Advanced Issues in FMLA Law

Transcription

1 Beyond the Basics: Advanced Issues in FMLA Law Wednesday, February 24, :00 PM Eastern Sponsored by the Section of Labor and Employment Law

2 SERIOUS HEALTH CONDITION A serious health condition is one involving an illness, injury, impairment, or physical or mental condition that involves: Inpatient care (requires an overnight stay); or Continuing treatment by a health care provider (incapacity for more than 3 consecutive calendar days and a regimen of continuing treatment.) 2

3 INPATIENT CARE What is an overnight stay? Is it calculated from time of arrival or time of admission? Is there a minimum time requirement? Will midnight to 5 a.m. do it? 11 p.m. to 7 a.m.? Something else? 3

4 INPATIENT CARE Bonkowski v. Oberg Indus., 787 F.3d 190 (3 rd Cir. 2015) Facts: Plaintiff arrived at the hospital shortly before midnight on November 15 and was discharged in the early evening of November 16. Holding: An overnight hospital stay is one that lasts from one day to the next and lasts at least eight hours, as measured by the inpatient's admission and discharge 4

5 CONTINUING TREATMENT POINTS TO REMEMBER The incapacity must last more than 3 calendar days -- not the absence. An employee who is incapacitated from Saturday through Tuesday falls within this parameter even though she only missed two days of work. Must have continuing treatment along with the incapacity. 5

6 CONTINUING TREATMENT A retail employee who misses four days of work due to a sprained ankle but who does not require any treatment other than rest and some ibuprofen does not have a SHC If the employee sees a doctor and gets prescription painkillers, has a SHC If the employee sees the doctor, still only needs rest and ibuprofen, but had to go for a follow-up appointment before returning to work, has a SHC What if the follow-up appointment is not until two weeks later? A month later? 6

7 The Timing of the Two Visits Jones v. Denver Public Schools, 427 F. 3d 1315 (10 th Cir. 2005) Facts: Employee visited doctor on fourth day of absence for cortisone shot and note. Employer discharged employee for violation of attendance policy upon his return to work. Employee visited the doctor again twenty days later. Court held that the two visits must both take place during the period of incapacity and therefore the discharge did not violate FMLA. 7

8 WHAT CONSTITUTES NOTICE FROM EMPLOYEE From Employee -- Need only put the employer on notice that leave is needed for a FMLAcovered reason. Employee need not mention FMLA unless employee is asking for leave for the same condition for which the employer previously granted him FMLA leave. 8

9 EXAMPLES Employer is on notice that leave might be for FMLA reason: If employee tells employer he needs to miss work because she is having hernia surgery and will be in hospital for a few days If employee, upon return to work from absence, gives employer a doctor s note stating that employee missed work due to concussion for which he was hospitalized overnight If employee tells employer he has take off a week of work because his mother is having some health problems and needs his help Employer can ask the employee some follow up questions to clarify if the mother s problems are medical Employer is not on notice that leave might be for FMLA reason: If employee calls in sick one day If employee asks for some vacation time, without further explanation 9

10 EMPLOYER S RESPONSE TO NOTICE The employer can take no action no FMLA inquiry, allow the leave without calling it FMLA, issue no discipline -- no problem The employer can immediately designate the leave as FMLA if it has the information to do so. Do not have to require a certification. The employer can start the FMLA certification process: Within 5 business days of request for leave, notify employee that she is eligible or is not eligible (and why) for FMLA (this part can be done orally); provide the rights and responsibilities notice; then designate the leave as FMLA leave. 10

11 WHAT IF EMPLOYER FINDS OUT THE LEAVE WAS FOR A FMLA REASON AT A LATER TIME? Employee asks for a week off, saying he needs to do some things around the house. Employer agrees and grants a week of vacation. Employer finds out the next month that the employee had surgery that week and was in the hospital for two days. What can the employer do? Can the employer go back and designate the week as FMLA leave? Can always do nothing and keep it as a vacation week Regulations seem to allow the employer to either designate the leave or start the designation process once it obtains knowledge at least three circuit courts (the 2 nd, 6 th, and 8 th ) have allowed employer to force the leave to be counted against FMLA so long as no interference with FMLA use. 11

12 But... The Ninth Circuit has stated that the FMLA designation cannot be forced: Escriba v. Foster Poultry Farms, 743 F.3d 1236 (9 th Cir. 2014) plaintiff asked for vacation time to go care for her sick father. She had unequivocally declined FMLA. The Court stated that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. It went on to explain that: By declining to take FMLA leave and subsequently requesting it at a later date, an employee can first take paid vacation, after which that employee would still have the full 12 weeks of FMLA remaining. 12

13 IS IT FMLA OR ISN T IT? What if employer does not provide a designation notice, the employee takes leave in accordance with his request, and during/after the leave the employer determines the employee wasn t eligible for FMLA? What happens when an employer designates leave as FMLA and determines at some point after the employee has taken the leave that its designation was mistaken? 13

14 IS IT FMLA OR ISN T IT? There are regulatory provisions that allow an employee to state a case for interference where notice is not provided or not timely provided Employee must be able to show a harm from the failure to properly designate, i.e., he suffered a harm as a result of the employer s failure to designate Cases addressing a change in designation get to the same place through an equitable estoppel argument 14

15 CERTIFICATION If employer is going to require certification of need for leave, must ask for it in most situations at time notified of need for leave or within five business days of notification/start of leave The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration. 15

16 CERTIFICATION ISSUES Incomplete/insufficient certification must inform employee in writing of the additional information needed and provide employee opportunity to cure (7 calendar days) Employee has option of signing authorization for her health care provider to give information directly to health care provider designated by employer If not returned at all or still incomplete/insufficient, can deny leave Employers must follow this process before denying leave 16

17 CERTIFICATION ISSUES By contrast, second opinions are optional employer may require one if it has reason to doubt validity of the certification provided by the employee but not mandatory before leave denial While not a violation of the FMLA to not request a second opinion, denial after submission of a complete certification will raise questions The case law is vague on the meaning of doubts the validity 17

18 RECERTIFICATION The general rule is that an employer can request recertification no more often than every 30 days Unless initial certification indicates a minimum duration greater than 30 days in which situation employer must wait until that duration has passed; or Unless employee asks for an extension of the leave; circumstances described by the previous certification have changed substantially; employer receives evidence that casts doubt on validity of certification Regardless of the above, the employer can always request recertification every 6 months in connection with an absence 18

19 INTERSECTION OF FMLA AND OTHER LAWS What are the purposes of the FMLA? What are the Other Laws? Extended Self-Care Leave Family Responsibility Discrimination and Caregiver Leave 19

20 INTERSECTION OF FMLA AND OTHER LAWS PURPOSES OF THE FAMILY MEDICAL LEAVE ACT [A]llow employees to balance their work and family life by taking reasonable unpaid leave for medical reasons... for the care of a child, spouse, or parent who has a serious health condition... [B]alance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity. 29 C.F.R (a). 20

21 INTERSECTION OF FMLA AND OTHER LAWS PURPOSES OF THE FAMILY MEDICAL LEAVE ACT A direct correlation exists between stability in the family and productivity in the workplace. When workers can count on durable links to their workplace they are able to make their own full commitments to their jobs. There are powerful productive advantages of stable workplace relationships... The FMLA is intended to guarantee that those relationships will not be dissolved while workers attend to pressing family health obligations C.F.R (c). 21

22 INTERSECTION OF FMLA AND OTHER LAWS The Civil Rights Act of 1964 (Title VII) The Pregnancy Discrimination Act (PDA) Americans with Disabilities Act (ADA-AA) Age Discrimination in Employment Act (ADEA) Employee Retirement Income Security Act (ERISA) The Equal Pay Act (EPA) Workers Compensation Laws THE OTHER LAWS Genetic Information Nondiscrimination Act (GINA) Polygraph Protection Act (PPA) The Fair Labor Standards Act (FLSA) Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) National Labor Relations Act (NLRA) Miscellaneous State Laws 22

23 INTERSECTION OF FMLA AND OTHER LAWS EXTENDED SELF-CARE LEAVE AFTER EXPIRATION OF THE FMLA LEAVE PERIOD 23

24 INTERSECTION OF FMLA AND OTHER LAWS EXTENDED SELF-CARE LEAVE The employer is permitted to choose the method for determining the 12-month period in which the 12 weeks of FMLA leave entitlement occurs. Method of calculating the entitlement year must be applied consistently and uniformly to all employees. Employees must be given at least 60 days notice of any changes to method for calculating the entitlement year. Any change must occur in a way that gives the employee the greatest benefit. 29 C.F.R (b), (c). 24

25 INTERSECTION OF FMLA AND OTHER LAWS EXTENDED SELF-CARE LEAVE Reasonable Accommodation Under the ADA-AA Recuperating from an illness or an episodic manifestation of a disability (i.e. chemotherapy) Obtaining repairs on a wheelchair, accessible van, or prosthetic device Additional medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis) Rehabilitation services EEOC Enforcement Guidance No (Oct. 17, 2002) 29 C.F.R (o) 25

26 INTERSECTION OF FMLA AND OTHER LAWS EXTENDED SELF-CARE LEAVE Reasonable Accommodation Under the ADA-AA Physical or occupational therapy Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis) Training a service animal Receiving training in the use of braille or to learn sign language. EEOC Enforcement Guidance No (Oct. 17, 2002) 29 C.F.R (o) 26

27 INTERSECTION OF FMLA AND OTHER LAWS OTHER ISSUES RELATED TO SELF-CARE LEAVE ERISA Section 510 It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan. 29 U.S. Code Polygraph Protection Act It shall be unlawful for any [covered] employer to: (1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test; (2) to use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee; (3) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against (A) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or (B) any employee or prospective employee on the basis of the results of any lie detector test U.S. Code

28 GINA INTERSECTION OF FMLA AND OTHER LAWS SELF-CARE LEAVE: OTHER ISSUES A covered entity may not request, require, or purchase genetic information of an individual or family member of the individual. 29 CFR (a). A request for documentation supporting a request for reasonable accommodation is lawful only when the disability and/or the need for accommodation is not obvious; the documentation is no more than is sufficient to establish that an individual has a disability and needs a reasonable accommodation; and the documentation relates only to the impairment that the individual claims to be a disability that requires reasonable accommodation. 29 C.F.R (b). National Labor Relations Act - Individual complaints about workplace safety, unemployment insurance, workers compensation, pay and benefits may be concerted activity protected by the NLRA even in non-union workplaces. See NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962) 28

29 INTERSECTION OF FMLA AND OTHER LAWS FAMILY RESPONSIBILITY DISCRIMINATION AND CAREGIVER LEAVE 29

30 INTERSECTION OF FMLA AND OTHER LAWS Family Responsibility Discrimination and Caregiver Leave Gender-based discrimination and stereotyping The Maternal Wall Work-Family Conflicts Affecting Low Wage Workers Caregiver Vulnerability to Retaliation The Sandwich Generation 30

31 INTERSECTION OF FMLA AND OTHER LAWS Family Responsibility Discrimination and Caregiver Leave Care of Spouse, Minor Children and Parents with Serious Health Conditions Who is covered? 29 C.F.R What is needed? Transportation, psychological comfort, reassurance, etc. Care of Adult Children Children Age 18 and older who are incapable of self-care because of a mental or physical disability. 29 C.F.R (d) Needs active assistance or supervision for daily self-care in three or more of the activities of daily living or instrumental activities of daily living. 29 C.F.R (d)(1). Hygiene, bathing, dressing, eating, cooking, cleaning, shopping, public transportation, paying bills, maintaining a residence, using telephones, using post office, etc. In loco parentis Rule Persons with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological relationship is not necessary. 29 C.F.R (d)(3). 31

32 INTERSECTION OF FMLA AND OTHER LAWS Family Responsibility Discrimination and Disability Association Discrimination Caregiver Leave 42 U.S.C (b)(4)) prohibits employment discrimination against a person, whether or not he/she has a disability, because of his/her known relationship or association with a person with a known disability. See Buffington v. PEC Mgmt. II, LLP, 2014 U.S. Dist. LEXIS (W.D. Pa. 2014) (denying employer s motion for motion for new trial in ADA Association following $200,000 jury verdict) Gender/Pregnancy Discrimination Under Title VII Care related to the birth of a child. Leave specifically for a period of incapacitation related to pregnancy and childbirth Discrimination against male caregivers. See Nevada Dep t of Human Res. v. Hibbs, 538 U.S. 721, 738 (2003). Fair Labor Standards Act Mandatory overtime policies and single-parent households. Nursing Mothers returning from FMLA leave. 29 U.S.C. 207(r). 32

33 FMLA RETALIATION AND INTERFERENCE WHEN IS EXTENDED LEAVE CONSIDERED JOB ABANDONMENT? No Fault Attendance Policies The Undue Hardship Defense Employer s Failure to Engage in the Interactive Process Employee s Failure to Engage in the Interactive Process Unspecified Duration of Treatment Work-From-Home Requests and Reinstatement 33

34 Intermittent Leave February Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 2 OUT OUT OUT OUT OUT OUT OUT OUT OUT 34

35 What is Intermittent Leave? Intermittent leave is leave taken in separate blocks of time due to single qualifying reason Scheduling: Each block can be taken at once, or separated by weeks, days, hours, or minutes It can be structured as a reduced work schedule (i.e., full- to part-time) Accounting increment: no greater than lesser of shortest period used for other leaves or hour 35

36 Possibly Required Beyond FMLA Intermittent leave may also be required by: ADA State or local FLA / FMLA State or local disability accommodation laws But different primary purposes FMLA = job-protected leave ADA and other accommodation laws = allowing qualified employees to work, even though time off might be accommodation 36

37 Employee Notice for Intermittent Leave Same general rules apply While initial notice need only be given once, employee must advise as soon as practicable if dates of scheduled leave change, are extended, or were initially unknown Reasonable effort required to schedule planned absences so as not to disrupt unduly employer s operation consultation ordinarily expected prior to scheduling 37

38 Handling Requests for Intermittent Leave Same basics as for other leave requests Determine which law(s) is/are implicated Provide any required notice(s) and certification form(s) If leave could be accommodation, start interactive process 38

39 Initial Steps in Considering Intermittent Leave 1. Review (Re-)Certification for completeness 2. Employee required to make reasonable effort to schedule planned absences so as not to disrupt unduly employer s operation Consultation ordinarily expected prior to scheduling Employer should develop checklist for unduly disruptive scheduling (e.g., avoid busy Fridays) 3. Employer may consider alternative positions 39

40 Alternative Positions Employee can be assigned to alternative position during foreseeable intermittent leave if: Same rate of pay and benefits Employee qualified for position and Position better accommodates recurring periods of leave than employee s regular position 40

41 Scenario Alternative Position In response to concerns about business impact of intermittent leave for Frank s planned treatment schedule, employer counters with more flexible alternative position: On night shift rather than Frank s typical day shift 40 miles further away from Frank s home Only $1,000 less pay Has employer violated FMLA? (a)yes, because of shift change (b)yes, because of distance (c)yes, because of pay change (d)all of above (e)none of above 41

42 Alternative Position Caveats Transfer to alternative position cannot be used to discourage employee from taking leave For example: Day to night shift Longer commute Alternative position ultimately less flexible 42

43 Suspicious Circumstances 43

44 Suspicious Circumstances What can employer do if FMLA leave sought: right after vacation request is denied? employee working another job? evidence that engaged in inconsistent activity? other suspicious circumstances? Considerations Employee or family member serious health condition? What does medical certification say? Second opinion? Recertification? Surveillance? 44

45 Early Recertification Where Doubt Cast Regulations permit early recertification when employer receives information that casts doubt upon employee s stated reason for absence or certification s continuing validity But beware risk of HCP who will explain away and sign off on seemingly anything 45

46 Policy Protections Against Leave Abuse Include prohibitions on moonlighting and providing misleading or false information Require consultation prior to scheduling treatment and appointments Require daily and specific notice when taking intermittent leave Only approve certified leave 46

47 Initial Steps for Suspected FMLA Abuse If absence potentially covered, start discussions even if employee does not request leave Request certification as soon as leave mentioned and review closely Consider starting use of FMLA tracking resources right away 47

48 Scenario -- Suspicious Timing John s request to take Christmas week off to join fiancée's family in Paris is denied John responds with FMLA certification of need for that week off to receive treatments for foot problem Overtaxed co-worker shows HR pictures John posts that week standing in front of many Parisian sites What should employer do? (a) (b) (c) (d) Terminate John immediately Bring him in for discussion Request clarification from certifying HCP Request second opinion 48

49 Scenario -- Suspicious Physical Activity Pursuant to certification, Tina takes frequent unplanned leaves for incapacitating back condition Co-worker reports seeing Tina doing heavy squats at gym What can employer do without violating FMLA? (a)bring her in for discussion (b)request second opinion (c)see if gym has footage (d)engage private investigator for surveillance (e)all of above 49

50 Scenario -- Suspicious Physical Activity (cont d) Which of these steps should employer take in connection with Tina? (a)bring her in for discussion (b)request second opinion (c)see if gym has footage (d)engage private investigator for surveillance (e)all of above 50

51 Permitted Monitoring Surveillance by hiring private investigator Observations of other employees Periodic Social Media searches Compare absences with certification through in-place tracking mechanisms 51

52 Suspicious Absence Patterns What to do with FMLA absence patterns such as following? Every Monday and Friday Every period when o.t. expected Front and/or back ends of every holiday In-demand vacation periods for which need seniority If suspicious FMLA absence pattern, can: Review medical certification Review FMLA tracking resources Require recertification verification of whether condition and need for leave are consistent with actual absence pattern 52

53 Suggested Actions - Documentation Require medical certifications, second and third opinions, and recertifications where circumstances warrant HR can review medical certification with Third Party Administrator HR can send letters (e.g., frequency and duration; suspected falsification) Have employee sign absence acknowledgement 53

54 Poor Performance Poor performance does not affect right to FMLA leave Performance issues can still be addressed, with continued documentation critical, BUT Past performance does not affect right to FMLA leave FMLA absences cannot be cause, for example: tasks not completed earlier because of FMLA absences FMLA absences counted as attendance violations 54

55 Scenario Performance Andrew s performance long below average He provides certification of need for unplanned intermittent leave for episodic depression Approval would put departmental co-workers under great pressure What action can employer take? (a) (b) (c) (d) (e) Talk to department about its needs before approval Provide alternative position where leave would not be as difficult Ask for second opinion regarding his depression Terminate because long record of poor performance It depends 55

56 Termination Employer must be able to show that employee would have been terminated even if he or she had not taken medical leave Generally, reason for termination should occur relatively close in time to termination decision Honest Belief Rule Caveat: Rely on what is known, not assumed 56

57 Attendance Policies / Termination Cannot penalize employees for taking leave protected by statute, even under no-fault attendance policy Policies that provide for automatic termination after FMLA leave expires or after employee is off work for set period of time are extremely problematic and not encouraged Instead, employ Interactive Assessment Policy after FMLA period is over 57

58 OTHER HOT-BUTTON EMPLOYER FMLA CONCERNS 58

59 Attendance Policies/Termination Challenges to automatic termination policies: $6.2 million settlement $3.2 million settlement Challenges to no fault attendance policies $20 million settlement 59

60 Bonuses and Other Payments / Accruals Employee on or returned from FMLA leave entitled to: any unconditional increases discretionary or non-discretionary payments not based on specified goals such as hours worked, products sold, or perfect attendance 60

61 Joint Employer, Off-the-Clock, and GINA DOL and other agencies seeing integrated / joint employers if any relationship Employees making off-the-clock-work claims to meet FMLA eligibility criteria GINA prohibits employers from requesting genetic information 61

62 10 BEST WAYS FOR EMPLOYER TO LOSE FMLA CASE 62

63 Top 10 Ways To Lose An ADA/FMLA Case 10. Automatically terminate under attendance policy 63

64 Top 10 Ways To Lose An ADA/FMLA Case 10. Automatically terminate under attendance policy 9. Deny leave because of performance issues 64

65 Top 10 Ways To Lose An ADA/FMLA Case 10. Automatically terminate under attendance policy 9. Deny leave because of performance issues 8. Require same volume while on reduced work schedule 65

66 Top 10 Ways To Lose An ADA/FMLA Case 10. Automatically terminate under attendance policy 9. Deny leave because of performance issues 8. Require same volume while on reduced work schedule 7. Supervisor not recognizing notice of qualifying leave 66

67 Top 10 Ways To Lose An ADA/FMLA Case 10. Automatically terminate under attendance policy 9. Deny leave because of performance issues 8. Require same volume while on reduced work schedule 7. Supervisor not recognizing notice of qualifying leave 6. Supervisor not documenting reasons for absences 67

68 Top 10 Ways To Lose An ADA/FMLA Case 5. Terminating employee on FMLA leave because of reorganization triggered by her going on leave 68

69 Top 10 Ways To Lose An ADA/FMLA Case 5. Terminating employee on FMLA leave because of reorganization triggered by her going on leave 4. Waiting until on leave to address performance issues 69

70 Top 10 Ways To Lose An ADA/FMLA Case 5. Terminating employee on FMLA leave because of reorganization triggered by her going on leave 4. Waiting until on leave to address performance issues 3. Transferring to inappropriate alternative position 70

71 Top 10 Ways To Lose An ADA/FMLA Case 5. Terminating employee on FMLA leave because of reorganization triggered by her going on leave 4. Waiting until on leave to address performance issues 3. Transferring to inappropriate alternative position 2. Denying leave because creates undue hardship 71

72 Top 10 Ways To Lose An ADA/FMLA Case 1. Making biased comments: You re going on leave at worst possible time. She s always absent. He s off again and probably in psych ward. I wouldn t recommend her for promotion we ve had to spend too much time and $ covering for her absences. He s a troublemaker. 72