Tag Archives: FMLA Leave

FMLA leave can be Tricky, Tricky, Tricky

 Contributed by Mike Wong, September 12, 2019

FMLA family medical leave act ,FMLA

In 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).

This 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.

The 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.

Public 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.

The 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. § 825.124).

This 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 condition.

·       Not all school meetings would qualify for FMLA leave – for example, disciplinary meetings would likely not qualify for FMLA leave under this opinion.

·       Make 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.

That 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!

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.

DOL Opinion Letter: Excessive 15-Minute Breaks Are Not Compensable

Contributed by JT Charron, April 25, 2018

On April 12, 2018, the Department of Labor (DOL) issued an opinion letter addressing the intersection between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) when an employee needs multiple rest breaks throughout the day due to an FMLA covered serious health condition.

employee with clock in background

Employee working with clock in background

Background

The FLSA generally requires employers to compensate employees for all time spent working. Although the Act does not require employers to provide rest or meal breaks, it does regulate whether such breaks—if provided by the employer—must be paid as compensable working time. Specifically, breaks of up to 20 minutes are generally considered primarily for the benefit of the employer and must be paid.

The FMLA, on the other hand, provides eligible employees with up to 12 weeks of unpaid job-protected leave for employees with a serious health condition. FMLA leave may be taken incrementally and, in certain circumstances, in periods of less than one hour.

Employers are not required to pay for excessive breaks

What if an employee needs to take multiple breaks during the work day due to his/her serious health condition? According to Opinion Letter FLSA 2018-19, such breaks are not compensable because they are not “primarily for the benefit of the employer.” Importantly, however, the DOL noted that an employer must still compensate the employee for breaks she would have received regardless of her serious health condition. To illustrate this point, the DOL provided the following example:

[I]f an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.

Employer takeaway

Employers can rest easy knowing that they do not have to pay employees for unlimited rest breaks simply because they are necessitated by an FMLA-approved serious health condition. Employers should carefully administer and track any such breaks to ensure compliance with both the FMLA and FLSA—along with any applicable state or local laws (e.g., local paid sick leave laws and required paid rest breaks).

 

Is Your Holiday Cheer Being Intermittently Dampened by Concerns of FMLA Abuse?

Contributed by Michael Wong

Have you noticed that an employee’s requests for leave tend to occur on a Friday or Monday?  Is an employee suddenly unable to work immediately before or after holidays? It is not unusual for employers to experience FMLA abuse, especially around the holidays. The following are a few practices that can help you combat FMLA abuse:

  1. Be Vigilant and Be Aware – Having a system that tracks when employees take FMLA leave can help you identify patterns of abuse and act quickly to investigate and address them appropriately.
  1. Control Scheduling – FMLA regulations require that absences for planned medical treatments be scheduled in a way that least disrupts employers’ operations. When dealing with an employee’s request for FMLA leave for treatment, therapy or doctor visits, you should contact the employee regarding the frequency, hours of the health care provider and ways that the schedule can be modified to decrease disruptions to your operations.
  1. Question the Employee – It is important to understand that the FMLA allows employers to require employees to keep them informed about his/her plans – which can include:
    1. Questions regarding the need for FMLA leave and anticipated On Holidayreturn date;
    2. Requiring employees to call in to verify that absences are FMLA-related;
    3. Calling an employee at home as a means of verification;
    4. Requiring written certification from employee attesting that leave is/was FMLA-related. (IMPORTANT – Employers cannot require a doctor’s note, unless it is being treated as a recertification.)
  1. Request Recertification – Employers can generally only request recertification once every 30 days. However, employers may request recertification more often if the following occurs:
    1. An extension of leave is requested by the employee;
    2. Circumstances have changed significantly since prior certification – i.e. prior certification states 1-2 days per absence and employee has taken 4 days for past two absences or a pattern of FMLA leave that coincides with holidays/days off;
    3. Employer has information that creates an honest belief that employee’s stated reason for leave is improper – i.e. employee is recovering from knee surgery, but is still playing in the company softball league.
  1. Investigate – Employers are able to monitor patterns of suspected leave misuse to ensure that an employee’s leave is legitimate, including questioning the employee, reviewing social media and even surveillance. (NOTE – Information from coworkers about an employee’s actions while on leave must be verified, to avoid allegations that the coworker was lying.)
  1. Confront the Employee – After an investigation is done, if there is evidence of FMLA abuse, confront the employee with the evidence and provide the employee an opportunity to explain what occurred. While the employee may deny the abuse, they could surprise you and admit to it.

These tips won’t entirely eliminate the problem of employees trying to take advantage of FMLA leave and intermittent FMLA, but they will help decrease FMLA abuse.