As Bay Area employers are well aware, San Francisco has several local employment-related ordinances that provide additional benefits to individuals performing work within the geographical boundaries of the City. One such benefit is paid parental leave. Please find the rest of this article on our California Workplace Law Blog here.

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 25th blog in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Delaying designation of FMLA-qualifying leave or designating more than 12 weeks of leave.

In a recent opinion letter, the U.S. Department of Labor (“DOL”) Wage and Hour Division clarified its position on two points: (1) an employer may not delay the designation of FMLA-qualifying leave as FMLA leave, and (2) an employer is prohibited from designating more than 12 weeks of FMLA leave (or 26 weeks for military caregiver leave).

The question posed to the DOL was whether it is permissible for an employer to delay the designation of FMLA-qualifying paid leave as FMLA leave or to provide additional FMLA leave beyond the 12-week FMLA entitlement, because some employers voluntarily permit employees to exhaust some or all available paid leave prior to designating FMLA leave.

What can we learn from this opinion letter?

  1. Do not delay the designation of FMLA-qualifying leave. It is the DOL’s opinion that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. Therefore, if an employee requests to “delay” FMLA leave or to “not use” FMLA until a later point, and the leave is otherwise FMLA-qualifying, granting such an employee request runs counter to this DOL opinion letter. An employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.
  2. Do not designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave. The DOL notes that an employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA. However, providing such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA. The DOL provides the example that if an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

This provides an employer with clear guidance on how it can respond when employees request that FMLA designation be delayed until after they use available paid leave. The full DOL opinion letter can be found here.

On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”

Many revisions are stylistic or organizational. The proposed forms have color-coded sections specific to the employee, the employer and health care provider, and include additional headings and numbering to simplify the forms. For example, the proposed Designation Notice (WH-382) first addresses whether the employee’s request is approved or denied, and then directs the employee to either Section II (“Additional Information Needed”) or Section III (“FMLA Leave Approved”). The current Designation Notice is a single page with multiple sections separated only by bold lines.

Some revisions give additional cues to both employees and employers about the legal nuances of the FMLA. The proposed Notice of Eligibility and Rights & Responsibilities (WH-381) includes a section dedicated to substitution of paid leave. It advises employees that the FMLA allows the employer to require the employee to use available paid leave during the employee’s FMLA absence. The proposed form expressly lists several types of concurrent leave that might be in play, such as short- or long-term disability, workers’ compensation, or state-required leave. The proposed Designation Notice (WH-382) explains the difference between an “incomplete” certification and an “insufficient” certification. The proposed certifications for leave involving a third party (WH-380F, WH-384, WH-385, WH385-V) replace the open-ended request for a description of the reason for the leave with more specific examples for the employee to select (i.e., the Certification of Health Care Provider for Serious Health Condition of the Family Member identifies transportation, physical care, psychological comfort, assistance with basic medical, hygienic, nutritional or safety needs, and other).

New formatting is intended to eliminate the current duplicative questions, and streamline the process for health care providers. The current medical certification forms (WH-380-E and WH-380-F) include a series of “yes” or “no” questions (e.g., “Will the patient need to have treatment visits at least twice per year due to the condition,” “Is the medical condition pregnancy?”). By contrast, the proposed forms WH-380-E and F request that the health care provider check at least one of six boxes (“Inpatient Care,” “Incapacity Plus Treatment,” “Pregnancy,” “Chronic Conditions,” “Permanent or Long Term Conditions,” and “Conditions Requiring Multiple Treatments”), and only provide medical information related to the selected categories. Thus, the health care provider would confirm only once that the employee or family member has a serious health condition.

The proposed forms also provide additional instruction and definitions. For example, the terms “next of kin” and “in loco parentis” are defined in the forms. The forms define “serious health condition” for health care providers, and include examples of certain conditions that might meet the definition (i.e., Alzheimer’s disease is a permanent or long-term condition, while diabetes or migraine headaches may qualify as chronic conditions).

The proposed revised forms are:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition

WH-381 Notice of Eligibility of Rights & Responsibilities

WH-382 Designation Notice

WH-384 Certification of Qualifying Exigency for Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL is accepting public comments until October 4, 2019. Contact a Jackson Lewis lawyer for additional information regarding these proposed changes and submitting comments to the DOL.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

Employers must carefully navigate Family and Medical Leave Act (“FMLA”) pitfalls when administering attendance policies.  As illustrated by the Sixth Circuit’s decision in Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. Aug. 8, 2019), one misstep can lead to potential FMLA liability.

Background

Dyer worked as a technician for automotive supplier Ventra Sandusky.  Dyer suffered from migraine headaches that often prevented him from working.

Ventra Sandusky’s no-fault attendance policy assessed points to employees for absences.  At 11 points, the policy called for termination.  The policy expressly excluded FMLA absences from the point-accumulation system, and it was undisputed that Dyer never received any points for taking FMLA leave.

Ventra Sandusky also maintained an Attendance Point Reduction Schedule—allowing employees to reduce attendance points by achieving perfect attendance for 30 days.  This policy treated time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days “worked” toward the 30-day perfect attendance requirement, and such absences did not stop or “reset” the 30-day clock.  In contrast, the point reduction schedule did not count FMLA leave, and other kinds of unpaid leave such as disability, as time “worked” toward the 30-day perfect attendance streak.  For example, if an employee worked three days, took the fourth day off for an FMLA-qualifying purpose, and returned to work on the fifth day, his attendance streak restarted at one day worked, rather than four.

Dyer used intermittent FMLA due to his migraines on several occasions.  Ventra Sandusky always approved his FMLA leave, and he was never assessed any points for taking FMLA leave.  In 2016, Ventra Sandusky terminated Dyer for accumulating 12 points.  Claiming that he would have stayed below 11 points, and thus not been terminated, if his perfect attendance streak did not stop and restart each time he took FMLA leave, Dyer sued Ventra Sandusky for FMLA interference.  The trial court granted summary judgment in favor of Ventra Sandusky.

The Sixth Circuit reversed and remanded.  The Court relied on the regulations interpreting the FMLA, which provide “[b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.”  29 C.F.R. § 825.215(d)(2).  The Court held that point reduction could be viewed as an employment benefit, the accrual of which must be available to an employee upon return from leave.  Thus, “Dyer’s FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.”  The Court rejected Ventra Sandusky’s argument that no benefit actually accrued until the 3oth day when an attendance point was dropped.

In addition, the Court explained that Dyer could prevail on his claim by showing Ventra Sandusky treated FMLA leave less favorably than other equivalent leave statuses.  There were disputed issues of material fact as to what constituted “equivalent” leave under the policy and whether equivalent leave statuses similarly reset the point-reduction clock.

Takeaway

While employees are not entitled to accrue benefits while on FMLA leave, the benefits they accrued before taking leave must be available when they return.  The Sixth Circuit and other courts have broadly interpreted the term “benefits accrued.”  With this expansive interpretation in mind, employers should closely examine their policies and procedures to ensure that an employee’s FMLA leave does not negatively affect accrued benefits.  Employers also must be careful not to treat FMLA leave less favorably than other equivalent leave statuses—bearing in mind that whether a type of leave is “equivalent” may be up for debate.

 

Employees who take FMLA leave may be required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. If the employee does not follow these requirements, the employer may delay or deny FMLA-protected leave.  But what happens if the employer’s policy has different notice requirements for FMLA leave than for other time off?  What if the FMLA requirements are more burdensome than the requirements for non-FMLA leave? In Moore v. GPS Hospitality Partners IV, LLC, etc., the United States District Court for the Southern District of Alabama tackles this issue (S.D. Ala. June 3, 2019).

The employee repeatedly told her managers that she would need leave to take care of her hospitalized mother.  Nevertheless, she was scheduled for work and she received a warning for her failure to show up for work.  After receiving the warning Ms. Moore learned about the FMLA and she decided to seek leave again. She informed her managers that she wanted FMLA leave. The employer’s policy required an employee to notify her supervisor and Human Resources to request FMLA leave. A manager provided Ms. Moore with information regarding the person in Human Resources to contact for FMLA leave.  Ms. Moore claims she told the manager she was unclear on what to do with this information yet she was not provided with any assistance.  Ms. Moore was later terminated after she took additional time off.

Ms. Moore alleged that her former employer interfered with her FMLA rights and retaliated against her for exercising those rights.  The employer argued that Ms. Moore failed to follow the “usual and customary notice and procedural requirements” for requesting FMLA leave. However, the defendant’s policy for other forms of leave only required employees to make requests to a supervisor and did not have the additional requirement of notifying Human Resources.  The Court held that the requirements for requesting FMLA leave cannot be any more onerous than the requirements for requesting non-FMLA leave.  The requirement that employees must follow “usual and customary notice and procedural requirements” to obtain FMLA does not permit employers to deny leave based on a failure to comply with more stringent notice requirements applicable only to FMLA requests.  Here the only additional requirement for FMLA leave was to contact Human Resources in addition to the supervisor yet that additional burden was enough for the Court to deny the employer’s attempt at dismissal of the claim.

Whether an employee complied with the employer’s usual and customary notice requirements is an issue that often arises in the context of intermittent leave and/or where the employer uses a third party to administer its FMLA.  While the FMLA regulations clearly authorize employers to adopt “usual and customary notice and procedural rules for requesting leave, absent unusual circumstances,” this case suggests employers should closely review any such rules to determine whether they place impermissible additional burdens on employees seeking FMLA leave.

Employees in Puerto Rico may take up to 15 days of unpaid leave each calendar year to address situations related to domestic or gender-based violence, child abuse, sexual harassment in employment, sexual assault, lewd acts, or felony stalking under a new law. The new “Special Leave” is in addition to any other leave to which the employee might be entitled under law. The victim need not file a police report to be entitled to take Special Leave. The perpetrator of the abusive conduct is not entitled to take leave under the new law. Read more about the new law here.

The state of Washington has weighed in on the debate as to whether obesity is a disability under disability discrimination laws. In Taylor v. Burlington Northern Railroad Holdings Inc., a case that wound its way through the courts for nine years, the United States Court of Appeals for the Ninth Circuit certified this question to the Washington Supreme Court: “Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD]?” The Washington Supreme Court responded by holding that obesity is always an impairment under the Washington Law Against Discrimination (WLAD) because it is a “’physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Therefore, an employer who takes employment action against an individual because the employer perceives the individual to be obese, may run afoul of the WLAD.

The court determined that the WLAD is more expansive than the Americans With Disabilities Act (ADA) and expressly refused to follow the rulings of some federal courts (interpreting the ADA) which hold that obesity can be a disability only if it is caused by a separate underlying physiological disorder. Unlike the ADA, under the WLAD an impairment can constitute a “disability” regardless of whether it limits life activities, if it (a) is medically cognizable or diagnosable, (b) exists as a record or history, or (c) is perceived to exist whether or not it exists in fact. In this case, the employer perceived the individual to be disabled because it called him obese, which the court determined is a medically cognizable and diagnosable condition.

In Taylor, Casey Taylor applied for the job of electronic technician at the BNSF Railway. He received a job offer, contingent on passing a physical exam and medical history questionnaire. He met the minimum physical demands of the job’s essential functions. However, a medical exam revealed that he had a Body Mass Index of more than 40, which BNSF considered to be morbidly obese and a threshold for further screening. BNSF decided not to hire him because it could not determine if he was medically qualified for the job based on the significant health and safety risks associated with his morbid obesity and uncertain status of his knees and back. The company offered to reconsider their hiring decision if he paid for medical testing, including a sleep study, blood work, and an exercise tolerance test, which he could not afford. His only other option was to lose 10% of his weight and keep it off for six months. Instead, he sued BNSF for discrimination based on a perceived disability.

The Taylor case was a perceived disability case and as such, its holding is not as broad as some report. Although the court determined that “obesity” is always an impairment, it did not hold that accommodation is always required simply because someone is diagnosed as obese. The court correctly noted that in a failure to accommodate case, the plaintiff would need to show limitation in addition to showing an impairment. In addition, the court noted that there is a difference between obesity and merely being overweight. Obesity is a medically diagnosable disorder which, according to the court, always affects the systems of the body. The court distinguished this from a person with a high body mass index (BMI) but whose systems were not affected. The court concluded that the latter person “would not have obesity and therefore would not be covered by this opinion.”

This decision adds a new layer of protection to individuals who have obesity in the state of Washington. In order to ensure compliance, Washington employers should train their managers and human resources teams on the impact of this decision. This decision may impact (1) how pre-employment (and other) medical inquiries are handled; (2) when accommodations need to be provided; (3) whether changes to job requirements are necessary to make sure that employees are not being excluded simply because of obesity; (4) how the employer responds to claims of harassment based on an employee’s weight; and even (5) customer service training (as the ruling may be extended beyond the employment setting). As with any significant legal development like this, consulting with your employment and labor counsel would be prudent.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

While it’s true that acts of generosity sometimes backfire on those who offer them, the Court’s ruling in Higgins v. Union Pac. R.R. Co., No. 18-1902 (8th Cir. July 24, 2019) shows this is not always the case.  In Higgins, the Eighth Circuit affirmed summary judgment for Union Pacific—holding that regular, reliable attendance was an essential function of Higgins’ position despite the fact that Union Pacific accommodated Higgins’ poor attendance for over a decade.

Background

Higgins began working as a locomotive engineer for Union Pacific in 1976.  Between 1989 and 1992, he suffered spine injuries while performing his job, which led to chronic back pain.  In 1992, Higgins entered into a settlement agreement with Union Pacific in which he released his personal injury claims in exchange for payment and “the right to lay off whenever his back bothered him.”

For over a decade, Higgins had a high number of missed shifts—referred to as lay-offs—due to his chronic back pain.  Between 2004 and 2014, Union Pacific sent Higgins multiple letters admonishing him for his poor attendance.   Despite these warnings, Higgins’ poor attendance continued.

In 2014, Higgins’ doctor submitted information providing that Higgins’ back condition was the same as it was when he returned to work in the early 1990s and recommended that Union Pacific continue “providing at least 24 hours off between shifts.”  In December 2014, Union Pacific determined that Higgins’ restrictions prevented him from performing his essential job functions, and Higgins was not allowed to return to work.

Higgins then sued Union Pacific for disparate treatment and failure to accommodate under the Americans with Disabilities Act (“ADA”).

Eighth Circuit Decision

Affirming summary judgment for Union Pacific, the Eighth Circuit ruled that Higgins’ ADA claims failed because regular attendance was an essential function of the engineer position, and Higgins was unable to perform that essential function with or without a reasonable accommodation.

The Court explained that “regular and reliable attendance is a necessary element of most jobs,” and found ample evidence it was essential in this case, including (1) Union Pacific’s job description for the engineer position that listed reliable attendance as an essential job function; (2) Union Pacific’s attendance policy, which required employees to be available to work their assignment when scheduled; and (3) Union Pacific’s repeated warnings to Higgins that his attendance was unacceptable.

The fact that Union Pacific previously accommodated Higgins’ back problems by allowing him to miss a large percentage of his shifts did not create a material question of fact regarding whether job attendance was an essential function.  The Court rejected Higgins’ argument that his 1992 settlement agreement, which allowed him to lay off as necessary, superseded Union Pacific’s attendance policy, at least as applied to him.  The Court explained the agreement is “best characterized as an agreement to accommodate Higgins’ chronic back pain rather than an admission that job attendance is not an essential function.”

The Court also rejected Higgins’ argument that his proposed accommodations—laying off as necessary and receiving 24 hours of rest between shifts—were reasonable.  The fact that Union Pacific previously accommodated Higgins’ back pain by allowing him to miss a large percentage of his shifts did not create a material question of fact as to the reasonableness of these requested accommodations.  The Court explained that if an employer “bends over backwards to accommodate a disabled worker,” the employer “must not be punished for its generosity.”

Takeaway

Higgins reinforces the Eighth Circuit’s position that regular, reliable attendance is an essential function of most jobs.  This decision illustrates that a job description identifying attendance as essential, an attendance policy, and enforcement of the attendance policy are strong evidence that attendance is an essential function.  While the Court did not “punish” Union Pacific for its prior efforts to accommodate Higgins, employers should tread carefully in such situations because, depending on the circumstances, a pattern of excusing absences could be viewed as evidence that regular attendance is not an essential job function.

Today two plaintiffs represented by the Texas Public Policy Foundation filed a lawsuit challenging the Dallas paid sick and safe leave ordinance, which is scheduled to go into effect on August 1. It remains to be determined whether the implementation date will be officially delayed – either through a preliminary injunction or by agreement. The lawsuit is pending in the Eastern District of Texas, Sherman Division. For more information on the status of paid sick leave in Texas, see our recent blog post.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

Beginning on July 1, 2020, California will extend the maximum duration of Paid Family Leave (PFL) benefits from six weeks to eight weeks. Individuals may receive benefits from California’s state disability insurance (SDI) program:

  • To care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner.
  • To bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

The PFL program is not a leave right and does not provide job protection, but other state and federal laws such as the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and the Parental Leave law can provide such protection for eligible employees. You can read more about California’s Paid Family Leave program here.