA. Read More

Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations

supreme courtIn case your news and twitter accounts are down, and you otherwise have not heard the news…   President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat.  There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction.  Read More