Tag Archives: Family and Medical Leave Act of 1993

FMLA: Employer’s Leave of Absence Form Defeats Former Employee’s FMLA Claim

Contributed by Michael Wong

Under the Family Medical Leave Act (“FMLA”) employees do not have to expressly say they need “FMLA” or otherwise invoke any of its provisions when requesting leave that would qualify under the FMLA. As such, employers have to be vigilant and question whether an employee’s request or need for leave qualifies for FMLA leave.

Absent employeeHowever, employers should know that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014), citing Ridings v. Riverside Med. Ctr., 537 F.3d 755, 769 n. 3 (7th Cir.2008) states that, “If an employee does not wish to take FMLA leave but continues to be absent from work, then the employee must have a reason for the absence that is acceptable under the employer’s policies, otherwise termination is justified.”

In the recent case Amstutz v. Liberty Ctr. Bd. of Educ., No. 3:13CV2385, 2015 WL 5254988, (N.D. Ohio Sept. 9, 2015), the District Court for the Northern District of Ohio held that the employee affirmatively declined FMLA leave and thus was not able to pursue any of her FMLA claims against the employer. In Amstutz, the employee requested a week of sick leave for her grandson’s birth. The employee was advised that under the CBA she could only use one sick day and would have to use personal days for the rest of the week. When the week arrived the employee called in sick and said she would be bedridden for the rest of the week. When the employee returned to work she filled out a leave of absence form and provided a doctor’s note. The employer’s leave of absence form included a section that explained FMLA leave and included a checkbox where the employee could request FMLA leave. Instead of selecting unpaid FMLA leave, the employee requested regular paid sick leave.

The Court in Amstutz held that the employee understood FMLA leave as she had taken it before and thus when filling out the leave of absence form she expressly declined FMLA leave by choosing paid sick leave and not checking the box for FMLA leave. The Court further held that since the employee declined FMLA leave, the employer could not have known that she wanted FMLA leave. Therefore, the employer was not obligated to provide her FMLA leave and could not have interfered with or retaliated against her in violation of the FMLA.

The takeaway for employers from these cases is that there are actions that you can take to limit your exposure to FMLA claims through your policies and forms. First and foremost, it is important to have an FMLA leave policy that is understandable and that identifies who employees should talk to in the event of an absence. Next, as demonstrated by these cases, leave of absence forms and other reporting techniques can be used to help in defending against FMLA claims by showing that the employee affirmatively declined FMLA leave.

The Best Offense is a Good Defense…And Other Lessons Learned from the Trenches

Contributed by Noah A. Frank

Not all employment disputes can be avoided: employees are unpredictable people after all. 

Employment disputes are draining: they distract you from your primary function of running a successful company, lead to damaged good will and feelings, and can be costly.  From our extensive experience in employment and labor law, we have repeatedly seen that documentation drives cases and allows for successful early resolution of a case.  In an ever-changing world of regulations, statutes, and requirements imposed on employers, proper documentation can provide objective measures for management decisions and a basis for a trier of fact to find in your favor.

Tip 1: Confirm all job offers in writing.

Various states’ laws, such as the Illinois Wage Payment and Collection Act, mandate or strongly suggest written notice to employees of various terms of employment.  Include relevant terms such as compensation rates, expected or typical hours of employment, job location, whether employment is at-will, and management’s right to change these terms.

Use the same types of letters for promotions, job changes, raises, pay decreases, and demotions. 

Tip 2: Confirm documents provide that employment is at-will.

Employment handbooks should conspicuously indicate that employment is at-will, and that the handbook is not a contract.  Where the handbook provides a progressive discipline process, ensure that management has the right to bypass one or more steps, including leading directly to termination.

Tip 3: Investigate and record incidents.

Investigate reported incidents and complaints.  Document the findings, and any resolution – this includes “verbal” warnings kept in the employee’s file.

Tip 4: Confirm employees’ responsibility for following policy.

Ensure that employees have received your employment policies.  Ensure they are actually aware of them.  Ensure that supervisors and managers are also aware of policies and their responsibilities for enforcing them.

This includes at minimum: anti-discrimination, anti-sexual and other harassment, anti-retaliation, and safety policies.

Tip 5: Ensure that performance reviews are accurate.

Not every worker can truly be “average” and “exceeds expectations.”  If they are, then it is time to raise your expectations! 

Tip 6: Confirm job descriptions are accurate and include essential functions.

A job description that accurately provides the required knowledge, skills, and abilities of a worker is the first piece of evidence for determining whether an:

  • employer can make any reasonable accommodation under the Americans with Disabilities Act (ADA);
  • employee’s performance-based termination was justified;
  • employee should be removed from work entirely under the Family and Medical Leave Act (FMLA); or
  • employee can be returned to work within a doctor’s restrictions following a work accident.

Proper documentation before it is needed can be crucial in many areas of employment law.

Tip 7: Get a preventative audit.

While not every dispute can be avoided, regular audits of policies and documents can help ensure your compliance with employment law.

More from California – Paid Family Leave to Care for More Family Members!

Contributed by Karuna Brunk

On September 24, 2013, Governor Jerry Brown signed a bill to extend California’s Paid Family Leave program to relatives beyond parents, spouses, children, registered domestic partners, and same-sex spouses.  Under this program, employees will be able to take up to 6 weeks off from work with partial pay from the state to take care of extended family members such as grandparents, grandchildren, siblings, or parents-in-law. 

California’s Paid Family Leave guarantees up to 55% of an employee’s average weekly salary for up to 6 weeks within a 12-month period.  Employees pay for the partial salary through a 1% deduction in their paychecks on the first $95,585 they earn annually.  To be eligible for the partial payment, employees must have earned $300 in the preceding 12 months. 

What does this mean for employers?    Essentially, employees in California can now take paid time off to take care of grandparents, grandkids, and other extended family.  Already the Federal Family Medical Leave Act and the California Family Rights Act allow employees to take up to 12 weeks of job protected but unpaid leave.  Although Paid Family Leave does not guarantee job protection, the new additions to the act allow employees to take paid time to care for additional persons.  In accordance with this new legal expansion, employers should update employee manuals and internal policies.  They should also get ready for more employees to take leave.

Don’t Forget to Dot the I’s and Cross the T’s: A Reminder When Enforcing Call-In Policies for Employees on FMLA Leave

Contributed by Brandon Anderson

Once again, the courts have upheld an employer’s right to strictly enforce its call-in policy even if an employee is absent on FMLA leave.  While this isn’t the first time that a court has made this holding, the United States Court of Appeals for the Sixth Circuit case, Strouder, et al. v. Dana Light Axle Manufacturing, Case No. 12-5835, serves as a reminder about how an employer should go about enforcing such a policy.

The case involved an employee who unquestionably had some attendance issues.  The crux of the case pertained to a September 30, 2009 meeting, and, not surprisingly, the parties disputed exactly what happened during the meeting.  Essentially, the parties contested whether the employee informed the employer that he had a hernia and whether he advised the employer that he was having surgery the following week.  There was no question, however, that the employer was aware that the employee’s physician placed lifting restriction on his work activities.  The company did not have any light duty positions and advised the employee that, as a result, he could not work.  The employee responded either (a) he would have the weight restrictions removed or (b) he would try and have the weight restriction removed.  Regardless, the weight restrictions were not removed and the employee did not report back to work.

Following the meeting, on October 1 the employer advised the employee that his medical certification was still deficient and gave him until October 7 to submit proper certification.  The employee did not report for work on October 1, 2, 5, or 6, and he did not call in pursuant to company policy on those days.  As a result, on October 6, 2009, the employer sent the employee a letter advising him that his failure to call in resulted in his voluntary resignation and indicated that if there were extenuating circumstances that the employer should consider, he should contact his supervisor immediately.  On October 7, before receiving the termination letter, the employee obtained a completed medical certification and hand-delivered it to the company before he went in for his surgery.  The termination letter was received the following day, and, at that point, he began calling in to advise the company of his absence, in accordance with company policy.

The employee later admitted that he was aware of the call-in procedure, but thought that he did not need to call in because the company knew he was having surgery and knew that he was going to be out for a period of time. 

In affirming the summary judgment determination, the Court first addressed the issue of whether an employer may enforce its own internal notice requirements (i.e. calling in on a daily basis) even if the requirement goes beyond the “bare minimum” that would typically be sufficient under the FMLA.  The court diverged from an earlier Sixth Circuit case decided under the old regulations and concluded that an employer can enforce its call-in requirements “unless unusual circumstances justify the employee’s failure to comply with the employer’s [call-in] requirements.” 

The court then found that the employee did not produce any evidence demonstrating unusual circumstances that would have justified his failure to comply with the call-in policy, and, therefore, upheld the granting of summary judgment.

There is an important take away from this case.  Maintain and enforce call-in procedures regardless of whether the absence is FMLA related or not?  Well, yes, but this is old news.  The more important take away is close the circle when an employee fails to follow internal policies in utilizing FMLA—whether in a letter or in a disciplinary interview, ask the employee whether there were any unusual circumstances that prevented him or her from complying with company policies.

What to Expect When Your Employee Is Expecting

Contributed by Caryl Flannery

A pregnant employee can strike terror in the heart of an employer.  Facebook COO Sheryl Sandberg, author of the “Lean In”, would encourage you to initiate a frank conversation with the employee about how her pregnancy and new family status will (or will not) affect her career.  Your employment law training may have taught you not to acknowledge the pregnancy in any way, but at the same time you’ll need to have some type of conversation about it to comply with the FMLA.  Do you have to make accommodations if her doctor says she has physical restrictions?  How should her absence be considered when making decisions on annual bonuses? 

Legal and logistical issues

Navigating through an employee’s pregnancy can be very tricky with laws that conflict and change on both the state and federal level.  A normal pregnancy with typical symptoms such as fatigue is not considered a “disability” under the Americans with Disabilities Act, so there is no obligation to accommodate requests for leave, light duty, etc. under that statute.  On the other hand, certain pregnancy-related conditions or complications, such as gestational diabetes, will be viewed as disabilities that require reasonable accommodation.  To further muddy the waters, pregnancy is treated as a “serious health condition” for the Family and Medical Leave Act, meaning that covered employers must provide eligible employees with up to 12 weeks of leave in connection with a normal pregnancy and birth, including time off for prenatal doctor visits.  Paid leave may be required in California, New Jersey, or Rhode Island, and a few major cities.  As pregnancy is a protected status under the discrimination laws, negative employment decisions based on unfounded assumptions or prejudices related to the employee’s pregnancy are unlawful. 

The Big Picture

The bigger issue is the message about pregnancy and childbirth that your business in sending to its employees.  If you engaged in a “lean in” type conversation with a pregnant employee would she feel threatened or relieved?  Do you have a specific open door policy designed to encourage employees to discuss how parenting issues could affect their employment and opportunities for advancement?  Are male employees encouraged to “lean out” to participate in child rearing or is the focus solely on your female employees? 

The more comfortable an employee feels discussing pregnancy issues, the less likely you are to encounter problems with leave, accommodation, and discrimination.  Maintaining an open and trusting atmosphere could mean that an employee reveals her pregnancy at eight weeks rather than six months, leaving you more time to plan for her absence.  Honest, up-front communication about career options may be the difference between retaining a hardworking, well-trained employee and having to start from scratch with an unknown entity.

Bottom Line:  While confronting a young female employee about her child bearing plans is still not recommended, creating an environment conducive to reasonable, honest discussions about the opportunities and challenges for working parents in your organization is a good move legally and administratively.

The Supreme Court Strikes Down DOMA – What Does It Mean For Employers?

Contributed by Rebecca Dobbs Bush

On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor, issued a landmark decision striking down the federal Defense of Marriage Act (DOMA) as unconstitutional. Now the federal government must acknowledge marriages between same-sex couples. What does this mean for employers? Well, it depends on what states you operate in….

If you live in a state like Illinois that DOES NOT recognize same-sex marriage:

The short answer is, no one knows. While Illinois does allow same-sex couples to enter into a civil union, being in a civil union is essentially the same as being unmarried for purposes of federal law. The decision of the Supreme Court now arguably makes civil unions even more unequal to marriage.

While civil unions are not affected by the decision, it is unclear whether employers will be required or permitted to recognize same-sex spouses of employees living in states that do not recognize same-sex marriages for purposes of federal employment laws such as ERISA, COBRA, FMLA, etc. In other words, what are an employer’s obligations if they operate in Illinois and have an employee who entered into a same-sex marriage in Massachusetts?

The decision references the fact that over 1,000 federal laws contain provisions specifically applicable to spouses that may be affected and should be coordinated. Until we receive additional guidance from the relevant agencies, employers in states such as Illinois are in a state of uncertainty. For example, the IRS generally defers to state of residence and not state of celebration for purposes of determining tax filing status and whether employer provided benefits should be considered imputed income. However, some federal laws, such as ERISA, do not specifically reference which state law should be given deference. In light of the stated views of the Obama administration, many are anticipating an Executive Order directing federal agencies to defer to the state of celebration for purposes of determining whether couples are married. In the meantime, employers operating in states that do not recognize same-sex marriage will need to wait for further clarification.

If you operate in a state that DOES recognize same-sex marriage:

Currently 13 states and the District of Columbia recognize same-sex marriage, including: Massachusetts, Connecticut, Iowa, California, Vermont, New Hampshire, Washington D.C., New York, Rhode Island, Delaware, Minnesota, Maine, Maryland, and Washington State.

For employers operating in states where same-sex marriage is recognized:

  • Same-sex and opposite-sex spouses will need to be treated the same for purposes of benefits extended to spouses.
  • Employees will not have to pay federal taxes for imputed income tied to an employer’s contribution to the same-sex spouse’s welfare benefit coverage. And, these same employees should be permitted to make their contributions towards these spousal benefits on a pre-tax basis under a Section 125 plan.
  • COBRA continuation will need to be offered to same-sex spouses.
  • Same-sex spouses will need to be treated the same as an opposite-sex spouse for purposes of an employer’s pension or 401(k) plan.
  • Employees will be able to access FMLA leave to care for an ill same-sex spouse the same as they would for an opposite-sex spouse.

Regardless of the state you operate in:

Every employer should review their existing benefit plan documents to verify how “spouse” is defined and to determine whether amendments need to be made to existing documents to accurately reflect the employer’s intent and actual administration of the plan.

Facebook Friends Set Groundwork for Defensible Termination of FMLA Abuser

Contributed by Beverly Alfon

Most of us are familiar with the perpetual Facebook question, “What’s on your mind?” and its invitation for you to “Check In” and let the world know where you are.  In a recent case, a registered nurse answered Facebook’s call – and found herself terminated for FMLA abuse and dishonesty. 

Carol Lineberry was a registered nurse who complained about lower back and leg pain to her employer, Detroit Medical Center.  Her doctor issued medical restrictions, including not standing for more than 15 minutes, pushing or pulling more than 20 pounds or lifting more than 5-10 pounds.  She requested and received approval for FMLA leave.  However, that same month, Lineberry went on a planned vacation to Mexico.

Lineberry posted pictures of her vacation to her Facebook page that showed her riding a motorboat, lying on a bed and holding beer bottles, and carrying her more than 15-pound grandchildren in each arm, while standing.  She also posted comments about taking care of her grandchildren.  Lineberry’s co-workers at the Medical Center, who were Facebook “friends” with Lineberry, saw the posts and complained to their supervisor.  The supervisor reported the activity to upper management. 

While Lineberry was still on leave, she emailed her supervisor to express her disappointment that no one sent her a “get well” card.  Lineberry’s supervisor responded by telling Lineberry that they found out about her vacation and accordingly, expected that she would be returning to work.  Lineberry responded by telling her supervisor that she used a wheelchair when traveling and did not walk for long periods. Shortly after that exchange, Lineberry obtained a full release to work from her doctor. 

Upon her return to work, the Medical Center followed its progressive discipline policy and conducted an investigative meeting with Lineberry.  At that meeting, she admitted that she lied to her supervisor about using a wheelchair and not being able to walk for long periods of time while in Mexico.  The company issued a termination letter to Lineberry, citing dishonesty (including FMLA abuse) as the reason for her discharge.

Lineberry filed suit against the Medical Center alleging FMLA interference and retaliation.  The court granted summary judgment to the Medical Center (Lineberry v. Richards, E.D. Michigan, No. 2:11-13752, Feb. 5, 2013).  The court reasoned that based on Lineberry’s “undisputed dishonesty… Defendants had a right to terminate Plaintiff – without regard to her leave status because FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave.”  The court also held that the employer prevailed under the “honest belief” doctrine.  This doctrine allows an employer to form a defense to FMLA claims by establishing that it “honestly believes, based on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.” The court specifically referred to Lineberry’s admissions on her Facebook page regarding her Mexico vacation and activities, and her admissions about lying to her supervisor. 

Bottom line:  Monitoring FMLA leave can be a game of cat and mouse.  This recent decision provides further support for employers’ efforts to curb FMLA abuse and is in line with the decision that the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Illinois, Indiana and Wisconsin employers) issued last year, affirming the “honest belief” doctrine as a defense to FMLA claims.  See, Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012).  The employer in Scruggs hired a private investigator to gather its evidence of abuse.  However, this recent decision indicates that even evidence gathered from social media can form the basis for an “honest belief” defense against claims of FMLA interference and retaliation claims.