Tag Archives: Family and Medical Leave Act of 1993

FMLA Amended For Airline Flight Crews

Contributed by Karuna Brunk

The Department of Labor (DOL) issued a statement regarding expanded protection to military families.  Hidden in the discussion of military families and DOL’s commitment to those who serve was a single statement about added regulations to the Family Medical Leave Act for airline flight crew employees.   

In fact, on February 5, 2013, DOL issued a final rule to implement the Airline Flight Crew Technical Corrections Act, which established leave eligibility requirements for airline flight crewmembers and attendants.  Essentially, the new rule attempts to account for airline employees’ unusual and unique work schedules. 

The Specifics for Aviation Employers:

  • DOL’s new rule implements a minimum hourly work requirement for airline employees to be eligible for FMLA leave.  For airline flight employees to be eligible for FMLA under the new amendments, they must have worked or been paid for not less than 60 percent of the applicable total monthly guarantee.  Additionally, they must have worked or been paid for not less than 504 hours during the 12 months prior to their leave. 
  • The DOL rule entitles airline flight crew employees to 72 days of leave during any 12-month period for one or more FMLA-qualifying reasons (i.e. birth of a child, care of a family member, serious health condition, etc.).  DOL established the 72 days of leave based on a six-day workweek for all airline flight crew employees, regardless of how much time the employees actually worked.  This was multiplied by the statutory 12-workweek entitlement under FMLA. 
  • Because DOL has recalculated how much leave an airline flight crew employee can take based on days, employers must track FMLA leave, intermittent leave, or a reduced schedule in increments of one day
  • Employers have new record keeping requirements – record and keep documents that contain information specifying the monthly FMLA guarantee for each category of employee, including any copies of collective bargaining agreements or employer policy documents.  Also employers should record the hours worked and hours paid for each employee.  

The Department of Labor has released a new FMLA poster discussing the new final rule that can be found here.

Family and Medical Leave Act 102: Casual Comments to Supervisors About Parents’ Poor Health Is Not Adequate Notice Under FMLA

Contributed by Carly Zuba

A few months back, I blogged about an Eighth Circuit case in which the court held that an employee who failed to call in or show up for work on three consecutive shifts following a period of intermittent FMLA leave had no viable FMLA interference claim.  Today, I bring more good news for employers on the FMLA-front: the Seventh Circuit recently held that an employee’s “casual comments” to supervisors about her aging parents’ ill health did not sufficiently put her employer on notice regarding her need for leave to take care of them under the FMLA (Nicholson v. Pulte Homes Corp., 7th Cir., No. 11-2238, 8/9/12).

Nicholson, a sales associate for Pulte Homes Corporation, first mentioned her father’s leukemia to her supervisor in December 2008, stating that she “might” need time off due to his potential need for chemotherapy treatment.  In February 2009, Nicholson had a “casual conversation” with several Pulte employees, including one of her supervisors, about the “challenges of dealing with aging parents.”  In April 2009, Nicholson mentioned to her supervisor that she was driving her mother to medical appointments on her days off.  Later that month, Nicholson told her supervisor that her father had stage III cancer, but did not indicate a need for any time off.

Around this time, Nicolson was placed on a performance improvement plan (PIP) following several months in which she failed to meet her sales goals and received two customer complaints.  Since Nicholson failed to improve and did not make a single sale in May or June, she was terminated on June 24, 2009.  Nicholson then sued the company for FMLA interference and retaliation.

In order to establish a claim for FMLA interference, a plaintiff must show that she provided sufficient notice of her intent to take FMLA leave.  And in order to establish an FMLA retaliation claim, a plaintiff must show that she engaged in FMLA protected activity (e.g. asking for FMLA-qualifying leave).  Thus, the key issue in this case was whether Nicholson put the company on notice that she wanted to take FMLA leave.  While the FMLA does not require an employee to specifically refer to the statute when notifying an employer of the need for FMLA leave, an employee must nonetheless alert the employer to the seriousness of the family member’s health condition and indicate that leave is required for care purposes. 

The Seventh Circuit was not convinced that Nicholson put the company on notice of a need for FMLA leave.  The court decided that her one “casual conversation” about aging parents was “clearly insufficient as a matter of law to notify [her supervisor] that FMLA-qualifying leave was needed.”  And although Nicholson alerted a supervisor of the seriousness of her father’s medical condition, she did not put her supervisor on notice that she needed leave to care for him.

A cautionary note: Employers should not use this case as an excuse to willfully disregard evidence that an employee needs FMLA leave.  However, this decision illustrates the fact that the Seventh Circuit understands that employers are not mind-readers; as such, employers are not expected to know that employees need FMLA leave without reasonable proof of a request for leave OR clear indication of a need for leave.

Family and Medical Leave Act 101: If Employee Abandons Job, Employee Abandons Right to FMLA Leave

Contributed by Carly Zuba

At times, navigating the rough waters of the Family and Medical Leave Act (FMLA) can be understandably difficult and confusing for employers. Generally, the FMLA provides eligible employees with twelve weeks of leave during any twelve-month period if they have a serious health condition that makes them unable to perform the functions of their position or if they have to care for an immediate family member who has a serious health condition. While the statute provides that it is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the FMLA, the statute also leaves a lot of room for interpretation — which in turn creates a ton of questions for employers. For instance, can an employer terminate an employee if the employee fails to show up for his or her assigned shifts following a period of intermittent FMLA leave, without such termination constituting FMLA interference? Well, the Eighth Circuit recently ruled that a cable customer service representative who was terminated as a voluntary resignation after failing to call in or show up for work on three consecutive shifts has no viable FMLA interference claim (Ballato v. Comcast Corp., 8th Cir., No. 11-2744, 4/27/12).

Relevant Facts: 

  • Ballato, the employee, was granted intermittent FMLA leave on account of chronic fatigue and depression. 
  • Upon returning from 11 days of FMLA leave, Ballato sent a series of emails expressing job dissatisfaction.  In response, the company deactivated Ballato’s access to company computer systems and the building, since it viewed some of the emails as “disturbing.” 
  • The company attempted to call Ballato, but Ballato did not return the calls, since he thought he was being terminated. 
  • That same day, Ballato called the company’s Resource Center to request FMLA leave, but the department told him to contact his supervisor.  Ballato failed to do so.
  • Ballato went to work that day and was denied entrance since his badge was deactivated. 
  • He erroneously believed he was fired, and proceeded to not report to work as scheduled for three consecutive shifts; thus, the company terminated him due to unexcused absences.

While the court agreed that the above series of events leading to his termination did not exactly portray a smooth firing process, the court felt that the events also did not show interference with Ballato’s FMLA rights.  The court determined that the employee had many opportunities to correct his misperceptions that he had been terminated before missing three consecutive shifts; indeed, it explained that “an employee who requests FMLA leave has no greater protection against termination for reasons unrelated to FMLA than she did before taking the leave.”

Take-Away for Employers: Employees are not granted permission or an unfettered right to violate other unrelated company policies or to cut off communications with the employer or mislead the employer about their absences while they are on FMLA leave, otherwise they may lose its protection.  Though these are fact-specific inquiries, usually employers will not be on the line for FMLA interference if they terminate an employee who requested FMLA leave for reasons unrelated to FMLA.  As always, if you have any questions regarding the possible termination of an employee, it is always a good idea to contact an experienced labor and employment attorney before moving forward.

Making The Best Out Of Your FMLA Policy This Year

Contributed by Allison Chaplick

On December 23, 2011, a Wisconsin federal district court in Egren v. Braeger Company of Wisconsin, Inc., (No. 10-C-60) denied summary judgment in an FMLA retaliation case brought by a Chief Operating Officer (COO).  In Egren, the COO took one day off every three months to drive his son, who had Down’s syndrome, to doctor’s appointments, and during his lunch hour, took his wife, who had cancer, to her medical appointments three times a month.  The employer’s policy required employees to request a leave of absence if they were unable to work for “medical reasons for a period in excess of three consecutive days.”  Ironically, it was the COO who administered the company’s FMLA policy, and because his need for FMLA leave did not fall under the company’s FMLA policy, the COO never advised his direct supervisor that he needed FMLA leave.  The company terminated the COO claiming that this time off affected his ability to perform his job.  The district court found that the COO had engaged in statutorily protected activity, noting that “it does not take much for an employee to invoke his FMLA rights,” because all an employee has to do is indicate that he needs leave to take care of a seriously ill relative in order to invoke FMLA protections.

Employers should be prepared to properly handle its employees’ medical leaves and have a proper FMLA leave policy that guides both management and employees on the following practices and procedures.

An employee must:

  • Provide 30-day advance notice if the need for leave (including intermittent or reduced schedule leave) is foreseeable.  If not foreseeable, the employee is required to provide notice as soon as practicable (i.e. within 1 or 2 business days). 
  • Explain the reasons for leave so employer can determine whether leave qualifies under FMLA.  Calling in “sick” is insufficient.
  • Provide complete and sufficient requested certification to employer within 15 calendar days after employer’s request (http://www.dol.gov/whd/fmla/).

An employer must:

If an employee fails to provide timely notice or timely and complete certification, employers may deem any time off as non-FMLA leave and subject the employee to time and attendance policies.  Conversely, an employer’s failure to follow the notice requirements may constitute interference with, restraint, or denial of the exercise of an employee’s FMLA rights.   With a good FMLA leave policy and consistent practice and enforcement, an employer can properly defend against FMLA claims.