Workplace Mysteries: Employment Law Under the Magnifying Glass. Employment Law Half-Day Seminar

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1 Employment Law Half-Day Seminar October 30, 2012 Seattle, Washington November 1, 2012 Portland, Oregon This notebook is a publication of Miller Nash llp. It is provided for informational purposes only and does not constitute legal advice or legal opinion about specific situations. Readers are urged to consult with legal counsel concerning their own specific facts and circumstances and any specific legal questions. For further information about the contents of this notebook, please contact Miller Nash Client Services by at clientservices@millernash.com or by phone at Copyright tel Workplace Mysteries: Employment Law Under the Magnifying Glass

2 THE CASE OF THE ENIGMATIC EMPLOYEE: UNRAVELING THE MYSTERIES OF LEAVE LAWS A Practical Guide to Leave Under Federal, Oregon, and Washington State Law Presented by Miller Nash LLP Ian M. Messerle Naomi Levelle-Haslitt and Kathryn L. Kammer I. INTRODUCTION. Many laws grant employees the right to be absent from work because of their own personal or a family member s medical condition or the arrival of a new baby. Those laws include: The Federal Family and Medical Leave Act ( FMLA ); The Oregon Family Leave Act ( OFLA ); and The Washington Family Leave Act ( WFLA ). Additionally, an employer may be required to provide leave to a disabled employee as a form of reasonable accommodation for a disability. The statutes requirements relating to employee coverage, eligibility, length of leave, use of paid time off, benefits continuation, and job restoration can vary significantly. Often there is some overlap, and a single leave of absence may simultaneously satisfy an employer s federal- and state-law requirements. 1 Whenever an employer is evaluating its leave obligations, the following strategies can be helpful: First, identify all applicable laws. Review eligibility requirements applicable to a given employee s situation. FMLA. (1) Employee must have worked for a total of at least 12 months (not necessarily consecutively); (2) employee must have worked for at least 1,250 hours during the 12-month period immediately preceding the leave; and (3) employer must have 50 or more employees within 75 miles of the employee s worksite. 1 Additionally, employees injured on the job may also need to take time away from work for the injury, and leave for that purpose may also qualify for leave under these statutes. This presentation does not address the statutes that address on-the-job injuries per se, but whenever an employee misses work for reasons related to an on-the-job injury, it should also be whether other statutes such as these apply. -1-

3 OFLA. Employee must have (1) worked for a period of 180 calendar days immediately preceding the date leave begins, and (2) worked an average of 25 hours per week during the 180-day period (unless leave is for care of a newborn child or adoptive child). For the Oregon Military Family Leave Act, the employee must work for the employer for an average of at least 20 hours per week and there is no 180-day requirement. WFLA. Eligibility requirements are the same as under FMLA, except in cases involving domestic partners and pregnant employees, from whom WFLA grants greater leave entitlement than FMLA. Second, evaluate what each law requires. Generally, if FMLA applies, an employer will start by complying with FMLA as its baseline and then consider whether other laws provide the employee with greater rights. Third, separate leave issues from pay issues. Decide how much unpaid leave is required and then consider whether any portion of the leave may be converted to a paid leave either by the employer or by the employee. Finally, separate leave issues from performance issues. Consider each leave request as if the request were made by the company s most outstanding employee, and do not let performance concerns taint the analysis of leave rights. Remember, an employer must comply with all applicable laws. So whichever law is the most advantageous to the employee in any given situation is what the employer should follow. II. HOW DOES AN EMPLOYEE PROPERLY REQUEST LEAVE FOR MEDICAL REASONS? If leave is foreseeable, an employee must provide 30 days written notice. If the leave is unforeseeable, the employee must comply with the employer s customary notice and procedural requirements for requesting leave, unless there are unusual circumstances, such as a medical emergency. The employee need not necessarily specifically request leave under FMLA, although the employee must give the employer sufficient information to allow the employer to determine whether FMLA applies to the leave request. For example, the employee could tell the employer that she is unable to perform her job functions, is pregnant, or has been hospitalized overnight. Merely calling in sick is insufficient. An employee must generally provide 30 days written notice of the request for leave, including an explanation of the need for leave, but need not specify that he or she is taking -2-

4 OFLA leave. When an employee is unable to give the employer 30 days notice but has some advance notice of the need for leave, the employee must give the employer as much advance notice as is practicable. In emergencies, the employee only needs to provide 24 hours oral notice before or after starting leave. That notice can be provided by another person on behalf of the employee. The employer can then require that he or she provide written notice within three days of returning to work. An employee must provide 30 days written notice, except in an emergency, in which case the employee must provide notice as soon as is practicable. III. WHAT INFORMATION SHOULD BE PROVIDED ON THE MEDICAL CERTIFICATION? The medical certification should include the name, address, and contact information of the healthcare provider, as well as the provider s type of medical practice or specialization. The certification may also include the approximate date the serious medical condition began and its probable duration. The certification must include a description of medical facts sufficient to support the need for leave. If the employee is the patient, the certification should include information sufficient to establish that the employee cannot perform the job s essential functions. If the patient is a family member, then the certification should include information sufficient to establish that care for the family member is necessary. In cases of intermittent leave or when the employee requests a reduced schedule, the certification should include information sufficient to establish the medical necessity of the leave as well as the expected frequency and duration of the leave. The employer may require additional certification for leave taken because of a qualifying military exigency. OFLA regulations allow an employer to require an employee to provide medical verification of the need for leave (other than for parental leave) but do not specifically provide guidance about what information should be included for the verification to be complete and sufficient. The medical certification should include the date when the serious condition started, how long it is expected to last, any relevant medical facts known by the healthcare provider, and a statement that the employee either cannot perform his or her job functions or is -3-

5 needed to provide care for a family member. When an employee asks for a reduced leave schedule or intermittent leave, the certification should include verification that the proposed schedule is medically necessary, the dates on which treatment will be given if they are known, and the expected duration of the reduced leave schedule or intermittent leave. IV. WHEN CAN AN EMPLOYER ASK FOR MORE INFORMATION? If the certification is incomplete or insufficient, the employer can make a written request for additional information by specifying what information is needed to make the certification complete. In most circumstances, the employee has seven days to cure the deficiency. Once an employee has submitted a complete and sufficient certification signed by the healthcare provider, the employer may contact the provider for clarification and authentication of the certification. The employer cannot, however, request additional information. Contact by the employer with the provider is limited. Human resources professionals are among a select group of employer representatives who may contact the provider. Under no circumstances may the employee s direct supervisor contact the provider. If the employee submits sufficient medical verification signed by a healthcare provider, the employer generally cannot request additional information from either the employee or the medical provider. If an employer determines that a medical verification provided by an employee is incomplete or insufficient, the employer must provide written notice to the employee stating that the verification is incomplete or insufficient and the additional information needed to make it complete or sufficient. The employer may not, however, directly contact the employee or employee s family member s healthcare provider to request additional information. If the employee gives permission, a healthcare provider representing the employer can contact the employee s healthcare provider to clarify or authenticate the medical verification. The WFLA does not address the extent to which an employer may ask for more information except that it allows an employer to seek a second opinion when it has reason to doubt the validity of the information included in the certification. Generally, however, Washington law follows the federal law. V. CAN THE EMPLOYER ASK FOR A SECOND OR THIRD OPINION? The employer can ask for a second opinion when there is reason to doubt the validity of medical certification. If the first and second opinions differ, the employer may request a third opinion. The employer must cover the costs of obtaining the second and third opinions. -4-

6 The employer may designate which healthcare provider provides the second opinion, so long as the healthcare provider is not regularly employed by the employer. Both the employee and employer must jointly approve the third healthcare provider, and the third opinion is final and binding. Unless the employee has requested parental leave, an employer may ask for a second opinion and designate the healthcare provider. If the second opinion conflicts with the first, the employer may request that the first and second healthcare providers choose a third provider. The third opinion is final and binding. The employer must pay for both the second and third opinions. An employer generally may not request subsequent medical verifications more often than every 30 days. And even then, they can be requested in connection with an employee s absence only when the circumstances described by the previous medical verification have significantly changed (for example, the duration or frequency of absences) or the employer receives information that casts doubt on the employee s stated reason for the absence. If the employer has reason to doubt the validity of the first medical certification, the employer can require, at the employer s own expense, that the employee get a second opinion. The employer can choose the second healthcare provider, as long as that healthcare provider does not regularly work for the employer. An employer may also request certification of a medical condition by a third healthcare provider on a reasonable basis. The third medical opinion is binding. VI. WHAT CAN THE EMPLOYER DO WITH THE POSITION WHILE A PERSON IS OUT? The employer is free to fill or eliminate the position while an employee is on FMLA leave as long as the employee returns to the same or equivalent position in pay, seniority, terms, and conditions. There are special provisions for highly compensated key employees. An employer must restore an employee returning from OFLA leave to the employee s former position if the job still exists. During an employee s leave, the employer can hold the position open or fill it with a replacement worker. If the position is eliminated during the employee s leave, he or she must be returned to any available and equivalent position. An equivalent position is one that has the same benefits, pay, and terms of employment. If the employer cannot provide an equivalent position at the employee s former jobsite, the employer can provide an equivalent position within 20 miles of the former jobsite. -5-

7 The employer can hold or fill the position, so long as the employee s position or equivalent is restored. The employer complies with WFLA by returning the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment if the workplace is within 20 miles of the employee s workplace at the time the employee began his or her WFLA leave. As with federal law, there are special provisions for key employees who are highly compensated. VII. WHAT IF THE EMPLOYEE LEFT UNEXPECTEDLY AND IS THE ONLY PERSON WITH CERTAIN KNOWLEDGE? CAN THE EMPLOYER COMMUNICATE WITH THE EMPLOYEE? Yes, the employer can communicate with the employee on leave, within reason. For example, the few courts to consider the issue have held that occasionally contacting the employee to fill in gaps in institutional knowledge or answer questions about incomplete assignments does not violate FMLA. But asking the employee to complete those assignments or contacting the employee too frequently could infringe on his or her rights. See Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, (S.D.N.Y. 2009); Kesler v. Barris, Sott, Denn & Driker, PLLC, 482 F. Supp. 2d 886, (E.D. Mich. 2007). Oregon law does not address this type of communication. Washington law does not explicitly prevent this type of communication. It is unclear at what point contact from the employer could be considered an interference with leave taken under WFLA. VIII. CAN THE EMPLOYER CONTACT THE EMPLOYEE TO FIND OUT WHEN HE OR SHE IS COMING BACK? Yes, an employer may periodically contact an employee on FMLA leave for updates on the employee s status and whether and when he or she intends to return to work. Yes. The employer can ask the employee to periodically keep it informed of the employee s status and his or her intention to return to work in accordance with the employer s established leave policy. -6-

8 Yes. An employer may require periodic reports from the employee on his or her status and intentions to return to work. IX. WHAT IF THERE IS A REDUCTION IN FORCE WHILE THE EMPLOYEE IS ON LEAVE? The employee has no greater rights than he or she would have had if he or she had not taken any leave. If the employee would have been laid off even if he or she had not taken leave, then the employer does not have to reinstate the employee at the end of the leave period. The employer s obligation to reinstate the employee and to continue group health benefits ends as soon as the layoff occurs. But the employer must be able to prove that the employee s position being selected for layoff was unrelated to the employee s leave. Similar to federal law, unless a collective bargaining agreement or other agreement or policy provides otherwise, employees on OFLA leave are subject to layoff the same as other employees not taking leave. If an employee would have been bumped regardless of whether leave was taken, the employer does not need to reinstate the employee. Washington law is substantially the same as federal law. X. WHAT IF AN EMPLOYEE S LEAVE ENTITLEMENT RUNS OUT BEFORE HE OR SHE RETURNS TO WORK? If the employee exhausts his or her FMLA leave entitlement and still cannot return to work, the employer has no further obligations under FMLA. But this requires that the employee give unequivocal notice of intent not to return to work. A failure to return to work without any communication to the employer may be sufficient to constitute unequivocal notice of intent not to return. Brown v. J.C. Penney Corp., 924 F. Supp (S.D. Fla. 1996). If the employee wishes to return to work but is unable to because of his or her health condition, this does not necessarily end the employer s obligations. An employer must consider whether other laws apply (including the Americans With Disabilities Act (the ADA ) workers compensation, or state law). For example, the employee s health condition may qualify as a disability under the ADA. ADA disabilities can include physical, mental, and even temporary impairments. If the employee s health condition qualifies as a disability, the ADA may require the employer to make a reasonable accommodation for that disability by providing additional leave. -7-

9 Similar to federal law, when an employee exhausts his or her leave entitlement, the employer must consider whether other laws or policies may require the employer to provide additional leave. Generally, once an employee has completely exhausted his or her leave entitlement, the employer has no obligation under Washington law to provide additional leave. Pregnancy, however, is one circumstance in which an employee may have additional leave under Washington law. First, a Washington Human Rights Commission regulation allows an employee as much leave as necessary for a pregnancy- or childbirth-related disability. This leave for pregnancy- or childbirth-related disability runs concurrently with FMLA, but not with WFLA. As a result, there could be circumstances under which an employee returns from FMLA/pregnancy-disability leave but still has a remaining entitlement to WFLA leave (e.g., for the care of a newborn child). XI. WHAT OBLIGATIONS DOES AN EMPLOYER HAVE REGARDING BENEFITS WHILE THE EMPLOYEE IS ON LEAVE? The employer must continue to provide medical coverage to the employee and his or her covered family members if the employee is part of a group health plan. A group health plan is a plan of, or contributed by, an employer (including a self-insured plan) to provide healthcare to an employee. The employer may require the employee to continue paying any premiums that she or she would normally pay, as if there were no leave. This requires advance written notice. The employer may recover its share of health premium costs from the employee if the employee fails to return to work at the end of the FMLA leave period for reasons other than a continuation or onset of a serious health condition or other circumstances beyond the employee s control. Non-healthcare benefits are determined by the employer s general leave policy. Some employers, however, prefer to maintain all benefits during leave because an employer must provide equivalent benefits when the employee returns to work, and a lapse in coverage could preclude the employer from doing so. Any benefits that the employee was entitled to before starting OFLA leave must be restored in full upon the employee s return to work. If benefits have been eliminated or changed for other similarly situated employees while the employee was on leave, however, the benefits do not have to be restored to the previous levels they would need to be restored at the level now available to those other similarly situated employees. An employer can elect to continue health or other insurance benefits for an employee but may require only that the employee pay the same share of the health or benefit -8-

10 premium as the employee paid before taking leave. If the employee will not pay those premium costs, the employer may elect to discontinue benefit coverage unless doing so would make the employer unable to restore the employee to full benefit coverage upon the employee s return to work. Also, if the employer pays the premium cost (or a portion of the cost) for employees on other types of leave, the employer must pay that portion during the employee s OFLA leave. Under WFLA, if an employer policy or collective bargaining agreement requires the continuation of medical or dental benefits during WFLA-covered leave, then the employer must continue the contributions for such benefits. If no policy or union contract requires such a contribution, the employer must give the employee the option of maintaining medical and dental benefits during the 12-week leave period at the employee s own expense. Generally, Washington law places no obligation on employers with regard to other types of benefits. There are, however, exceptions. Vacation time, sick leave, and retirement benefits do not continue to accrue during an employee s leave, but an employer cannot deny or eliminate employment benefits that had already accrued before the employee took WFLA leave. XII. WHEN THE EMPLOYEE COMES BACK, WHAT CAN THE EMPLOYER DO WITH THE PERSON WHO WAS HIRED TO FILL THE POSITION WHILE THE EMPLOYEE ON LEAVE WAS OUT? While FMLA provides specific protection for the returning employee, it provides no similar protection for the employee who has been filling in during the absence. Assuming that the fill in employee is employed at will and the employer otherwise complies with applicable law, the employer may terminate the employment of that employee. Oregon law does not differ significantly from federal law on this point. Washington law does not differ from federal law on this point. XIII. MUST THE EMPLOYEE BE GIVEN RAISES AND BONUSES THAT HE OR SHE WOULD HAVE GOTTEN IF NOT FOR THE LEAVE? The short answer is no, as long as the employer treats others the same. Nonetheless, certain types of bonuses may have to be paid, such as those given for performance incentives and not simply for cumulative hours worked. -9-

11 Bonuses based on attendance cannot be denied because the employee took leave. Washington law is the same as federal law. XIV. WHAT DOCUMENTATION CAN THE EMPLOYER REQUIRE BEFORE THE EMPLOYEE COMES BACK TO MAKE SURE THAT HE OR SHE IS ABLE TO PERFORM THE JOB? The employer may require a fitness-for-duty certification when an employee returns from FMLA leave. But the certification is limited to addressing the particular health condition that caused the employee s need for FMLA leave. The employer may require that the certification address the employee s ability to perform the essential functions of the job. If leave has not been provided under FMLA, but has been provided as a reasonable accommodation, in certain circumstances the employer has a similar ability under the ADA to require documentation that the employee is able to return to work. If OFLA leave was taken for an employee s own serious health condition, the employer may require the employee to present verification from the employee s healthcare provider that the employee is able to resume work, if the requirement is applied under a uniformly applied practice or policy of the employer, before restoring the employee to work. Similar to considerations under federal law, if leave is not taken under OFLA but is provided as a reasonable accommodation of a disability, then there may be limitations on the extent to which an employer may request a fitness-for-duty examination. The employer may require a medical certification if leave has been taken under WFLA and the employer has a uniform policy requiring returning employees to provide this certification. This may change, however, if a local law or collective bargaining agreement provides otherwise. As with federal law, if leave has been provided as a reasonable accommodation, employers should be aware that they may be limited in their ability to request this type of examination. SEADOCS: