The FMLA Blog

FMLA Leave Not Available to Allow Employee to Stay Home to Avoid Exposure to COVID-19

Whether an employee may stay home under FMLA leave to avoid COVID-19 is addressed in guidance issued by the U.S. Department of Labor, COVID-19 and the Family and Medical Leave Act Questions and Answers:

 

4. Can an employee stay home under FMLA leave to avoid getting COVID-19?

No. The FMLA protects eligible employees who are incapacitated by a serious health condition, as may be the case with COVID-19 in some instances, or who are needed to care for covered family members who are incapacitated by a serious health condition. Leave taken by an employee solely for the purpose of avoiding exposure to COVID-19 is not protected under the FMLA.

Certain state or local laws may have different requirements, which employers must also consider when determining their obligation to provide leave. See the State Labor Offices for information about leave laws in your state.  Additionally, there may be other protections or guidance available under federal or state health and safety laws that are not enforced by the Wage and Hour Division if you are concerned that your employer is not following federal or state guideline

Comment: An eligible employee may be entitled to available FMLA leave for a covered condition, including a serious health condition due to COVID-19. However, absent incapacity of the employee or covered family member, FMLA leave is not available to avoid a serious health condition due to exposure to COVID-19.  

 

 

EXTRA, EXTRA: DOL Publishes Final FMLA Rules Regarding Military Family Leave and Airline Flight Crew Technical Corrections Act

For your reading pleasure, the DOL published its final FMLA regulations which mainly target military family leave changes resulting from the 2010 National Defense Authorization Act amendments and the Airline Flight Crew Technical Corrections Act of 2008. 

Enjoy http://www.gpo.gov/fdsys/pkg/FR-2013-02-06/pdf/2013-02383.pdf

 

Revised DOL Final FMLA Regulations Due March 2013

The US Department of Labor recently announced that it would issue final regulations implementing statutory changes to the FMLA as a result of the 2010 National Defense Authorization Act and the Airline Technical Corrections Act.  Stay tuned.  A link to the DOL announcement is provided below.

thttp://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201210&RIN=1235-AA03

 

Not All Doctor Visits Constitute "Medical Treatment" Covered by the FMLA

Jones had an approved FMLA-covered serious health condition requiring periodic treatment by his physician.  He asked for and was approved FMLA leave for an afternoon appointment to receive medical treatment by one of his physicians.  Although he was scheduled to work the morning, Jones did not show up to work.  Whether Jones timely called in his morning absence was in dispute.  Instead of working, Jones visited another of his physicians.  During the unscheduled morning visit, Jones ensured that his physician forwarded his medical records for his afternoon medical appointment.  As a result of a short conversation in the lobby, Jones also secured a prescription refill note from his doctor during his impromptu morning visit.  Jones was never examined or evaluated during the morning visit with his doctor.  Because he missed working his morning shift, Jones was terminated pursuant to the Company's attendance policy.

Jones sued alleging that his termination interfered with his FMLA rights.  Specifically, Jones argued that he received FMLA-covered "medical treatment" during his morning doctor visit, as evidenced by the prescription refill note.  The Company argued that Jones' morning visit was not "medical treatment" within the meaning of the FMLA. 

An employee is entitled to FMLA leave if she suffers from a "serious health condition" that renders the employee unable to perform the functions of the employee's position.  29 USC 2612(a)(1)(D).  Under the FMLA, an employee who must be absent from work to receive medical treatment for a serious health condition is considered "unable to perform the functions of the employee's position."  29 CFR 825.123(a)(emphasis added).  The parties do not dispute that Jones had an FMLA-covered serious health condition.  Instead, the case focused on whether Jones' impromptu morning visit with his physician constituted "necessary medical treatment."         

After initially noting that the statute does not define "treatment," the Court looked to the DOL regulatory definitions of "treatment" in sections 825.113(c) and 825.115 for guidance on the meaning of "treatment" in 825.123(a).  The Court concluded that 825.115 was not helpful in understanding the meaning of "treatment" in 825.123(a) because, while it refers to "continuing treatment," it fails to address the circumstances where a person actually receives medical treatment that prevents them from performing the functions of their position.  Similarly, while acknowledging the reference to a course of prescription medication as evidence of a "regimen of continuing treatment," the Court ultimately concluded that, while relevant to determining the existence of an FMLA-covered serious health condition, it was not helpful to determine whether an employee actually receives "treatment" that prevents him from performing his job.  According to the Court:

Many chronic conditions require a course of prescription medication, but the FMLA requires something more for an employee to become entitled to leave -- inability to perform her job functions.  A course of prescription medication and an inability to perform a job are not mutually exclusive.

Relying on its previous decision in Darst v. Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Court determined that treatment "includes examinations to determine if a serious heatlh condtion exists and evaluation of the condition," but not actions such as calling to make an appointment or scheduling substance-abuse rehabilitation."  Applying that standard, the Court concluded that Jones did not receive treatment preventing him from working that morning by visiting his doctor to ensure his referral to another lab was in order.  The Court also found that merely picking up a prescription refill note did not, under the circumstances, constitue FMLA-protected treatment.  The Court observed:

Although we can envision a scenario where obtaining a prescription note in connection with a physician's examination might constitute treatment, this case does not approach that hypothetical.  Here, Dr. Lubak never evaluated or examined Jones, and Jones even conceded in a deposition that he was never "physically examined" that morning.  Jones arrived at Dr. Lubak's clinic unannounced and appeared only to briefly speak with his physician in the office lobby. The entirety of Jones's interaction with Dr. Lubak consisted of the physician's acquiescence to refill a prescription.  There is simply no evidence that Jones was examined, and therefore treated, that morning.

Comment:  The decision of the Seventh Circuit is well reasoned.  To be covered  by the FMLA, an absence to receive "medical treatment" under 825.123(a) requires, for the Seventh Circuit, the visit be "necessary" and a physical examination, which the Court equates with "treatment."  Jones' unscheduled, non-emergent morning doctor visit was not medically required.  Moroever, checking to ensure that medical paperwork was forwarded to a second doctor and securing a prescription refill after a brief lobby conversation with his physician, did not impress the Court as rising to the level of an "examination" and, therefore, treatment for purposes of the protections of the FMLA.  It will be interesting to see if other courts following the lead of the Seventh Circuit. 

Jones v. C & D Technologies, Inc., No. 11-3400 (June 28, 2012), http://www.ca7.uscourts.gov/tmp/LU0HDJ12.pdf

The Seventh Circuit covers Illinois, Indiana, and Wisconsin. 

 

Disclosure of FMLA Medical Information to Supervisors, Human Resource Professionals, and Union Representative Did Not Violate FMLA Confidentialy Provisions

Joanne Holland was employed as a nurse at the Dallas Veterans Affairs Medical Center ("Dallas VA").  She requested FMLA leave for a variety of stress-related ailments incident to her filing an EEO complaint against her supervisor, Cathy McClellan.  Holland supported her request for FMLA leave with medical documentation.  Holland made the request to Associate Director of Patient Care Services Sandra Griffin.  Griffin notified Dallas VA personnel, including McClellan, of Holland's request for FMLA leave.  Holland had asked that Griffin not be involved with her request for FMLA leave.  It was subsequently determined that Griffin, as her immediate supervisor, had to approve of Holland's request for FMLA leave.  Holland subsequently submitted her FMLA leave request to McClellan.  Griffen held two telephonic conferences with Holland and other members of the Dallas VA staff to discuss Holland's request, which was approved. 

Holland sued, alleging that the disclosure of her medical information to McClellan and other Dallas VA personnel violated the FMLA's medical confidentially requirements of 29 CFR 825.500(g).  In relevant part, the regulation states that "[r]ecords and documents relating to certifications, recertifications or medial histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records."   The federal district court disagreed.

The court initially noted that it is not entirely clear whether an aggrieved individual can file a civil lawsuit for violation of the medical confidentially provisions.  Assuming, without deciding that a private right of action does exist, in awarding summary judgment in favor of the Dallas VA, the court found that Holland had failed to establish a violation.  While the Dallas VA did release and discuss her medical information supporting her request for FMLA leave, the court found that such disclosure fit within the regularly exception that "[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations."  29 CFR 825.500(g)(1).  The court noted that the discussion regarding Holland's FMLA leave request was limited to McClellan, Griffin, Mariamma Kurian, Holland's second-line supervisor, Holland's Human Resource representative, Chris Seaton, and Richard Shaw, Holland's union representative.  

Comment:  The decision reminds employers that FMLA medical information is confidential and should be shared only with those individuals with a legitimate need to know.  In this case, the court found that the employer had the right to share Holland's FMLA medical information with her initial and second-line supervisors and a company human resource representative in order to consider her leave request. That is, these managers and supervisors had a legitimate reason for the information.  The limited exception allowing disclosure confidential FMLA medical information would not, for example, apply in the event one of these managers and supervisors were to share the information with a colleague as idle gossip.    

Interestingly, the decision included disclosure of Holland's medical information with her union representative.  As written, the exception to the medical confidentially provisions of the FMLA include "supervisors and managers," not union officials.  Unfortunatley, the decision does not address whether the union official was part of the conversation at Holland's request, which would likely be construed as a limited waiver of the FMLA's confidentiality requirements.   

Query whether an employer could disclose confidential FMLA medical information to the union over the objection of an employee without violating the FMLA?  A union may have an independent contratual and legal right to be present at a management-employee interview, and to demand relevant information for purposes of a grievance and/or to "police" the collective bargaining agreement regardless of an employee's wishes.  Because of the obvious Hobson's choice facing employers - of violating the FMLA, the CBA, or federal/state labor laws by releasing or not releasing requested medical information - courts will likely permit an employer to disclose FMLA medical information to the union provided such disclosure is required by the CBA and/or labor laws. 

Needless to say, employers should exercise great care when disclosuring FMLA medical information to the union even where it is required.  While it likely can't be required as a condition, the employer might ask the union to sign a confidentiality provision prior to releasing the information.  Alternatively, the employer could provide the information with a memoranda emphasizng the highly confidential nature of the information being provided and the union's need to keep the information confidential.  The employer may also want to address how the information will be stored, returned or disposed of.  The union might tell the employer that is none of their business, but at least the employer is on record of addressing the issue in the event the matter results in a jury trial.   

The union receiving the information would be well-advised to treat FMLA medical information as highly confidential.  Simply tossing the information into an unsecured grievance file would likely be a "bad" move.  While a union's mishandling of FMLA medical information secured from an employer would not give rise to an FMLA violation, it may be the basis for a costly and embarasing lawsuit on alternative grounds.  The proper handling of confidential employee medical information, including FMLA certifications, is an area where the union and employer should seriously consider reaching agreement. 

 The decisions is Holland v. Shinseki, No. 3: 10-CV-00908 B (N.D. Tex. Jan. 18, 2012), https://ecf.txnd.uscourts.gov/cgi-bin/sHWo_PUbliC_DoC?2010cv0908-55

   

  

Confusion Regarding Date of Return From FMLA Leave Resolved Against Employer

Carl Thom worked as a molder for American Standard for 36 years before his discharge on June 17m 2005.  Prior to his discharge, Thom requested and was approved FMLA leave for the period April 27, 2005 through June 27, 2005 for shoulder surgery.  Because his shoulder healed more quickly than anticipated, Thom submitted medical documentation indicating that he could return to work on "light duty" on May 31, and set June 13 as the date Thom could return to full duty.  American Standard denied Thom's request to return to work earlier than approved, albeit on light duty as against company policy.  Thom did not return to work on June 13,  When contacted the next day, Thom explained that he did not return to work because he was experiencing increased shoulder pain, but would return on June 27, the end date of his approved leave.  American Standard discharged Thom for unexcused absences from June 13-17.

Thom sued alleging that his discharge violated the FMLA.  The district court awarded partial summary judgment in favor of Thom on his FMLA interference claim.  Thom argued that American Standard failed to adequately notify him of its method for calculating FMLA leave because it did not notify him in writing or otherwise that company policy was to use a "rolling" method of leave rather than the calendar method.  Under the rolling period method, the 12 weeks of leave is calculated "backward from the date an employee uses any FMLA leave.  Under this method, Thom's FMLA leave would have expired on June 13.  Under the calendar year method, Thom's leave wold have extended through July 14.  The only written document Thom received from the company stated that his leave wold expire on June 27.  American Standard firs notified Thom that it had accelerated his return-to-work date on June 14, a day after it had elapsed.  Amerian Standard first notified Thom that it used the "rolling period" method for calculating the 12-month FMLA leave year after Thom filed his lawsuit.

American Standard argued that it had always used the "rolling period" method fo calculating FMLA leave, and that Thom should have known this fact.  It further argued that Thom was on constructive notice throght its union that the company used the rolling" method.   The Sixth Circuit held that, even if notice to the union of the employer's method for calculating the FMLA leave-year can be imputed to an employee, that is not the case where, as here, American Standard officially approved Thom's leave through June 27- 10 work days in excess of what would have been permitted by the "rolling" method.  In short, the Court opined that "actual notice of a particular return-to-work date trumps constructive notice of another." The Sixth Circuit affirmed the decision of the district court that American Standard interfered with Thom's FMLA rights.  The Court also affirmed the award of $104,354.85 in back pay, and an equal amount in attorney fees and costs.

Comment:  Employer's can choose one of four methods for determining the 12-month period in which the 12 or 26 weeks of must be taken: (1) calendar; (2) other fixed leave year; (3) rolling back method; and (4) measured forward method.  See 29 CFR 825.200.  Employers are also required to notify the employee of the applicable method for calculating the 12-month leave year as part of the rights and responsibilities notice.  29 CFR 825.300(c)(1).  The case reminds employers that they need to clearly notify their employees of the FMLA leave year method they have selected.  

 The case is interesting as it leaves open the the possibility of imputing notice to the union of the leave year method selected to the employee. Arguably, the DOL's requirement that employer's include notice of the method of leave year calculation in the rights and responsibilities notice should foreclose the viability of such constructive notice.  Employer's would be well-advised to publish clear notice of the FMLA leave year method they have selected to all employees and avoid the much riskier constructive notice argument altogether.     

Thom v. American Standard, Case No. 09-3507/3508  (6th cir. January 20, 2012)http://www.ca6.uscourts.gov/opinions.pdf/12a0016p-06.pdf,

The Sixth Circuit covers Kentucky, Tennessee, Ohio, and Michigan.

 

3d Circuit Finds Individual Public Sector Supervisor Liability for FMLA Violations

The Third Circuit in Haybarger v. Lawrence, No. 10-3916 (3d Cir. Jan. 31, 2012) held that individual supervisor in the public sector, like their private sector counterparts, could be individually liable for violations of the FMLA separate from, and in addition to, the employer.

Debra Haybarger was employed as an office manager for the Lawrence County Adult Probation and Parole agency, a department in the County Court system.  She reported to William Mancino, the Department Director.  Haybarger suffered from Type II diabetes, heart disease, and kidney problems, which forced her to miss work frequenlty for medical attention.  Notwithstanding her known medical condition, Mancino repeatedly noted in her annual performance evaluations that she needed to cut down on her absences due to illness.  He also repeatedly questioned why she needed to visit the doctor so often.  Mancino disciplined Haybarger and placed her on probation for six months for conduct demonstrating a lack of leadership.   After securing proper authorization, Mancino subsequently fired Haybarger when, in his opinion, her performance did not improve.

Haybarger sued Lawrence County, the Probation Department, and Mancino for violation of the FMLA.   The federal district court dismissed Haybarger's FMLA claim against Mancino in his individual capacity on the merits after finding that Mancino did not have sufficient authority and control over Haybarger to be considered an "employer" subject to liability within the meaning of the FMLA.  Haybarger appealed the decision of the district court to the Third Circuit.  

To determine whether the district court erred in holding that Mancino was not Haybarger's "employer" for FMLApurposes, the Third Circuit, in a case of first impression, opined that it first had to consider whether the FMLA permits individual liability against supervisors in public agencies.   Because liability for FMLA violations is limited to an "employer" as defined by the Act, the Court began its analysis with the FMLA definition of "employer"in 29 U.S.C. Sec. 2611(4)(A)(i)-(iii):

(A) In general.  The term "employer" --

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii)  includes--

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer;

(III) includes any "public agency"  as defined in section 3(x) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(x)).

The Court also noted that individual supervisor liability for FMLA violations is codified in the U.S. Department of Labor FMLA implementing regulations, 29 CFR 825.104(a), (d).  As additional support, the Court referenced the fact that the FMLA definition of "employer" is materially identical to the FLSA definition, and that the Third Circuit has found individual liability for FLSA violations, including liability for lower level supervisors. 

The Third Circuit found not reason to distinguish between public agencies and private sector employers under the FMLA insofar as individual liability is concerned.  After recognizing a split in the Circuits on the issue, the Third Circuit joined the Fifth and Eighth Circuit to find individual public sector liability for FMLA violations.  In so doing, the Third Circuit rejected decisions of the Sixth and Eleventh Circuit finding no individual public sector supervisor liability for FMLA violations.  The split in the circuits rest on highly technical interpretations of the structure of the FMLA's "employer" definition.   The Third Circuit found that, because the definition of "employer" includes "public agencies," and Congress provided that an "employer" may include individuals, "it plainly follows that an individual supervisor at a public agency may be subject ot liability."    

The Court went on to find that Mancino was Haybarger's "employer" under the FMLA.  Here again, the FMLA defines an "employer" as "any person who acts, directly or indirectly, in the interest of an employer to any of the employee's of such employer."  Citing FLSA case law as support, the Court opined this meant that an individual is subject to FMLA liability when he or she exercises "supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest.  Applying the "economic reality" test, whether a person functions as an employer depends on the totality of the circumstances rather than on "technical concepts of the employment relationship," including: (1) whether the individual had the power to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.

Here, the Court found that Mancino exercised sufficient control over Haybarger's employment on behalf of Lawrence County to be her employer.  The fact that Mancino lacked final authority to terminate Haybarger did not alter the situation where, as here, he served has her immediatel supervisor, he conducted performance reviews, issued discipline, and recommended her ultimate termination. 

Comment:     In the private sector, courts have consistently found that individual managers and supervisor acting on behalf of their employer may be individually liable for violating an employee's FMLA rights.  The federal circuit courts have split on the issue in the public sector based on highly technical textual and contextual interpretations of the FMLA's definition of "employer."  The split in the circuits on the issue will likely be resolved one day by clarification by Congress or a decision by the U.S. Supreme Court. 

Where it applies, an individual supervisor may be liable even though they are not a very high level official or have final authority over the employee, provided they exercised some control over the employee and was at least partially responsible for the violation.  To be liable, it is not required that the manager or supervisor intend to violate the employee's FMLA rights.  A manager or supervisor may be personally liable for even inadvertent FMLA violations.   

Supervisors and managers with FMLA responsibilities would be well-advised to ask their employers to provide them with periodic FMLA training to ensure legal compliance.  Employee's should also inquire whether the employer's insurance policies cover the considerable legal costs of defending an FMLA lawsuit, including the cost of any settlement or adverse judgment.  If not, you should either demand coverage (in writing), secure it on your own, or rethink your continued employment as a manager or supervisor with that organization.  The legal defense of an FMLA lawsuit alone could cost in excess of $100,000 dollars, let alone the increased costs of any settlement or adverse judgment.  Such costs would bankrupt most supervisors. 

To avoid FMLA lawsuits and retain good managers and supervisors, FMLA-covered employers should provide periodic FMLA training and secure insurance to cover the defense and resolution of FMLA claims filed against individual supervisors.     

The opinion of the Third Circuit is availble at the following link:  http://www.ca3.uscourts.gov/opinarch/103916p.pdf

The Third Circuit covers New Jersey, Delaware, Pennsylvania, and the U.S. Virgin Islands. 

 

DOL Proposes New FMLA Military Family Leave Rules and Solicits Public Comment

On January 30, 2012, the U.S. Department of Labor (DOL) released proposed rules for public comment to implement statutory changes resulting from the National Defense Authorization Act of 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The proposed rules also clarify the meaning of, and make changes to, existing military family leave regulations. They also propose changes to the FMLA regulations generally. 

Military Family Leave

As addressed in previous posts, the FMLA was amended by the FY 2008 and FY 2010 NDAA's to add two new categories of FMLA leave: qualifing exigency leave and militlary care giver leave.  Both categories allow eligible employees of covered employers to take FMLA leave casually releated to the military service of a covered family member. 

Qualifying Exigency (QE) Leave

QE leave allows an eligible employee of a covered employer to take up to 12 workweeks of FMLA leave during a 12-month leave year because of a qualifying exigency arising out of the military service of a covered family member, including short-notice deployment, military events, child care & school activities, financial & legal arrangements, non-medical counseling, rest & recuperation, post-deployment activities, and other mutually agreed upon activities related to the family members military service.  

As originally codified, QE leave was limited to military service in the Reserves and National Guard. Thus, an eligible employee could not take QE leave related to the deployment of a family member serving in the Regular Armed Forces.  The FY 2010 NDAA amended the FMLA to allow eligible employees to take QE leave to for family members serving in the Regular Armed Forces (Army, Navy, Matines, Air Force) provided military service was to a foreign country.  The rules proposed by the DOL update the regulations to reflect the changes resulting from enactment of the FY 2010 NDAA.  The rules also propose to clarify and modify existing QE regulations.  For example-

• QE leave is only available where a covered family member of the Regular Armed Forces or Reserves is deployed to a foreign country.  Prior to FY 2010 NDAA, foreign deployment was not required for QE leave due to call or active duty of a member of the Reserves. 
• The proposal defines "foreign deployment" to include deployment in international waters.
• Clarifies that QE leave is availble for an eligible employee for child care and school activities even if the employee is not the parent of the child of the deployed military member.
• Expands Rest and Recuperation leave from 5 to 15 days during a period of deployment as a better match to DOD practice.
• Permits an employer to require the employee to provide a copy of the R & R order to substantiate the need for QE leave for this purpose.
• Adding attendance at furneral services as a post-deployment activiity covered by QE leave.

 Military Caregiver Leave

Military caregiver leave was created as a new FMLA entitlement by the FY 2008 NDAA amendments.  An eligilble employee of a covered employer who is the a covered servicemember's spouse, son, daugher, parent, or next of kin may take up to 26 workweeks of leave duing a "single 12-month period" to care for a service member receiving treatment for a serious illness or injury incurred inthe line of activie duty.  As orginally enacted, military caregiver leave was limited to current members of the Armed Forces, including Guard and Reserves.  The FY 2010 NDAA amendments expanded military caregiver leave to cover leave to care for certain veterans within 5 years of their duscgage or release from the Armed Forces.  It also amended the definition of "serious illness or injury" to include aggravation of preexisting conditions.  The proposed DOL regulations address these statutory changes.

Interesting aspects of the proposal on this issue include-

• Allowing an eligible employee to continue on military caregiver leave that began before the passage of the five-year period until the end of the single 12-month period.
• Newly defines a qualifying "serious injury or illness" for a veteran to include (1) serious illnesses or injuries suffered while the individual was a current servicemember; (2) as a physical or cmental condition for which the covered veteran has received a VA Servife Related Disability Rating of 50 percent or higher; or (3)  a physical or mental condition that substnatially impairs the veteran's aabilty to secure or follow a substantially gainful occupation by reason of a service-connected disabilty, or would do so absent treatment.
• The DOL is considering adding a fourth alternative definition of "serious illness or injury" involving veterans: enrollment in the VA's Program of Comprehensive Assistance for Family Caregivers.
• Proposes allowing medical certifications from non-military "health care providers." 
• Modifies the medical information that an employer may be entitled to receive to support a request for military caregiver leave.

AFCTCA

Enacted on December 21, 2009, the Airline Flight Crew Technical Corrections Act (AFCTCA) established a special minimum hous of service eligibility requirement for airline clight crew employees.  The legislation was enacted to adapt the 1250 hours of service eligibiltyr equirement to the unique schedules of flight crews which, in some jurisdictions, did not count standby and the time between flights as "hours worked."  As a consequence, airline employees were not eligible for FMLA leave even though they were working full-time schedules.  The proposed rule details the special service requirements unique to the airline industry.  

Additional Proposed Changes

The DOL proposes to make several other interesting changes to the existing FMLA regulations, including:

 

• Eliminate a 2009 regulation permitting employers to charge an employee different minimum increments of intermittent leave during different times of the day if that is the employer's practice for non-FMLA leave in favor of requiring the employer to charge the employee the smallest increment of leave.
• Eliminate a 2009 provision allowing employers to delay an employee's return from FMLA leave where it is  physically impossible (e.g., employee works in a locked clean room and seeks to return mid-shift). 
• Removing the optional-use medical certification and other forms from the regulations, although DOL would continue to encourage their use and make the forms available on their website.

Comments to the proposed regulations are due 60 days after publication in the Federal Register (which has not yet occurred, but is imminent).  You may submit comments, identified by Regulatory Information No. (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portal: http://www.regulations.gov.  Follow the instructions for submission. Alternatively, you may submit comments by mail to: Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Rm. S-3510, Constitution Avenue, NW, Washington DC, 20210. 

Comment:  This is your chance to shape the FMLA regulations.  Serious comments are taken seriously by the DOL.  Speak now or forever hold your peace.  

The DOL proposal may be viewed in its entirety at:   http://www.dol.gov/whd/fmla/NPRM/FMLA_NPRM_2012.pdf

Finally, until adopted, the above are just proposals. The current rules and statutory language continue to apply.       

      

Adequate Employee Notice of the Need for FMLA Leave Involving In Loco Parentis Parent: Further Explanation Required

The FMLA allows an eligible employee of a covered employer to take FMLA leave to care for a covered family member, including a parent.  A "parent" includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability).  29 CFR 825. 122(b).  In loco parentis means that the individual had day-to-day responsibility to care for or financially suport the employee when the employee was a son or daughter.  29 CFR 825.122(c)(3). 

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave.  The FMLA's notice requirements are not onerous.  Basically, the employee must provide adequate information to apprise the employer that the leave may be in need of FMLA leave. An employee need not invoke the "FMLA" by name.  If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.  

In Ruble v. American River Transportation Co., No. 2:10 CV 24 DDN (E.D. Mo. June 29, 2011), Jack Ruble notified his supervisor (the boat captain) that his 90-year-old grandmother was ill and that he may need to leave the boat during the voyage.  It was uncontested that Ruble's grandmother took exclusive care of Ruble when he was a child for several years. 

During the voyage, Ruble was notified by his family that his grandmother had been diagnosed with terminal cancer and was not expected to live more than a week.  That day, he told the boat captain that his grandmother had terminal cancer, that she was not expected to live more than a week, and that he wanted to leave the boat.  Ruble and the crew lived on the boat during the voyage.  Under Company policy, leaveing the boat during a voyage without approval was grounds for removal.  The boat captain referred Ruble to the Company Personnel Manager, whom Ruble called and explained the situation. 

Ruble told the Personnel Manager that his grandmother was ill and he needed to go see her before she died because she had taken care of him.  He delayed leaving the vessel for a few days while the Company tried to secure a replacement.  The Company asked Ruble to wait one more day for the replacement before leaving the boat.  Ruble declined, and flew home.  He did not, however, see his grandmother at the hospital until the following day. 

Ruble's grandmother was discharged from the hospital a few days after he arrived.  She stayed with her daughter, who was primarily responsible for her care.  Ruble's grandmother did not live with him at his home near or before her death.  Ruble stayed by his grandmother's side throughout her hospital stay, providing psychological comfort, and care.  He also spent almost every day with his grandmother while at Shipley's house.  Ruble's grandmother died on May 18.  

Ruble was terminated from employment for leaving the boat without authorization during the voyage.  He sued, alleging that his termination violated the FMLA.  The Company moved for summary judgment to dismiss the case, arguing that Ruble failed to provide adequate notice that the leave may be FMLA-qualifying. The Company argued that Ruble failed to adequately notify it that his grandmother was his in loco parentis parent while Ruble was a child.  Absent an in loco parentis relationship, the FMLA does not entitle an employee to take leave to care for a grandparent.

The Court opined:

When an employee seeks to invoke FMLA benefits based on an in loco parentis relationship, the employee must provide his employer with sufficient facts indicating that such a relationship may exist. See Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 72-73 (3d Cir. 2003)("Since [the employee] did not initially tell her employer that her grandmother had raised her, she failed to sufficiently explain her reasons for the needed FMLA."); Abousaidi v. Mattress Discounters Corp., No. 1:05CV1142 (JCC), 2005 WL 3797366, at *2 (E.D. Va. Dec. 8, 2005).  Otherwise, the employer could not know that the employee's leave may be secured by the FMLA. See Wierman,638 F.3d at 1000 (the employer's duties do not arise until the employee gives sufficient information to who that he may be in need of FMLA leave).

The Court found that Ruble's assertion that he told the Personnel Manager that his grandmother "took care of him," coupled with his more effusive affidavit on the subject, created a genuine issue of material fact regarding the adequacy of Ruble's notice sufficient to defeat the Company's motion for summary judgment. 

Comment:  To secure the benefits and protections of the FMLA, an employee requesting FMLA leave to care for an in loco parentis parent must articulate some facts to put the employer on reasonable inquiry notice that the leave might be FMLA qualifying.  An in loco parentis parent does not have to involve a legal or biological relationship.  All that is required is that the individual had responsibility to care for and/or financially support the employee when the employee was a son or daughter within the meaning of the FMLA.  Absent a biological or legal relationship, it may not be obvious to an employer that a grandparent, older sibling, uncle, aunt, or someone else cared for the employee when the employee was a child.  While an employee need not affirmatively assert an in loco parentis relationship (although they certainly could do so), the do need to articulate some facts suggesting an in loco parentis relationship.  If the employer needs additional information to confirm an in loco parentis relationship, the burden is on the employer to inquire further.

As demonstrated in Ruble, the notice bar on this issue is relatively low (e.g., my grandma took care of me).  It is not, however, non-existent.  Employers, in turn, must be alert to in loco parentis relationships as a qualifying basis for FMLA leave.  When in doubt, ask the employee to clarify the nature of what might be an in loco parentis relationship.      

 

 

  

Impact of Proposed Repeal of Defense of Marriage Act on FMLA Leave

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Comment: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Curently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed  legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

A link to the Senate bill is provided: http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET