Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought leave to go to the hospital to decide with his sister whether his mother should continue on life support was “caring for” his mother under the FMLA. The Court cited the FMLA regulation which states that family members are entitled to leave “to make arrangements for changes in care….”   Romans v. Michigan Dep’t of Human Services (6th Cir. February 16, 2012).

In reversing summary judgment for the employer, the Court also rejected the district court’s holding that because plaintiff’s sister was at the hospital caring for the mother, the plaintiff was not entitled to FMLA leave as well. The Court stated that "[t]o be sure, [deciding whether to remove the mother from life support] is the kind of decision…that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

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 A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination.   Pereda v. Brookdale Senior Living Communities, Inc., (1/10/12).

Eight months into her employment, the plaintiff told her employer she was pregnant and would need FMLA leave for her child’s birth, which would occur after she had met the FMLA eligibility requirements. The employer discharged plaintiff before she had completed 12 months of employment.

The Eleventh Circuit held that because the FMLA requires notice prior to leave, employees are protected from interference prior to the occurrence of the triggering event such as the birth of a child. If it were to  hold otherwise, the Court said, the advanced notice requirement “becomes a trap for newer employees.” The court added that because “ a full term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by their employer.”

The Court also held that a pre-eligible request for post-eligible leave is protected activity sufficient to support an FMLA  retaliation claim.  Quoting an Oklahoma federal district court decision, the Court noted that “if courts were to read the FMLA to allow employers to dismiss ineligible employees who give advance notice of their need for FMLA leave, it would open a large loophole in the law…”

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An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza LLC v. Pyett, which held that a mandatory arbitration clause in a labor contract required an employee to arbitrate his age discrimination claim.
 

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Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit.  Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir. Sept. 2, 2011). The cause of a medical condition is irrelevant to whether an employee is entitled to FMLA leave, the court added.

The employee had exhausted his FMLA leave and had been granted a second leave for five months. The plaintiff alleged that when he returned, hissupervisor’s mistreatment caused him  stress, high blood pressure and stomach reflux, requiring him to take a third leave from which he never returned, which led to his losing his job.

The court rejected plaintiff’s claim, holding that the FMLA does not recognize “an exacerbation theory,” and that if an employee cannot work due to a serious health condition after exhausting FMLA leave, the FMLA no longer applies, regardless of the cause of the infirmity.

The plaintiff’s argument seems to be an attempt to juxtapose the standard for an employee to receive workers compensation benefits, i.e., has suffered an illness or injury out of or in the course of employment, onto the FMLA. Because the medical condition causing the need for leave arose out of or in the course of my employment, the plaintiff’s argument would go, the plaintiff is entitled to even more than 12 weeks of FMLA leave if necessary. The court’s rejection of this argument removes the negligence concepts of “cause” and “exacerbation” from FMLA analysis, at least in determining the amount of FMLA to which an employee is entitled.

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Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. The Supreme Court held that such an action is one that well might have dissuaded a reasonable employee from making or supporting a charge of discrimination. In Millea v. Metro North R.R. Co., the Second Circuit held that this same “materially adverse” standard applies to FMLA retaliation claims, citing similar determinations by the 3rd, 4th, 5th, 7th and 10th Circuits.

The Burlington Northern standard is a much broader standard, more favorable to plaintiffs, than the definition of “adverse employment action” applicable in non-retaliation cases. This expanded definition has contributed to an increasing number of retaliation charges. During the EEOC’s most recent fiscal year, more than one third of all charges filed with the agency included a retaliation claim.

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Recall our recent posts about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” her, and about an employee who took two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar. The court rejected both FMLA “caring for” claims because the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions.

Add to the list of rejected FMLA “caring for” claims that of a plaintiff whose daughter was injured while on a family vacation in Honduras and was airlifted to Miami for surgery. The employee was granted FMLA from March 20 through May 5 to care for his daughter. On April 12, the employee returned home to Texas while his wife remained in Miami with the daughter.  The plaintiff said he returned home because his neighborhood association had complained about his untended yard, his house needed to be cleaned, and he needed to add padding to the sharp edges in the home to protect his daughter upon her return. He said he was in frequent telephone contact with his wife and daughter until their return to Texas on April 29. Between April 12 and May 5, the plaintiff neither reported to work nor told his employer that he had returned to Texas.

The Fifth Circuit affirmed summary judgment for the employer, holding that FMLA leave may be used “only where the employee is in physical proximity to the cared-for person,”  and that the plaintiff did not remain “in close and continuing proximity” with his daughter during his FMLA leave. Baham v. McLane Foodservice, Inc. 

In rejecting the plaintiff’s claim, the Court held that the plaintiff was not with his daughter between April 12 and April 29; that mowing the lawn, cleaning his house, and padding the furniture is not “caring” under the FMLA; and that frequent telephone contact does not meet the “caring for” requirement.

“Who cares” and who does not is going to be decided on a case by case basis. However, a growing number of cases suggest that “being there,” physically with the family member needing care, is a requirement for FMLA leave.

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 A federal district court has upheld an employer’s restrictions on employee travel while on medical leave, affirming that employers can take reasonable steps to ensure that leave is used for its intended purpose. Pellegrino v. Communications Workers of America, Civ. No. 10-0098 (W.D. PA. May 18, 2011).

The Communications Workers of America provided its employees a wage replacement program which ran concurrently with FMLA leave. When receiving wage replacement, employees had to  remain in the “immediate vicinity of their homes” except to receive medical treatment or to attend “ordinary and necessary activities directly related to personal or family needs,” according to the court. An employee wanting to leave the immediate vicinity of her home needed the CWA’s written permission to travel.

Two weeks into her FMLA leave for surgery, plaintiff went to Cancun, Mexico for a week.   She had not sought permission to travel or request vacation for the trip. The CWA terminateded her for traveling to Cancun while on FMLA and disability leave in violation of CWA’s leave policies and work rules.

Plaintiff sued the CWA, claiming that it interfered with her right to FMLA by terminating her employment. After the lawsuit had begun, plaintiff’s physician submitted a letter stating that plaintiff was not able to return to work until weeks after she had returned from Cancun and that her trip to Cancun “was not inconsistent with her recovery or with any medical restrictions placed on her during that time,” according to the court.

The court upheld the wage replacement restrictions and granted the CWA summary judgment. Citing Third Circuit precedent, the court held that “there is no right in the FMLA to be left alone. Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave…” 

This is the latest of a handful of cases upholding the right of employers to impose restrictions to make sure medical leave, including FMLA, is not abused. Employers seeking to actively manage FMLA to prevent abuse should consider the lessons from these cases.

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 Wisconsin has become the first state to pass a law preempting local laws providing family and medical leave. Governor Scott Walker said the state needs to avoid a “patchwork” of different leave requirements in different parts of the state. Noting that “the provision of family and medical leave is a matter of statewide concern,” the law states that the enactment of any law providing such leave, whether paid or unpaid, by a city, village, town, or county would be “logically inconsistent with, would defeat the purpose of, and would go against the spirit of” that statewide concern. The statute voids Milwaukee’s Paid Sick Leave Ordinance, which allowed full time employees to accrue up to nine paid sick days per year.

The Wisconsin Family and Medical Leave Act provides eligible employees up to six weeks of leave on the birth or adoption of a child, two weeks to care for a parent, child or spouse with a serious health condition and two weeks for the employee’s serious health condition. While the leave is unpaid, an employee may elect to substitute any accrued paid leave.

Only San Francisco and Washington, D.C. require employers to provide paid sick days, although Denver, Seattle and Philadelphia are considering similar bills. A Connecticut bill requiring paid sick leave has passed the legislative Appropriations Committee and is awaiting action in the Senate.

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The termination of an employee who, after leaving work to deal with his mother’s medical emergency, failed to respond to his supervisor’s fifteen calls over the next eight days or otherwise contact the company, did not violate the FMLA, the Seventh Circuit held recently.

Affirming summary judgment for the employer in Righi v. SMC Corporation of America, the court held that plaintiff’s failure to respond to these calls “dooms” his FMLA claim, noting that the FMLA does not authorize employees to “keep their employers in the dark about when they will return” from leave.

The day following his sudden departure, the plaintiff emailed his supervisor that he needed “the next couple of days off” to make arrangements for his mother’s care. He also noted that “I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.”

Noting that “it does not take much for an employee to invoke his FMLA rights,” the court said that the email was sufficient to alert his employer that the plaintiff might need FMLA leave but because the request was equivocal, the employer had a duty “to make further inquiry…using informal means” to determine whether the plaintiff was seeking FMLA leave. The supervisor’s repeated calls satisfied the employer’s duty, according to the court.

The court noted that the plaintiff had also failed to comply with his employer’s internal leave policies and procedures concerning notice. This failure is another reason to dismiss plaintiff’s FMLA claim, according to the court.

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Relying on “chill theory,” a federal district court in Arkansas held recently that an employer who had granted the plaintiff her requested FMLA leave and had reinstated her when her doctor released her to return, nonetheless may have interfered with her FMLA rights when her supervisor called her weekly during the leave to ask when she was going to return to work. The plaintiff said she “felt pressured” by these calls. A month after plaintiff’s return to work, the employer terminated her for theft. In Terwilliger v. Howard Memorial Hospital, the court denied the employer’s motion for summary judgment on the FMLA interference claim, holding that a reasonable jury could conclude that the supervisor’s weekly calls “interfered with plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.”

The court observed that “[p]laintiff had a right not to be discouraged from taking FMLA leave,” suggesting that the calls may have been discouraging, although nothing in the decision suggests plaintiff returned to work earlier than she should have as a result of the calls. Reconciling the employer’s right to communicate with an employee on FMLA leave with an employee’s right not to be discouraged by such communications could be tricky. When considering terminating an employee who is on or recently returned from an FMLA leave, an employer should consider the nature and extent of its communications with the employee to evaluate the FMLA interference claim. In Terwilliger, since the court had dismissed the plaintiff’s FMLA retaliation claim, the interference claim is the only issue proceeding to trial.

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Who cares…..for a covered family member under the FMLA as opposed to merely providing much appreciated assistance? The distinction is critical because absences “to care for” are protected by the FMLA while absences to assist are likely not.

Recall our recent post about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” his mom. The court rejected his argument because no evidence connected his mother’s hepatitis with his urgent need to clean the basement.

A recent case also rejected a son’s “caring for” argument.  In Chappell v. The Bilco Company, the employee claimed he should not have been terminated for absenteeism because he was “caring for” his mother, who has diabetes, on some of the days he was absent. The plaintiff had taken two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar.  The court rejected the plaintiff’s argument, noting that the changes in blood sugar were not a “serious health condition” and no evidence established “that he was needed to provide physical or psychological care for [his mother] as a result of her diabetes,” i.e., that the leave was medically necessary.

Another absence occurred on a day his mother had a medical appointment at 12:30 p.m. The plaintiff had an approved FMLA intermittent leave certification to transport his mother to and from doctors’ appointments.  His shift began at 6:30 a.m. The company had told him that he must report to work before and after the appointments, if possible.   On the day of the appointment, the employee did not report to work at all and explained that he made breakfast for his mother and  dressed her for the appointment. The court rejected the plaitiff’s argument that the conduct before transporting his mother to the appointment was “caring for” her, noting that his mother was able to dress herself and that plaintiff did not establish that it was medically necessary for him to make her breakfast.

“Who cares” and who does not is going to be decided on a case by case basis. In these two cases, the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions. Other plaintiffs, in other circumstances, may be able to do so.

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 Buried in the voluminous Health Care Reform Act is a requirement that employers provide reasonable break times and an appropriate place for nursing mothers to express breast milk for one year after the child’s birth.

On December 21, 2010, the U.S. Department of Labor published a request for comment concerning the implementation of this requirement and its preliminary interpretation of it.  Responding to “several inquiries” concerning the relationship of the break time provision to the FMLA, the DOL stated that it “does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement.” Under the FMLA, an employee may take time off to “care for” a newborn, which the FMLA regulations refer to as “bonding time.” In its recent notice, the DOL explained that it “does not consider expressing milk at work to constitute bonding with or caring for a newborn child.”  

The DOL also stated that if an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII. The DOL also stated that if an employer terminates a nursing mother employee because she takes breaks to express milk, the DOL may pursue such a claim on behalf of the employee.

In addition to addressing the interaction between the break time requirement and the FMLA, the DOL’s recent notice also discusses when such breaks must be paid, the length and frequency of “reasonable” break times, the type of place employers must provide, and the nature and scope of the undue hardship exemption.

To provide employees and employers with additonal information concerning workplace breastfeeding programs, the DOL has launched a new website on this specific topic.

Comments on the DOL’s preliminary interpretations of the break time and place requirement must be received by the DOL no later than February 22, 2011.

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If it is any comfort to private sector employers, when it comes to managing an employee’s entitlement to time off under a myriad of legal requirements and internal personnel policies, the federal government, as an employer, faces similar challenges. On December 3, the Office of Personnel Management issued final regulations addressing the use of sick leave for exposure to a communicable disease, a new “advanced sick leave” policy, and substitution of sick leave for FMLA to care for a seriously injured or ill covered service member. Twenty pages of discussion precede the two pages of new regulations, which illustrates what all employers have come to know---to state each entitlement is the easy part; to determine how the various laws applicable in a particular situation work together is the real challenge.

The discussion is proof that the most fundamental requirement to being successful in managing employee leaves, to making sure that employees receive their “entitlements” under both internal policies and the ever-increasing number of leave laws, is to have “peripheral vision,” to know all the various laws and policies that may apply in a given situation, to be able to weed out those that do not apply, to administer the leave to satisfy the requirements of those that do, and to defend any legal claim that might arise with confidence and documentation.    

The OPM’s table of the five sources of entitlements for federal employees to care for a family member or covered servicemember illustrates that the federal government, as an employer, is focused on peripheral vision as well. The examples of the interaction between sick leave and FMLA leave in the discussion  apply that vision to situations which private sector employees face regularly.  

So at least on this topic, do both the private sector and the federal government, as an employer, have the same challenges? Well, not quite. The private sector has the additional challenges of state and local leave laws.

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The ADA and FMLA collided in two cases recently and, whenever that occurs, accident reconstruction, so to speak, is in order. In Wisbey v. City of Lincoln, NE, emergency dispatcher Wisbey was granted intermittent FMLA leave for the "next 6 months or longer" because of depression and anxiety. Her FMLA paperwork prompted the City to question whether she could do her job at all. The City terminated Wisbey after a psychiatrist concluded that Wisbey was not fit for duty. The Eighth Circuit affirmed summary judgment for the City on Wisbey’s ADA and FMLA claims, but the significance of this case is in the court’s blending of FMLA and ADA concepts: 

• "the FMLA does not provide an employee ….with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implied that she is not qualified for a position where reliable attendance is a bona fide requirement (citation omitted);" 

• "Because Wisbey requested ‘intermittent leave’ for ‘six months or longer’ she did not have a right to FMLA leave."  

In Carmona v. Southwest Airlines Company, the ADA and FMLA collided once again. For seven years, Carmona, a flight attendant, was granted FMLA leave to excuse absences related to psoriatic arthritis. Since he did not work enough hours to renew his FMLA in 2005, his absences were unexcused and he was terminated for excessive absenteeism.

The Fifth Circuit rejected Southwest’s argument that Carmona was not a "qualified individual with a disability" under the ADA because he could not meet the essential function of regular attendance. and held that because Southwest "tolerated [Carmona’s] FMLA-approved absences for seven years," which permitted him to miss over half of each month without notice, regular attendance was not an essential function. The court said "if Southwest had denied Carmona’s request for intermittent FMLA leave [i.e., violated the FMLA], it might have had a strong argument that as a matter of law Carmona was not qualified to work as a flight attendant." Following this logic, regular attendance will not be an essential function of a job for anyone who has taken FMLA leave, since the employer tolerated that legally required leave.

The outcome of these two ADA-FMLA collisions? While Wisbey understates (if not misstates) the FMLA leave entitlement, Carmona punishes an employer in an ADA case for complying with the FMLA! The message from these two cases is clear: When your analysis brings you to the intersection of these two laws, proceed with extreme caution!

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Sometimes it is unclear whether the employee is requesting leave that might be covered by the FMLA. This is not one of those situations. In Kobus v. The College of St. Scholastica, Inc., when the plaintiff told his supervisor in November 2006 that he would need to take time off for “stress and anxiety,” the supervisor gave him FMLA paperwork and told him he could apply for leave. The plaintiff put the papers in his drawer without reading them, and told his supervisor he “didn’t’ need any leave. Not just FMLA; any leave” because he thought he “could handle” matters.

A few weeks later, the employer disciplined plaintiff for excessive absenteeism. In January 2007, in response to the plaintiff’s comment that he would need “mental health leave,” the supervisor told him again about the FMLA and that he would need to have a doctor sign the paperwork. The employee responded that he did not have a doctor, and asked “is there any other way I can go.”

Later that afternoon, the supervisor told him “there was nothing available for [him],” and offered him two weeks’ severance pay if he resigned. The next day, he submitted a letter of resignation.

The Eight Circuit rejected the plaintiff’s claim that the College unlawfully denied him FMLA leave, holding that the plaintiff had “failed to adequately state an intent to take FMLA leave” and that “[w]hen an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.” The court rejected the plaintiff’s argument that the College’s FMLA policy was unclear because it said medical certification “may” be required, as opposed to “must be submitted.” 

The Eighth Circuit rejected the plaintiff’s ADA claim as well, holding that the plaintiff did not request an accommodation, and rejecting his reliance on the EEOC’s ADA Enforcement Guidance that a request for time off because an employee is “depressed and stressed” is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. “None of our prior ADA notice cases cited the Enforcement Guidance as controlling. We apply the requirement in the regulations that an employee must “inform the employer that an accommodation is needed.”

This case illustrates the benefits of having supervisors trained to recognize potential requests for FMLA leave. The supervisor’s twice offering the plaintiff FMLA leave made rejecting the FMLA claim almost a foregone conclusion. The Court’s unwillingness to follow the EEOC Enforcement Guidance is a reminder that the Guidance does not have the force of law and does not expand the scope of the ADA itself.  

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Cleaning mom’s flooded basement is not “caring for” mom under the FMLA, according to a Michigan federal district court. Because the three days of flood cleaning were not excused by the FMLA, the employer did not violate the FMLA by terminating plaintiff’s employment under its  absence policy, according to the court.

In Lane v. Pontiac Osteopathic Hospital, the plaintiff, who lived with his mother, had submitted an FMLA certification stating that his mother had diabetes, high blood pressure, weight loss and arthritis, and that he would need intermittent leave to provide her food and transport her to doctors’ appointments.  The company approved his leave request.

During the period covered by the certification, the company discharged the plaintiff under its absence policy. The plaintiff claimed the three flood cleaning days should be excused because his mother had hepatitis and the stagnant water was a “breeding ground” for the disease.

The court rejected the plaintiff’s argument, noting that flood cleaning was not encompassed by his FMLA paperwork, that he had not established that the basement had to be “immediately cleaned for her basic medical, hygienic or safety needs and that he had to do it because she could not,” and that he did not establish that his mother’s hepatitis was in danger of being aggravated if he did not clean the basement immediately.      

This decision indicates that the definition of “caring for” under the FMLA is not unlimited, though many courts have interpreted the phrase so broadly that employers often do not even explore the “caring” activities, let alone challenge them. Of particular interest is that the court seems to suggest that the potential harm to the family member if the care is not provided immediately, and whether the family member can do the “caring” activity his/her self are factors to consider in evaluating whether a particular “caring” is protected by the FMLA.

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The U.S. Department of Labor issued today an Administrator's Interpretation of the FMLA Regulation defining "in loco parentis" relationships as part of the FMLA's definition of "son" or "daughter".  Is this "big news" and, if so, why?  

One could always argue that individuals standing 'in loco parentis" to a child covered under the FMLA could take FMLA leave for the birth or adoption of that child or to care for a child with a serious health condition.  So why is the DOL making such a big deal out of this and issuing a Press Release announcing this is a "win for all families no matter what they look like"?

As with most things FMLA, the devil (or should I say,"mischief") is in the details.  Under the guise of an "Administrator's Interpretation", the DOL arguably re-writes an important provision of Section 825.122(c)(3) of the FMLA Regulations that became effective on January 16, 2009.  Specifically, Section 825.122(c)(3) of the FMLA Regulations defines "in loco parentis" as including those "with day-to-day responsibilities to care for and financially support a child."  In today's Interpretation, the Administrator states, "the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child."  

So, according to the DOL Administrator, the word "and" should be interpreted to mean "or" in Section 825.122(c)(3) of the FMLA regulations.  Only time will tell if courts agree with such an interpretation. 

One other observation or nuance of the in loco parentis rule ... absent a further interpretation by the DOL, individuals taking FMLA leave because they stand in loco parentis to a child are not subject to the FMLA rule in Sections 825.120(a)(3) and 825.127(d) of the regulations limiting the amount of leave to a combined total of 12 weeks (or 26 weeks in the case of care for an injured servicemember) of FMLA leave; those limitations apply only to a "husband and wife" working for the same employer.  Thus, for example, an employee who is the biological parent of a child and a grandparent or same sex partner standing in loco parentis to that same child each would be entitled to take the full complement of 12 workweeks of FMLA leave upon the birth or placement of the child.  Again, this nuance is not new, however, it may prove to create additional mischief under the DOL's broader interpretation of in loco parentis. 

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A no-fault attendance program is the epitome of equal treatment—the employer does not judge whether an absence is for a good or bad reason and gives all employees the same number of absences.

But then the FMLA came along and guaranteed eligible employees certain time off and prohibited an employer from interfering with that entitlement. Employers with no-fault programs responded with somewhat of an oxymoronic anomaly—everyone still gets the same number of absences but absences covered by the FMLA do not count.

As the Seventh Circuit’s recent decision in Bailey v. Pregis Innovative Packaging, Inc. illustrates, merely adding the FMLA exception does not insulate a policy from an FMLA challenge. Under Pregis’ policy, an employee received a point for each non-FMLA absence and the point was removed after 12 months of work. The plaintiff claimed that since FMLA leave is not included in calculating the 12 months of work, the policy retaliates against FMLA-leave takers because it takes longer for them to “wipe the slate clean” than it would take for a non-FMLA-leave takers.

The Seventh Circuit affirmed the district court’s rejection of the plaintiff’s argument. The FMLA states that taking leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced” but the FMLA does not entitle an employee to the “accrual of any…employment benefits during any period of leave.” Judge Posner concluded that “wiping a point off the absenteeism slate” is “an employment benefit” but that it does not accrue until 12 months after an absence. “Absenteeism forgiveness,” like seniority, is a reward for working, he said. 

          All employers with no-fault attendance policies should heed the messages from this case---just excepting FMLA-covered absences from the policy does not insulate the policy from challenge, and any aspects of the policy that might be construed as adversely affecting FMLA-leave takers must be for the purpose of rewarding employees for their commitment to work, and not punishing employees for taking FMLA leave.

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The reminders of the FMLA challenges facing multi-state employers in complying with state leave laws are frequent and the risk grows regularly. This time, the challenge came from Connecticut. Connecticut’s Family and Medical Leave Act (CFMLA) applies to employers with 75 employees. Is that 75 employees in-state or nationwide?   

In 2001, the state Department of Labor, which enforces the law, held that only in-state employees are counted to determine whether an employer has 75 employees. On May 14, 2010, in Velez v. Patricia Mayfield, a Superior Court held that the DOL’s view was not reasonable, and that there are no geographic limitations in counting employees under the CFMLA. As a result, multi-state employers with less than 75 employees in Connecticut—those with even a single employee in Connecticut--but more than 75 total employees must comply with the CFMLA for its in-state employees. And compliance is not just a matter of adding “Connecticut” to your federal policy. CFEPA varies significantly from the federal FMLA. For example, it has different forms, different eligibility requirements, grants eligible employees 16 weeks of leave every 24 months, does not have a small worksite exception, does not recognize the “key employee” exception and prohibits consideration of CFMLA time in determining whether an employee is eligible for a bonus, to name just a few.

What’s a multi-state employer to do? To manage risk, constant vigilance and on-the-ground resources are required. Monitoring new state laws is not enough. The challenge here came from a Connecticut trial court. And there’s no way to predict where the next challenge will come from.

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An employee goes on FMLA leave unable to work temporarily due to uncontrolled diabetes. The employee’s essential job functions include driving a forklift and working with other dangerous machinery. Many in the workplace are aware of the situation because the employee lost consciousness while working and had to be transported to the hospital by ambulance. Sound familiar?

Two weeks into the leave, the employee calls and says he is ready to return to work – he even has a doctor’s note stating he is ready to return to work without restrictions. You, knowing that the ADA does not require you to allow someone to work if they pose a “direct threat,” and fearing the employee may injure himself or others if he is not “fit for duty,” delay his return to work until he provides a more detailed second opinion from a doctor you select. The employee does not want to participate in a second opinion, he is ready to return now! The employee files a complaint claiming a violation of the FMLA citing 29 C.F.R. Section 825.312 claiming the employer did not give proper notice of the need to provide an extensive medical release and is tantamount to a second opinion, which the FMLA regulations prohibit.

Does the ADA trump the FMLA? Courts seem to disagree. See for example, Porter v. Alumoweld, 125 F.3d 243, 7 AD Cases 537 (4th Cir. 1997) (upholding employer’s right to require more than what FMLA permitted); Albert v. Runyon, 4 WH Cases2d 1128, 1137-38 (D. Mass. 1998) (requiring employers to comply with both the ADA and FMLA); Routes v. Henderson, 5 WH Cases2d 768, 798-99 (S.D. Ind. 1999).

This conflict is unnecessary and senseless. Why would two federal laws, enacted within 3 years of one another, impose conflicting obligations? The ADA adequately protects employees who impose unreasonable medical examination requirements. As we will point out repeatedly on this blog, workplace law is seriously flawed whenever it prevents an employer from acting reasonably and prudently. This is one of those instances.

Maybe new EEOC Commissioners Chai Feldblum, who was one of the principal drafters of the ADA and ADA Amendments Act, and Victoria Lipnic, who led the Department of Labor’s effort to revise FMLA regulations in 2009, can help persuade Congress, courts, or the EEOC and DOL, to resolve this conflict. Let’s have one rule, the ADA rule, and simply require all medical examinations or inquiries be “job-related and consistent with business necessity.”

By the way, some say we already do have one rule -- see references in FMLA Regulations Section 825.312(h), the FMLA regulatory provision governing “Fitness For Duty Certifications.” That section includes statements that requirements under the ADA apply and, if an employee’s serious health condition may also be a disability within the meaning of the ADA, the FMLA does not prevent the employer from following the procedures for requesting medical information under the ADA.

From White Plains … waiting for some ADA/FMLA clarity.

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