The FMLA Blog

Is Paid Military Caregiver Leave on the Horizon?

On January 28, 2008, the FMLA was amended to allow eligible employees to take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered servicemember suffering from a serious injury or illness incurred in the line of duty while on active duty.  The leave, however, is unpaid.  That may change.

Senator Richard Durbin (D-IL), with 12 cosponsors, introduced S. 543, the Veteran and Servicemember  Support Act of 2009.  The Act directs the VA, in collaboration with the Secretary of Defense, to set up a two-year pilot program at six facilities nationwide to train family member caregivers who agree to provide caregiver services to eligible veterans and members of the Armed Forces.  Caregivers who complete the training program will be certified as caregivers.  The program proposes to pay eligible family caregivers a reasonable amount for providing care service.  The amount will vary depending on the amount and intensity of care needed.   

If enacted, the legislation could lead to the federal government (at the moment) paying certified family members to care for their seriously injured or ill covered servicemembers in the Armed Forces.  If the FMLA applies, the combination would result in taxpayer paid military caregiver leave. 

FMLA military caregiver leave does not apply to veterans.  However, if the veteran is a covered family member and has an FMLA-qualifying serious health condition, the program may also result, as a practical matter, in taxpayer paid FMLA leave. 

Comment:  Legislation proposing paid leave is all the rage this summer.  Given that Senator Durbin in the Majority Whip, the legislation stands a very good chance of passing in the Senate.  However, it will be interesting to see what actually makes it through the legislative sausage factory given the economic climate.   

Employer Policy May Require Employee to Submit Doctor's Note Within a Reasonable Period of Time Verifying that Intermittent Absence Was Due to Approved FMLA Condition

CallTech Communications policy required employees to submit a doctor's note verifying that every intermittent absence is directly related to the employee's medical condition is on file.  The policy applied to intermittent FMLA leave. If the employee provided the doctor's note, absences covered by the note would not be used against the employee pursuant to the employer's points-based attendance policy.    

Stephanie Smith was employed at CallTech Communications for a little over a year until her terminated. Throughout her employment MS. Smith suffered from chronic major depressive disorder.  As a result of her condition, she had attendance issues. She requested, and was granted,intermittent FMLA leave for her condition.  Ms. Smith accumulated points for absences that placed her job in jeopardy.  Management told her that she could avoid being terminated if she provided doctor's notes covering sufficient absences to reduce her attendance point total. CallTech gave Ms. Smith three days to provide the doctor's notes.  When she did not provide the doctor's notes within the three-day period, MS. Smith was terminated. 

Smith sued alleging interference with the FMLA.  The court did not agree.  The court found that CallTech 'was clearly entitled to some form of medical documentation for Ms. Smith's absences even though she had been approved for intermittent FMLA leave for her depression and had verbally informed her supervisor that her absences were related to the condition."  However, the court found that the three-day period she was given to provide the doctor's notes was not reasonable as a matter of law.  The court opined:

While CallTech may not have been required to give Ms. Smith fifteen days to comply with its request, it did have to provide her a reasonable amount of time under the exigencies of the situation to obtain any notes from her doctor. 

Smith v. CallTech Communications, LLC, No. 2:07-cv-144, 2009 U.S. Dist. LEXIS 48518 (S.D. Ohio June 10, 2009). 

Comment:  The case illustrates two points: First, an employer's policy may require an employee to provide a doctor's notes to link their current intermittent absence to an approved FMLA condition.  In Smith, the policy did not require the employee to run to the doctor every time.  The policy specifically allowed an employee to provide the doctor's note after a few absences. 

Second, although the amended regulations (825.302(d)) require an employee to abide by an employer's usual and customary requirements for requesting leave, employers would be well-advised to adopt policies that set a reasonable period of time for the employee to provide the doctor's note, with some flexibility that takes into account the circumstances of each case.  A draconian policy with a very short turn around time that also fails to take into account the totality of the circumstances runs the risk of being found invalid.  An employer that enforces such a policy may interfere with an employee's FMLA rights.  Interfering with an employee's FMLA rights is an expensive problem to be avoided.  

Employers Are Not Required to Assume That All Medical Absences Subsequent to Chronic Serious Health Condition Diagnosis Are Related to that Condition

Jeremy Crown was diagnosed with Type I Diabetes in August 2006.  Nissan, his employer, granted his request for 10 days of FMLA leave to cover the absence that led to the diagnosis.  In October 2007, Crown was absent from work for three consecutive days.  Crown claimed that the absences were related to his Diabetes.  Pursuant to Nissan policy, he submitted a medical certification substantiating his request for FMLA leave to cover the absence.  The health care provider who filled out the certification checked the box for an absence of more than three consecutive days.  The health care provider did not check the box for a chronic condition.  Nissan denied the request for FMLA leave because Crown was not incapacitated for more than three consecutive calendar days.  Nissan also assessed Crown with 4 points for unexcused and excused absences.  The four points put him over the company's attendance policy limit.  Crown was terminated.

Crown sued alleging that his termination violated the FMLA.  Crown argued that, notwithstanding the failure of the medical certification to substantiate his request for FMLA leave, Nissan should have granted him FMLA leave anyway.  Crown reasoned that Nissan knew he had an FMLA-covered condition (Diabetes) since August 2006.  It knew that the condition would continue for an indefinite period.  As such, Nissan, Crown argued, should have known that this three-day absence in October 2007 resulted from a period of incapacity due to his chronic serious health condition because it was aware that he had this condition and was likewise aware that the condition had previously necessitated leave.  Crown contended that he should not be penalized because of the lack of competence or familiarity of the health care provider who filled out the certification.  The court disagreed.  

The court rejected as without merit the argument that Nissan should have known that that his absences were related to his chronic condition despite the health care providers failure to so indicate simply because it knew he had been earlier diagnosed with a chronic condition.  The court observed:

By this argument, plaintiff is, in effect, contending that once an employer is on notice that an employee has a chronic health condition, the employer must thereafter assume that all medical absences from work are related to that condition. This position is directly contradicted by those provisions of the FMLA which permit the employer to require notice that leave is requested for a a qualifying reason and which authorize the employer to require the plaintiff to furnish certification for his health care provider that each period of absence is covered by the FMLA. 

The court went on to observe that "[t]he FMLA does not require an employer to be 'clairvoyant.'"  If an employee fails to provide its employer with the required notice, the employer can deny leave even if the employee has a serious health condition. 

The court awarded summary judgment to Nissan.

Crown v. Nissan North American, Inc., No. 3:08CV418TSL-JCS, 2009 U.S. Dist. LEXIS 47633 (S.D. Miss. June 8, 2009). 

Comment:  To ensure FMLA coverage where an employee or covered family member has a previously established qualifying reason for FMLA leave, it is incumbent on the employee to link the present need for leave with the known qualifying reason.  Courts will not assume such a connection, particular where, as in Crown, the connection is not substantiated in a supporting medical certification. 
The DOL codified the linkage requirement in 29 CFR 825.303(b) of the modified regulations.

The case also teaches employees that they should review the medical certification before handing it in to ensure that it supports the request for leave.  If it does not, or if the employee has any questions regarding the information on the form, the employee should take the matter up with the health care provider before submitting the documentation.  The health care provider should make any corrections on the certification form.  The employee should NOT modify the certification form.    

Can an Eligible Employee Take Leave on an Intermittent or Reduced Leave Schedule Basis to Care for a Spouse?

Not according to the DOL.  When it comes to the ability of an employee to take leave on an intermittent or reduced leave schedule basis, it appears that the DOL forgot to include spouses. 

By statute, the FMLA permits an eligible employee to take leave intermittently or on a reduced leave schedule in order to care for a spouse, son, daughter, or parent with a serious health condition.  29 USC 2612(b)(1). 

The new DOL regulations, however, say something a bit different.  According to Section 825.202(b)(1), intermittent leave (what happened to reduced schedule?) may be taken for a serious health condition of a parent, son, or daughter, or for the employee's own serious health condition...which requires treatment periodically, rather than for on continuous period of absence..."  No spouse.

Similarly, Section 825.202(b)(1) provides that intermittent leave or leave on a reduced leave schedule (nice of you to show up) taken because of one's own serious health condition, or to care for a -- wait for it-- parent, son, or daughter with a serious health condition...there must be a medical need for the leave... 

Again, spouse is not included as a covered family member for purposes of serious health condition intermittent or reduced schedule leave.

The last sentence of Section 825.202(b) indicates that medical necessity includes leave to provide care or psychological comfort to a covered family member with a serious health condition.  This might be evidence that spouse is covered.  The counter argument would be that "covered family member" appears later in the same paragraph that limits the coverage to employee, parent, son, or child, and, therefore, it means only those family members and not spouse.  The same argument would apply to the generic reference to "family member" in 825.202(b)(2). 

Comment:    Title I Employer's would be well-advised to follow the statute and allow eligible employees to take leave on an intermittent or reduced leave schedule to care for a spouse with a serious health condition, all other conditions being met.

I suggest that the DOL at least issue an advisory opinion clarifying the issue.  

Back to the Future: Legislation Introduced to Repeal New DOL FMLA Regulations and Restore Former Regulations

On April 29, 2009, Congresswomen Carol Shea-Porter (D-NH), along with 24 cosponsors, introduced H.R. 2161, entitled: To Nullify Certain Regulations Promulgated Under the Family and Medical Leave Act of 1993 and Restore Prior Regulations and Direct the Secretary of Labor to Revise Certain Regulations Under that Act.  Representative Shea-Porter explained that the purpose of H.R. 2132 was to "restore the Family and Medical Leave Act to its original intent and spirit."

The legislation seeks to repeal and restore 825.205(a)(2), 825.207, 825.215, 825.220(d), 825.302, 825.303, 825.307, and 825.312.  It also seeks to modify 825.308(b), 825.115(a) & (c), and to revise the medical certification form. 

A review of the proposed repeal of the new and restoration of the old follows.

Treatment During House Calls by a Health Care Provider Are Not Covered by the FMLA, Sixth Circuit Finds

Robin Morris was terminated from his position as store manager for Family Dollar following his return from a week of approved leave to visit his mother.  During his visit, his mother underwent an outpatient needle biopsy of a lump in her left breast.  Immediately following the biopsy, the mother was hospitalized.  On her release from the hospital the mother was bedridden for at least four consecutive days. During this time the mother complained of headaches, stomach problems, dizziness form the anesthesia administered during her biopsy, and pain and discomfort in her breast.  The mother testified that Morris "had to take care of her every day needs" during this period.  Morris testified that, post-biopsy, his mother needed help getting in and out of the shower and with household chores, that she had trouble walking. When asked during deposition whether he considered his mother to be incapacitated, he said "no."  Follow-up visit with her doctor 10 days after the biopsy the mother confirmed that the lump was benign.

Denial of FMLA Leave for Submission of Altered Medical Certification Appropriate Even if Employee Might Otherwise Be Entitled to Leave

Tanum Smith worked as an instructional aide for Hope School, a residential facility for children with development disabilities.  She suffered injuries as a result of two physical altercations with students.  Thereafter, she became apprehensive about working with students.  Her primary physician, Dr. Vasconcelles, provided a note restricting her to light duty and assignments that did not require her to be around Hope School residents.  The School transferred Smith into a different department that did not work directly with students.   As a result of a student approaching her in her new position, Smith left work citing fears for her safety.  Smith was subsequent provided medical certification forms in the event she wanted FMLA leave to cover her absence.  She provided the forms to Dr. Vasconcelles.

Smith picked up the FMLA paperwork from Vasconcelles' office.  The paperwork supported her request for FMLA leave.  After securing the FMLA paperwork, Smith altered the medical certification in several ways.  She added to the the narrative description of her condition "plus previous depression."  Vasconcelles nor any other doctor had diagnosed or treated Smith for depression.  Smith also backdated for the FMLA form several days.  She also filled out a separate "Attending Physician's Statement" in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression." 

Smith provided the form to Hope School.  The School subsequently confirmed its suspicion that the form had been materially altered.  The School denied Smith's request for FMLA leave and terminated her for incurring unexcused absences in violation of School policy. She was not fired for altering the FMLA form.

Smith sued alleging that her termination violated the FMLA.  The district court awarded summary judgment to the School.  The lower court found that Smith's alteration of the Vasconcelles' health care provider certification form invalidated her application for leave under the FMLA.  As such, the School did not interfere with her FMLA rights or retaliate against her for asserting them.  Smith appealed the decision.

The Seventh Circuit affirmed the award of summary judgment to the School.  The court rejected Smith's argument that the School was bound to read the false conditions out of the certification before determining whether the true medical condition supported her request for FMLA leave.  The court opined that Smith's proposed rule would "have the effect of encouraging applicants to dress up an application for leave by adding non-existent conditions."  The court held that "where an employee adds to a medical care provider's certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave."   

Comment:  In the usual case, the employer fires the employee for dishonesty for submitting a false medical certification.  Here, the School terminated Smith for taking leave to which she was not entitled, not falsification. The court found that by altering the FMLA medical certification Smith failed to provide an adequate medical certification in support of her request for FMLA leave.  She did not establish that she had a serious health condition.  As a result, her leave was both unprotected by the FMLA and unexcused. 

The court also rejected Smith's argument that she did not intend to obtain leave by fraud but was merely trying to be thorough.  According to the court, "[w]here multiple forms purporting to contain a physician's diagnosis were in fact altered or filed out completely by a patient who knew that the physician has made no such diagnosis, we concluded that Smith was presenting false certification paperwork and thus wa not entitled to FMLA leave."

The lesson for employee's: DO NOT EVER add or modify anything to the health care provider's information on the FMLA medical certification.  If you do not think the information is complete bring it to the attention of the health care provider.  Let them modify the form.  If they refuse to modify the form, either live with it or get another health care provider.

Smith v. The Hope School, No. 08-2176, 2009 U.s. App. LEXIS 6985 (7th Cir. March 30, 2009)

      

Requiring Employee to Submit to Second Health Care Provider Examination Did Not Violate the FMLA

In Chapen v. Munoz, No. 3:06-cv-00353-BES-VPC, 2009 U.S. Dist. LEXIS 15147 (D.Nev. Feb. 25, 2009), employee argued that the State employer interfered with her deceased husband's FMLA rights by directing him to submit a second health care provider examination.  The husband had provided a medical certification in support of his request for FMLA leave.  The direction to submit to a second health care provider exam violated the FMLA, Plaintiff argued, because the physician called for the second exam would ignore "etiology of the stress."  Because the second physician would likely not agree that the husband was entitled to FMLA leave, the husband was placed in a "catch-22" situation and felt "compelled to resign."  By putting him in that no-win situation, the State, Plaintiff argued, violated the FMLA.

The court granted the State's motion and dismissed the FMLA claim.  The court noted that the FMLA allows an employer who has reason to doubt the validity of the a medial certification to obtain a second medical opinion at the employer's expense.  Because the State had the right to require a second health care provider exam, the husband's refusal to agree to see the second specialist failed to act in good faith.  Such refusal is not protected activity within the meaning of the FMLA.  The fact that the second health care provider may not agree with the first did not justify the refusal to cooperate because the regulations permit the employee to seek an opinion from a third health care provider. 

Comment: The opinion is interesting in two respects. First, the court appears to have assumed that the employer had reason to doubt the validity of the initial medical certification thereby justifying the employer's direction that the employee submit to an exam by a second health care provider.  The court did not address why this was the case.  Nor is it evident from the facts why the employer had reason to doubt the validity of the initial certification.  This would appear to set a rather low bar for the circumstances when an employer has reason to doubt the validity of the initial certification. 

Second, the court misread who has the right to invoke the right to an exam by a third health care provider.  The court found that the employee's refusal to submit to a second health care provider exam was not protected because "the statute provides that in the case of conflicting opinions, the employee has the right to seek an opinion  from a third health care provider..."  That is simply incorrect. Under both the "old" and "new" regulations (29 CFR 825.307(c)), "if the opinions of the employee's and employer's designated health care providers differ, the employer may require the employee to obtain a certification from a third health care provider..." 

Perhaps the Plaintiff would have fared better had they pointed out that the employer failed to articulate any reason to doubt the validity of the initial medical certification.  If the facts warranted, the Plaintiff may have also been able to demonstrate that the employer has had an incredible knack for picking favorable second health care opinion providers (e.g., who find no serious health condition, or with greatly diminished need for FMLA leave) and the employer never or seldom invokes the third health care provider appeal process. Rather, the employer sticks with the more favorable second opinion.  Combined, the above arguments might be enough to defeat a motion to dismiss/summary judgment.       

 

   

Absent Damages, Technical Violations of the FMLA Do Not Support Recovery

The FMLA does not afford an employee relief for technical violations of the Act absent proof that the employee was harmed by the employer's violation.  To demonstrate harm, an employee is not required to prove monetary damages.  However, they must be able to demonstrate some harm as a result of the violation.

In Demers v. Adams Homes of Northwest Florida, Inc., No. 08-13044, 2009 U.S. App. LEXIS 5844 (11th Cir. March 20, 2009) the employer violated the FMLA by denying the employee leave.  The employee was unable to articulate any harm suffered as a result of the denial.  In sustaining the award of summary judgment to the employer, the Eleventh Circuit observed that the FMLA does not entitle a plaintiff to recover for technical infractions of the FMLA absent damages.

Comment: To maintain a viable civil suit an employee must be able to demonstrate some harm or prejudice resulted from the FMLA violation.  The prejudice need not result in a monetary loss to the employee, but it might.  For example, the employee may have been required to use paid leave rather than unpaid FMLA leave for the absence.  Or the employee may have been subject to a cancellation fee for a missed medical appointment.  Absent prejudice, the employee's FMLA claim, even if the employer technically violated the FMLA, will likely be dismissed.               

Threatening Termination for Any Leave After Expiration of FMLA Leave Interfered With Employee FMLA Rights

In response an employee's request for additional FMLA leave, the employer allegedly asked "Does this mean you're going to take another three months off?"  Plaintiff had a history of FMLA leave usage, including taking 3 months off in the preceding year following foot surgery.  The following day, the supervisor sent a letter to the employee stating:

Upon calculation of lost time due to FMLA, it has been determined that until September 28, 2006, you have five weeks of FMLA time left available to you per federal law guidelines.  Please be advised that any time taken beyond the five weeks of remaining leave between now and September 28, 2006 will result in the loss of benefits and termination of employment under the law.

The employee was terminated four days later, before she took any FMLA leave.  The employee sued alleging retaliation and interference with FMLA rights.  The employer moved for summary judgment arguing that the employee was terminated for a reason independent of the FMLA (bad attitude).

In denying summary judgment to the employer, the court noted the the supervisor's statement was susceptible to various interpretations depending on the tone it ws given, "from solicitous of Plaintiff's well-being, to merely information-seeking, to annoyed or resentful." Similarly, the court noted that the letter could be reasonably construed as simply informing Plaintiff of her remaining FMLA leave time, or as an expression of displeasure of her intent to request more FMLA leave.  For purposes of summary judgment, where all inferences favor the non-moving party, the court went with the latter interpretation.

The court opined that the combination of the supervisor's statement, the threatening letter, and the fact that the employee was terminated four days later before she could take any FMLA leave, suggested that the employer was displeased with the employee's request for additional FMLA leave.  The court noted that the FMLA prohibits an employer from interfering with or retaliating for an employee's attempt to exercise FMLA rights.

Almeida v. Althena Health Care Associates, Inc., No. 3:07cv517 (PCD), 2009 U.S. Dist. LEXIS 15103 (D. Conn. Feb. 26, 2009).

Comment:   A common misconception by employers is that FMLA protections end once the employee  uses up their 12-week entitlement.  The Almeida cases illustrates that this is simply not the case.  How an employer treats an employee's use of unprotected, non-FMLA leave may, in some circumstances, violate the FMLA.  This is particularly true where, as in Almeida, the employer threatens the employee with termination for the first absence after FMLA leave is exhausted, followed a few days later by terminating the employee anyway before any FMLA leave is used.

The denial of summary judgment does not mean that the employer will ultimately be found liable for violating the FMLA.  It does, however, make resolution of the claim, whether by settlement or trial, exponentially more expensive and time consuming.  This expense, moreover, may have been avoided had supervisors been properly trained about employee FMLA rights and protections.  As a free practice tip, putting your illegal threats in writing is something to be avoided.