The FMLA Blog

No Good Deed Goes Unpunished: Employer's Can Be Sued For Violating More Generous FMLA Leave Policies

Employers can, knowingly or unknowingly, adopt family and medical leave (FML) policies that are more generous than the minimum required by the FMLA.  Violation of those more generous policies may subject the employer to civil suit for monetary damages for breach of contract or promissory estoppel based on the employee's detrimental reliance on the employer's policy. Such a claim is not based on the FMLA. Nor will the employer be able to successfully defend these type of actions by arguing that the FMLA does not apply.          

The issue was recently addressed by the Seventh Circuit in in Peters v. Gilead Sciences, Inc.,No. 06-4290, 2008 U.S. App. LEXIS 14894 (7th Cir. July 14, 2008).  In that case, Gilead policy permitted employees to take FML leave if they met two requirements: (1) at least 12 months of employment with the company; and (2) at least 1250 work hours in the 12 month period preceding leave commencement.  Those requirements are the same as the eligibility requirements of the FMLA. What Gilead's policy did not include, however, was the FMLA requirement that Peters be employed at a worksite that employs at least 50 employees within 75 miles- the so-called 50/75 rule.  By not including the 50/75 rule, Gilead's FML policy was more generous than the FMLA. Peters was not entitled to FMLA leave because he did not work at a worksite where there were at least 50 Gilead employees within 75 miles.

Peters applied for and was approved FML leave for a work-related shoulder injury. Gilead provided him with a letter confirming his right to take up to 12 weeks of FMLA leave. The letter repeated the 12 months and 1250 hours eligibility requirements that was also set forth in the employee handbook.  Consistent with the policy, the letter did not address the 50/75 rule.  Like the handbook, the letter also guaranteed his right to reinstatement for such leave if he returned to work by a specified date.  Unfortunately for the employer, it miscalculated the when 12 weeks of FMLA expired.  The miscalculation shorted Peters a month of FML leave.  Gilead replaced Peters before the true expiration of his FML leave.  Peters was medically cleared to return to work before his 12 weeks of FMLA leave expired. 

Peters sued alleging that his termination violated the FMLA.  He also added a state law promissory estoppel claim.  Promissory estoppel is a cause of action independent of the FMLA that permits the enforcement of a promise that otherwise lacks the elements of a contract.  Gilead defended the suit by arguing that Peters was not eligible for FMLA leave because he did not meet the 50/75 requirement.  The trial court agreed.  After equating his promissory estoppel claim with equitable estoppel, the trial court also found that Peters failed to establish that he should be deemed eligible based on the misrepresentations of Gilead. 

On appeal, the Seventh Circuit reversed the decision of the trial court.  The Seventh Circuit found that, even if Peters was not eligible for FMLA leave, he may have an FMLA-like claim for breach of contract or promissory estoppel based on his detrimental reliance on Gilead's handbook policy and the letters he received approving his FMLleave.  The trial court erred when it equated equitable estoppel, a defensive doctrine, with promissory estoppel, a cause of action.  Both are based on detrimental reliance.  The Court remanded the matter back to the trial court to address those claims.

Comment: Employer FML policies frequently provide greater rights than the minimum required by the FMLA.  In addition to dropping the 50/75 eligibility requirement, employers may allow employees to take FML leave for siblings or other family relatives beyond those identified in the FMLA (spouse, daughter, son).  Employer policies may also granted more than the minimum 12 weeks of FMLA leave.  Violation of those more generous policies may/may not create a cause of action for violation of the FMLA.  They may, however, create a contract or promissory estoppel cause of action for violation of the employer's FMLA-like leave policies.  The fact that you did not intend to create more generous FML rights may not relieve you from suit. 

To avoid inadvertently creating greater FML rights (which can be the basis of civil suit) than the minimum required by the FMLA, employers need to exercise great care when drafting and executing their family leave policies. Consistent with the mandates of state law, handbooks and manuals should include prominently displayed disclaimers that the handbook does not create any express or implied contract rights. Employers should also consider having their FML policies independently audited to identify areas where the policy exceeds or fails to meet FMLA requirements. With that information, the employers can make informed decisions on whether it wishes to continue to provide more generous FML policies or not.  Bosland Consulting Group can help you with such audits.     

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.                   

Requirement that Health Care Provider Submit Medical Certification Directly to Employer Does Not Violate the FMLA

In Taylor v. Ameritech Services, Inc., No. 07-2166, 2008 U.S. App. LEXIS 9237 (7th Cir. April 29, 2008), the court found that the employer did not interfere with the employee's FMLA rights by requiring that the completed medical certification form be faxed or mailed by the health care provider directly to the employer, rather than permitting the employee to provide the certification.  The court noted that:

Nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures to prevent fraud.

The court reasoned that that an employee might "forge a letter from a doctor, or embellish it before forwarding it to the employer."

Comment: To perfect the right to leave, the employee requesting leave bears the responsibility to ensure that an employer receives a medical certification, if one is requested.  The FMLA does not, however, address the method of delivery of a medical certification from the health care provider to the employer. 

The FMLA permits an employer to require an employer to comply with the employer's usual and customary procedural requirements for requesting leave.  29 CFR 825.302(d).  According to the Seventh Circuit, those permissible procedural requirements include the requirement that a supporting medical certification be directly submitted to the employer by the health care provider. 

Direct submission of medical information from a health care provider to an employer gives rise to HIPPA issues.  Generally, HIPPA prohibits disclosure of medical information to an employer absent patient authorization.  However, an employee who exercised their HIPPA right and refused to authorize direct disclosure of medical information as required by employer policy would almost certainly loose FMLA protections.  The employee may also be subject to disciplinary action for violating such an employer policy.   

Employers concerned with fraud may want to consider implementing a reasonable policy requiring that any medical certification be submitted directly by the health care provider.

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

Employer May Require Doctor's Note to Support Paid Sick Leave In Addition to FMLA Medical Certification

It is not a violation of the FMLA for an employer to require an employee to support their request for paid sick leave with medical documentation even though the employer has separately requested that the employee provide medical certification for the same absence to determine if the leave is covered by the FMLA.

The issue was addressed in Carroll v. Potter, No. 3:05-CV-108-S, 2007 U.S. Dist. LEXIS 82737 (No. 7, 2007).  The case involved Valaine Carroll, a Postal Service supervisor.  Carroll left work early on November 18 after becoming ill.  She called the Attendance Control Office the same day, and requested FMLA leave to run concurrent with paid sick leave.  Carroll would eventually remain out of work for approximately 3 weeks.  During her absence, the Attendance Control Office provided Carroll with the necessary FMLA paperwork requesting that she provide medical certification of her condition to the Office.  Two days after the medical certification request by the Attendance Control Office, Carroll's supervisor requested that she provide "medical documentation supporting her absence."   Carroll's request for FMLA leave was approved by the Postal Service FMLA Coordinator on December 2.

Carroll subsequently received a letter of warning for failing to complete a mail count the day before she went out on FMLA leave.  She sued alleging, in pertinent part, that the Postal Service violated the FMLA when her supervisor requested medical documentation two days after the Attendance Control Office had requested FMLA medical certification for the same absence.  Carroll alleged that this second request for medical documentation by her supervisor interfered with her FMLA rights.  The court disagreed.

The court looked to the paid leave substitution requirements of 29 CFR 825.207(c).   Pursuant to those requirements, paid leave may be substituted for unpaid FMLA leave "to the extent the circumstances meet the employer's usual requirements for the use of sick/medical leave."  Under Postal Service policy, supervisors are responsible for approving sick leave and have the discretion to require employees to provide medical documentation of absences.  Because Carroll requested paid sick leave for her absence, and Postal Service policy permitted her supervisor to require medical documentation as a condition or approving paid sick leave, the court found that the supervisor's separate request for medical documentation did not interfere her FMLA rights. 

Comment:  The decision demonstrates that where paid leave runs concurrent with unpaid FMLA leave an employer may require an employee to meet the procedural requirements for both paid leave and the FMLA in order to receive the benefits of both without running afoul of the law. 

Keep in mind, though, that if Carroll had failed to provide the medical documentation to her supervisor but did provide the medical certification to the Attendance Control Office, all things being equal, she would be entitled to FMLA leave but not paid sick leave.  That is, an employee's failure to meet the procedural requirements for paid leave permits the employer to deny the employee paid leave only.  To deny FMLA leave the employer must separately determine that the employee has failed to meet the FMLA's procedural requirements.  Employer's frequently run afoul of the FMLA by denying the employee both paid and FMLA leave where an employee fails to meet the requirements for paid sick leave. 

Finally, I observe that Carroll may have had a better argument had she alleged that the Postal Service interfered with her FMLA rights by requiring that she provide FMLA medical certification.  While the FMLA permits an employer to require the employee to abide by the procedural requirements for paid leave, it also provides that, if the paid leave certification requirements are less onerous than the FMLA certification requirements, an employer may only impose the less strict paid leave requirements.  29 CFR 825.207(h). 

It is often the case that employer paid leave policies allow an employee to provide very general information (e.g., a doctor's note) as support for an employee's request for sick leave.  If that is the case, an employer would not be able to require an employee to submit the type of detailed medical certification permitted by the FMLA where paid leave runs concurrent with FMLA leave.  Rather, the employer would be limited to the far less detailed medical information permitted for paid sick leave.  Because of this fact, employer's need to take a hard look at their paid leave policies and medical documentation to ensure that, where paid leave is substituted, the employer still is entitled to receive sufficient medical information to manage the employee's leave usage.                

In Carroll, because the point was not argued we don't know that the Postal Service's paid sick leave policy is less stringent in terms of medical certification than is the FMLA.  Even assuming that the Postal Service's paid leave policy required less medical information than is permitted by the FMLA, because her FMLA leave was approved Carroll would not have been able to establish damages as a result of any technical violation by the Service.  As a result, the case would have been dismissed anyway. 

Normal FMLA Employee Notice Requirements Do Not Apply Where Employee Uses Sick Leave

Generally, where the need for FMLA leave is foreseeable, an employee should give an employer 30 days advance notice of the time the employee needs off.  29 CFR 825.302(a).  If the need is foreseeable but with less than 30 days advance notice of the need, the employee should notify his or her employer of the need for FMLA leave "as soon as practicable," normally within one or two working days of learning of the need for leave.  29 CFR 825.302(a).  An employer may delay or, in some cases, deny leave to an employee that fails to provide timely notice of the need for FMLA leave. 

The FMLA allows for the substitution of available paid leave for unpaid FMLA leave.  Where paid leave is substituted, an employer must apply any less onerous notice requirements permitted by the employer's paid leave policy.   For example, if an employee (or employer) elects to substitute paid vacation leave for unpaid FMLA leave and the employer's paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances.  29 CFR 825.302(g). 

The interplay of the notice requirements of paid leave with unpaid FMLA leave was recently addressed in Simpson v. Office of the Chief Judge, No. 05 C 2592, 2007 U.S. Dist. LEXIS 75634, at *21-23 (N.D. Ill. Oct. 11, 2007).  There, the employer argued that the employee failed to give timely advance notice of the need for FMLA leave incident to planned surgery.  The employee gave notice the day before her absence was to begin.  Simpson took sick leave concurrent with FMLA leave.  Under the employer's sick leave policy, an employee was required to notify a supervisor "a minimum of one hour prior to beginning their tour of duty" that the needed to take sick leave.  The court, citing 29 CFR 825.302(a), found that Simpson provided timely notice of the need for FMLA leave.

Comment:  The case, surprisingly one of only a very few, reminds us that an employer's paid leave policies may greatly reduce the amount of advance notice of the need for FMLA leave that an employer may require an employee to provide.  Employers should review their paid leave policies to determine if changes need to be made so that they get the maximum advance notice of the need for FMLA leave that they are entitled to receive under the Act.  Where the employer has a labor union, such changes may require collective bargaining.

Violation of "No Call, No Show" Policy May Be Grounds for Termination Even Where Leave Was Covered by the FMLA

The FMLA does not prohibit employers from terminating employees who fail to comply with an internal company policy that requires employees to call-in when they will be absent.  The fact that the absence may be covered by the FMLA does not abrogate the right of employers to know whether their employees will be coming to work on a particular day. 

The FMLA requires employees whose need for leave is not foreseeable to notify their employer that they need leave "as soon as practicable."  An employer's policy that requires an employee to call in to work and provide advance notice of the need for leave is consistent with the FMLA where advance notice is reasonable under the circumstances.  As such, an employee could terminate an employee for violation of that policy and such termination would not violate the FMLA.

The issue was recently addressed in Knox v. Cessna Aircraft Co., No. 4:05-CV-131(HL), 2007 U.S. Dist. LEXIS 71528 (M.D. Ga. Sept. 26, 2007).  In rejecting the employee's argument that enforcement of the "no call, no show" policy violated the FMLA, the court opined:

If this Court accepted Plaintiff's position, employers would be severely disadvantaged because they would be prohibited from requiring employees to give advance notice of their absences, even when they are capable of giving advance notice. Without advance notice that an employee will be absent, employers are unable to make arrangements to have somebody else fill in for the absent employee.  See Spraggins, 401 F. Supp. 2d at 1239.  Because FMLA allows employers to require that their employees call-in their absences, this Court finds that Defendant is entitled to rely on its "no call, no show" policy as a basis for Plaintiff's termination.

Comment:  A majority of courts have found that the FMLA does not prohibit an employer from disciplining employees for violation of employer attendance policies, at least where application of those policies do not conflict with the FMLA.  For example, an employer could discipline an employee for violation of a "no call, no show" policy that required the employee to give advance notice of the need for leave that was not foreseeable "as soon as practicable," if the employee were able to do so.  In that case, the employee would also lose entitlement to FMLA leave because they did not provide notice of the need for leave "as soon as practicable" as required by the FMLA. 

Conversely, if the employee was not able to give advance notice of the need for leave under the circumstances, an employer would violate the FMLA were it to discipline the employee for violating the "no call, no show" policy.