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. Up until now, the most common mistakes were addressed in this blog. Now that we have hit the twentieth post in this series, we are going to dig a bit deeper into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Requesting recertification for FMLA qualifying exigency leave or leave to care for a covered servicemember.

FMLA leave for a “qualifying exigency” of a covered family member or to care for the serious injury of a covered servicemember are usually not the most frequent types of FMLA leave taken by eligible employees. When eligible employees do take these types of FMLA leave, employers should be careful not to forget some of the unique differences between these types of FMLA leaves and the more routine leaves for serious health conditions of employees or covered family members.

An employer is entitled to request a certification to support the need for an employee’s FMLA leave request for a qualifying exigency or to care for a covered servicemember. The U.S. Department of Labor developed separate certification forms specifically for these purposes at https://www.dol.gov/whd/forms/WH-384.pdf (qualifying exigency) and https://www.dol.gov/whd/forms/WH-385.pdf (serious injury or illness of a current covered servicemember), or https://www.dol.gov/whd/forms/wh385V.pdf (serious injury or illness of a covered veteran).  The use of these forms is voluntary, but an employer may not seek information outside the scope of the U.S. Department of Labor forms.

Perhaps the most unique aspect of FMLA qualifying exigency and covered servicemember leaves is that employers may not request a recertification relating to such leaves.

There is no insight from case law on this particular issue, so the FMLA regulations are the leading guidance at this time.

The FMLA regulations specifically state that recertification does not apply to leaves taken for a qualifying exigency or to care for a covered servicemember. Therefore, the recertification rules and reasons available for other forms of FMLA leave simply do not apply to qualifying exigency or covered servicemember FMLA leaves.

As a best practice, employers should periodically review their existing FMLA processes and procedures. If an employer is using its own certification forms, they should be checked to make sure they are not requesting information outside the scope of the DOL forms. Further, the leave process should be clear that recertifications are not permitted for FMLA leave for a qualifying exigency or to care for a covered servicemember. Steps should be in place to prevent a recertification request being issued to an employee on FMLA leave due to these reasons.


For questions regarding this and other FMLA or related leave issues, please contact the JL attorney with whom you regularly work, or the author.

Federal Court of Appeals To Decide Whether Morbid Obesity Is An Impairment

We know that the ADAAA (Amendments Act of 2008) substantially altered the landscape for review of claims asserting a disability. But are employees still required to show some sort of disorder or impairment to state a claim? Is morbid obesity an impairment even if it is not tied to any underlying disorder? A case pending before the Seventh Circuit Court of Appeals is set to decide whether obesity is an impairment in and of itself under the ADAAA.

Prior to the ADAAA, both federal appeals and district courts had held that obesity was a physical characteristic that had to stem from an underlying physiological disorder to be considered an impairment under the ADA. In the case pending before the Seventh Circuit, Richardson v. Chicago Transit Authority, Nos. 17-3508 and 18-2199, the lower court found that obesity didn’t, on its own, qualify as an impairment, and dismissed Mark Richardson’s wrongful termination suit under the ADA
Richardson, an obese bus driver, alleged that he was wrongfully fired when he attempted to return to work after an extended medical leave. Richardson also claimed that he was subjected to a “safety assessment” that was different from the one normally required for bus drivers returning from leave. After his request to return to work was denied, he filed a discrimination complaint with the EEOC.

Richardson is supported in his appeal by the AARP, the Obesity Action Coalition, the Obesity Society and other obesity advocacy and medical organizations. They each filed amicus (friend of the court) briefs arguing that the ADAAA recognized that obesity itself could be an impairment without any underlying physiological disorder and citing new scientific and medical evidence.

The Transit Authority, with the support of industry groups, asserts that Congress intentionally preserved the ‘impairment’ aspect of the ADA in the ADA Amendments Act, and that the scientific evidence is neither new nor supportive of a changed legal standard for evaluating claims involving alleged obesity discrimination. They argue that because the ADAAA did not address pre-ADAAA court decisions, or the EEOC’s earlier guidance, the court should conclude that the legislative body meant to keep the same approach and handling of impairment and obesity claims. They also argue that expanding the definition of impairment to include obesity without an underlying physiological disorder would burden employers more than the ADA intended.

Oral Argument has not yet been scheduled and there is no timetable for a decision, but this will certainly be a case to watch in 2019.

Appellate Courts Agree: Regular, Reliable Attendance Is Essential Function of Most Jobs

Recent decisions from the Second, Fifth, and Eighth Circuit Courts of Appeals exemplify the growing consensus amongst courts that even employees with a disability are generally required to comply with company attendance policies.  While employers may need to provide leave as a reasonable accommodation, many courts generally agree that regular, reliable attendance is an essential function of most jobs within the meaning of the Americans with Disabilities Act (“ADA”).

In Trautman v. Time Warner Cable Tex., LLC, No. 18-50053 (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., No. 17-3493 (2d Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., No. 17-2152 (8th Cir. Dec. 19, 2018), the Fifth Circuit, Second Circuit, and Eighth Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer.

In Trautman, Time Warner’s attendance policy provided employees could be terminated for exceeding 112 hours of unexcused absences in a rolling 12-month period.  The evidence showed that the plaintiff accrued unexcused absences totaling over 200 hours in less than a 12-month period.  Time Warner submitted evidence that the plaintiff was treated similarly to other non-disabled employees along with evidence of prior accommodations of plaintiff, including medical leave, as evidence that it lacked discriminatory animus.  Based on this evidence, the Fifth Circuit affirmed summary judgment for Time Warner, concluding that the plaintiff was terminated for violating Time Warner’s attendance policy and not because of an alleged disability.

Likewise, in Vitti, Macy’s terminated the plaintiff for excessive tardiness and absences in violation of its attendance policy after multiple warnings.  The Second Circuit concluded that the plaintiff was not qualified for her job working in Macy’s cosmetics department because of her unreliable attendance record.  Alternatively, the Second Circuit held there was no genuine dispute of material fact that the plaintiff was terminated for violating Macy’s attendance policy and not because of an alleged disability.  While the plaintiff argued that she was terminated because of her disability based on the close temporal proximity between her excused medical leave and her termination, the court rejected this argument because Macy’s began progressively disciplining the plaintiff prior to her medical leave.

Similarly, in Lipp, Cargill had an attendance policy that provided for termination after 9 occurrence points.  The evidence showed that the plaintiff was terminated after accruing 195 occurrence points, many of which were related to a multi-month leave that was unrelated to her alleged disability.  The Eighth Circuit affirmed summary judgment for Cargill without reaching the issue of whether the plaintiff was terminated for a legitimate, non-discriminatory reason, concluding the plaintiff could not even show that she was qualified for her job based on her poor attendance.  The Eighth Circuit found regular attendance was clearly an essential function of the plaintiff’s job—which required her to assemble and stack boxes on a production line—as evidenced by Cargill’s attendance policy.  The Eighth Circuit concluded that the plaintiff was not meeting the essential function of attendance as evidenced by her 195 absences over a period of less than a year.

These recent appellate decisions show that unreliable attendance can render an employee unqualified for his or her job and that violating an attendance policy can be a legitimate, non-discriminatory reason for termination.  However, whether an employee who has missed or needs to miss a significant amount of work (either because of a block of leave or due to sporadic absences) is nonetheless a qualified individual is a fact-intensive question that often depends on numerous factors.  Thus, employers should tread carefully and seek guidance from legal counsel when considering adverse action against an employee with irregular, unreliable attendance related in whole or in part to a potential disability.

California State Disability Insurance (SDI) Increases

It’s a new year, and California SDI benefits will be increasing. The SDI withholding rate continues to be 1.0% of wages. But, the taxable wage limit will increase from $114,967 to $118,371.

For new SDI claims (whether for short-term disability benefits or paid family leave benefits) the maximum weekly benefit will increase from $1,216 to $1,252 a week.

Employees who allow employees to integrate paid leave hours with SDI benefit to receive the equivalent of their full salary should be aware of these increases. Employers should consider asking employees to provide a copy of any Notice of Computation of Benefits from the California Employment Development Department to assist with calculating the maximum value of leave to be integrated.

In addition, employers in San Francisco should pay particular attention to these changes to ensure compliance with the Supplemental Compensation requirements of the San Francisco Paid Parental Leave Ordinance.

Jackson Lewis is available to assist employers in achieving compliance with these and other workplace requirements.

Michigan’s Amended Paid Medical Leave Law

As discussed in a prior blog post, Michigan joined other states with paid sick leave laws on September 5, 2018, enacting the Earned Sick Time Act. Now, amidst political controversy, the Earned Sick Time Act (which never became effective) has been amended and renamed the Michigan Paid Medical Leave Act. The law requires employers in Michigan to provide their employees with accrued paid medical leave to use for their own or their family members’ medical needs and for purposes related to domestic violence and sexual assault.

The new law, signed by Governor Rick Snyder on December 13, 2018, will become effective in March 2019 (91 days after the legislature officially adjourns for the year), which is the same as under the original law. Other provisions of the original law that are unchanged include:

  • An employer’s paid time off (PTO) policy may satisfy the Act’s paid medical leave requirements;
  • There are posting and record retention requirements; and
  • Paid medical leave begins to accrue when the law becomes effective (e., in March 2019) or on the commencement of the employee’s employment, whichever is later.

Here are some key points of the amended law:

  • The law covers only employers with at least 50 employees (the original law had a 1 employee threshold).
  • “Employee” is more specifically defined to include individuals for whom the employer is required to withhold federal income tax. Exclusions on who constitutes an eligible employee have been added. The exclusions include employees who fall under the Fair Labor Standards Act “white collar” overtime exemptions, worked an average of fewer than 25 hours during the previous calendar year, are covered by a collective bargaining agreement, OR are employees of the state or federal government.
  • Both the accrual rate and maximum allowable accrual were lowered. Now, employees accrue one hour of paid leave for every 35 hours worked, for a maximum of one hour per calendar week and 40 hours in a benefit year. An employer also is not required to allow an employee to carry over more than 40 hours of accrued leave per year, or allow employees to use more than 40 hours per year.
  • As a new alternative to accrual, the law adopts “frontloading,” an approach that some other states took. Employers may “frontload” 40 hours of paid medical leave to employees at the beginning of the benefit year. If an employer frontloads, then it is not required to allow an employee to carry any paid medical leave to another year.
  • Clearing up an ambiguity in the original law, an employer may require ALL employees to wait until the 90th calendar day after commencing employment before using accrued medical leave.
  • Paid leave must be used in one-hour increments, unless the employer has a different increment policy in writing.
  • The law now defaults to the employer’s usual and customary notice, procedural, and documentation requirements for requesting leave, so long as the employee has at least three days to provide medical documentation.
  • All references to “domestic partner” have been removed from the law.
  • The statute of limitations to bring a claim has been shortened from three years to six months, and any claim alleging a violation of the Act must be made as an administrative complaint, rather than as a lawsuit in court.

Stay tuned, as Michigan’s paid medical leave law may go through yet another iteration. Given the politically controversial way in which it was enacted and then amended, at least one lawsuit challenging the validity of the amendment may be on the horizon.

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

Not carefully analyzing whether an employee is eligible for FMLA leave due to inpatient care

Employers commonly deal with FMLA leaves under the “continuing treatment” prong of the definition of a serious health condition, which requires an employee to be incapacitated for 3 or more days. However, another prong of the serious health condition definition is “inpatient care.” The FMLA regulations define “inpatient care” as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care. 29 CFR § 825.114. Employers should carefully analyze whether this prong of the definition is met to properly determine whether an employee’s time is protected under the FMLA. Courts have had some unique interpretations of this definition.

In Bonkowski v. Oberg Indus., 787 F.3d 190 (3d Cir. 2015), the Third Circuit Court of Appeals determined that an overnight stay under the inpatient care definition of the FMLA is met when an individual stays for a “substantial period” of time in the facility. The employee-plaintiff arrived at the hospital shortly before midnight on November 14, 2011. He was not admitted to the hospital until shortly after midnight on November 15, 2011. He was later discharged the evening of November 15. The employer did not consider this to be an overnight stay in a hospital and terminated employment. The court adopted a calendar day approach and stated that an “overnight stay” means a stay in the facility for a “substantial period” of time. This means from one calendar day to the next calendar day, measured by the individual’s time of admission and time of discharge. The court also stated that a minimum of eight hours seems to be an appropriate period of time (although it explicitly stated that it did not decide that issue and will leave the issue of requisite length of time for another day). Therefore, the employee’s time in the hospital was not protected under the FMLA.

In Isley v. Aker Phila. Shipyard, Inc., 275 F. Supp. 3d 620 (E.D.Pa. 2017), the employee began experiencing chest pain and shortness of breath at work before his work shift. The employee, who worked night shift, went to the emergency room around 9:00 p.m. on February 19, 2015. The employee remained at the hospital for approximately 3½ hours, until 12:30 a.m. on February 20, 2015. The employee was later fired for unexcused absenteeism that included the time missed from work on February 19. The employee claimed that the February 19 absence was protected under the FMLA. While the court recognized that the time in the hospital went from one calendar day to the next, it stated that the employee’s visit to the hospital was not inpatient care based on the suggestion by the Third Circuit in the Bonkowski v. Oberg Industries case of a minimum of an eight hour stay in the hospital. Because the employee’s time in the hospital was only 3½ hours, the court found that the time was not protected under the FMLA.

When employees request FMLA leave due to inpatient care, employers should carefully analyze the documentation in order to properly determine whether the definition is met. While many courts have not yet opined on the interpretation of “inpatient care,” an employer should check the case law in the applicable jurisdiction to determine whether there are any specific interpretations of the definition.

‘Tis the Season: FMLA and Holidays

As we are in the heart of the holiday season, to avoid an unwanted gift from the Department of Labor, employers should ensure that they properly administer FMLA leaves taken during company holidays.

Determining whether company holidays count towards an employee’s FMLA entitlement depends on whether the employee takes leave for an entire week or on a lesser intermittent or reduced schedule basis.

When a holiday occurs within a week in which an employee takes a full week of FMLA leave, the entire week is counted as FMLA leave. If, however, an employee is taking FMLA leave in increments less than one week, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

Company shutdowns of one or more weeks where employees are not expected to report to work, such as for the Christmas/New Year holiday, a summer vacation, or a plant closing for retooling or repairs, do not count against an employee’s FMLA leave entitlement.

Wishing you the best for the holiday season!

Austin Paid Sick and Safe Leave Law Preempted by Texas Minimum Wage Act, Third Court of Appeals Holds

On November 16, 2018, the Austin-based 3rd Court of Appeals declared Austin’s paid sick and safe leave ordinance unconstitutional. Specifically, the court held the ordinance is preempted by the Texas Minimum Wage Act and is, therefore, unconstitutional.

The Austin ordinance has been under attack since its inception. The Travis County District Court originally denied a temporary injunction against the ordinance. The ordinance (which was scheduled to take effect October 1, 2018) was then temporarily blocked by the appeals court in August 2018, to give itself time to issue a ruling on the appeal.

The November 16 ruling ordered the district court to grant a temporary injunction against the ordinance.  Although the court of appeals’ decision requires a temporary injunction (because that was the issue on appeal), the court ordered “further proceedings consistent with [the appeals court’s] opinion” that the ordinance is preempted by state minimum wage law.

For additional information about the status of the ordinance, or other leave management issues, please contact the Jackson Lewis attorney with whom you regularly work.

Employers Asserting “Essential Job Function” Defense Need a Clear Job Description.

Just a few months ago, we wrote about a case where a federal district court denied summary judgment to an employer who had asserted that attendance at work was an essential job function. The Court held that although regular attendance at work was set out in the job description, that was not enough to obtain summary judgment. In a slight twist, today we discuss a case in which the court focused on the adequacy of the job description itself and found it lacking. For that reason and others, it denied the employer’s motion for summary judgment.
In Ammons v. Chicago Board of Education, the dispute centered on Plaintiff’s plantar fasciitis and her request to sit for brief periods of time while working as a security officer in a troubled school. The school district wanted the Plaintiff to “walk constantly” and therefore denied her requested accommodation of a chair and desk where she could rest her feet for ten minutes of every hour. In her lawsuit the Plaintiff disputed that constant walking was an essential job function.
The School Board moved for summary judgment on the essential function issue. To determine whether constantly walking is an essential function, the court considered (1) the employee’s job description; (2) the employer’s opinion; (3) the amount of time spent performing the function, (4) the consequences for not requiring the individual to perform the duty, and (5) past and current work experiences.
The court concluded that there were material factual disputes concerning whether constant standing and walking are essential functions of the security officer position. The court turned first to the job description and noted that it did not specify how much standing and walking is required, leaving that specific issue open to interpretation. While the job description required security officers to perform sweeps and actively respond to fights or other issues in the school that threaten the safety of students, staff, and/or guests, the Court found that “it is not clear from the record that a security officer who sits for a few minutes each hour cannot perform these tasks. The Court also found that because one of the job description’s listed duties is “maintaining an orderly post and remaining at the post at all times unless otherwise directed by a supervisor,” this suggested that for some period of time the security officer is expected to remain in one stationary place.” The Court found, therefore, that the job description was not sufficient to carry the District’s burden under the first factor.
The Court also found the second factor—The Employer’s Opinion—to be inconclusive. The School District relied on its policy (adopted three years prior to the claim) that all security officers would no longer be allowed to sit while on duty “because a seated security officer has reduced capacity to respond to security threats.” Notwithstanding this policy, the court found that because there was testimony in the record that other security officers had not been disciplined for occasionally sitting while on duty, there was “still a factual dispute about whether the administration at the school actually applied the policy to all security officers.”
Finally, the Court found that there were material questions of fact surrounding the final three factors.
This case serves as a reminder that job descriptions need to be reviewed regularly to make certain that essential functions are clearly spelled out and that the requirements are uniformly enforced with all employees. Although this will not guarantee success at the summary judgment stage, its absence will almost certainly make summary judgment very difficult.