Tag Archives: Family and Medical Leave Act

Telemedicine Appointments Can Be Used To Establish Serious Health Conditions Under the FMLA

Contributed by Steven Jados, January 14, 2021

FMLA family medical leave act ,FMLA

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.

Does Your Attendance Policy Violate the FMLA?

Contributed by Steven Jados, September 5, 2019

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.

Clocking In

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.

Plaintiff Petitions the Supreme Court to Hear Extended Leave ADA Case

Contributed by Carlos Arévalo, January 24, 2018

On January 18th, the plaintiff in Severson v. Heartland Woodcraft Inc. petitioned the United States Supreme Court to review his case, in which he claimed that a multi-month leave under the ADA, beyond the Family and Medical Leave Act’s (FMLA’s) mandated 12 weeks off, constitutes a reasonable accommodation.

16306823 - 3d illustration of scales of justice and gavel on orange background

Scales of justice and gavel on orange background

Back in September 2017, we reported on the seventh circuit’s decision Severson.  In the case, Severson took a twelve-week medical leave under the FMLA to deal with serious back pain. Before this leave expired, however, he 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 employer denied Severson’s request, terminated his employment, and invited him to reapply when he was medically cleared to work.  Severson sued, alleging a failure to reasonably accommodate his disability.

The seventh circuit affirmed the district court’s decision and held that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation and that the employer’s denial of extended leave did not violate the ADA.  In the opinion, the court stated that an employee who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.

A month after Severson, the seventh circuit reaffirmed its position that the ADA does not require extended leave. In Golden v. Indianapolis Housing Agency, the plaintiff, who suffered from breast cancer, sought extended leave to undergo surgery. Her recovery period was expected to last as much as six months. The employer refused to grant more than four additional weeks of leave. After Golden exhausted her FMLA and the four additional weeks of leave and could not return to work, she was terminated from employment.  Just as it did in Severson, the seventh circuit held that “a multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”

The Supreme Court has not yet decided whether it will hear the Severson case. In the meantime, however, our September 2017 recommendations remain in effect. Once employees exhaust their leave and are unable to return, employers 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.


HR Director May Be Individually Liable Under FMLA

Contributed by Debra Mastrian

A recent Second Circuit case, Graziadio v. Culinary Institute of America, Case No. 15-888-cv (Mar. 17, 2016), offers a sobering lesson for human resources personnel and supervisors who handle the administration of leave requests under the Family and Medical Leave Act (FMLA). The Court held that an HR Director may be liable as an employer, as a “person who acts, directly or indirectly, in the interest of an employer” toward an employee. Finding that the FMLA definition of employer is similar to the definition under the Fair Labor Standards Act (FLSA), the Court agreed with other circuits (including the 3rd and 5th) who have applied the economic-reality test to find individual liability under the FMLA. [Note: The Seventh Circuit has not yet addressed the issue, although District Courts in Illinois and Indiana have issued opinions agreeing that individuals may be liable under the FMLA.]

The key issue under the economic-reality test is the power the individual has over the employee’s terms and conditions of employment, including whether the individual has the power to hire and fire the employee, maintains employment records, determines the rate and method of pay, or sets and supervises the work schedule. However, the most critical factor is whether or not the individual controlled FMLA leave.

EmployerIn Graziadio, the employee initially took leave to care for a sick child, and then later took additional leave to care for another child who had broken his leg. The Culinary Institute of America (CIA) took issue with the FMLA paperwork, claiming it was not sufficient to justify the absences, and would not let the employee return to work without new documentation. The CIA did not clarify what additional information was needed or why the original paperwork was insufficient. The HR Director never provided any clarification and refused to let the employee return without a face-to-face meeting. The meeting never occurred, but the employee provided updated medical documentation. The HR Director did not respond and ultimately terminated the employee for job abandonment. The employee sued the CIA and HR Director for interference and retaliation under the FMLA among other things.

The Second Circuit found there was sufficient evidence for a jury to conclude that the HR Director was an employer in economic reality and that she interfered with the employee’s rights. Even though the ultimate ability to terminate rested with the President, since the President did not conduct an independent investigation and agreed with the HR Director’s recommendation to terminate, the HR Director “played an important role.” The HR Director also exercised control of the employee’s schedule and conditions of employment by handling the FMLA leave, including reviewing the paperwork, and communicating with the employee.

What can employers take away from this case?  Until the United States Supreme Court weighs in on this issue, employers should inform HR personnel and supervisors handling FMLA requests of their potential individual liability and ensure they are regularly trained on compliance. If employers or their HR personnel choose to challenge an employee’s paperwork, they need to be prepared to provide specific reasons to justify their actions.

California Law Update: New Family Rights Act Regulations Starting July 1, 2015

Contributed by Heather BaileyCalifornia

As California employers are well aware, the California Family Rights Act (CFRA) gives employees certain leave rights for medical conditions, similar to the federal Family & Medical Leave Act (FMLA).  However, starting July 1, 2015, the regulations are updated to align more with FMLA in certain areas and to clarify areas where CFRA is different than FMLA.

CFRA alignment includes:

  • “Covered employers” now contains successors in interest and joint employers are defined similar to FMLA;
  • Spouse is defined to include same-sex spouses as FMLA;
  • When calculating the 12 months of eligibility cut off, the break in service is now seven years or more like FMLA;
  • Employer has five business days to respond to the need for CFRA leave;
  • Key employees are defined as those in the highest 10% of the workforce; and
  • Employers have the ability to deny reinstatement if an employee fraudulently uses CFRA leave, doesn’t cooperate with the medical certification process or fails to cooperate with employer questions re: leave.

It is important to highlight some of the key variances that remain between the two very alike, but different medical leave laws:

  • If your workforce has 10% or more employees who speak another language as their primary one, you must translate the CFRA notice in that language.
  • New CFRA Certification of Health Care provided should be used.
  • Although under FMLA, an HR professional or administrator may contact the doctor to authenticate or clarify a medical certification, under CFRA, they may only contact the doctor to authenticate.
  • Second opinions? More difficult under CFRA.  You need a “good faith, objective reason” to request one, and don’t bother asking for one unless it’s for the employee’s serious health condition.
  • During the certification process, employers may not ask for additional information such as the underlining diagnosis of the need for leave or symptoms.
  • Medical continuation must be provided for employee’s entire unpaid pregnancy disability leave (4 months) including the subsequent CFRA leave (12 weeks).
  • While an employee is on Paid Family Leave, employer cannot require they exhaust/use any accrued paid leave during this time even if it’s covered under the CFRA.

Practice Tips:

  • Use the new CFRA medical certification form;
  • Update your handbooks and related policies with the new changes;
  • Update the poster with the revised CFRA poster;
  • Survey your existing workforce to determine if at least 10% speak a different language;
  • Vet out a reputable translation service for the new notices (in the event the department does not do so on its own);
  • Train, train, train your management so they understand the triggers so they know when to get HR involved in employee leaves; and
  • When in doubt, contact your labor and employment counsel.

New “Place of Celebration” DOL Final Rule Increases the Availability of FMLA Leave for Same-Sex Spouses

Contributed by Steven Jados

On February 25, 2015, the U.S. Department of Labor issued a final rule modifying the definition of “spouse” under the federal Family and Medical Leave Act.

This final rule, which will take effect on March 27, 2015, is a shift from the current language of 29 C.F.R. §§ 825.102 and 825.122(b), which defines “spouse” to mean “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

As of March 27, the definition of “spouse” under the FMLA regulations will no longer depend on an employee’s state of residence.  Instead, whether someone is an according-to-the-FMLA spouse will be determined by the law of the state where the employee’s marriage occurred—the “place of celebration.”  Specifically, the new definition will be:

Spouse, as defined in the statute, means a husband or wife.  For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Employers will note that this change still does not put parties to a civil union or domestic partnership on equal footing with married couples.

In light of the fact that not all states currently recognize same-sex marriage (or common-law marriage for that matter), this rule change may require employers may to take extra steps to determine where an employee’s marriage occurred.

As employers must now make such an inquiry, it is critically important that employers request documentation to establish the existence of a FMLA-defined marriage in a non-discriminatory matter.  Additionally, FMLA forms will need to be reviewed and updated, and those employees who administer FMLA programs or otherwise receive FMLA requests (which could mean virtually any supervisory or managerial employee), must be trained to understand that determining a spouse’s FMLA eligibility may be more complex than it has been in the past.

A Once-In-A Blue Moon Ruling – Three FMLA Nuggets In One Case!

Contributed by Brandon Anderson

It’s not very often that a federal court rules on an “issue of first impression” (i.e. something that has not previously been ruled on).  It is also not very often that a court ruling has multiple “take away” points that may impact future cases.  Imagine the unexpected surprise on September 4, 2012, when a U.S. First Circuit Court of Appeals issued a ruling that contained both.

The case, Pagan-Colon v. Walgreens of San Patricio, Inc., involves a rather typical Family and Medical Leave Act (FMLA) retaliation claim.  The employee was hospitalized because of a heart problem, underwent surgery, and, within two weeks, he was discharged.  The employee alleged that he and his wife frequently updated the employer on the employee’s condition.  The employer claimed it requested an explanation for his absence, but never received a response.  The employee was discharged for job abandonment.  Following the employee’s repeated requests for an explanation and after presenting medical documentation, the employer reconsidered its decision.  The employer investigated the incident and because its other employees and management claimed they had no recollection of the employee or his wife contacting them or bringing in medical documentation, the employer discharged the employee for making dishonest statements during the investigation.  The jury disagreed with the employer’s conclusions and found in favor of the employee.

Okay, so get to the “issue of first impression” and the other “take aways,” right?

Issue of First Impression: in upholding the jury’s damage award for $47,145 in back pay, the court held that the provision in the FMLA that allows a prevailing employee to recover wages and “other compensation denied or lost” can encompass lost over-time earnings.  Apparently the employee worked a lot of overtime—$20,637 of the $47,145 award was for overtime.  The method used to calculate the overtime, using the year-to-date average of weekly hours in the months preceding termination, was also upheld by the court.

Take Away 1: The chameleon-like termination reason is bad.  The court held that a jury could reasonably find that the employer’s change in reason for termination to be pretext for retaliation.  Also, as I’ve harped on before, the timing of a termination can also be evidence of retaliation.  Frankly, there could hardly be worse timing than firing someone while he is providing medical documentation and trying to return to work after heart surgery.

Take Away 2: Somewhat surprisingly, considering the facts. The court affirmed the lower court’s denial of liquidated damages, which are allowed unless the employer can prove it acted in good faith and had reasonable grounds for believing the discharge was lawful.  The court essentially chalked the matter up to a breakdown in communications at the work location-level that prevented management from learning about the facts in a timely manner.   While I would not recommend blaming violations of federal law on a breakdown in communications, if that is what happened, all hope might not be lost.