Tag Archives: FMLA

Flu Season: Common Questions From Employers

Contributed by Debra Mastrian, February 13, 2019

sick man lying in bed and thinking about all the work that piles up on his desk

The 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 employers:

Is an employee entitled to FMLA for absences due to the flu?

Maybe. 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 continuing treatment.” 

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 sent home?

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.

After Decade of Silence, DOL on Opinion Letter Spree

Contributed by Noah A. Frank, January 8, 2019

We previously reported that in 2018, the U.S. Department of Labor (DOL) began issuing opinion letters again after nearly a decade of silence. While the legislature makes laws, the consequences of presidential elections flow into the executive agencies charged with administering and enforcing the laws. 

As of the close of 2018, the DOL had issued more than 30 new opinion letters involving the Family and Medical Leave Act (FMLA) or Fair Labor Standards Act (FLSA), and those letters addressed a variety of topics including minimum wage and overtime for employees paid varying rates, the compensability of frequent rest breaks required as a reasonable accommodation for a disability, and travel time. The DOL’s opinion letters represent the agency’s official interpretation of how it would enforce the statutes under its jurisdiction. Employers, especially those operating close to the margins of the law, should pay careful attention to these opinions and adjust their practices accordingly. 

Companies with questions or concerns relating to FMLA and FLSA practices may also wish to seek their own opinions letters—which may be submitted anonymously, through counsel—for clarity regarding complicated compliance matters. Additionally, given the substantial risks and liabilities that may arise from medical leave and wage & hour administration, companies should also err on the side of caution by seeking the advice of knowledgeable employment counsel, and regularly undertaking audits of FMLA and FLSA-related policies and practices.

New Forms! FMLA & FCRA

Contributed by Noah A. Frank, September 27, 2018

48895877 - hand with pen over application form

hand with pen over form

In September 2018, the U.S. DOL published “updated” FMLA forms and the U.S. Consumer Financial Protection Bureau published updated FCRA forms.

DOL – Family and Medical Leave Act Forms

The DOL’s September 4, 2018 update is trivial: only the expiration date changed (now extended to August 31, 2021). There are no other changes to information, questions, or even layout (indeed, they maintain their prior revision date). Nonetheless, employers should promptly update their files with these new template forms. 

The forms are all available from the DOL’s  Wage and Hour Division be individually downloaded by clicking on the following links, or simply send an email and we will gladly provide them to you:

CFPB – Fair Credit Reporting Act Form Notice

On September 12, 2018, the CFPB released an updated Fair Credit Reporting Act Notice.  This is an important document to be provided to employees when using a third-party provider to obtain a “consumer report,” such as criminal background check or financial history inquiry.

Enforced by the U.S. EEOC in the employment context, failure to strictly comply with the FCRA has resulted in a significant increase in employment class action and discrimination lawsuits, including by professional plaintiffs — those who never really intended to work for the company, but found an opportunity to make a few dollars from a noncompliant company through threatening litigation and obtaining a nice settlement.

As part of the company’s regulatory compliance, ensure that the company and any third-party vendor immediately updates their FCRA notices, available from the CFPB in English and Spanish. 

As always seek the advice of competent employment counsel if there are any concerns with the use, completion, or interpretation of any of these government documents.

 

U.S. DOL Issues First FMLA Opinion Letters In Nearly A Decade

Contributed by Noah A. Frank, August 31, 2018

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.

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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.

But, proceed with caution!  FMLA2018-2-A does not embody the EEOC’s interpretation or enforcement of the Americans with Disabilities Act, nor any other agencies’ enforcement of similar laws. Of course, no points may be accumulated as a result of taking FMLA leave.

Best Practices

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.

EEOC Consent Decree a Reminder That Attendance Policies Must Have an ADA Escape Valve

Contributed by Suzanne Newcomb, August 13, 2018

72219825 - book with title the americans with disabilities act (ada).In July the EEOC announced the terms of a consent decree settling claims of systemic disability discrimination against a global metal products manufacturer. Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.

Where did the employer go wrong? According to the announcement, the employer violated the ADA in two ways: by awarding attendance points regardless of the reason for the absence and by terminating employees who were not able to return to work after 180 days of leave.

So called “no fault” attendance policies are common and have many advantages. They are transparent and easy to administer, they remove discretion from frontline supervisors (and with it potential favoritism and bias), they treat employees as adults by allowing them to manage their own time, and they remove much of the burden of policing the reason for each absence. But problems arise when employers – no longer called upon to scrutinize the reason for each absence – miss ADA and FMLA triggers. Remember, employees are not required to say “disability,” “ADA,” or “reasonable accommodation” to trigger the ADA-mandated “interactive process.” There are no “magic words.” The same is true of the FMLA. Anything that alerts or should have alerted the employer that an employee has a disability and may need reasonable accommodation (or that absences may qualify for FMLA protection) triggers statutory obligations. And to further complicate matters, anything a supervisory employee knows can be imputed to the employer.

Even policies designed to help employees, like the policy for providing up to 180 days of medical leave which far exceeds the 12 weeks the FMLA affords, must be applied with the ADA in mind. A blanket policy that any employee who is not able to return after 180 will be terminated does not allow for the individualized assessment mandated by the ADA. Bottom line, all policies, attendance policies as well as work rules, performance metrics, etc. must be analyzed with the ADA in mind. Always include an ADA escape valve.

Best Practices:

  1. Regularly review your ADA and FMLA policies to make sure they are clear, concise and easily understood;
  2. Clearly direct employees to contact HR if they believe they need leave or reasonable accommodation for a disability;
  3. Clarify that your attendance and leave policies (and others as appropriate) are applied within the framework of the ADA and FMLA and again invite employees who believe they may need leave or an accommodation to discuss the issue with HR;
  4. Include FMLA and ADA issues in regular supervisor training and require supervisors to elevate potential issues to HR; and
  5. Finally, there is no escaping the fact that ADA and FMLA issues are difficult. Partnering with trusted, experienced employment counsel as you navigate these complicated issues can often allow you to avoid the expense and hassle of defending legal claims later.

 

Can Employees Voluntarily Work During FMLA Leave?

Contributed by Allison P. Sues, May 15, 2018

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“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.

 

Save the Date! SmithAmundsen Complimentary Webinar – August 23rd – FMLA & ADA: Understanding a Complicated Legal Relationship

Employers of all shapes and sizes face the challenge of managing employee medical issues. Suzanne Newcomb provides insight to help employers manage risk and avoid liability by learning to better manage medical issues that arise. This program focuses on the FMLA and the ADA, and offers attendees specific insight on:

  • Identifying triggers requiring action under the FMLA and the ADA
  • Effectively managing employee medical leave
  • Avoiding common pitfalls
  • And more!

Register for the webinar here!