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

Not properly considering when a medical recertification can, and should, be requested when an employee exceeds the anticipated frequency and/or duration of leave.

A frequent concern in administering FMLA leave is when employees exceed the estimated frequency and/or duration identified on the employee’s medical certification. The FMLA regulations provide, in part, that an employer may request medical recertification:

  • no more frequently than every 30 days and only in connection with an absence;
  • after the minimum duration of the condition expires, if the medical certification indicates the minimum duration of the condition is more than 30 days.

An employer may request recertification more frequently, however, if:  1) the circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or 2) the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

In Norris v. Allison Transmission, Inc., No. 1:13-cv-01287-SEB-DML, 2015 U.S. Dist. LEXIS 10936 (S.D. Ind. Jan. 30, 2015), an employee alleged that his employer interfered with his FMLA rights when he was terminated for exceeding the frequency and duration of his estimated 3-4 days per month of leave. The employee took off approximately 15 days in one month. The employer requested recertification because the employee exceeded his approved frequency and duration of leave.  According to the employee, the nature of his wife’s serious health condition had changed.  The employee never submitted recertification paperwork, and was terminated for being absent beyond the approved time frame of the leave. The court determined that the employer acted in accordance with its rights under the FMLA to request recertification, and to subsequently terminate the employee based on his failure to provide the requested medical recertification.

In Edusei v. Adventist HealthCare, Inc., Civil Action No. DKC 13-0157, 2014 U.S. Dist. LEXIS 91956 (D. Md. July 7, 2014), an employee brought an FMLA interference claim against her employer after she was denied a five-day extension to her four week FMLA leave to care for her ill father.  The employer argued that the employee was only entitled to an extension of her FMLA leave if her father’s condition worsened.  The court decided that an individual’s serious health condition does not need to become more serious for an employee to be granted an extension of leave, and if the employer had reason to question the condition of the employee’s father, it should have requested recertification.

When an employee exceeds the estimated frequency and/or duration of approved FMLA leave, an employer should consider requesting a recertification before imposing any discipline. Failure to seek a recertification and instead imposing discipline in these situations may result in FMLA interference claims.

 

Seventh Circuit Holds that the ADA Is Still Not a Leave Statute

On October 17, 2017, on the heels of its landmark decision in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of the employer in its unpublished opinion in Golden v. Indianapolis Housing Agency, No. 17-1359 (7th Cir. Oct. 17, 2017), reiterating that “[a]n employee who needs long-term medical leave…is not a ‘qualified individual’ under the ADA.”  In Golden, the plaintiff – a fifteen year employee of the Indianapolis Housing Agency (“IHA”) –was diagnosed with breast cancer in November 2014.  After taking twelve weeks of leave under the FMLA, the plaintiff remained unable to return to work.  At that time, her physician described the plaintiff’s condition as “ongoing” and noted that she would be incapacitated “until released.”  Thereafter, IHA granted the plaintiff an additional four weeks of unpaid leave with the understanding that at the conclusion of those four weeks, she would be required to return to work or would be automatically terminated.

The day before the plaintiff’s additional four weeks of leave was set to end, the plaintiff requested an unpaid leave of absence of up to six months.  IHA denied the plaintiff’s request for leave and terminated the plaintiff’s employment the following day.  The plaintiff filed suit under the ADA and the Rehabilitation Act, arguing that IHA was required to provide her with an additional six months of unpaid leave as an accommodation for her disability.  The district court granted summary judgment for IHA and the plaintiff appealed.

The Seventh Circuit ruled that it was bound by its own precedent in Severson, in which it held that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  The Court held that “while [it] sympathize[d] with Golden’s plight,” “a request for six months of medical leave in addition to the twelve weeks required by the FMLA removes an employee from the protected class under the ADA and the Rehabilitation Act.”

In a concurring opinion, Circuit Judge Rovner reluctantly joined in the judgment of her colleagues, but decried a per se rule which would exclude an employee from seeking a multi-month leave of absence regardless of a showing of hardship to the employer, finding such a rule to be “nonsensical.”

Stay tuned, as it seems inevitable that the Supreme Court will eventually weigh in on the issue of whether, and to what extent, the ADA requires leave as an accommodation.

Plaintiff Who Could Get to Work On Time By Waking Up An Hour Earlier Was Not Entitled An Accommodation Allowing Her to Be Late.

Years ago, I had a legal assistant who was unable to get to work on time. I finally told her that she had to be in at 8:30 as that was when everyone else started their work day. Three days later, she appeared in my office, walked in and slapped a speeding ticket on my desk and insisted that I pay it because it was my fault that she was speeding to get to work on time. When I suggested that she leave home earlier she indicated that “that was not going to happen.” She ended up leaving shortly thereafter and I hadn’t thought about her since—until I read the recent decision from the U.S. District Court for the Western District of Pennsylvania in Colonna v. UPMC Hamot, (September 25, 2017).

 

In that case, the Plaintiff Jessica Colonna began working at the University of Pittsburg Medical Center’s (“UPMC”) busy medical practice in an administrative capacity in 2006. In 2014 she developed dry eyes and needed to take eye drops in the morning to allow her to see properly. Her work required her to be in attendance at 8:30 when patients began arriving. The problem was that she needed between 60-90 minutes between waking and driving for the drops to work and permit her to drive safely to UPMC and she just could not get there on time.

 

She was written up several times for tardiness and requested, as an accommodation, that her hours be adjusted so that she could comfortably make it to work on time. The employer considered the request and suggested instead that she wake up earlier each day. Her attendance did not improve (within a one month span she had been disciplined for late arrivals of 13, 9, 19, 28, 24, 15, 18, 37, and 13 minutes) and she was fired.  She sued. The Court granted summary judgment to UPMC.

 

The Court reasoned that the requested accommodation was not reasonable. “Here, Plaintiff requests an accommodation because her extremely dry eyes make it difficult for her to see when she wakes up in the morning, and she ‘really just need[s] maybe an hour leeway if needed to get my eyes to a point where I feel comfortable functioning/driving to work.’” The Court found that Colonna could safely drive to work by waking up earlier in the morning. Because her doctor confirmed that Plaintiff needed 60 to 90 minutes between waking in the morning and driving to be safe and because she lived ten-fifteen minutes from work “she would not have been required to wake at a prohibitively early hour to apply her ocular moisturizers and arrive to work by 8:30 am.” The Court distinguished Colonna’s case from one in which a plaintiff claims she is disabled because her vision fails at unpredictable hours or predictable hours when she is at work. “When an employee, as here, can manage and overcome her limitations with minor effort, she does not require an accommodation for purposes of the ADA. Because Plaintiff could perform the essential functions of her job without accommodation, a fortiori she was not entitled to an accommodation … and UPMC Hamot did not discriminate against her by denying an accommodation.” Sometimes the law and common sense do coincide.

 

Importantly, the Court also found that Colonna did not have a viable claim that UPMC failed to engage in an interactive dialog. “[A] review of the record reveals that Defendant acted conscientiously and in good faith throughout the process. … UPMC reviewed Plaintiff’s request for a reasonable accommodation three times, reopening her case each time she contacted the disability specialist or provided additional information about her health condition. [UPMC’s Disability Coordinator] called Plaintiff on three occasions to discuss her medical treatment and confirmed with [Colonna’s doctor] that an accommodation was not necessary because Plaintiff could perform her essential job functions simply by awaking earlier in the morning.” The Court also noted that UPMC did not penalize Colonna for late arrivals while they were engaged in the interactive process and offered to arrange for Plaintiff to ride to work with co-workers. “This good faith engagement and communication entitles Defendant to summary judgment.”

Even though it may have seemed like UPMC did not have to do anything, the fact that it engaged with Colonna in a good faith effort to resolve the situation, inured to its benefit. Maybe I should have paid my assistant’s ticket after all.

New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints.

Matthew Donlin (“Donlin”) worked as a general manager for Petco (the “Company”). During 2015, he began suffering “flare-ups” from his medical condition and ultimately took FMLA leave in February 2016.  In May, Donlin’s doctor cleared him to return to work, with certain limitations; however, the Company refused to let him return unless his doctor certified that he was 100% recovered.  Ultimately, Donlin’s employment with the Company was terminated after he failed to complete a reasonable accommodation package, which was a condition of his reinstatement.  Donlin subsequently filed suit against the Company alleging violations of the American with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”).

During the litigation, Donlin issued requests for production and interrogatories to the Company seeking: (1) contact information for “all persons involuntarily terminated from Petco’s employ due to a failure to return to work” after FMLA leave, including all termination documents for employees who failed to request an accommodation or to certify 100% recovery; (2) contact information for all persons who after January 1, 2014 complained that Petco interfered with or denied rights under the FMLA or ADA, including documents regarding any claim and Petco’s investigation of it; and (3) information and documents concerning FMLA and ADA complaints made to a governmental agency or in court.”

The Company objected to each request on the grounds that the information sought was not relevant or reasonably calculated to lead to discoverable evidence, and that the request was overly broad and unduly burdensome because it was not reasonably limited to relevant circumstances of the employee’s employment, geography, or decision maker.

It is a general rule that evidence regarding an employer’s treatment of other employees is relevant to the issues of the employer’s discriminatory intent, whether there is a pattern of retaliatory behavior, or the employer’s credibility in its assertion of legitimate motives. Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990).  Typically this rule permitting the discovery of other employees’ complaints is limited to those that are within the same “employing unit or work unit.” However, this geographic scope may be expanded when the plaintiff shows that “there were hiring or firing practices and procedures applicable to all employing units.” Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 653 (D. Kan. 2004).

In granting Donlin’s Motion to Compel, the Court found that because it appears that all Petco employees are subject to the same leave of absence policies, and decisions on granting leave were made by the corporate team that was not specifically located within Donlin’s “employing unit,” the employee was entitled to relevant company-wide documents. As a result, the Company was ordered to respond to the interrogatories and requests for production at issue, and pay Donlin’s attorneys fees and costs associated with filing the Motion to Compel.

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

Not properly considering treatment for substance abuse as FMLA-qualifying.

Substance abuse is a workplace issue that can quickly become complicated. Employers should keep in mind that substance abuse can be a serious health condition (SHC) under the FMLA if the requirements for a SHC are otherwise met (for an overview of those requirements, see our earlier post in this series discussing what constitutes a serious health condition).

FMLA leave may only be taken for substance abuse if the treatment is administered by a heath care provider, or by a provider of health care services on referral by a health care provider. FMLA leave is for treatment of the employee’s substance abuse. An employer need not tolerate absences because of the employee’s use of the substance, which would not qualify for FMLA leave.  While an employer may not take action against an employee because the employee exercised FMLA rights, an employer can take employment action for substance abuse if the employer has an established policy, applied in nondiscriminatory manner that has been communicated to all employees and which provides under certain circumstances an employee may be terminated for substance abuse.

In Green v. Baptist Hospital, Case No. 3:15cv124 (D. Fla. Nov. 28, 2016), an employee alleged that his employer interfered with his right to take FMLA when he was fired. The employee took 3 weeks of FMLA for substance abuse treatment, and about two weeks later relapsed. Plaintiff was a “no call/no show” from work for five days, and he was fired on the sixth consecutive day of unexcused absence for his “no call/no shows.”  The court decided that the employer properly terminated the employee, who testified that he was absent because he was “probably just getting high.” The court found that the employer acted properly by allowing the employee to previously take FMLA leave to receive treatment, and the employer was entitled to terminate the employee for the “no call/no show” behavior because no FMLA protection existed for the situation where an employee was absent due to his substance use.

In Holloway v. D.C. Government, Case No. 09-512 (D.D.C.  Dec. 30, 2013), the court denied an employer’s motion for summary judgment of an employee’s FMLA interference claim. The employee entered a long-term substance abuse treatment program, and informed his employer of his need to take FMLA leave for successful completion of the program. However, the employer failed to respond to the employee’s leave request and ultimately terminated the employee after the employee did not report to work. The court decided that the employee had provided his supervisor with adequate notice of his desire to take FMLA leave to attend a substance abuse program, a valid use of FMLA.

Employers must balance goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition that might require FMLA leave. Employers should keep in mind that an employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

Seventh Circuit Clarifies ADA is Not a Leave Statute

On September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant opinion for employers in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), holding that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  The Seventh Circuit joins the Tenth Circuit in rejecting the EEOC’s position that an extended leave of absence may be required as a reasonable accommodation under the ADA.  In Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), former Tenth Circuit Judge Neil Gorsuch (now a Supreme Court Justice) found that the plaintiff’s request for a leave of absence beyond the six months provided by the defendant’s leave policies was not a reasonable accommodation under the ADA.

To read more about this important decision, click here.

The Severson decision is a huge win for employers in the Seventh Circuit.  Stay tuned to find out if Severson will file a petition for review with the U.S. Supreme Court.  However, if he does, it is safe to assume that he has at least one foe (Justice Gorsuch) waiting to weigh in.

Governor Brown Has Another Opportunity to Expand Parental Leave to Small Businesses in California

The New Parent Leave Act has made it to Governor Jerry Brown’s desk awaiting his signature or veto. This bill would mean significant expansion of parental leave for small employers in California. It is uncertain whether Governor Brown will sign the bill into law after vetoing a similar bill almost a year ago. Read More

Employers Should Engage In the Interactive Process Even If They Believe the Employee Is Not Qualified.

Diligent and well informed employers know that it is the best practice to engage in an individualized assessment of a requested accommodation. Sometimes an employer may be tempted to refuse to discuss an accommodation because it doesn’t believe that the request is reasonable or because the employee is not “qualified.” It should resist the temptation.

A recent Maryland case drove home this point.  In Van Rossum v. Baltimore County, Maryland, the Plaintiff was a community health inspector in Baltimore County who alleged that she started experiencing a variety of symptoms in May 2009, including severe pain, reduced vision, numbness, and “brain fog,” all of which she attributed to the presence of mold and fungus in the courthouse where her office was located. After her department moved to the fourth floor in a new building her symptoms worsened which she attributed to poor ventilation. The County refused her request to change offices from the fourth floor and she felt forced to retire early. She claimed constructive discharge, a failure to accommodate, discrimination and retaliation for seeking an accommodation.

Because the County did not even attempt to engage in the interactive process, at trial it could only argue that Van Rossum was not entitled to a reasonable accommodation because she was not qualified. It based its argument on the fact that after she quit, Van Rossum received Social Security Disability Insurance (“SSDI”) which was based on a determination that she was unable to work. There were two problems with this. First, Van Rossum did not apply for SSDI until after her termination and so the County could not have based its failure to engage in the interactive process on that basis. Second, pursuant to Cleveland v. Policy Management Systems Corp., the fact that an employee receives SSDI is not conclusive of the qualification issue under the ADA. In Cleveland, the U.S. Supreme Court held that receipt of such benefits does not necessarily conflict with an ADA claim and it is possible for an employee to provide a sufficient explanation for any apparent contradiction i.e. that she could have done the job with a reasonable accommodation.

The court, following Cleveland, allowed Van Rossum to try and explain the apparent contradiction. She explained to the jury that she was unable to work only because the County denied her accommodation and forced her to return to work in a place that made her sick. She testified that she could perform the essential functions of her job when accommodated and would have been able to do so if they had let her switch offices. It was only after the denial of the accommodation that her health deteriorated because she had to work on the fourth floor. The jury agreed with Van Rossum.

Had the County engaged in the interactive process with Van Rossum it may have been able to offer an accommodation that would have been reasonable even if it wasn’t the one Van Rossum preferred. Alternatively, it may have been able to show that there was no reasonable accommodation available. By failing to engage at all, the County handicapped itself at trial.

Leaving Defenses On The Table In Drafting Employee Handbooks And Posting Notices

While off-the-shelf employee handbooks can be cost-efficient in the short-term, sometimes they leave important employer defenses on the table.  This is particularly true for state-specific defenses.  For example, while most Michigan employers know it is best to include a reporting procedure for harassment in their employee handbook, many do not know that Michigan’s Persons with Disabilities Civil Rights Act can provide a statutory defense to failure to accommodate claims, if key language is included in the handbook or a posted workplace notice.

Under Section 210(18) of Michigan’s Persons with Disabilities Civil Rights Act, an employee or applicant with a disability may allege a failure to accommodate claim only if the individual notifies the employer in writing of the need for accommodation within 182 days after the date the individual knew or reasonably should have known that an accommodation was needed.  However, for this restriction on Michigan failure to accommodate claims to apply, the employer must post notices or use “other appropriate means” to provide all employees and job applicants with notice of the time limit and the requirement of a writing (See MCL 37.1210(19)).

Including required language in an employer handbook or policy can go a long way to safeguarding this defense.  Additionally, the Michigan Department of Civil Rights (MDCR) has also decided to assist employers this year in that the most recent version of Michigan’s Discrimination Law poster includes a note to employees and applicants with disabilities regarding the 182-day time limit and required writing.  This version of Michigan’s poster is not required because a business does not have to include the information in its anti-discrimination posting.  However, as the MDCR’s website states, “[w]hether the notice is included in this poster or not, a business that fails to provide adequate notice to its employees may waive the ability to use the time limit as a defense.”

This example emphasizes why it is important for employers to have an attorney review employee handbooks, and keep up to date with posters that are either required or recommended under state and federal law.  For multi-state employers, it is particularly important to review handbooks and policies for compliance with the laws of every state in which they have employees.  As an aside, however, note that for compliance with the Americans with Disabilities Act and employee relations, an employer should still engage in the interactive process with any employee who needs an accommodation, even if the employee did not comply with the required procedure.  The example above only creates a defense under Michigan law, as this blog post suggests.

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