As the clock struck midnight on December 31, 2016, employees across the United States were celebrating. While most were celebrating the coming of the New Year (or perhaps, more likely, good riddance to 2016), some employees were celebrating because January 1, 2017, brings with it a new allotment of FMLA leave days.  If your employees fall into the latter category, perhaps it is time to consider changing your FMLA policy and procedures.

Section 200 of the Department of Labor’s FMLA regulations provides that employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave. 29 C.F.R. § 825.200(b).  These four options are (1) the calendar year, (2) any fixed 12-month period (e.g., the employer’s fiscal year or the employee’s anniversary year), (3) the 12-month period measured forward from the first date the employee uses leave, or (4) the “rolling” 12-month period measured backward from the date the employee uses any FMLA leave.  The Regulations provide that employers may select any one of these four methods as long as the method is applied consistently and uniformly for all employees.  However, if you fail to designate one of these four options, then the Regulations obligate you to use the 12-month period method that is the most beneficial to the employee.  Now is the perfect time to check your FMLA policy language and forms to ensure that you have properly designated one of these options in writing.

In selecting a manner to determine the 12-month period, it is important to understand that all four options are not created equal. While the first three options, all of which rely upon a “fixed” leave year, are generally easier for employers to administer, these options also allow employees to “stack” leave.  For example, if your company has elected to calculate the 12-month period using the calendar year, then an employee who has been out of work on FMLA leave for the last 12 weeks of 2016 may be entitled to continue that leave for the first 12 weeks of 2017.  By “stacking” leave around the turn of the calendar year, that employee can potentially receive 24 straight weeks of FMLA leave.  In contrast to the first three options, the fourth option, also known as the “rolling” calendar year, eliminates the potential for the stacking of leave.  However, the constantly moving 12-month period under this method can create challenges when tracking leaves of absence.  In spite of the administrative challenges associated with using this method, most employers find that the benefits of using the “rolling” calendar method far outweigh those challenges.

The turn of the calendar year provides a great time to review your FMLA policies and procedures to make sure that they best meet your business needs. Should you determine that changes to your policies and procedures are necessary, it is important to keep in mind that you must give proper notice to your employees before any of those changes take effect, and at least 60 days notice is required if you change the method used to calculate the FMLA “12-month period.”  29 C.F.R. § 825.200(d)(1).  If you change the 12-month period, you must also ensure that the transition to a new calculation method takes place in such a way that employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.  Here’s wishing you a Happy New leave Year!

 

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the fourth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Counting FMLA-protected absences against an employee.

Accurately tracking or coding FMLA leave is important to know how much of the allotted 12 weeks has been used by an employee.  Proper tracking/coding becomes crucial when administering absence policies and programs. If an employer improperly tracks FMLA leave as non-FMLA time off, and then “counts” those absences when administering an absence management program, when giving an unsatisfactory performance review, or when terminating an employee, the result can be a FMLA lawsuit that can be very challenging to defend.

In Wahl v. Seacoast Banking Corp., Case No. 09-81382-CIV-MARRA (S.D. Fla. Mar. 9, 2011), an employee prevailed on her claim for FMLA interference when she was fired in part for absences related to her pregnancy. The employee notified the employer of her pregnancy, and took intermittent leave related to morning sickness and other pregnancy complications. The employer counted the instances of absences and tardiness against the employee in its decision to terminate her – it decided that her unsatisfactory attendance in the past coupled with these new absences warranted her termination. The court found that the absences in question were protected by the FMLA, and the employee’s initial notice of her pregnancy was sufficient to put the employer on notice that these types of absences would be FMLA-protected. The court decided that the employer’s use of these pregnancy-related absences in its decision to terminate employment was improper and constituted FMLA interference.  When the employer considered those absences in reaching its decision to fire the employee, it interfered with her right to take leave under the FMLA.  The court also found that the employer’s failure to properly designate the intermittent leave as FMLA was a violation of the statute.

Conversely, in Nobach v. Auto-Owners Inc., Civil Action No. 1:13-cv-1126 (W.D. Mich. Oct. 22, 2015), an employee claimed that her employer had counted her FMLA leave towards its decision to terminate her for absenteeism.  As the litigation developed, the employee admitted that for much of the absences that she alleged were improperly counted as non-FMLA, she was either mistaken or had failed to follow company policy for notifying the employer that the reason for leave was FMLA. The employer was further able to show that when all of the employee’s properly-designated FMLA leave was excluded from her absences, she still had enough non-FMLA absences that would have resulted in termination. The court granted summary judgment for the employer, finding that the termination was not in violation of the FMLA.

By improperly tracking FMLA leave time, an employer increases its risk of facing FMLA claims.  Employers should carefully analyze the administration of their absenteeism policies for any “weak points” in how FMLA time is tracked or coded, and revise the process as necessary to make sure that FMLA-protected absences are not counted against employees.  Employers should also carefully scrutinize every absence leading to discipline or termination of an employee, to make sure none of the absences do not qualify for FMLA protection. It is important to remember that if the employee provided enough information to put an employer on notice that the time off might be FMLA qualifying, then the employer’s FMLA obligations are triggered, as discussed in the November 8, 2016 post in this series.

Imagine you operate multiple business locations in Columbus, Ohio where 3 counties comprise the city proper and as many as 11 counties comprise the larger Columbus Metropolitan Area. Now imagine that each of those counties adopts their own local ordinance requiring paid sick leave as well as advance notice (and extra pay) to employees before you can change their work schedule. Perhaps a few of the counties also enact an increased minimum wage of $15 an hour –much like the proposal to increase the minimum wage that was supposed to be voted upon in Cleveland in May of 2017. Would you want to continue to do business in Columbus or would you curtail your growth in that city and look for a more employer friendly home for your future business locations? Continue Reading Ohio Means Business: New Law Prohibits Cities and Counties From Enacting Paid Sick Leave, Predictive Scheduling, and Minimum Wage Laws

2016 has come to an end and it’s been busy year for disability leave management issues. The year has seen a variety of new developments, including issuance of additional guidance from administrative agencies, new leave and benefit related laws, and a slew of court opinions.  Here is a summary of some of the highlights from the year:

Administrative Guidance

In the spring of 2016, U.S. Equal Employment Opportunity Commission (“EEOC”) issued new rules for Employer Wellness Programs. These rules immediately became the subject of litigation.  The summer saw the issuance of enforcement guidance on the subject of retaliation, including retaliation against employees who request reasonable accommodations for a disability.  Finally, in November and December of 2016, the EEOC issued resource and guidance documents on the subjects of mental health disabilities in applicants and employees.

Sick Leave

On the subject of sick leave, Oregon became the newest state to adopt a state-wide sick leave law, joining California, Connecticut and Massachusetts. These states are soon to be joined by Vermont (January 1, 2017), Arizona (July 1, 2017) and Washington (January 1, 2018).  In addition, cities and counties across the country, from San Diego, California to Chicago, Illinois to Morristown, New Jersey enacted sick leave laws that either took effect or are expected to take effect in 2017.   Even the federal government adopted a sick leave requirement for government contractors that will apply to new solicitations and contracts beginning January 1, 2017.

While sick leaves laws continued to rise, some states have continued to enact legislation to prevent local agencies from adopting local sick leave laws. North Carolina and Arizona joined Alabama, Florida, Louisiana, and others in enacting preemptive legislation to avoid the patchwork issues that have cropped in states where individual cities have enacted individual ordinances.

Benefits for Those on Leave

Paid parental leave was a hot topic and is expected to only get hotter in 2017. New York adopted a paid family leave law that will provide employees with up to 12-weeks of wage replacement benefits.  The City of San Francisco adopted an ordinance providing wage replacement benefits for employees taking time off to bond with a new child.  And ending the year with bang, on December 26, 2016, Washington, D.C, enacted significant changes to its paid leave laws to provide employees with up to eight weeks of paid time off to bond with a new child, up to six weeks of paid time off to care for a sick relative and up to two weeks of paid time off when they are sick.

Notable Court Decisions

Not to be left behind, courts across the country issued decisions that will impact how employers respond to requests for accommodations from disabled employees and applicants.  The Eleventh Circuit Court of Appeals upheld a lower court decision that held that the Americans with Disabilities Act does not require that employers provide a disabled employee with a noncompetitive reassignment as an accommodation. The Eighth Circuit Court of Appeals held that an employee can establish causation for a disability discrimination claim if the employee can show that a discriminatory intent contributed in any way to an adverse employment action.  And courts in California further expanded disability related protections, finding that an employer’s denial of an accommodation to a nondisabled employee may serve as evidence of association discrimination under State and that an employee who was seeking medical treatment in connection with an asymptomatic tumor was potentially disabled.

2017 is just around the corner and is expected to be another exciting year in the area of disability leave management.  From all of us the disability leave management blog, we wish you a Happy New Year!

On December 22, 2016, the United States Court of Appeals for the Eighth Circuit issued an opinion in the case of Oehmke v. Medtronic, Inc., Case No. 16-1052, affirming the district court’s grant of summary judgment in favor of the defendant/employer on plaintiff’s claims of disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA).  In its opinion, the Eighth Circuit analyzed the plaintiff’s disability discrimination claim under a mixed-motive causation standard, meaning that the Court would allow the plaintiff’s claim to proceed if it found evidence that the adverse employment action was motivated by both permissible and impermissible factors.  In other words, under a mixed-motive analysis, if a discriminatory intent contributed in any way to the adverse employment action, a plaintiff can establish the causation element of a claim for disability discrimination.   Continue Reading Eighth Circuit Leaves Open the Question of Whether a “Mixed-Motive” or “But-For” Causation Standard Should be Applied to Disability Discrimination Claims Under the ADA

ACaliforniare you sick of sick leave yet? Beginning on January 1, 2017, the new paid sick leave provisions under Santa Monica City’s recently adopted Minimum Wage and Sick Leave law will go into effect.  Since our California Workplace Law Blog article first outlined key provisions of the law, the ordinance was amended later this year, and importantly moved the effective date from July 1, 2016, to January 1, 2017 for the sick leave provisions.

As of January 1, 2017, smaller employers with 25 or fewer employees are required to provide at least 32 hours of paid sick leave, and larger employers with 26 or more employees are required to provide at least 40 hours of paid sick leave. As of January 1, 2018, these numbers will jump to 40 hours and 72 hours, respectively, according to the amendments.

Here are the key highlights of the effective version of the Santa Monica sick leave provisions:

  • Requires paid sick leave for employees who perform at least two hours of work per week within the City of Santa Monica and are entitled to payment of a minimum wage under the California Labor Code and wage orders published by the California Industrial Welfare Commission.
  • Accrual rate is one hour for every 30 hours worked.
  • Employers can cap accrual and limit the annual carryover of accrued sick leave (whether calendar year, fiscal year, or year of employment): 32 hours for small businesses, 40 hours for larger businesses for 2017. [Caution: Santa Monica permits lower accrual caps in 2017 than the 48 hours or 6 days required under State law, although employers still must comply with State law.]
  • No accrual or carryover is required if the full amount of leave required by the ordinance is provided at the beginning of each year (whether calendar year, fiscal year, or year of employment). [Thus, while State law permits a grant of 3 days or 24 hours, Santa Monica’s ordinance requires the grant be at least 32 hours for smaller employers and 40 hours for larger employers in 2017; these numbers increase to 40 hours and 72 hours, respectively, in 2018.]
  • Employers may prohibit use of sick leave until the 90th day of employment.
  • Employers are not required to pay out unused paid sick leave upon an employee’s termination, resignation, retirement, or other separation from employment, as long as the sick leave is offered separately from any paid time off or vacation plan.

For links to Santa Monica’s new law itself, further details, fact sheets, charts, legal notices, and other information, visit Santa Monica’s Minimum Wage and Sick Leave Website.  All employers operating in Santa Monica should carefully review their policies and practices related to paid sick leave.

Perhaps not, according to the First Circuit Court of Appeals. Not all retaliation is the same, the court reminds us in its December 14, 2016 decision in Chase v. U.S. Postal Service. Evidence that a supervisor retaliated because of an employee’s workers’ compensation claim does not itself prove the supervisor also retaliated because the employee took concurrent leave under the Family and Medical Leave Act (FMLA). Mocking an employee’s allegedly fake injury does not necessarily show hostility toward use of FMLA leave. Continue Reading Does Calling Someone an “Injury Compensation Specialist” Prove FMLA Retaliation?

The Equal Employment Opportunity Commission (EEOC) suffered a setback in its attempt to establish that the Americans With Disabilities Act (ADA) requires an employer to reassign an employee to an available position without having to compete with other candidates for that position.  In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit Court of Appeals held that a Florida District Court correctly interpreted the ADA when it held that there is no mandate for noncompetitive reassignment as an accommodation.

The case involved a disabled nurse who sought accommodation under the ADA because she required the use of a cane.  The plaintiff could not continue working in her existing position while using a cane because it was a safety hazard and she therefore sought reassignment to another unit in the Hospital.  She was given the opportunity to apply for other jobs in the Hospital but she had to compete with other candidates for them.  The plaintiff did not meet the Hospital’s requirement for internal candidates to have been in their position for 6 months and to have no final written warnings.  The Hospital agreed to waive these requirements as an accommodation.  The nurse applied for seven positions and the EEOC argued that she was qualified for three of them.  For various reasons the Hospital determined that other candidates were better qualified and the plaintiff was not selected.  When she did not obtain another position, the Hospital terminated her employment.  The EEOC filed suit claiming the Hospital violated the ADA by not reassigning the plaintiff to a vacant position without requiring her to compete with other applicants for those jobs.

The court found that plaintiff was disabled and that she was qualified with respect to the jobs she was seeking.  However, the court concluded that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”  The court acknowledged that reassignment to a vacant position is a potential accommodation that may be reasonable in some circumstances.  The court compared the Hospital’s policy to hire the best-qualified applicant to seniority systems.  Previous cases have held that it would be unreasonable to require an employer to reassign disabled workers in contravention of its seniority system.  Similarly, the court stated that “passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” As such, the Hospital should not be required to undermine its policy requiring the best qualified candidate to be selected for a position.

The ruling is good news for employers with employees in the Eleventh Circuit who have a desire to fill positions with the most qualified candidate. An employee whose disability prevents him or her from continuing to work in his/her original position will not need to be automatically reassigned to a vacant position just by showing minimum qualifications.  However, employers will be wise to approach such situations carefully, and not simply as “business as usual.”  The Eleventh Circuit’s ruling contemplated that there might be situations (“special circumstances”) where a non-competitive reassignment would be required as a reasonable accommodation.  Indeed, while the lower court here found that the Hospital was not required to reassign the nurse without competition as a matter of law, the court went ahead and held a jury trial on the issue.  Moreover, other courts of appeal have ruled differently and, given the split in the circuits, this issue may eventually  make its way to the Supreme Court.  We also believe that the EEOC will continue to expect reassignment be based only on minimal qualifications.  In short, the dynamics of reassignment continue to be challenging and it is best to work with legal counsel with ADA expertise to navigate these choppy waters.

In continuation of its series of “resource” documents which provide guidance to individuals with medical conditions or work restrictions, on December 12, 2016, the EEOC issued a “resource” document titled “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights” which is intended to provide guidance on workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (“ADA”).

In a news release regarding the document, the EEOC stated that discrimination charges based on mental health conditions are rising, and that the agency resolved approximately 5,000 charges relating to mental health conditions in 2016. https://www.eeoc.gov//eeoc/newsroom/release/12-12-16a.cfm.  As a result, the EEOC determined that a user-friendly explanation of the rights of individuals with mental health conditions was warranted.  The document highlights the fact that individuals who are suffering from depression, post-traumatic stress disorder or other mental health conditions are protected, under the ADA, against discrimination and harassment at work because of their condition.  Furthermore, these individuals have a right to request reasonable accommodations that can assist them in performing their job.  The EEOC even provides a related resource for the individual’s mental health care provider titled “Mental Health Provider’s Role in Request for Reasonable Accommodation at Work” which is intended to guide mental health care providers in how to provide supporting documentation for a reasonable accommodation to an employer.

The resource document for the individual is laid out in a question and answer format that outlines the protections and rights of individuals with mental health issues.  For example, the document provides information on when an employer can fire the employee because of a mental health condition, i.e., when the employee poses a direct threat to safety, the general limits on the employer’s ability to ask medical questions, and how to ask for a reasonable accommodation.

The resource document also provides guidance on when a request for a reasonable accommodation under the ADA is appropriate. However, one sentence that may give employers and employment counsel heartburn is the EEOC’s statement qualifying “substantially limiting.” The EEOC states that a condition may qualify by “for example, making activities more difficult, uncomfortable, or time-consuming to perform…”  This “uncomfortable” language is new and is not included in the regulations.  Only time will tell whether employees latch on to it in their reasonable accommodation requests.

At North Pole Enterprises, the company’s entire existence is dependent upon a single delivery on the night of December 24. On December 23, Santa Claus, the only licensed delivery driver at North Pole Enterprises, injures his back while loading packages in his “truck.”  Later that day, Mr. Claus contacts the Human Resources Department at North Pole Enterprises and requests FMLA leave because his chiropractor has placed him on bed rest for two weeks.  Can North Pole Enterprises deny Santa Claus’ request for FMLA leave under the key employee provision?

The simple answer to this question is no, North Pole Enterprises cannot use the key employee provision to deny the leave request. One common misconception under the FMLA is that leave can be denied to a key employee.  In reality, the key employee provision in the FMLA allows an employer to deny reinstatement under certain very limited circumstances, but does not serve as a basis to deny the leave request.  In fact, the FMLA regulations indicate that an employee who chooses to remain on leave after receiving notice that reinstatement will be denied under the key employee provision is still entitled to the other benefits of being on FMLA leave.  29 C.F.R. § 825.219(c).

While the key employee provision would not provide North Pole Enterprises with a basis to deny Santa Claus’ requested leave, it may allow the company to deny reinstatement to him. However, the requirements of the key employee provision are very stringent.  First, the employee must be a “key employee,” which means a salaried employee in the highest paid 10 percent of all employees within 75 miles of the worksite.  29 C.F.R. § 825.217.  Second, the employer must determine that the reinstatement of the key employee following FMLA leave will cause “substantial and grievous economic injury” to the operations of the employer.  29 C.F.R. § 825.218.  Importantly, as the Department of Labor notes in its publication on Key Employees and Their Rights, the substantial and grievous economic injury must result from the reinstatement of the employee and not the employee’s absence from work.  Finally, the employer must strictly comply with the written notice requirements set forth in 29 C.F.R. § 825.219 or will lose its right to deny reinstatement to the key employee.

Employers faced with a request for FMLA leave from a key employee must carefully analyze the economics of the situation before denying reinstatement under the key employee provision. In doing so, it is important to keep in mind that (1) the FMLA regulations clearly state that the “substantial and grievous economic injury” standard is more stringent than the undue hardship test under the ADA (29 C.F.R. § 825.218(d)) and (2) should litigation ensue, the employer will have the burden of proving that reinstatement of the key employee will result in such substantial and grievous economic injury (Kephart v. Cherokee County, North Carolina, Case No. 99-1789 (4th Circuit, Aug. 4, 2000)).  For these reasons, employers are strongly encouraged to consult with outside counsel before invoking the key employee provision.