The FMLA Blog

Policy Limits on Vacation Travel During FMLA Leave Upheld

A federal district court recently upheld an employer's policy requiring an employee to remain in the immediate vicinity of their home as a condition of receiving paid sick leave, including during periods when the employee is on FMLA leave.  In limited circumstances, the policy allowed an employee to travel outside of the immediate vicinity of their home for medial treatment, family needs, and with the prior consent of the employer.  Violation of the policy could result in termination of paid leave, as well as discipline. 

Denise Pellegrino was employed by the Communications Workers of AMerica (CWA) in a clerical capacity.  Pursuant to the CWA FMLA-Sick Leave Policy, Pellegrino notified the CWA that she needed leave for surgery.  The CWA approved Pellegrino's request for FMLA leave, and notified her that she would be required to substitute paid sick leave for the absence.  While on approved leave, Pellegrino traveled to Cancun, Mexico, where she stayed for a week.  There was no medical or family reason for the trip, nor had she secured the CWA's prior consent to travel outside of the immediate vicinity of her home during leave. The CWA terminated Pellegrino for violation of the CWA's leave policies. 

Pellegron filed suit alleging that her termination violated the FMLA.  CWA moved for summary judgment alleging that the FMLA did not protect Pellegrino from termination for a reason unrelated to her FMLA leave- namely, violation of the CWA policy restricting unapproved travel for someone receiving paid sick leave benefits.  CWA argued that it would have terminated her irrespective of her status under the FMLA as it had the right to enforce its policies restricting unapproved travel where an employee is on paid sick leave.   The Court agreed with the CWA.

The Court confirmed that the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave.  So long as employer policies do not conflict with or diminish an employee's FMLA rights, the FMLA, the Court found, "in no way prevent an employer from instituting policies to prevent the abuse of FMLA leave."  Here, CWA terminated Pellegrino because she violated CWA's Sickness and Absenteeism policy by leaving the immediate vicinity of her home without prior approval, or for any other permissible reason.  The Court reasoned that the policy served the legitimate purpose of ensuring that the privilege of paid sick leave is not abused. The Court also found that the policy does not discourage or prevent CWA employees from taking FMLA leave. 

The Court awarded summary judgement to the CWA for violation of the CWA travel restriction policy, a legitimate reason independent of her use of FMLA leave.

Comment: The FMLA does not prohibit an employer from enacting and enforcing leave and attendance policies to control leave abuse even where, as here, those policies may apply to FMLA leave.  Remember, under federal law, FMLA leave is always unpaid.  The only way an employee can get paid while on FMLA leave is pursuant to an employer's paid leave policy.  Employers are not required to offer paid sick or personal leave, but many do.  An employer's paid leave policy may not single out FMLA leave for special treatment.  Rather, as in Pellegrino, the paid leave policy should generally apply to all absences due to sickness or disability, which may also encompass FMLA leave.

In a fascinating footnote, the Court in dictum opined that, even if an employer did not have a formal policy restricting travel during FMLA leave, "no reasonable jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country."  

I note that the FMLA generally does not require an employee on approved FMLA leave to notify an employer of their whereabouts during leave.  The Court's dictum would appear to impose such a requirement where none exists.  Absent a policy, I would not counsel employers to take adverse actions against employees for failure to provide notice of their intent to leave the vicinity of their homes during FMLA leave.    

The decision is consistent with a long line of cases allowing employers to impose and enforce neutral leave and attendance policies to curb leave abuse, even where the leave is covered by the FMLA.     

Pellegrino v. Communications Workers of America, AFL-CIO, Civil Action No. 10-0098 (W.D. Pa. May 18, 2011) http://op.bna.com/dlrcases.nsf/id/jaca-8h2m25/$File/Pellegrino.pdf

 

   

 

Feeling "Tired, Lethargic, Fatigue-ish, and Ill" Insufficient Notice to Invoke the Protections of the FMLA

Jordan To was employed by US Bank as a Senior Research Clerk.  While employed, To joined the Minnesota National Guard.  As ordered, To attended Guard training at Fort Benning for approximately three months.  He kept his employer informed of his expected return to work.  When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned.  To was told that, to be excused, he would need a doctor's note, which To provided.  To provided a doctor's note, which excused his continuing absence from work citing only "illness."  As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well."  A second doctor's sought to excuse his continuing absence due to "illness."  The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."  Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy.  US Bank fired To.  To sued, alleging violation of the FMLA.  US Bank moved for summary judgment. 

In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.  In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition.  An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.  By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition.  As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work. 

The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave.  Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job.  That, the Court found, is what happened in this case.  Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures.  29 CFR 825.302(d).  The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.  

Comment:  To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may).  Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions.  Claiming that you are "ill," or "sick," or "fatigued" simply fails that test.  Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying. 

Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures.  To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so.  That was not the case with To. 

To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)

http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83

Non-Compliance with Employer's More Stringent Leave Procedures May Not Justify Employer's Denial of FMLA Leave

Shauna Saenz was approved for intermittent leave for partial complex epileptic seizures. The letter approving the leave indicated that Saenz needed to request FMLA leave by contacting a third party provider (Hartford) no later than 2 days after each time she took intermittent leave.  The letter warned that failure to provide the necessary notice could result in the loss of FMLA protection.  Without incident, Saenz exercised her right to intermittent leave 9 times in the ensuring five months.  Each time, the letter approving the leave referenced the 2-day n notice requirement.  Saenz missed work on December 29-31 and January 3-4. 

On December 28, Rhonda Galloway, Saenz's mother, discovered Saenz hallucinating and disoriented.  Galloway determined that Saenz could not work that day, and informed Saenz's immediate supervisor.  Galloway also informed a higher level supervisor of the need for leave.  Galloway took Saenz to the emergency room of the hospital where she worked for treatment. The higher level supervisor personally came and visited Saenz while she was in the emergency room.  Gallow secured a court order appointing her to be a guardian of her daughter for purposes of making medical decision.  Saenz was subsequently transferred to another health care facility for treatment.  She was released three days later.  On her release, she stayed with her mother.  Galloway called Saenz's immediate supervisor, explained what had happened in the interim, and requested an indeterminate amount of leave.  The supervisor reminded Galloway that Saenz was required to request leave through Hartford.  Galloway apparently did not call The Hartford.  Saenz was subsequently diagnosed with bipolar disorder.  Saenz called The Hartford on January 9 regarding her absences of December 29, 30, 31, and January 3 and 4, 2007.  The Hospital subsequently terminated her employment due to her non-FMLA approved absences. The letter explained that her absences were not FMLA-approved because she failed to request leave within two days of her hospital discharge as required by the employer's policy. 

Saenz sued the hospital alleging violation of the FMLA.  The district court awarded summary judgment to the hospital.  Saenz appealed to the Fifth Circuit.  The Fifth Circuit reversed the decision of the district court. Specifically, the court found that, pursuant to 29 CFR 825.303, Saenz contacted the hospital "as soon as practicable" and provided enough information to hospital staff to alert her employer that she was requesting FMLA leave.  The fact that she did not timely contact the third party provider within two days as required by the hospitals' more restrictive policy was not, the court concluded, controlling.  In that regard, the FMLA establishes a more relaxed notice requirements, which is all the employee was required to satisfy.  

Shauna Saenz v. Harlingen Medical Center, L.P., No. 09-40887 (5th Cir. Aug. 2, 2010). http://www.ca5.uscourts.gov/opinions/pub/09/09-40887-CV0.wpd.pdf

 

Comment:  The decision, in my opinion, correctly determined that, under the circumstances, the employee timely provided adequate notice of the need for FMLA leave "as soon as practicable."  The court also correctly determined that, to perfect her request for FMLA leave, the employee need only satisfy the minimum requirements of the FMLA leave, and not the more stringent procedural requirements imposed by the employer's policy.

The decision is based on the pre-2009 revisions to the DOL regulations.  The court correctly declined to aply the post-2009 DOL notice regulations retroactively.  As revised, the "new" DOL notice regulations provide that, absent unusual circumstance, an employee must abide by an employer's "usual and customary" notice and procedural requirements for requesting unforeseen leave.  See 29 CFR 825.303(c).  In dicta, the Fifth Circuit observed that, if the new standard applied, the employer "might very well be entitled to summary judgment." Opinion at n. 9.  My opinion: If the circumstances of this case are not "unusual," the term has no meaning.   On these facts I don't' believe the result would, or should, change.

The lesson: an employee who is incapable of complying with an employer's more stringent "usual and customary"notice procedures may still be entitled to FMLA leave if they satisfy the minimum notice requirements of the FMLA. An employee who fails to adhere to the employer's leave requesting procedures may, however, be subject to discipline for such failure even though FMLA leave was granted. 

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.  

Notice "As Soon As Practicable" Triggered Based on Possibilty of the Need for FMLA Leave

David Valdivia, an inbound electrician for BNSF, suffered from migraine headaches for which he had been granted intermittent FMLA leave in the past.  Valdivia was prescribed Maxalt to treat his migraines.  One of the side-effects of Maxalt caused Valdivia to occasionally fall into a deep sleep for up to 27 hours.  When he takes Maxalt on a day he is scheduled to work Valdivia would set his alarm clock to wake him, which did not always work.  If family members were home, they would also wake him up in time to make his shift.  To avoid AWOL, BNSF policy required Valdivia to either report to duty on time or call-in and request FMLA before the start of his shift.

After working the midnight shift on August 19, Valdivia felt the onset of a migraine on his way home from work.  He took Maxalt at 9 am, and set his alarm for 11 pm in order to make the midnight shift.  He took Maxalt again at 2:00 pm.  Valdivia not only slept through his alarm, but through his entire shift (18 hours).  When he awoke he called BNSF, explained what happened, and requested FMLA leave.  Long story short, BNSF denied the request, charged Valdivia with AWOL, and issued him a 20-day suspension.  Valdivia sued alleging that BNSF interfered with his FMLA rights. 

There was no question that Valdivia suffered from an FMLA-covered serious health condition (migraines) generally, and on the day in question.  Nor was there any question that the onset of the migraine was not foreseeable.  The case turned on whether Valdivia gave BNSF notice of his unforeseeable need for FMLA leave "as soon as practicable under the facts and circumstances of the case," as required by 29 CFR 825.303(a) of the DOL FMLA regulations.  The court found that Valdivia did not notify BNSF as soon as practicable of his need for FMLA leave.

Based on circumstantial evidence, the Court found that Valdivia knew he would need FMLA leave as of 2 pm, when he took his second dose of Maxalt.  The Court also found that it was possible and practicable for him to notify BNSF of his need for leave at that time.  The Court noted that  Valdivia knew at that time he took his second dose that just one dose of Maxalt could cause him to sleep through his alarm.  Notwithstanding that knowledge, he made no arrangement for family members to awaken him after he took his second dose.  The court observed:

At trial, plaintiff admitted that if he had called in to request leave, then recovered in time to work, he could have reported to work as usual with no adverse consequences.  Plaintiff's decision to play the odds and wait until the last minute to re-assess his situation did not postpone his obligation to give notice as soon as practicable and possible under the FMLA.

Valdivia admitted that it was not impossible or impracticable for him to give notice at 2 pm.  He argued that BNSF policy only required him to call before the beginning of the shift.  The Court dismissed various hypothetical scenarios offed by Valdivia demonstrating that he could have called in after 2 pm but before his shift.  In so doing, the court rejected the argument that BNSF's more generous-call-in policy exonerated Valdivia's duty under the FMLA to give notice as soon as practicable.  The court concluded:

If the Court were to allow plaintiff to use BNSF policy as a sword in FMLA interference litigation, it could unintentionally discourage the very kind of dialog and communication which the FMLA is intended to promote.

Comment:  The decision illustrates two points.  The first is how the court interpreted "as soon as practicable under the facts and circumstances of the case."  The Court focused on when, in its estimation, Valdivia should have known that he would need FMLA leave.  In so doing, the Court fixed that awareness based on the possibility that he might need FMLA leave because, in the past, he occasionally slept through his alarm when taking just one dose of Maxalt.  Setting the point in time when an employee should realize they may need leave based on the mere possibility of that need is a fairly low standard.  

Second, the court's dictum that BNSF's more generous call-in policy does not supersede the FMLA's "as-soon as practicable" notice requirement is at odds with the FMLA.  The observation is dictum because Valdivia, in fact, did not notify BNSF prior to the start of his shift that he may need FMLA leave.  The court did not need to address what might have happened had Valdivia not slept through his entire shift. 

Moreover, court's dictum is clearly wrong.  The FMLA allows an employer to provide greater leave benefits than the minimum required by the FMLA.  29 CFR 825.700.  Allowing an employee a greater amount of time to request leave than the minimum required by the FMLA is a form of greater leave benefit.  The court's observation runs contrary to the plain language of the DOL regulations.      

Valdivida v. BNSF Railway Co., No. 07-2467-KHV, 2008 U.S. Dist. LEXIS 10828 (D. Kan. Sept. 30, 2008)        

FMLA Rights Lost by Employee's Failure to Fill-Out Change of Address Form

In Sconfienza v. Verizon Pennsylvania, Inc., No. 07-2498, 2008 U.S. App. LEXIS 24740 (3d Cir. Dec. 5, 2005), company policy required an employee to submit a personal certification attesting that each absence was related to a previously approved need for intermittent FMLA leave.  In so doing, the employee gained FMLA protections for absences that were personally certified.  An employee who failed to submit such personal certification could be cited with a chargeable absence for purposes of discipline, even if the absence was, in fact, for the same FMLA-covered condition.

Sconfienza was pre-approved for intermittent FMLA leave due to migraines.  She failed, however, to submit personal certifications for a number of absences, which resulted in her receiving discipline.  Sconfienza sued, alleging that the discipline violated her FMLA rights.  She sought to excuse her failure to submit personal certifications for the cited absences based on Verizon's failure to send the certification forms to the appropriate address.  Verizon countered that, under company policy, Sconfienza was required to change her official address of record, and that she had repeatedly refused to do so. 

The burden was on Sconfienza, the Third Circuit found, to ensure that she complied with Verizon's known personal certification leave procedures.  Because she did not file the appropriate personal certifications, she was not entitled to FMLA leave.

Comment:  To gain FMLA protections an employee must comply with their employer's known usual and customary leave reporting requirements.  An employee who refuses to abide by those requirements, perhaps out of frustration, may inadvertently deprive themselves of FMLA protections.  All employees might consider heeding a bit of wisdom from the collective bargaining world: obey now, grieve later. 

FMLA Usage and Percentage Absenteeism Rate Attendance Policies: Be Careful

In Dickinson v. St. Cloud Hospital, No. 07-3346 ADM/RLE (D. Minn. Oct. 20, 2008), the court addressed the interaction of the FMLA with attendance policies based on absenteeism percentage rates. In that case, the Hospital had separate policies for FMLA and non-FMLA absences.  For non-FMLA absences, an employee could be subject to discipline for exceeding a 4% absenteeism rate.  The absenteeism rate was calculated by dividing the number of hours an employee is absent by the scheduled hours of the employee.  FMLA absences are not factored into the absenteeism rate. 

Dickinson was terminated for having a non-FMLA absenteeism rate of 7.12% for the period November 6, 2005 to March 25, 2006.  Prior to that, Dickinson had used FMLA leave for problems with her kidneys. She had also been subjected to several levels of progressive discipline for exceeding the 4% absenteeism rates during various periods over the last several years. 

Dickinson sued, alleging that the Hospital interfered with her FMLA rights by the manner in which it calculated her non-FMLA absenteeism rate.  Specifically, Dickinson argued that FMLA leave must be included in the denominator of the absenteeism calculation because failing to do so causes the negative effect of increasing her absenteeism rate.  The Hospital argued that it did not interfere with her rights because it treats FMLA leave neutrally by excluding it from both the numerator and the denominator. 

Agreeing with Dickinson, the court observed:

As a ".9" employee, Dickinson was scheduled to work 1,872 hours per year.  To remain below the 4% absenteeism rate required by [the Hospital], she could only miss 74.88 hours of work a year (74.88/1872 = 4%).  Applying the method by which [the Hospital] calculates the absenteeism rate means that if Dickinson takes 100 hours of FMLA leave as well as 74.88 hours of non-FMLA leave, her absenteeism rate rises above 4% (74.88/1772 = 4.22%).

The court concluded that, under the Hospital's policy, employees who elect to take FMLA leave may be allowed fewer non-FMLA absences.  As such, the policy uses the taking of FMLA leave as a negative factor, which is prohibited by the Act. 

Comment: Employers with attendance policies based on non-FMLA leave absenteeism percentages need to ensure that FMLA leave usage is completely factored out of the calculation.  WARNING: THIS MAY REQUIRE MATH SKILLS. 

The court went on to find that the Hospital could still prevail if it could show that it would have terminated Dickinson even if she had not exercised FMLA rights.  To do so, the Hospital, the court opined, would need to demonstrate the Dickinson 's absenteeism rate would be above 4% over the time period used to determine the rate even with FMLA leave factored into the denominator.  The court ultimately found material facts in dispute on the issue and denied employer's motion for summary judgment.

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.