On October 31, 2016, the Fourth Circuit Court of Appeals issued a decision that confirmed an employer’s right to take adverse employment action against an employee who fraudulently uses FMLA leave. In Sharif v. United Airlines, Inc., Case No. 15-1747 (4th Cir., Oct. 31, 2016), the Court upheld United Airlines decision to discharge Masoud Sharif for fraudulently using FMLA leave, finding that “[t]o hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.”

Sharif and his wife, both employees of United, took a scheduled vacation to South Africa and Italy from March 16 through April 4, 2016. While Sharif’s spouse was able to use approved vacation for the entire time period, Sharif was unable to obtain approved time off for his scheduled shift on March 30.  On the morning of March 30 (at 1:00 a.m. Eastern Standard Time), Sharif called United and requested intermittent FMLA leave pursuant to a certification already in place for his anxiety disorder.  The following day, Sharif and his wife traveled from South Africa to Italy where their vacation continued.  After United noticed that Sharif had used FMLA leave for the only shift that he was scheduled to work in the middle of a lengthy vacation, an investigation was conducted into his use of FMLA leave.  When United questioned Sharif about his absence on March 30, he initially denied being scheduled to work that day and then provided a constantly shifting story about suffering a panic attack after not being able to secure a seat on a flight back to the United States.  However, Sharif was unable to provide any evidence to United of his attempts to secure a flight home for his scheduled shift on March 30.  After United notified Sharif of its intent to terminate his employment for fraudulent use of FMLA leave and dishonesty during the investigation, Sharif decided to retire and then filed suit against United alleging retaliation for his use of FMLA leave.

In rejecting Sharif’s claims under the FMLA, the Fourth Circuit relied on the Department of Labor’s pronouncement that an employee who fraudulently obtains FMLA leave is not protected by the FMLA’s provisions related to reinstatement and benefits protection. 29 C.F.R. § 825.216(d).  Importantly, the Court stated that “[w]hile a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused.”

One important takeaway from this case for employers relates to investigations of FMLA abuse. Here, Sharif argued that United failed to conduct an adequate investigation of the alleged fraud before taking adverse action.  However, in rejecting that claim, the Fourth Circuit held that United had made a “reasonably informed and considered decision” before terminating Sharif.  Based upon this decision, employers who conduct a thorough investigation before taking adverse action against an employee suspected of leave abuse should be better suited to defend against subsequent claims of FMLA retaliation.

The U.S. Department of Labor (DOL) is looking to collect data from employers and employees regarding their respective “need for” and “experience with” the Family and Medical Leave Act (FMLA).  The data collection period is expected to occur in 2017 and 2018.  From employees, the survey will seek information regarding “use of leave, need for leave, and [] experience with FMLA-eligible leave.”  For employers, the surveys will seek information regarding “employee use of leave and [] experience managing FMLA leave.”

The latest “wave” of surveys is expected to expand and update information gathered from prior surveys conducted in 1995, 2000 and 2012.  The DOL issued a fact sheet  in 2012 summarizing some of its findings and noted: “[o]n the 20th Anniversary of the FMLA, DOL can conclude that the FMLA continues to make a positive impact on the lives of workers without imposing an undue burden upon employers.”  In that survey, 85% of employers reported “that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.”  Would you agree?

The DOL created two proposed data collection surveys and is currently seeking comments on or before December 27, 2016.

 

 

CaliforniaAs if paid sick leave wasn’t scary enough!  From accrual methods, to the protections provided to the time off, to the varying (and ever growing) laws in different jurisdictions, paid sick leave can be spooky.  What about how to calculate the rate of pay for the paid sick leave??  On October 11, 2016, the California Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) issued an opinion letter regarding its interpretation under California’s Healthy Workplace Health Families Act of 2014 (the “California Paid Sick Leave Law”) of the method of calculation of paid sick leave for employees paid by commissions and exempt employees who are given an annual, non-discretionary bonus.

Continue Reading Calculation of California Paid Sick Leave May Spook Employers

On August 25, 2016, the EEOC issued its Enforcement Guidance on Retaliation and Related Issues. In addition to outlining expanded definitions of “opposition” and “participation” activity with respect to retaliation claims, the EEOC also addressed section 503(b) of the ADA.  Section 503(b) makes it unlawful to “coerce, intimidate, threaten or interfere” with an individual who attempts to exercise ADA rights or one who assists or encourages others to do so.

What Makes ADA Interference Different

In its guidance, the EEOC notes the interference provisions of the ADA are broader than the statute’s anti-retaliation provisions. Specifically, actions that may not be materially adverse for a retaliation claim may suffice for an interference action.  Another distinguishing feature of an ADA interference claim, according to the agency, is that an individual pursuing relief need not be a qualified person with a disability. Continue Reading EEOC Explains ADA Interference – Employers Take Note

The EEOC’s 2016 wellness program regulations are once again under fire. On October 24, 2016, AARP filed a complaint against the EEOC in D.C. federal court challenging the EEOC’s rules relating to wellness programs. See AARP v. EEOC  Specifically, AARP seeks a ruling that the 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)) and Title II of the Genetic Information Nondiscrimination Act (the “GINA Rule”) (29 C.F.R. § 1635.8(b)(2)(iii)) are unlawful and request a preliminary injunction that would prevent the rules from taking effect on Jan. 1, 2017.  This suit is the first to specifically challenge the EEOC’s 2016 ADA Rule and GINA Rule.

AARP, which is a nonprofit organization dedicated to addressing the needs and interests of people age fifty and older, is concerned that older workers will be disproportionately affected by these regulations because older workers are more likely to have medical issues that would be disclosed to employers by medical questionnaires and could potentially expose these employee to discrimination by their employer.

Both the ADA and GINA, in an attempt by Congress to prevent such discrimination, generally prohibit an employer from requesting medical information from employees’ and their dependents. Although both statutes have an exception that relates to participation in wellness programs, each law requires that the participation be voluntary, meaning that an employer may not penalize an employee for choosing not to participate.

However, AARP claims that the 2016 ADA and GINA Rules violate the Administrative Procedures Act as well as the ADA and GINA provisions that protect employees from involuntary disclosure of their health and genetic information because the regulations are arbitrary, capricious and an abuse of discretion.  According to AARP, the 2016 rules depart from the protections of the ADA and GINA by permitting employers to penalize employees by up to 30% of the full cost of individual health insurance premiums if they choose to keep their medical information confidential. This “penalty” applies both to the employee and his or her spouse separately.   AARP contends that these regulations are clearly contrary to the ADA and GINA and go against Congress’ clear intent to ensure that employees are not pressured to reveal medical or genetic information.

Furthermore, AARP points out that for years the EEOC defended the same position regarding employers penalizing employees for not providing medical information. See EEOC v. Honeywell, Inc., No. 14-cv-04517.  The EEOC’s position has consistently been that an employee’s participation in a wellness program was only voluntary if employers did not require participation or penalize employees who choose to keep their medical and genetic information private.  However, under the 2016 Rules, the EEOC now asserts that “medical inquiries and examinations in wellness programs are ‘voluntary’ as long as the penalty for refusing them does not exceed 30% of health insurance premiums for self-only coverage.” AARP v. EEOC Complaint at 23.  There is no explanation or justification provided by the EEOC for the 30% figure.  AARP claims that this is further proof that the EEOC’s regulations are arbitrary, capricious and an abuse of discretion because the EEOC did not explain the reversal of “its longtime position that medical inquiries and examinations are only ‘voluntary’ if employees are not penalized for refusing them.” Id. at p. 24.

As these issues continue to heat up, all eyes will be on the EEOC to see how it responds. Stay tuned.

It is common gospel that when a qualified disabled employee requests accommodation under the Americans with Disabilities Act (“ADA”), both employer and employee must engage in an interactive dialogue to discuss the options.  But what happens when an employee merely identifies a disability but never asks to be accommodated?  In a recent decision, a sharply divided Eighth Circuit held that an employer who learns an employee cannot perform essential duties without accommodation due to a medical condition may need to treat the information as an “implicit” accommodation request.  Such an implicit request can trigger the interactive process even though the employee never specifically asked to be accommodated.  The opinion can be found here.  Continue Reading Finding the “Implicit” Accommodation Request

It is well established that the FMLA does not require an employer to reduce its performance expectations for an employee who is taking leave intermittently or on a reduced schedule.  Additionally, during the time the employee is at work, the employee must be capable of continuing to perform the essential functions of the job.  However, an employer may be required to make adjustments to productivity requirements and quotas to account for time off the employee takes that is designated as FMLA.  In Holland v. The Methodist Hospitals (N.D. Ind. Sep 30, 2016) Plaintiff claims that her employer interfered with her right to FMLA leave by not excluding leave under the FMLA from time worked when calculating whether she met her quota.  As a result, Plaintiff claims that she was unable to meet the required quota for the number of accounts she was assigned per day.  Her productivity ratings were therefore negatively impacted by the time she spent on job protected FMLA leave.

The Court held that the grant of an FMLA leave request may be “illusory” if the employee is held to the same performance or quota standards as if the employee were working her full hours.  In other words, it’s no different from telling an employee she can take FMLA leave while at the same time telling her she must make sure she works the same number of hours.

An employer can require an employee to maintain certain quality of work standards, but the quantity of work standards may need to be adjusted.  Employers may confuse this issue with the FMLA’s provision that allows an employer to deny a bonus or other payment that is based on the achievement of a specified goal such as hours worked or products sold, if the employee has not met the goal due to FMLA leave.  The FMLA guarantees a right to unpaid leave, therefore denying pay where an employee is not producing at the same level does not interfere with employee rights.  Taking disciplinary action, however, after failing to adjust performance standards could mean that the FMLA leave the employer granted to the employee  was illusory and the employer interfered with the employee’s rights under the Act.

An employee’s return to work following an extended FMLA leave for a serious health condition of the employee often creates concerns on the part of the employer. In these situations, employers frequently question whether the employee is really able to perform the essential functions of the job and whether returning the employee to work may expose him/her to risk of further injury (and potentially expose the employer to legal risk).  However, these concerns can often be relaxed through use of the “enhanced” fitness-for-duty certification procedures set forth in Section 312 of the Department of Labor’s FMLA Regulations, 29 C.F.R. § 825.312.

Pursuant to Section 312 of the Regulations, an employer can maintain a consistently-applied policy or practice that requires an employee to provide a fitness for duty certification following FMLA leave for the employee’s own serious health condition. Under the basic fitness-for-duty certification requirement, the employee must only provide a simple written note from the health care provider indicating the date on which the employee can return to work.  Employers who utilize this basic procedure are often left wondering whether there are any concerns with allowing such an employee to resume regular duties.

To alleviate some of the unknown that exists with the basic fitness-for-duty certification, employers can instead require that employees provide an enhanced fitness-for-duty certification before being reinstated following FMLA leave. The enhanced fitness-for-duty certification requires the employee’s health care provider to review the essential functions of the employee’s position and to state in writing that the employee is capable of performing all of those functions.  In order to trigger this requirement, employers must give written notice to the employee of the requirement to provide the enhanced fitness-for-duty certification and must provide the employee with a job description or list of essential functions to be reviewed by the health care provider.  These documents must be provided to the employee no later than the time of the Designation Notice (29 C.F.R. § 825.300(d)).

Importantly, if an employee fails to provide a properly requested fitness-for-duty certification, the employer can delay reinstatement until proper certification is provided. Recently, in Bento v. City of Milford, Case No. 3:13-CV-01385 (VAB) (D. Conn. Sep. 30, 2016), a U.S. District Court in Connecticut ruled that an employer did not violate the requirements of the FMLA when it delayed an employee’s reinstatement for six (6) days while waiting for proper certification.  There, the employee submitted a statement from a physician indicating that she was medically stable and could return to work, but the statement did not address the employee’s ability to perform the essential functions of the job and was not completed by the treating health care provider.  The Court ruled that the since the employer had properly requested an enhanced fitness-for-duty certification under Section 312 of the Regulations, the employer was within its rights to deny reinstatement until such certification was provided.

Although the process to obtain an enhanced fitness-for-duty certification requires employers to spend additional administrative resources on the front end of the FMLA leave, that additional effort and cost is typically far outweighed by receiving written confirmation from the treating health care provider that the employee truly is fit for duty.

The final regulations for Executive Order 13706 (“Paid Sick Leave for Workers on Federal Contracts”) were published September 30, 2016.  Under the Executive Order and final regulations, paid sick leave obligations will begin with new solicitations and contracts beginning January 1, 2017.

Do you know if your organization is covered and if so, do you know which of your employees are entitled to paid sick leave? Do you understand how the new paid sick leave obligations work? Have you figured out how to track the hours that your employees work on covered contracts so that paid sick leave accrues properly? Have you thought about what policies and practices you need to have in place and how the new obligations will impact your current policies? Have you considered how to solve the puzzle created by the overlapping and sometimes inconsistent obligations under the Executive Order and state and local paid sick leave laws? If you are a federal contractor, these are some of the questions that should be keeping you up at night as you determine whether and to what extent you need to comply with Executive Order 13706.  If you need help with any of these questions, we’ve got the answers for you.

Join our colleagues Patricia Pryor and Leslie Stout-Tabackman on October 20, 2016 for a complimentary webinar during which they will delve into the details of the new obligations, and discuss how these regulations impact your organization and what you should be doing now to prepare.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  Over the upcoming months, we are going to highlight some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Being too restrictive on what constitutes a serious health condition.

Employers are responsible for determining whether an eligible employee has a serious health condition (“SHC”) under the FMLA.  A SHC entitles eligible employees to FMLA leave.  A SHC often involves “continuing treatment,” which is a period of more than 3 consecutive days of incapacity (remember this is days of incapacity, not absences) coupled with either (a) 2 or more treatments within 30 days of the first day of incapacity, or (b) treatment by a health care provider at least once which results in a regimen of continuing treatment (which can be as simple as a prescription).  However, the definition does not stop there.  Also included in the definition, regardless of how many days the employee is incapacitated:

  • inpatient care (an overnight stay in the hospital, a hospice or a residential medical care facility);
  • pregnancy or prenatal care (the very fact of pregnancy);
  • chronic conditions (only requiring periodic visits at least twice a year for treatment by a health care provider);
  • permanent or long-term conditions (any condition for which treatment may not be effective, such as, asthma, diabetes, epilepsy, etc.);
  • conditions requiring multiple treatments (multiple restorative surgery, chemotherapy, physical therapy, dialysis, etc.); or
  • leave for treatment of substance abuse (as long as inpatient care and continuing treatment prongs are met and treatment is for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider ).

Courts have long opined on the prongs of the serious health condition definition.  For example, one court found that, although the employer argued that an employee’s father did not have a SHC, the father’s depression met the definition under the “continuing treatment” prong of the definition because the father received treatment at least two times over a 7-month period.  Scamihorn v. Gen. Truck Drivers, Local 952, 282 F.3d 1078 (9th Cir. 2002).   In a more recent case, a court found that an “overnight stay” in the hospital means a stay for a “substantial” period of time from one calendar day to the next calendar day, measured by the employee’s time of admission and time of discharge.  Bonkowski v. Oberg Industries, Inc., 787 F.3d 190 (3d Cir. 2015).

As best practice, employers should require employees to submit medical certifications to support FMLA leave, and then carefully review the contents of the certification against the FMLA definition of SHC.  The U.S. Department of Labor medical certification questions track the regulatory definition.  Many employers also utilize the services of a third party administrator for FMLA leaves, who also typically require medical certifications to be submitted supporting the need for leave.  The information contained in the medical certification is critical in making the determination of whether an employee has a SHC under the FMLA.  Comparing the contents of a medical certification with the FMLA SHC definition will result in a more precise analysis.