The FMLA Blog

DOL Issues Guidance on H1N1 Flu and FMLA

On November 9, 2009 the DOL Wage and Hour Division issued guidance on the availability of FMLA leave where the employee or covered family member is ill with pandemic flu.  In relevant part, the DOL notes that FMLA leave is NOT available to avoid exposure to the flu.  The DOL, however, encourages employee's and employers to allow employees to stay home to minimize the spread of the pandemic who are ill or who have been exposed to someone who is ill with pandemic influenza. 

Similarly, the DOL notes that the FMLA does not cover an employee's absence to care for healthy children who have been dismissed from school or child care to prevent the spread of the influenza.  Eligible employee's may take FMLA leave to care for a child who is sick with pandemic flu, but only if the illness rises to the level of a serious health condition as defined by the FMLA. 

The DOL notes that employers may have a plan or policy that allows the employer to send employees home if they show symptoms of pandemic influenza, provided the plan and the employer's decisions comply with all applicable laws, including federal anti-discrimination laws.  

Consistent with the FMLA and ADA, the DOL advises that employers may require an employee who is out sick with pandemic influenza to provide a doctors's note, submit to a medical exam, or remain symptom-free for a specified period of time before returning to work.  Under the FMLA, to do so the employer must have a uniformly-applied policy or practice that requires all similarly situated employees to obtain and present certification from the employee's health care provider that the employee is able to resume work, and the employee must have been notified of the requirement in advance.  The terms of a collective bargaining agreement may also impact an employee's right to return from FMLA leave.

Finally, the DOL cautioned employers that laying off employees who are unable to come to work because they are taking care of sick family members must not discriminate against employee's for exercising FMLA rights.  The DOL suggests that, in lieu of laying off employees, employers consider other options such as telecommuting.  The DOL also suggests that employers prepare a plan of action.

The DOL Q & A is available by clicking on the attached link.   http://www.dol.gov/whd/healthcare/flu_FMLA.pdf

HAPPY THANKSGIVING

Consensus Suggests that New Military Family Leave Regulations Effective Now

As reported in an earlier post, on October 27, 2009, President Obama signed the 2010 National Defense Authorization Act (2010 NDAA) into law. The 2010 NDAA modified the military family leave provisions of Titles I and II of the FMLA.  As far as I can tell, to date, neither the DOL or OPM have taken an official position regarding the effective date of the amendments.  Based on my review, the consensus of major labor and employment law firms and interested association is that, absent an indication otherwise, the legislation went into effect immediately when President Obama signed it (i.e., October 27, 2009). 

Recall, however, that, at least as far as the DOL was concerned, the 2009 NDAA amendment of the FMLA did not all go into effective immediately.  The DOL took the position that the military caregiver provisions went into effect immediately, but the qualifying exigency leave provisions did not because the statute directed DOL to determine what qualifying exigencies were covered.   

Unless and until the DOL or OPM issue an official statement otherwise, employers would be well-advised to immediately apply the new military family leave provisions.  Until regulations are issued, employers need to do the best they can to comply with the statutory language. 

For federal agency employers covered by Title II, the 2010 NDAA FMLA amendments allow employees to take qualifying exigency leave.  Until OPM issues regulations implementing this right, federal employers should strongly consider applying the Title I regulations on this issue.  The central part of those regulations are codified at 29 CFR 825.112(a)(5), 825.126, and 825.309. 

I offer three thoughts in support of my suggestion.  First, 5 USC 6387 directs the OPM to issue FMLA regulations that are consistent, to the extent appropriate, to the DOL FMLA regulations.  Second, the OPM's recently proposed military family leave regulations are nearly identical to the DOL comparable regulations.  Third, the guidance provided by the DOL regulations is a whole lot better than simply guessing at what might be a qualifying exigency under Title II.

What really needs to happen is that the DOL and OPM need to announce whether the 2010 NDAA FMLA amendments are effective and, if not, when they will be effective (i.e., when regulations are issued).   

  

Termination Did Not Violate FMLA Where Employee Failed to Return to Work After Being Released by Doctor

The Fifth Circuit in Hart v. Comcast of Houston, LLC, No. 09-20238, 2009 U.S. App. LEXIS 22720 (5th Cir. Oct. 15, 2009) recently found that an employee who fails to return to work from FMLA as requested by his employer subsequent to being released by his physician to return to work fails to state an FMLA retaliation claim.  The post-release failure to return to work as requested by the employer, the court found, was a legitimate, non-discriminatory reason justifying the employee's removal independent of the taking of FMLA leave.   

Comment:  The FMLA does not grant employee's the absolute right to return to work from FMLA leave.  Rather, the right to return to work may be superceded where, as in Hart, the employee engages in unrelated conduct that is grounds for termination.  Employees who fail to return to work after their doctor has released them no longer have the FMLA right to return to work.  As such, they may be disciplined or terminated for failing to return to work as requested by the employer, subject, of course, to the anti-discrimination/retaliation protections of the FMLA.  An employee will not be able to demonstrate discriminatory animus where, as in Hart, the employer has a legitimate reason for terminating the employee.  

FMLA To Be Modified Today!

The FMLA will be modified today.  President Obama is set to sign the National Defense Authorization Act of 2010 at 2:30 p.m. EST today. Section 565 of that legislation modifies the FMLA in several important ways:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.  Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave.  Only where the serious injury or illness rises to the level of a subsequent injury or illness will an employee be entitled to take military caregiver leave for the same covered servicemember.
• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.
• The legislation extend qualifying exigency leave to federal employees covered by Title II of the FMLA.  Currently, federal employees covered by Title II do not have the right to take qualifying exigency leave.

The legislation directs the U.S. Department of Labor and Office of Personnel Management to work with the Secretary's of Defense and the Veterans Administration in formulating regulations to carry out the amendments.  It is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.  Consultation on this issue with DOL or OPM is highly recommended.

Comment: The legislation effectively implements bills introduced by Senator Dodd (D-CT) and Congressman Woolsey (D-CA)(H.R. 3403, S. 1543).  The amendments should greatly expand the availability and use of military family leave. 

Employers should review and adjust their FMLA leave policies accordingly to reflect the military family leave amendments.  I expect additional expansions of the FMLA in order for President Obama to fulfill his campaign promises to extend FMLA coverage to more employers, and to cover more family members and for more activities (e.g., school functions).  

Return to Work from FMLA Leave for 3 Minutes Before Termination Violated FMLA

Returning an employee from FMLA leave to a position only long enough to be fired does not amount to a meaningful reinstatement under the FMLA.  In Burke v. Laboratory Corp. of America, No. 8:08-cv-2072-T-24-TGW, 2009 U.S. Dist. LEXIS 92891 (M.D. Fla. Oct. 6, 2009), Burke was fired three minutes after returning from FMLA leave.  She sued alleging violation of the FMLA.  The Court opined:

While the FMLA does not require an employer to keep an employee indefinitely after she returns from medical leave, the law's protections extend beyond reinstating a person to a job for three minutes.

Lab Corp. argued that it terminated Burke as part of a legitimate downsizing.  Burke contended that she was terminated due to age discrimination. The court denied the employer and employee's motion for summary judgment on the FMLA claims.

Comment: The court's observation that the right to reinstatement from FMLA leave prohibits an employer from allowing an employee to return to work only long enough to be fired, appears, at least to me, to overstate the FMLA reinstatement right. 

As observed by the court, the FMLA does not require an employer to reinstate an employee in every circumstance. If the employer would have terminated the employee for legitimate, non-FMLA reasons the employer may do so even if the employee is on FMLA leave.  It makes little sense (to me anyway) that an employer may terminate an employee for non-FMLA reasons prior to the employee returning to work, but somehow loses that right, at least for some unspecified period, simply because the employee is allowed to return to work in order to be terminated. 

The employer may have legitimate reasons to allow the employee to return to work before terminating the employee.  First, the employer may believe that terminations should be conducted in person rather than over the telephone or by mail.  Second, the employer may prefer the individual be on the clock and allowed on the premises when they are terminated to allow them to collect their things and say their goodbyes before leaving.  For liability purposes, the employer may not want an ex-employee on the premises to collect their things or talking to current employees.  It just strikes me as one of those no-win situations.  If the employer does not fire the employee in person, they are cold and impersonal.  If they fire the employee in person shortly after returning from leave, that is cruel as well.  I am not sure how it helps the employee for the employer to wait hours, days, or a week or two before executing a termination decision that has already been made.  One could argue that is just as cruel to the unsuspecting employee.  While it may put some coin in the employee's pocket, something not explicitly required by the FMLA, it also delays the employee's ability to get on with his or her life.        

The statute nor the DOL regulations provide for any minimum period of time that an employee must be allowed to work on return from FMLA leave before a decision to terminate may be put into effect.  Had Congress or the DOL wanted to impose a minimum temporal period before an employer may terminate an employee for non-FMLA leave reasons they could have easily done so.  They did not. 

It would have been better had the court simply denied summary judgment because of the existence of material facts in dispute.  Specifically, whether the termination was the result of legitimate downsizing, as claimed by the employer, or the product of age discrimination, as claimed by Burke.  

   

FMLA Not Violated by Supervisor's Disclosure of Employee's Miscarriage to Office Staff

Plaintiff Yatana Walker is the CFO of an independent branch of the U.S. Treasury Department.  Walker was pregnant.  Walker informed Donna Gambrell, her supervisor, that she would not be at work on a particular day to due to a doctor's appointment.  Later that same day, Walker's husband asked one of Walker's subordinates to convey to Gambrell that Walker was in the hospital having a miscarriage.  The subordinate informed Gambrell's assistant.  The assistant, in a highly emotional manner, informed Gambrell.  Believing that other staff members had already learned of the situation, Gambrell gathered the 8th floor staff and contractors into a conference room to inform them that Walker had miscarried.  Following the meeting, Gambrell sent an e-mail to all branch employees, contractors, and temporary employees informing them of the situation.  Walker subsequently applied for, and was granted, FMLA leave.

Walker sued Gambrell for disclosing her miscarriage.  She claimed that the disclosure interfered with her FMLA rights.  As support, Walker cited the requirement that records and documents relating to medical histories of employees created for FMLA purposes must be maintained as confidential medical records in accordance with the ADA.  5 CFR 825.500(g).  The court disagreed.

Even if violation of Sec. 825.500(g) gave rise to a private right of action (courts are split), the court found that Walker did not state a claim.  The e-mail that Gambrell sent was not, as required, created for the purpose of documenting or maintaining a file on Walker's FMLA leave.  Rather, it was drafted and sent to inform the staff of the reason for Walker's absence.  Moreover, the ADA confidentially provisions apply to information secured as a result of an employer-requested medical examination or other employer inquiry.  The information at issue was not obtained as a result of an employer-initiated examination or inquiry. Rather, Walker disclosed the reason for her leave voluntarily and not at the request or demand of her employer. The ADA, the court observed, does not protect an employee's voluntary disclosure of a medical condition. 

The ADA and, therefore, the FMLA, confidential provisions do not, the court concluded, require that an employer keep secret medical information voluntarily disclosed by the employee in securing leave.  

Comment: The FMLA/ADA confidentiality provisions do not mandate that an employer keep secret from others all medical information provided by employees.  Unsolicited, voluntarily disclosed medical information offered by an employee may not be protected by the FMLA confidentially provisions.  Having said that, to avoid costly and time consuming litigation, employers would be well advised to adopt clear policies prohibiting management from disclosing employee medical information except for legitimate business reasons, and then on a need-to-know basis. 

Walker v. Gambrell, No. RWT 08-3065, 2009 U.S. LEXIS 60537 (D. Md. July 16, 2009)    

Employee's Subjective Feelings that Employer Was Attempting To Dissuade Him from Taking FMLA Leave Insufficent to Establish Interference Claim

Joseph Di Giovanna alleged that Beth Israel Medical Center interfered with his FMLA rights by attempting, unsuccessfully, to dissuade him from taking FMLA leave.  Di Giovanna pointed to comments made by his supervisor, Dakis.  When Di Giovanna allegedly asked her if he should file for FMLA leave, Dakis allegedly told him that "there was no need to, that another director.. had a mother that was terminal, that passed away and she did not file for FMLA."  Without even inquiring what Dokis meant, Di Giovanna claims that he "understood" Dakis to have been discouraging him from filing for FMLA leave." 

Di Giovanna also alleged that he was discouraged as a result of being "interrogated" and "harassed" with "barrages of questions" about his father's condition at "inappropriate times."  The court found that the cited deposition testimony failed to support the inflammatory characterization.  The alleged offensive questions were how Di Giovanna's father was doing and which hospital he was in. 

The court found that Di Giovanna's subjective feelings, assuming he actually had the feelings he now claim he had, abut what they actually said are insufficient to constitute interference under the FMLA, and not one of the alleged statements would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise FMLA rights."  The court observed that Di Giovanna himself was granted all of the leave he requested.  The court awarded summary judgment in favor of the defendant Medical Center.

Comment:  An employee's subjective belief that his or her employer was attempting to discourage them from exercising their FMLA rights is not the controlling standard.  Rather, courts will apply an objective standard to determine whether, in context, the alleged discouraging conduct would have discouraged a similarly situated employee "of ordinary resolve."   

NEWS FLASH: OPM Issues Proposed Military Family Leave Regulations Covering Federal Employees

On August 26, 2009, the OPM issued proposed FMLA regulations implementing military family leave for purposes of Title II of the FMLA.  The proposed regulations are set forth in 74 Federal Register 43064-43082 (Aug. 26, 2009).  A link to the new regulations is provided below.  

http://frwebgate2.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=OvRJay/0/1/0&WAISaction=retrieve

The proposal includes regulations implement a Title II employee's right to take up to 26 administrative workweeks of FMLA leave a year to care for a member of the Armed Forces who is injured in the line of duty while on active duty (military caregiver leave).  It also amends the rules on advancing sick leave, including sick leave that may be substituted for unpaid military caregiver leave.  The OPM is also proposing organizational changes to the existing sick leave and FMLA regulations "to enhance reader understanding and administration of these programs.

SIGNIFICANTLY, the OPM also announced that it was considering whether a comprehensive review of the OPM's FMLA regulations is needed to identify any problems or concerns that stakeholders have encountered.  OPM specifically asks agencies for their recommendations on what significant changes, if any, are needed within the existing OPM FMLA regulatory framework.

Comments regarding the proposed FMLA regulations must be received on or before October 26, 2009. To submit comments, you must use RIN number "3206-AL91."  Comments may be submitted by the following methods:

• Federal eRulmaking Portal: http://www.regulations.gov.  Follow the instructions.
• Mail: Jerome D. Mikowicz, Deputy Associate Director, Center for Pay and Leave Administration, U.S. Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington DC 20415-8200

For further information, contact: Doris Rippey by telephone at (202) 606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-policy@opm.gov.

Comment:  Once I review the regulations I will issue another post.  All stakeholders (federal agencies, unions, employee associations, enforcement agencies) are not going to want to pass up the chance to influence the shaping of the Title IIFMLA regulations.  Speak now or forever hold your peace!

Delay of and Reinstatement to Different Job Duties Did Not Violate the FMLA

In Barton v. Zimmer, Inc., No.1:06-CV-208-TS, 2009 U.S. Dist. LEXIS 60555 (N.D. Ind. July 16, 2009), the employee (Barton) alleged that his employer (Zimmer) interfered with his FMLA rights by placing him on paid administrative leave in lieu of allowing him to return to work from FMLA leave immediately, and by failing to return him to his former or an equivalent position when he was allowed to return to work.

In both instances, the court accepted Zimmer's argument that the right to reinstatement is not absolute and, under the circumstances, it acted appropriately.  With respect to the delay in reinstatement, Zimmer established that it would have placed Barton on paid administrative live regardless of whether he took FMLA leave while it investigated his age discrimination claim against his supervisor.  The court also rejected Barton's claim that Zimmer delayed his return after the investigation had concluded finding that, even if that was the case, Barton failed to establish that any delay was casually related to taking FMLA leave.  "The mere fact that Plaintiff was on leave when the Defendant discovered the problems with the Plaintiff's job responsibilities and with Richardson's supervision of the Training Department did not bar it from being able to use paid administrative leave, or any other measure it would have otherwise used, to address the issue."

Similarly, the court rejected Barton's argument that it violated the FMLA by failing to return him to the same or equivalent position when he did return to work.  On his return, Barton was assigned to develop and present a new sales training class.  Zimmer argued that the new assignment was in response to changes being made within the Training Department.  Zimmer argued that the right to reinstatement to his same or equivalent job is not absolute, and that it would have assigned Barton to conduct the training anyway to meet the needs of the company.  The court agreed with Zimmer.  The court observed:

Therefore, regardless of whether the Plaintiff's job was the same or equivalent to his job before he took FMLA leave, the Plaintiff is not entitled to present this claim to the jury unless there is a genuine issue of fact whether the Defendant would have given him these assignments if he had not taken FMLA leave.

The court found in favor of the Zimmer because Barton failed to address the substantance of his employer's claim, electing instead to simply assert that the new assignment was not substantively  equivalent to the duties he performed in his pre-leave position.

Comment:  The decision gets the interaction of the FMLA return to work requirements and the "no greater right to resintatement" provisions correct.  An employee's FMLA right to be returned to the same or an equivalent position is not absolute.  The FMLA recognizes that an employee has no greater right to reinstatement or to other benefits and conditions of employment then if the employee had been continuously employed during the FMLA leave period.  29 USC 2614(a)(3).  If an employer can demonstrate that it would have taken the same action had the employee not taken FMLA leave, the burden shifts to the employee to overcome that assertion.  To defeat summary judgment, the employee must proffer sufficient evidence to raise a genuine issue of material fact that the employer would not have taken the challenged action had the employee not taken FMLA leave.  As in Barton, an employee who fails to counter the employer's legitimate, nondiscriminatory justification for any delay or post-return change in job duties will find him or herself on the losing end of a summary judgment motion.    

 

Unfounded Fear that Employer Might Discipline Employee for Taking FMLA Leave Insufficient to Establish FMLA Interference Claim

Anderson, an eligible employee of Avon Products, an FMLA covered employer, requested a sick day for a diverticulitis episode.  In response, Shao, his supervisor, indicated that Anderson would incur an attendance violation if he did not come to work only if he did not produce a doctor's note explaining his absence.  Anderson elected not to take the leave.  He was not assessed an attendance violation. 

Anderson sued alleging that Avon interfered with his right to take FMLA leave. The Sixth Circuit disagreed.  The court noted that Shao did not deny Anderson's request for leave.  Rather, the logical implication of Shao's statement was that Anderson "would not incur a violation if he did produce a doctor's note."  The FMLA permitted Avon to require Anderson to substantiate his request for serious health condition leave with a medical certification from a health care provider.  The court observed:

Anderson's FMLA-interference claim is therefore based on his fear that Avon might have         disciplined him had he taken the leave.  But that fear, as explained above, ws unfounded, given Shao's statement.

Comment:  Although unstated, the court applied a reasonable person standard in finding that that Shao's statement did not interfere with Anderson's FMLA rights.  Although awkwardly phrased, Shao's statement, when deconstructed, did not threaten adverse action if Anderson took FMLA leave.  The fact that Anderson believed otherwise was not controlling. 

While ultimately victorious, the lawsuit undoubtedly cost Avon a bundle in time and treasure to defend.  The situation may have been avoided had Avon provided Shao with an approved form or packet for responding to employee requests for FMLA leave in a way that avoids costly ambiguity. Supervisors would be trained to simply hand over the FMLA packet.  If the employee has questions they should be directed to a named HR professional.  Given the complexity of the FMLA and the cost of litigation, vesting primary responsibility for handling FMLA requests with front line supervisors is fraught with expensive danger.            

Anderson v. Avon Products, Inc., 2009 FED App. 0540N, 2009 U.S. App. LEXIS 17499 (6th Cir. Aug. 5, 2009).