What Do You Mean I Can’t Require that an Employee Use PTO During FMLA Leave?

Since the FMLA came into existence, employers have been advised, where possible, to run FMLA concurrently with other leaves. Doing so prevents leave stacking. When reviewing FMLA policies, a common oversight we see is how employers handle the use of paid leave during FMLA. While the policies require employees to use earned vacation, sick or PTO time concurrently with FMLA leave, some overlook a nuance in the FMLA regulations that prohibits employers from requiring employees to use paid leave during FMLA.

FMLA leave is generally unpaid, and during unpaid FMLA leave an employer can require that employees use paid leave. The FMLA regulations provide, however, if during FMLA leave an employee also receives benefits, in any amount, from a disability plan or workers’ compensation, the FMLA leave is not unpaid. Because the FMLA’s general rule permitting employers to require employee substitution of paid leave only applies to unpaid FMLA, during periods of FMLA when any income replacement is received, employers cannot require employees to substitute paid leave. This exception to the FMLA general rule applies regardless of the amount of income replacement received.

For example, if an employee taking FMLA is also receiving disability benefits that replace two-thirds of their income, the employer may not require that the employee use PTO (or other paid leave) to make up for the one-third of income not covered by the disability benefits. The employee can, however, be required to use paid leave during a waiting period before disability benefits are received, because the limitation is triggered by the receipt of income replacement benefits.

This issue was at the center of Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007). In that case, Alice Repa suffered an injury that required surgery and a six-week absence from work. During the leave Repa received a weekly $300 disability benefit through a third-party disability plan. While she was on FMLA, her employer required her to use vacation and sick leave. Repa sued seeking to have her sick leave and vacation benefits restored. Repa was awarded summary judgment as the Court held that an employer’s ability to require an employee to substitute paid leave during FMLA is limited if, during FMLA leave, the employee also received disability benefits. While Repa, during her FMLA leave, could have been provided the opportunity to elect to substitute paid leave at the time she was also receiving disability benefits, it was unlawful for her employer to require the substitution of her vacation and sick time.

For those wanting to take a closer look, substitution of paid leave is addressed in 29 C.F.R. § 825.207 of the FMLA regulations.

While this limitation is not new, it is commonly overlooked. Employers should review their FMLA policies to ensure they properly administer the substitution of paid leave, and be aware that some state family and medical leave laws also regulate the substation of paid leave. Jackson Lewis can assist with FMLA or state leave issues, training and policy review.

California Expands Upon Lactation Accommodation Requirements

California Governor Jerry Brown signed into law Assembly Bill 1976, expanding California employer obligations respective to employee lactation accommodation. Under preexisting California Labor Code section 1031, an employer was required to make available a private location, other than a toilet stall, for an employee to express milk for an infant child, and provide employees with a reasonable amount of break time to do so. Recently signed Assembly Bill 1976 amends Labor Code section 1031 providing that the private location be a place other than a bathroom, when reasonable.

Assembly Bill 1976 also outlines when temporary lactation locations may be sufficient. An employer may satisfy its obligations under the section by showing that:

  1. Operational, financial, or space limitations render the employer unable to provide a permanent lactation location;
  2. The temporary location is private and free from intrusion while an employee expresses milk;
  3. While an employee expresses milk, the temporary location is used only for lactation purposes; and
  4. The temporary location otherwise meets the requirements of state law for lactation accommodation.

The amendment also specifically provides for agricultural settings. An agricultural employer, as defined in Labor Code Section 1140.4, must provide an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.

As amended, Labor Code section 1031 will press employers to make reasonable efforts to provide an employee with the use of an area, other than a bathroom, to express milk. The location is to be near the employee’s work area and afford the employee privacy. The area where the employee normally works may be appropriate if it otherwise meets the requirements set out in the statute. When an employer can demonstrate that providing a private area other than a bathroom would impose an undue hardship on the employer—when considered in relation to the size, nature and structure of the employer’s business—the employer need only make reasonable efforts to provide an employee with the use of a private area other than a toilet stall.

Assembly Bill 1976 was one of two lactation accommodation bills that passed both houses and made their way to the Governor’s desk. Yet Governor Jerry Brown vetoed Senate Bill 937 which proposed extensive requirements for lactation rooms.

Employers should reach out to the Jackson Lewis attorney they normally work with to evaluate their lactation accommodation obligations.

Expanded Paid Family Leave Benefits Coming to California Employees

Under the Family Medical Leave Act, eligible employees are entitled to take time off for due to a “qualifying exigency” arising from the deployment of the employee’s spouse, parent, or child for active military duty to a foreign country. Examples of “qualifying exigencies” include attendance at military events, making childcare arrangements arising from a military member’s covered active duty, making or updated financial and legal arrangements to attend a military member’s absence on covered active duty, and accompanying the military member during a rest and recuperation leave during deployment.

Currently California employees who wish to receive pay during leave for a qualifying exigency would need to use their own accrued vacation or paid time off hours. However, beginning January 1, 2021, an employee can apply for wage replacement benefits from the State of California Paid Family Leave insurance program during such a leave. Employees applying for benefits may be required to provide a copy of any active duty orders or other documentation issued by the military to support a request for benefits.

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

Not recognizing when you might trigger the FMLA by being an “integrated employer”

The FMLA applies to employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. However, separate companies will be considered to be part of a single employer for FMLA purposes if they meet the “integrated employer” test set forth in the FMLA regulations.

The integrated employer test includes the factors of: (1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control. 29 CFR §825.104(c)(2). When this test is met, employees of all entities making up the integrated employer will be counted in determining employer FMLA coverage and employee eligibility. Smaller employers in particular should be cautious.

In one case, the Supreme Court of Nebraska affirmed that two companies owned by the same person were integrated and an FMLA employer. A terminated employee filed suit against both companies, alleging FMLA violations. One company had 38 employees and the other had 17 employees, each below the 50-employee threshold. Common management was met where the owner made high-level management decisions for both companies and directed management of each company, who implemented his instructions. There was significant interrelation between operations because the two companies shared office space and some personnel; used the same bookkeeper and IT support person; the same project manager oversaw construction projects for both companies; and there was a common payroll process. The employees of one company reported to the other company’s premises to be dispatched to specific work locations. There were also several examples of employees moving between companies to meet overall labor needs. Finally, the owner owned 100 percent of one company and was the primary shareholder of the other company. Therefore, the employer was indeed an integrated employer under the FMLA, and subject to FMLA obligations. Pierce v. Landmark Mgmt. Grp., Inc., 2016 Neb. LEXIS 88 (S.Ct. Neb., June 24, 2016).

By contrast, the Third Circuit Court of Appeals recently affirmed that two companies owned by the same person were not an “integrated employer.” A former employee filed suit against both companies alleging FMLA violations. Each company had less than 50 employees. While the same person owned both companies, and could presumably hire or fire employees at either company, each company had separate managers who did not have authority in the other company. Each company also had separate offices, equipment, and records. Even though the owner had an office at each company’s location, and some employees periodically performed work or services for the other company, the Court stated this was insufficient to establish interrelated operations. While the owner had authority to hire and fire, he refrained from interfering with the direct manager’s decision to terminate the employee. Regarding common ownership, the Court decided that the common ownership, in itself, did not translate into the two entities having a corporation/division relationship. Kieffer v. CPR Restoration & Cleaning Services, LLC, 2018 U.S. App. LEXIS 12560 (3d Cir., May 15, 2018) (non-precedential opinion).

As these cases illustrate, this is a fact-intensive analysis. Small employers should carefully analyze business operations against the FMLA “integrated employer” test factors to determine whether they might actually be a covered under the FMLA.

Plaintiff Lacks Standing to Claim Website Violates ADA Where It Does Not Impede Ability to Access Physical Location of the Business

With the rise in lawsuits under Title III of the ADA regarding accessibility of websites, Courts have been framing how such claims fit into the law’s requirements for accessibility at places of public accommodation.  The U.S. District Court for the Southern District of Florida recently provided additional clarification in Gomez v. Knife Management, LLC (S.D. Fla. Sep. 14, 2018).  The Defendant owns and operates a chain of restaurants.  There is no dispute that the restaurants are places of public accommodation covered by the ADA.  Defendant also maintains a website with information about the restaurants.  Plaintiff alleged that he was unable to fully utilize the website because he is vision impaired and portions of the website are not readable by screen reader software.  However, Plaintiff did not allege that he attempted to visit one of the restaurants, that he intended to visit one in the future, or that the website impeded his ability to access the restaurants or the goods and services they offered.

There have been many decisions evaluating how a website could fall under the ADA’s coverage of public accommodation the way that a physical “brick and mortar” store or restaurant would be covered.  Courts in the 11th Circuit require some nexus between the website and access to the physical location such that the ADA would prohibit a website from impeding a disabled person’s full use and enjoyment of the physical location.  It is not enough for an individual to claim that the website only denied access to information about the physical location.  An individual would have to show that he/she was an unable to access the website and an intent to patronize the physical location again if there was access to the website.  An individual could also state a claim if he/she could show that the website impeded their ability to access to the physical locations or the goods or services offered there.

In this case, the Plaintiff did not claim he intended to visit the restaurant in the near future or ever for that matter.  He also did not allege that the website impeded his ability to access the restaurant.  The claims were dismissed because he only claimed that he “attempted to access” the website “but was unable to…enjoy full and equal access…and/or understand the content.”  As such, access to the website was not tied to his access to the restaurant.  With no nexus between the website and the ability to access to the physical location Plaintiff lacked standing to bring his ADA claims.

Despite this decision, we do not expect the wave of website accessibility cases to slow down anytime soon.  While the Court concluded that the Plaintiff’s allegations were insufficient in this case, it also provided a road map for what must be alleged to state a valid claim.  Any Company operating a place of public accommodation must therefore remain vigilant with regard to the accessibility of its website.

Village of Northbrook Opts Back In to the Cook County Earned Sick Leave Ordinance

Are you tired of the Cook County Earned Sick Leave roller coaster, yet?

Last Tuesday, the Village of Northbrook, Illinois, became the most recent Cook County municipality to opt back in to the Cook County Earned Sick Leave Ordinance, joining Western Springs, which — as we previously reported — did an about-face in April and reversed its prior decision to opt-out of the Ordinance.  Beginning January 1, 2019, covered employers with employees in Northbrook will be required to comply with the Ordinance and provide eligible employees with one hour of paid sick leave for every 40 hours worked.

Although the Village of Wilmette also recently reconsidered its prior decision to opt-out of the Ordinance, it ultimately reaffirmed its original decision. However, the issue will be presented to Cook County voters in the upcoming election on November 6.  It is unclear whether the will of the voters and/or the recent decisions of Northbrook and Western Springs to opt back in to the Ordinance will spur similar action by other Cook County municipalities.

Be on the lookout for further updates after the election.

Court Finds Standing Requirement for ADA Title III Claim Requires Plaintiff To Have “Concrete and Realistic” Plan to Return to the Hotel

A recent Middle District of Florida decision granted the Defendant’s Motion to Dismiss Plaintiff’s claims for relief under Title III of the ADA based on Plaintiff’s lack of standing to bring such claims.  In Kennedy v. Cape Siesta Motel (MD FL Oct 4, 2018) the Plaintiff claims she encountered architectural barriers upon her visit to a motel in Brevard County, Florida.  The Plaintiff lives about 175 miles from the motel but has a second home about 79 miles from the motel which she visits two to three times a month.  On those occasions she would drive through Brevard County.  Plaintiff alleged she “plans to return to Brevard County frequently within the next few months” and those plans include returning to the property “in the near future to avail herself of the goods and services made available.”  The Defendant moved to dismiss arguing Plaintiff has no standing to bring her ADA claims because she lives 175 miles from the property, visited at most on only three occasions, and lacks definite plans to return.  The Court granted Defendant’s Motion to Dismiss and evaluated the four factors used to determine standing as follows:

 1. Proximity to the subject property: Plaintiff has one home 175 miles from the property and another 79 miles from the property.  That distance negates the likelihood of future injury.  The occasional travel through the county does not alter this conclusion because there is no indication that her travel through this large county brings her near the hotel or that she would be spending the night there to break up the trip.  Plaintiff argued that the “proximity” test is inappropriate and should not be applied in the context of a hotel but the Court explicitly rejected that argument

2. Past patronage: The Court found this factor was met by Plaintiff since she made up to three prior visits.

3. Definite plan to return:  Plaintiff failed to demonstrate a definite plan to return.  She states generically that she plans to return to the property “in the near future to avail herself of the goods and services made available” but the Court held that these are just “generic statements” of a “some day plan.” Plaintiff’s general plan to return to Brevard County often does not change the analysis.  It is a large county and there was no “concrete and realistic plan that Plaintiff will return to the property.”

4. Frequency of travel near the business:  Plaintiff did not meet this factor even though she has a second home and travels through the county in which the property is located when going from her primary home to her second home.  There was no indication that she would travel near the property when driving through the county.

 This case provides a helpful analysis and application of law for Defendants seeking to challenge Title III claims based on standing and it is not necessarily limited to cases involving hotel properties.



FMLA Leave for Chronic Health Conditions Requires Proof of Periodic Doctor’s Visits

When an employee takes medical leave, treatment by a healthcare provider is often assumed, and the frequency of doctor’s visits is rarely scrutinized.  The Pennsylvania federal court’s recent decision in Watkins v. Blind and Vision Rehabilitation Services of Pittsburgh alerts us that this is not always a wise approach. In evaluating FMLA leave entitlements, verifying continuing medical treatment can be well worth the trouble.

 Watkins, a military veteran who suffers from PTSD, worked for Blind and Vision Rehabilitation Services (BVRS) as an employment specialist.  In July 2015, Watkins fell victim to a random act of violence when an unknown individual fired multiple bullets at her car while she was driving. Her tires were shot, her window was shattered, and one bullet lodged itself in the driver’s side headrest, barely missing her head.  The event caused a flare-up of Watkins’ PTSD symptoms.  After the shooting, Watkins had difficulty functioning, experienced irritability, anxiety, stress and loss of concentration, and was fearful of leaving her home. 

 A year later, in June 2016, Watkins’ supervisors learned that Watkins had been submitting inaccurate client information for financial reimbursements.  She was given a notice of unsatisfactory work performance and told to remedy the situation and submit needed documentation.  She failed to comply and was counseled further, but her performance issues continued.   On July 5, Watkins failed to report to work as directed to complete backlogged paperwork and claimed she had suffered a mental health emergency.  BVRS received a letter from Watkins’ healthcare provider the next day, stating that Watkins was being treated for PTSD symptoms and would be able to report back to work on July 7.  Watkins did not return to work on July 7 and remained absent thereafter with only sporadic intermittent attendance.  She was ultimately discharged for job abandonment.

 Watkins sued BVRS for interference with her FMLA rights, alleging that BVRS had failed to provide her with FMLA benefits to which she was entitled.  BVRS asked the court to dismiss the case on summary judgment, in part because Watkins could produce no evidence that she had a serious health condition entitling her to FMLA leave.  The court agreed.  Since Watkins was never hospitalized and never went through inpatient treatment, she had to show she was receiving continuing treatment from a health care provider for her chronic health condition.  The court recognized that PTSD can be a chronic ailment that continues over an extended time period.  But under the FMLA regulations, Watkins had to further show that she received continuing treatment for PTSD, which means periodic doctor’s visits occurring at least twice a year.  While Watkins testified that she had been in treatment with her doctor for seven years and had initially seen the doctor quite regularly, she admitted that her visits had tapered off and were now only on an as needed basis.  Indeed, she  could not even remember if she physically went to see her doctor on July 5, the day of her mental health emergency.  Because Watkins failed to establish that she visited a healthcare provider at least twice a year for PTSD, she could not show that she had a serious health condition and was entitled to FMLA leave.

 The bottom line?  When an employee requests FMLA leave for a chronic health condition, take a careful look at the certification form completed by the employee’s healthcare provider.  Does the provider identify a period of hospitalization or identify recent dates of treatment?  Does the provider confirm that the employee will need periodic visits at least twice a year?  If the answer is negative, the employee may well not qualify for FMLA leave.


Another Court Decides That Extended Leave is Not a Reasonable Accommodation

As employers struggle with managing how much, if any, leave is required as an accommodation under the ADA, we are beginning to get more direction from the Courts to guide those decisions. In Easter v. Arkansas Children’s Hospital (E.D. Ark. Oct. 3, 2018) an employee was unable to work after exhausting her FMLA leave but she had an appointment to be evaluated by a specialist less than a month later. The employer denied the additional leave and terminated her employment. The Court held there was no violation of the ADA.

The Plaintiff worked as a specialty nurse and her job duties involved speaking on the phone with patients, insurance companies and doctors. She had a condition in her esophagus that interfered with her ability to speak and she went out on FMLA leave. After the initial approved leave period her doctor sent the Hospital a note stating she would be “unable to perform her current line of work for an indefinite amount of time.” The Plaintiff remained out on FMLA leave until it was exhausted. At the end of her FMLA leave the Hospital asked for an update and she reported that she still could not work but that she had an appointment with a specialist in 20 days to determine when she would be able to return. She requested additional leave until she could be further evaluated. The Hospital denied the request and terminated her employment.

The Court concluded that Plaintiff’s request for additional leave amounted to a request for indefinite leave. There was no information indicating when she could return to work and perform the essential functions of her job. The most recent doctor’s note stated she would be unable to work indefinitely and indefinite leave is not a reasonable accommodation. Citing an earlier decision the Court stated that “a leave of absence may be a reasonable accommodation where it is finite and will be reasonably likely to enable the employee to return to work.” Having an upcoming appointment for evaluation did not establish a finite period of time for the employee to return to work.

Employers are often faced with situations where an employee has a date in the near future for further evaluation but does not have a return to work date. While the Court agreed with the employer in this case, these situations are very fact specific and employers must continue to proceed with caution.

Michigan Passes Paid Sick Leave Law

On September 5, 2018, Michigan became the 11th state to enact a mandatory paid sick leave law — the Earned Sick Time Act. The act was a citizen petition-initiated measure that the state legislature approved. Under the act, employees accrue a minimum of one hour of earned sick time for every 30 hours worked. All employees (full-time or part-time) would be entitled to use 72 hours in a year, but whether that time is paid or unpaid depends on the size of the employer. Employees of “small businesses” (employers with fewer than 10 employees) may accrue up to a maximum of 40 hours of paid sick time and 32 hours of unpaid sick time each year unless the employer selects a higher limit. Employees of businesses with 10 or more employees may accrue up to 72 hours of paid sick time per year unless the employer selects a higher limit. Earned sick time carries over from year to year, but the annual maximums still apply. An employer’s paid leave policies that provide leave in at least the same amounts required by the act are sufficient to maintain compliance.

An employee may use earned sick time for his or her own mental or physical illness or condition, medical diagnosis or treatment, preventative medical care, relocation related to domestic violence or sexual assault, participation in criminal proceedings related to domestic violence or sexual assault, and other categories set forth under the act. Employees may also use earned sick time to support a family member for similar reasons.

There are many similarities between Michigan’s Earned Sick Time Act and other paid sick leave laws or intermittent leave under the FMLA, but the act is more administratively burdensome in some ways:

  • Employers can choose how to calculate a “year” under the act using any consecutive, twelve-month period, but employees may use earned sick time in the smallest increment that the employer’s payroll system uses to account for other absences.
  • While an employer may require up to 7-days’ notice for foreseeable leave, notice for unforeseeable leave need only occur “as soon as practicable.”
  • Documentation to support the use of earned sick time can only be required for use of more than 3 days and that documentation is limited to a statement that the time is necessary. It should not include a description of the illness or details of the violence.
  • If an employer requires documentation, it is responsible for paying all out-of-pocket expenses the employee incurs in obtaining the documentation. Further, an employer cannot delay commencement of the leave based on a failure to receive documentation
  • Employers must provide written notice of an employee’s rights under the act.
  • Employers may not retaliate against an employee for engaging in activity protected by the act. Importantly, there is a rebuttable presumption that an employer violated the act if it takes any adverse personnel action against an employee within 90 days after the employee engages in protected activity.

The act officially takes effect in March 2019, unless the employer has employees subject to a collective bargaining agreement (CBA). In that instance, the act applies to employees subject to the CBA as of the date the CBA expires, regardless of any statement that the CBA will continue in full force until a future date or event (such as the execution of a new CBA).

Importantly, if the legislature had not approved the initiative, it would have appeared on the state ballot on November 6, 2018. Thus, there has been some discussion that the legislature passed the act to keep it off the ballot and may amend it in the near future. Stay tuned.