By Lorene D. Park, J.D. Even decades after the Family and Medical Leave Act was enacted, employers are still making basic mistakes, such as presuming that an employee who wants FMLA leave has to use the word “FMLA,” failing to properly calculate FMLA allotment or use, and disparaging those who take leave. Perhaps managers find some provisions unclear or simply need a refresher. Along those lines, here are 10 “takeaways” from recent court decisions over alleged FMLA mistakes. 1. When calculating FMLA entitlement, include overtime and “working lunches.” An employee’s actual workweek is the basis for determining FMLA leave entitlement. This means overtime and breaks that were spent working must be included when calculating an employee’s FMLA entitlement. In one recent case, the Eighth Circuit held that, although a tire manufacturing employee had the choice of whether to put his name down for certain overtime shifts, the overtime became mandatory once he did that and was selected for a shift, so the overtime should have been included in calculating his allotment of FMLA leave for the year. Given that his overtime hours varied from week to week, the employer should have calculated his leave in accordance with 29 C.F.R. §825.205(b)(3). Instead, the overtime hours were not considered at all. His FMLA interference claim would therefore go to trial. In another case, a corrections department counselor claimed understaffing kept him from eating in the employee lunchroom and he had to eat where inmates congregated. This, ruled a federal court in Illinois, raised a question on whether his lunches were spent predominantly benefitting his employer and should have been included in calculating whether he met the 1,250-hour requirement. Also at issue was whether the employer knew of his working lunches: 29 C.F.R. §785.11 states that unrequested work is work time if the employer “suffer[s] or permit[s]” the work and “knows or has reason to believe” the employee is working. 2. In calculating amount of leave used—don’t include days an employee is not scheduled. Be careful in calculating how much FMLA leave has been used—FMLA leave may be taken in periods of weeks, days, hours, and sometimes less than an hour. The employer must allow employees to use FMLA leave in the smallest increment it allows for other forms of leave, as long as it is no more than one hour. When calculating the amount of leave used, exclude days an employee would not be working (e.g., weekends, temporary plant closures, holidays). One employer faces trial for including weekends in calculating an employee’s FMLA usage (she worked Monday through Friday) and firing her when it thought her leave was used up. The company thought it was “simple math” that her periods of leave in 2013 totaled 12 weeks (84 days) as of December 15, but a federal court in Tennessee disagreed. Weekends were not to be counted, so the total was 60 days and she had not exhausted her FMLA leave by December 15. Also rejected was the employer’s argument that the plant closes for the holidays so she would have soon exhausted her leave anyway. “If the employee is not scheduled to report for work, the time period involved may not be counted as FMLA leave,” the court noted, quoting the DOL’s response in the Federal Register to a comment. 3. Neither a medical emergency nor a request using the word “FMLA” is required. One employee won summary judgment as to her employer’s liability for FMLA interference after a federal court in Pennsylvania rejected the employer’s argument that FMLA leave is limited to medical emergencies. The court found it undisputed her parents had a serious health condition and she was entitled to family care type leave to make arrangements for their transition in care. It also found that her need for leave was unforeseeable and she was only required to give notice as soon as practicable—it was enough that she said her “dad was ill, and she had to get the house ready for him to come home” from the “hospital.” If the employer wanted more information on her parents’ health, it could have asked. As to notice of the employee’s own health condition and need for leave, if there is a known history and the employee shows symptoms at work, that could be enough under the FMLA. It is up to the employer to learn more. For example, an employee with a history of migraines avoided summary judgment after a federal court in Missouri found that a sick log stating she was absent for “headache” may have triggered the employer’s duty to investigate; instead, it fired her under its attendance policy. In another case, a truck driver receiving treatment for high blood pressure had chest pains and, believing he might be having a heart attack, asked a coworker to tell the manager he was leaving. He was considered a “voluntary quit” since he failed to notify the manager himself, but a federal court in Maryland found triable issues on whether he provided sufficient notice of the need for FMLA leave. 4. Give employees a chance to provide certification. Employers may require employees to provide a medical certification of the need for FMLA leave, but lawsuits often arise if the certification is found deficient. The Second Circuit recently revived an employee’s FMLA claims against an employer and an HR director responsible for a communication breakdown that led to the employee’s discharge. The employee provided certification that she needed to care for her son who was hospitalized with diabetes. After he broke his leg, she sent a new FMLA request for leave through July 9 and repeatedly asked if more information was needed. She heard nothing until she received a July 17 letter stating her paperwork did not justify her absences. She sent emails asking what “paperwork” was needed, but the HR director simply sent a DOL brochure and refused to let her return absent proper documentation. She was fired for job abandonment. To the appeals court, a jury could find the employee made good faith efforts and was thus relieved of her duty to provide certification. In a case out of Illinois, a staffing agency was denied summary judgment on an FMLA interference claim because it fired the employee one day after requesting her medical certification. An employer may deny leave absent timely certification, explained the federal court, but 29 C.F.R. §825.305(b) defines timeliness to be 15 calendar days from the request for certification. It also requires the employer to warn the employee in writing of the consequences of failing to timely return a certification, and that was not done here. 5. Communicate with employees. As indicated by the HR director’s inadequate responses to an employee’s questions in the Second Circuit case above, it is important to keep a dialogue with employees who request information about their FMLA obligations. It is also important to communicate regarding their job status or what they can expect to change due to their absence. For example, a federal court in Arizona held an employer liable for liquidated damages under the FMLA because it failed to answer a pregnant sales rep’s questions about how her accounts and commissions would be handled during her maternity leave. By not responding to repeated inquiries over seven months, the company essentially forced her to guess as to the professional consequences she would suffer in terms of lost commissions and transferred accounts, reflecting a lack of good faith and willful indifference to the FMLA. 6. You can require the use of customary notice procedures for absences, but with caveats. Cases regularly crop up where employees have been denied leave or disciplined for not following call-in procedures for potentially FMLA-qualifying absences. Employers need to consider if the need for leave was unforeseeable. If it was unforeseeable, employees need only provide notice of the need for FMLA leave “as soon as practicable,” though employers may generally require them to follow normal call-in procedures. In one case, an employee’s bipolar medication interfered with sleep and she overslept, failing to call in an absence before her morning shift. In the opinion of a federal court in Kansas, a jury could find that calling in late was “as soon as practicable” and that the employer interfered with FMLA rights by firing her for tardiness and absences. In other cases, where employees have no excuse for failing to follow call-in procedures, their FMLA claims usually fail. For example, a Michigan welder had his FMLA claim tossed because he had no good reason for not calling in his late arrival. The federal court found that his deposition testimony providing only “conjectural justifications” such as he was probably suffering an anxiety attack at the time, were not enough to avoid summary judgment. The result was the same for a Delta flight attendant based in Utah who was fired for violating airline policy by accepting an assignment and then canceling without sufficient notice. 7. Avoid derogatory remarks about those who take leave. If there’s one thing that’s going to make a plaintiff’s case easier in proving unlawful intent, it is a manager’s or decisionmaker’s derogatory remarks about a statutorily protected activity. In one case from a federal court in Indiana, an employee was previously disciplined for excessive absences and was subject to a last chance agreement, but he still survived summary judgment on his FMLA claims, which were supported by his supervisor’s disapproving remarks about his need for leave, including that he was on “thin ice” and was “burying himself.” In a federal case out of Illinois, a car salesman who was fired 13 days after returning from FMLA leave for heart surgery won an extra $308,240 in liquidated damages on his FMLA retaliation claim after the employer failed to show it acted in good faith. Significantly, his visible heart pack was treated with open disdain by his supervisor, and he was told “don’t die at the desk or I am going to drag you outside and throw you in the ditch.” He was also threatened with demotion. 8. Be consistent in your treatment of employees before and after leave. A change in the way an employee is treated after FMLA leave may be considered evidence that the leave was a negative factor in any disciplinary action. In one case, an employee claimed that as she took more FMLA leave, her new supervisor began to “watch her like a hawk,” then gave her warnings for allegedly violating attendance and personal phone usage policies, eventually placing her on two performance improvement plans and firing her. This was enough, ruled a federal court in Illinois, to state a plausible FMLA retaliation claim. In another case, a federal court in Michigan denied summary judgment based largely on evidence that an employee received a positive performance review before her FMLA leave, but afterwards was disciplined and terminated for poor performance, along with evidence that the employer skipped a step in its progressive discipline policy and created an after-the-fact paper trail documenting misconduct that purportedly occurred months earlier. 9. Adjust goals downward for employees who take FMLA leave. While it is important to be consistent in how you treat an employee before and after FMLA leave--and as compared to others, it is also important to adjust time-sensitive goals for those who take FMLA leave. For example, evidence offered by an account executive that her company didn’t adjust her sales targets to account for her intermittent FMLA absences and then fired her for failing to meet her goals raised an issue for trial on whether she was actually fired for taking FMLA leave, ruled a federal district court in New Hampshire. Similarly, a court in Tennessee denied summary judgment on FMLA claims by an employee who took intermittent leave to care for her daughter, based in part on evidence that the employer refused to let coworkers help her meet her goals, nitpicked her work, faulted her for missing goals when she took leave, and treated similarly situated employees who missed goals better than it treated the employee. 10. Not every deviation from what you expect of a seriously ill person suggests FMLA abuse. It’s one thing if an employee posts Facebook pictures of his vacation in St. Martin during FMLA leave—a federal court in Florida held that an employee who did just that failed to show he was fired for taking FMLA leave rather than for his conduct while on leave. Usually, though, suspected FMLA abuse isn’t so clear, so employers must tread carefully. In one case, a kitchen manager told his employer he was ill with blood in his stool and planned to go to the hospital or health department. Instead, he walked to a diner, had coffee, then drove home, contacting the health department the next day (he was diagnosed with colitis and diverticula and was treated for two years). Though he was fired for walking off the job, a federal court in Tennessee found triable questions on whether he gave notice of an FMLA-qualifying condition and triggered a retaliatory action. In a case out of Maine, a long-time employee approved for intermittent leave due to chronic anxiety told his employer he was taking the rest of the day off. He ran into a coworker and they had lunch. Coworkers notified HR, which had him watched. He was suspended for “possible FMLA fraud” and then fired. The federal court held that he stated a plausible FMLA retaliation claim. Other recent developments of note. In terms of case law, a recent ADA case bears mentioning because it highlights the confusion experienced by some employers concerning the potential overlap in their obligations under the ADA and the FMLA when an employee requests medical leave as an accommodation. In particular, it is important to note that an employee who has exhausted his or her FMLA leave may still be entitled to medical leave under the ADA. As explained by a federal court in Florida, granting the full 12 weeks of FMLA leave may not satisfy an employer’s independent duty to accommodate an employee’s disability under the ADA, such as through additional (though not indefinite) medical leave. Thus, the FMLA does not supplant the ADA when it comes to granting medical leave as an accommodation. Agency developments should also be noted, including the Department of Labor’s announcement of a new FMLA notice poster that employers will be required to post in their workplaces and a new employer guide designed to provide essential information on FMLA obligations. The DOL also recently issued a fact sheet on the joint employment relationship and the corresponding FMLA responsibilities of primary and secondary employers, including both an example and a chart to illustrate specific responsibilities. More information is available on the Department of Labor’s website, including posters; e-Tools; and fact sheets on employee notice requirements and how to calculate FMLA leave, rules for military family leave, and other topics.
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