Navigating the FMLA Minefield, 0114 SCBJ, SC Lawyer, January 2014, #1

• Author: J. Scott Falls and Emily M. Nellermoe

Navigating the FMLA Minefield

2014 #1

South Carolina Bar Journal

January, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 SEVEN COMMON MISTAKES EMPLOYERS MAKE

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 J. Scott Falls and Emily M. Nellermoe

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Family and Medical Leave Act of 1993 (FMLA) provides up to 12 weeks of unpaid leave to an eligible employee for his or her own serious health condition or the serious health condition or military service of a family member.¹ The FMLA generally applies to: (1) employers who employ 50 or more employees in 20 or more workweeks in the current or proceeding calendar year; (2) all public employers;² and (3) all private elementary and secondary schools.³ To be eligible for FMLA benefits, an employee must: (1) have worked for a covered employer for a total of at least 12 months; (2) have worked at least 1, 250 hours over the previous 12 months; and (3) work at a location where at least 50 employees are employed by the employer within 75 miles of the work site where the employee requesting leave is employed.⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The FMLA was created in order to help workers "balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity"⁵ Although the legislation is focused on employees, employers can also reap the benefits of increased productivity and employee loyalty that comes from creating "stable workplace relationships."⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Like every piece of legislation, the FMLA comes with its own set of challenges, generating confusion among employers, employees and attorneys alike. First, the Act can be more technical than its employment law brethren (Title VII, ADEA, ADA, etc.). The FMLA places hefty consequences on employers who do not comply (liquidated monetary damages, attorney's fees, equitable relief, etc.).⁷ Additionally, Congress made substantial amendments to related regulations as recently as 2009, and FMLA case law is still evolving in several areas. The following list highlights seven of the most prevalent FMLA pitfalls in no particular order.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Determining eligibility

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Calculating the number of employees in order to determine FMLA eligibility can become quite tedious. The following types of employers should pay close attention to the eligibility rules set forth by the Secretary of Labor:

• Employers who employ or station workers internationally⁸

• Employers with a fluctuating payroll, i.e. those who hire seasonally⁹

• Employers who downsize to fewer than 50 workers.¹⁰

• Employers who employ workers with no fixed work site.¹¹

• Airlines (thanks to the brand-new Airline Flight Crew Technical Corrections Act of 2013).¹²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It is not wise for employers to try and weasel their way out of FMLA compliance; the FMLA specifically prohibits manipulating the number of employees for purposes of avoiding FMLA eligibility (e.g. transferring employees between work sites in order to keep employment below the 50-employee threshold).¹³ According to a DOL-commissioned study, 34.6 percent of all work sites are large enough to have covered employees.¹⁴ Of course, the DOL encourages employers of all sizes to adopt their own related policies and expand on those provided in the FMLA.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Failure to meet FMLA notice requirements

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It is never the employee's responsibility to request FMLA leave; if an employee notifies the employer that she is taking time off for an illness, it becomes the employer's responsibility to inform her of her rights in accordance with all of the notice requirements set forth under the statute.¹⁵ An employer may be equitably estopped from challenging an employee's FMLA eligibility at trial if "inadequate notice effectively interfered with plaintiff's statutory rights."¹⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Furthermore, it is the burden of the employer to determine which situations could be FMLA-related, especially when an employee provides minimal information. According to DOL guidelines, an employee need only provide "sufficient information' to put an employer on notice of potential FMLA-qualifying leave; the employee is not required to specifically reference the FMLA or use any "magic words."

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Consider the Third Circuit case Lichtenstein v. University of Pittsburgh Medical Center¹⁷ ; here, an employee called her supervisor and stated the following: "currently in the emergency room ... my mother had been brought into the hospital via ambulance, and I would be unable to work today"¹⁸ The employee was terminated four days later for excessive absences; she countered by suing for interference with her FMLA rights. The court found that the employee had given her supervisor enough information for him to conclude that FMLA leave may be at issue and therefore created an obligation to find out additional information.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If the employer is unsure whether a situation involves the FMLA, it should follow up with the employee. Employers' failure to give adequate and proper notice could result in liability for compensation ' of benefits or other monetary losses and/or equitable relief (e.g. reinstatement, promotion, etc).¹⁹ To be safe, employers should utilize the forms available on the DOL's website.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0An employer has five business days from the time it acquires knowledge of an employee's qualifying situation to provide that employee with three important notifications:

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA01. Eligibility Notice (can be provided verbally or in writing): states whether the employee is eligible to; take FMLA leave. If she is not eligible, the notice must state at least one reason why²⁰

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA02. Rights and Responsibilities Notice (must be provided in writing): details "specific expectations and obligations of the employee": and explains "any consequences of a failure to meet these obligations, "²¹ including:

a. Requests for medical or qualifying exigency certification (the DOL has various certification forms available online; look for the " WH-380" series).

b. The employee's right to maintenance of benefits during FMLA leave and restoration to the same or equivalent job upon return.

c. Whether the employer will require a fitness-for-duty certification when the employee returns.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA03. Designation Notice (must be provided in writing): notifies the employee as to whether her time out will be counted against her FMLA leave entitlement.²²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As a final piece of notice-related advice, it is important that any discussions regarding an employee's FMLA leave are recorded in writing; this helps employers maintain compliance with federal and internal guidelines.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Failing to follow FMLA requirements regarding employee medical certifications

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Prior to leave

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0An employee is never required to provide his employer with extensive medical records. However, the employer does have the right to request a medical certification (to be completed by the treating physician) that sets forth sufficient medical facts to establish the existence of a serious health condition. Any medical records outside the scope of the medical certification form are off limits to employers.²³ Additionally, in order to comply with HIPAA privacy laws, the employer representative contacting the employee's physician must under no circumstances be that employee's direct supervisor; only an HR professional, a leave administrator or a management official should have contact of this kind.²⁴

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If an employer has suspicions about the duration or appropriateness of leave, it may require a second (or third) opinion for initial certification purposes;²⁵ it can also request a re-certification at a later date.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0After leave

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Employers have the right to request a fitness-for-duty certification (FFDC) when an employee returns from FMLA leave. This form must be signed by the employee's physician and certify that the employee is...