Recent guidance from the U.S. Department of Labor (DOL) reiterates that the DOL will allow telemedicine visits—generally speaking, health care appointments held via video conference—to qualify as in-person visits to a health care provider under certain circumstances.
As our readers know, the FMLA provides certain employees up to 12 workweeks of leave for, among other things, a “serious health condition.” An employee can show the existence of a serious health condition by several methods that include establishing that the employee has an illness or injury that involves “continuing treatment by a health care provider.” Under federal regulations, “treatment by a health care provider” means actually visiting a health care provider in-person. That regulation was added in 2008 to make clear that phone calls, letters, emails, and text messages exchanged with a doctor are not “treatment.”
However, in response to the COVID-19 pandemic, the DOL issued guidance in July 2020 that was confirmed and extended by a more recent DOL Wage and Hour Division Field Assistance Bulletin, which states that telemedicine, which “typically involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices” will be considered an “in-person” visit, provided the visit meets these three criteria:
It is an examination, evaluation, or treatment by a health care provider;
it is permitted and accepted by state licensing authorities; and,
it generally should be performed by video conference.
That said, the Field Assistance Bulletin also made clear that “a simple telephone call, letter, email, or text message” remains “insufficient, by themselves” to satisfy the in-person requirement.
Bearing all of that in mind, employers evaluating the adequacy of FMLA certification documents must, at least for the duration of the ongoing pandemic, consider telemedicine appointments to be “treatment” for purposes of the FMLA provided the three criteria above are satisfied. And as always, questions regarding the application of this and any other COVID-19-related employment law issues should be directed to experienced counsel.
The average life expectancy in the U.S. has declined for three consecutive years. The Centers for Disease Control and Prevention (CDC) links that decline to three factors: the rise in drug overdoses, an increase in liver disease, and a rise in suicide rates. More than 2 million Americans from all walks of life suffer from an opioid use disorder (OUD), and about two-thirds of those people are in the workforce. This has a tremendous financial impact on employers: In 2016, U.S. large employers covered $2.6 billion on treatment for OUD and overdose, up from $0.3 billion in 2004.
OUD and substance use disorder (SUD) more generally have a negative impact on the workplace through increased absenteeism, impaired job performance, and a decrease in the eligible workforce either due to candidates failing pre-employment drug screenings or fewer candidates applying as a result of their dependency. Employers can combat these issues by increasing accessibility to various treatments through their health plans and adopting policies allowing time for necessary treatment.
Studies indicate that the majority of employees would not seek help for a prescription opioid problem due to perceived stigma in the workplace. Educating employees about the risks and signs of opioid use disorder and taking steps to minimize stigma surrounding OUD/SUD can help address – and reduce – the problem before it starts. This can be accomplished by discussing the prevalence of OUD/SUD in America across all races, genders and socio-economic groups and recognizing individuals who have overcome the disease.
If an employee does come forward to seek help with OUD or SUD, understanding the interplay of leave policies is important. As usual, the FMLA and ADA play the leading role here. Under both, there is a distinction between an employee’s ongoing substance use (not protected) and seeking treatment for that use (protected).
Under the FMLA, the employee has to be in treatment or scheduled to start treatment for such time to qualify as FMLA covered leave. The addiction to be treated must constitute a serious health condition. The employee has to be referred for rehabilitation by a health care provider and the rehabilitation needs to be provided by a health care provider or by a provider of health care services, as those terms are defined by the FMLA.
The ADA provides that a person who has successfully completed a supervised drug or alcohol rehabilitation program or is participating in a supervised rehabilitation program and who is no longer engaging in substance use may be deemed a qualified individual with a disability.
Employers may also want to evaluate their zero tolerance policies related to drug tests and drug and alcohol related conduct. Rather than require dismissal for a failed drug test or inappropriate behavior linked to OUD/SUD, a revised policy could refer the employee for treatment.
Any crisis requires a response plan to overcome and move beyond it. The opioid crisis is no different and, like most other issues, is best addressed through education and the consistent implementation of appropriate policies and procedures.
2014, the Seventh Circuit Federal Appellate Court that covers federal courts in
Illinois, Indiana and Wisconsin, held that an employee’s trip to Las Vegas
qualified for FMLA leave and was protected by the FMLA because he was providing
daily care to his terminally ill mother. Ballard v. Chicago Park
District, 741 F.3d 838 (7th Cir. Jan. 28, 2014).
case highlighted the fact that in looking at whether something like a trip to
Las Vegas qualifies for FMLA leave, we have to look past the initial issue and
ask whether it is to care for an immediate family member (spouse, child or
parent – but not parent “in-law”) with a serious health condition.
Department of Labor (DOL) recently doubled down on this proposition in an August
8, 2019 Opinion Letter in which it concluded that FMLA covers an employee’s
attendance to school meetings where the employee’s child’s individualized
education program (IEP) would be discussed.
The DOL Opinion Letter is based on a situation where an employee has two children with serious health conditions. The employee has been approved for intermittent FMLA leave to provide care for the children, including taking the children to doctor appointments. However, the employer has denied the employee’s request to take FMLA leave to attend meetings at the children’s school to discuss the children’s IEP.
Schools are required to develop an IEP for children with disabilities,
including preschool-age children under the Individuals with Disabilities
Education Act (IDEA). Under the IDEA, once a child is determined to have a
qualifying health condition, parents must be notified and meetings will be held
in which an IEP will be developed and reviewed. Those meetings can
include participation by a speech pathologist, school psychologist,
occupational therapist and/or physical therapist employed or contracted by the
school district, all of whom provide services to the child under the child’s
IEP. Each IEP is designed to meet a child’s exact needs.
DOL determined that attendance to the school meetings to address the IEP is a
qualifying reason for taking intermittent FMLA leave. In doing so, the DOL
noted that “to care” for a family member with a serious health condition
includes “to make arrangements for changes in care.” This includes taking leave
to help make medical decisions on behalf of a hospitalized parent or to make
arrangements to find suitable childcare for a child with a disability. See Romans
v. Michigan Dep’t of Human Servs., 668 F.3d 826, 840–41 (6th Cir. 2012)
(holding that an employee was entitled to take FMLA leave to join his sister at
a hospital to make a decision regarding whether to keep their mother on life
support); Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421,
429–30 (E.D. Pa. 2012) (holding that an employee was entitled to take FMLA
leave to find a daycare to care for her daughter with an autism spectrum
disorder and a visual impairment); see also Ballard v. Chicago Park Dist.,
741 F.3d 838, 840 (7th Cir. 2014) (noting that the FMLA “speaks in terms of
‘care,’ not ‘treatment’”). Additionally, an employee may “make arrangements for
changes in care,” even if that care does not involve a facility that provides
medical treatment. Wegelin, 909 F. Supp. 2d at 430 (quoting 29 C.F.R. §
Opinion Letter provides us a lot of great reminders and takeaways:
· When an
employee requests time off for school meetings or to change daycares/nursing
homes, we need to ask more questions, as those would qualify for FMLA leave if
it is with respect to an immediate family member with a serious health
· Not all
school meetings would qualify for FMLA leave – for example, disciplinary
meetings would likely not qualify for FMLA leave under this opinion.
sure supervisors and managers understand that our FMLA obligations are
triggered when they are put on notice by an employee – i.e. an employee telling
a supervisor that he needs to take a day off to help move his father into a
nursing home, or find a new daycare for his special needs son, or attend a
school meeting to talk about his son’s IEP.
being said, it is also important to recognize that employees are required to
provide notice of the foreseeable need for leave and provide appropriate
certification to support the leave request – i.e. it should not be a last
minute leave request. More importantly, while the FMLA may be Tricky, you just
need to keep on Rocking!
The recent decision in Dyer v. Ventra Sandusky, LLC, issued by the U.S. Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee), should motivate employers to take another look at whether their attendance policies run afoul of the Family and Medical Leave Act (FMLA).
There are plenty of gray areas in the law, but it is generally clear that employees are not to be disciplined because they are absent for FMLA-covered reasons. That also means that employees should not accumulate attendance “points,” e.g., under a no-fault attendance policy, for FMLA-covered absences when such points can contribute to discipline up to and including termination of employment.
To its credit, the employer in Dyer did not assign attendance points for FMLA-covered absences. But unfortunately for the employer, that is not the end of the story.
Under the employer’s attendance policy, employees were eligible for a one-point “reduction” of their attendance point balance for every 30-day period in which the employee had “perfect attendance.” The employer’s definition of perfect attendance was not self-explanatory. For instance, an employee could be absent for several different reasons — including vacation, bereavement, jury duty, military duty, holidays, and union leave — and still have “perfect attendance” and eligibility for attendance point reductions.
However, FMLA-covered absences were not included among the types of absences that preserved perfect attendance status and point-reduction eligibility. And if an employee had a FMLA-covered absence, his progress toward the 30-day point reduction goal was reset to zero.
The Sixth Circuit noted that the FMLA’s regulations generally require that an employee not lose benefits while on FMLA leave. Because attendance point reductions (and progress toward such reductions) are benefits, the Sixth Circuit noted that, at the very least, progress toward the 30-day goal should be frozen while employees are on FMLA leave, rather than being reset to zero. The court also indicated that if other “equivalent,” but non-FMLA forms of leave were counted toward the 30-day goal, then FMLA-covered absences should also be counted toward the 30-day goal.
The bottom line is that the Dyer decision instructs employers that disciplinary and benefit policies must be closely scrutinized to determine whether they might dissuade employees from taking FMLA leave — or otherwise harm employees who take FMLA leave. If harm results, or if employees are faced with the decision of taking FMLA leave or forgoing benefits, potential exposure to liability under the FMLA may exist.
flu virus circulates all year round, although according to the Centers for
Disease Control and Prevention (CDC), flu activity historically peaks in
February. Here are a couple of flu-related questions frequently asked by
Is an employee entitled to FMLA for absences due to the flu?
The Family Medical Leave Act (FMLA) provides covered employees up to 12 weeks
of unpaid leave during a 12 month period if the employee has a “serious health
condition that makes the employee unable to perform” his or her job. A
serious health condition is an illness that involves either inpatient care
or continuing treatment by a health care provider. Inpatient care
is typically an overnight stay in a health care facility. Continuing
treatment is more complex but is generally a period of incapacity of more than
three consecutive full calendar days and any subsequent treatment or period of
incapacity that also involves either (1) treatment or consultation with a
health care provider two or more times within 30 days of the initial
incapacitation or (2) treatment or consultation with a health care
provider at least once and a regimen of continuing treatment under the
supervision of the healthcare provider. A “regimen of continuing treatment”
includes prescription medication, even without a follow-up medical appointment.
29 C.F.R. § 825.115. Over the counter medications (aspirin, flu
medicine), bed rest and fluids or other treatment that may be initiated without
the direction of a health care provider, do not qualify as a “regimen of
So, while an employee with a typical case of the flu who recovers with only self-care generally does not qualify for FMLA leave, extenuating circumstances can trigger coverage. It is important to focus not on the name of the illness—flu—but rather on the facts of the particular situation to determine whether an illness is a “serious health condition” as defined by the FMLA. When an employee calls in sick with the flu and is absent more than three consecutive days, the cautious approach is to send the employee an FMLA medical certification form. It is risky to deny FMLA leave without first taking steps to determine whether the absence qualifies for FMLA protection. If the employee returns the completed medical certification, the employer can then assess whether the condition is a “serious health condition.” (Note: Even if FMLA does not apply, an employee may be entitled to leave under state or local sick leave laws, or the employer’s sick leave or paid time off policies. Depending on the circumstance, an employer may also need to examine whether the Americans with Disabilities Act, as amended (ADA), applies.)
Can an employee who is exhibiting flu symptoms at work be
Yes, an employee who is exhibiting flu-like symptoms at work (e.g., fever, excessive coughing, vomiting, chills, etc.) can be sent home (or instructed not to come to work). Employers have the right to manage their workforce. This includes excluding potentially infectious employees, even if they want to work. Preventing the spread of contagious illness is a legitimate concern for employers. Employers can send sick employees home in an effort to maintain a safe and healthy workplace. (Note: OSHA requires all employers to maintain a safe and healthy workplace.)
Employers should, however, be consistent and fair in how they handle each situation. This is important for employee morale and to avoid legal claims (e.g., allegations of discrimination). Adopting an infectious disease policy will give employees and managers guidance on how to handle these situations.
Constantly evolving employment risk, often brought on by a change of administration (federal or state), is one of the most difficult aspects of running a successful business. Overnight, a lawful employment practice might be interpreted as unlawful, necessitating change to avoid charges of discrimination, unfair labor practice charges, agency scrutiny, and other issues related to running the business.
FMLA, family medical leave act
Agency opinion letters – guidance on how an agency interprets a fact-specific situation under the laws it enforces – are one useful tool to stay abreast of these developments. On August 28, 2018, the U.S. DOL issued FMLA opinion letters FMLA2018-1-A and FMLA2018-2-A. The last FMLA opinion letter was issued in January 2009.
FMLA2018-1-A – Organ Donor Leave
In FMLA2018-1-A, the DOL opined that an otherwise healthy employee that chooses to donate an organ may be entitled to FMLA leave because the resulting recovery generally is a serious health condition requiring one (or more) night’s stay in the hospital. As a result, an employee’s organ donation may be protected by both state and federal mandated leave laws, requiring case-by-case analysis.
FMLA2018-2-A – Application of Points Systems to Employees on FMLA Leave
FMLA2018-2-A is likely to impact many more employers. Here, the DOL issued guidance on the appropriateness of a no-fault attendance policy that have features that suspend attendance point accumulation and also suspend attendance point dissipation during a period of FMLA leave. The DOL found such policies do not violate the FMLA, if applied in a nondiscriminatory manner. Point reduction is a reward for working, and thus a benefit to which an employee on FMLA leave might not be entitled – as long as employees on other types of leave are treated the same.
FMLA2018-2-A is significant. Under such a policy, an employee who has accumulated attendance points and is getting close to disciplinary action (or termination) cannot “game the system” by taking FMLA leave, because the employee’s point total will remain frozen (and not automatically reduced by operation of time) during the period of the leave, up to 12 weeks.
Policies must be applied in a nondiscriminatory fashion – including treating employees on FMLA in the same fashion as employees on other types of leave. For example, if there would be no “freeze” of the points policy for an employee taking a 2-week vacation or intermittent personal days, then an employee taking a 2-week FMLA leave or using intermittent FMLA should be treated the same.
Experienced counsel should review attendance and leave policies in conjunction with other conduct policies to ensure a cohesive and comprehensive scheme.
Similarly, careful analysis of the specific facts of a particular issue may help avoid legal complications down the road.
“FMLA Family Medical Leave Act” with doctor in background
Last month, the United States Court of Appeals for the Fifth Circuit issued an opinion that provides a helpful reminder about the extent to which an employer may ask an employee to work during a leave taken under the Family Medical Leave Act (FMLA). In D’Onofrio v. Vacation Publications, Inc., a sales representative requested FMLA leave to care for her husband, who had suffered a major back injury. Her employer gave her two options – she could either go on unpaid leave or she could log on remotely a few times per week during her leave in order to service her existing accounts and keep her commissions. The sales representative opted to continue servicing her accounts during her leave. Later, the sales representative sued her employer and alleged, among other claims, that her employer denied her entitlements under the FMLA by requesting that she work during her leave. The court quickly dismissed this claim because the sales representative had voluntarily agreed to the work. The employer had not coerced this work and had not conditioned the sales representative’s continued employment on completing the work during her leave. The court stated that “[g]iving employees the option to work while on leave does not constitute an interference with FMLA rights so long as working while on leave is not a condition of employment.”
This case serves as an example of a black and white rule – an employer may not condition continued employment on completing work while on FMLA leave or otherwise coerce or require an employee to work while out on FMLA leave. However, there is a lot of gray area surrounding this clear rule. While an employer may not require an employee to complete full assignments or regular work during leave, nothing in the FMLA statute or regulations prohibits an employer from contacting an employee during leave with de minimis requests or short and simple questions. For example, an employer may contact an employee on FMLA leave to request a password to access a file, to locate paperwork, or to obtain a quick update on where a particular matter was left.
To best avoid interference claims under FMLA, employers should limit contact with employees who are on leave. Any communication about work assignments should be short and not require the employee to travel to the workplace or otherwise require the employee to expend significant time or effort. Should an employee voluntarily agree to work during leave, the employer should communicate that the work is not required and document the nature of the voluntary agreement. And, if the employee is out on unpaid FMLA and has agreed to complete some assignments, the employer should ensure the employee is compensated to avoid any wage and hour issues.
Eight states, the District of Columbia, and more than 30 municipalities have enacted laws mandating differing paid leave requirements. Localities such as New York and San Francisco, have enacted some of the most aggressive sick leave requirements in the country. Employers doing business within the City of Chicago have also been left to deal with a trifecta of sick leave laws in 2017: the IL Employee Sick Leave Act, the Cook County Paid Sick Leave ordinance, and the City of Chicago paid sick leave ordinance. All of this has resulted in an administrative nightmare for employers dealing with more than one set of sick leave requirements.
On November 2, 2017, three Republicans in the U.S. House of Representatives, Reps. Mimi Walters (R-CA), Elise Stefanik (R-NY) and Cathy McMorris Rodgers (R-WA), introduced a bill, The Workflex in the 21st Century Act (H.R. 4219). Supporters of the bill tout that the legislation gives employees job flexibility, while also giving employers more certainty and predictability over their leave practices. The bill provides for a voluntary program that is comprised of a combination of guaranteed paid leave and increased workplace flexibility options to employees. The amount of paid leave required (ranging from 12 days up to 20 days) would depend on an employee’s tenure and the employer’s size. At least one type of workflex option would also be made available to employees, which may include a compressed work schedule, biweekly work program, telecommuting program, job-sharing program, flexible scheduling or a predictable schedule. The incentive for an employer is that participation in the program would shield it from the mish-mosh of paid leave obligations stemming from state and local laws currently in effect.
The bill would not require employees to use the workflex option in order to take advantage of the paid days off. Also, to be eligible for a workflex arrangement, an employee would have to be employed for at least 12 months by the employer and would have to have worked at least 1,000 hours during the previous 12 months. More details regarding the bill can be found here.
Bottom line: Where this bill will end up obviously remains to be seen, but it has strong support from the Society for Human Resource Management (SHRM), the U.S. Chamber of Commerce, National Association of Manufacturers, National Association of Women Business Owners and other employer groups. Until there is a solution to the administrative hopscotch required of employers whose employees work in different cities, counties and states, employers must do their best to stay on top of the applicable paid sick leave requirements and related rules and regulations, and adjust their policies and procedures accordingly.
Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.
The U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.
The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.
In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work. Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.
The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA. Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”
Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.
Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.
The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.
At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:
Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.
The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.
Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.
In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.
After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.
In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.
What should employers do?
Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.
Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:
Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?