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 capable of returning to work.²⁶ The FFDC may only address the specific medical condition for which the employee took the leave. An employer may also require that the certification specifically state whether the employee has the ability to perform essential functions of the job (in order to require this, the employer must have provided the worker with a list of essential functions prior to delivery of the Designation Notice). While an employer has the right to contact the employee's physician for authentication or clarification of the FFDC, the employer may not delay the employee's return to work while contact with the physician is being made.²⁷

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Not taking an employee's medical condition seriously

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Many employers are naturally concerned about the potential for added administrative burdens and lost productivity when a worker tries to take FMLA leave. However, being dismissive or doubtful of an employee's valid medical condition is a dangerous path for employers to tread. So, what types of medical conditions or treatments entitle an employee to exercise their FMLA rights?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What is FMLA-eligible

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In order to take FMLA leave for a "serious health condition, " an employee must show that his illness, injury, impairment or physical or mental condition (or that of a family member's):

• Involves inpatient care, ²⁸ i.e. "an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity"²⁹; or

• Involves continuing treatment by a healthcare provider, ³⁰ i.e. determining if a health condition exists, evaluating a condition, or a regimen of treatment including "a course of prescription medication" or "therapy requiring special equipment"³¹; and

• That results in a "period of incapacity of more than three consecutive, full calendar days, "³² defined as the "inability to work, attend school or perform other regular daily activities."³³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What is not FMLA-eligible

• The common cold, the flu, an upset stomach, non-migraine headaches, routine dental or orthodontia problems, etc.³⁴

• Routine physical, optical, and dental examinations.³⁵

• Any activities that can be "initiated without a visit to a health care provider" are not sufficient "to constitute a regimen of continuing treatment" by themselves. For example, a continuous regimen of taking over-the-counter medications would not qualify³⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Tricky areas

• Cosmetic/Plastic Surgery: Voluntary cosmetic/plastic surgeries (including dermatological and dental procedures) generally do not qualify unless (1) inpatient hospital care is required, or (2) other serious complications arise from such procedures.³⁷ Restorative dental or plastic surgery after an injury or after the removal of cancerous growth would qualify as long as inpatient care or ongoing treatment is necessary.

• Allergies or Mental Illness (e.g. severe depression): These may be "serious medical conditions" only if inpatient care or ongoing treatment is also necessary³⁸ It is a good idea to request a medical certification before granting leave for these conditions.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If an employer has reason to believe that an employee is exaggerating or faking a medical condition, it should not deny him or her FMLA leave without further investigation.³⁹ There are other ways to weed out suspicious claims (medical certification and re-certification, second medical opinions, asking pointed up-front questions, etc.) that don't involve false accusations or potential FMLA interference lawsuits.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Contacting employees too often during FMLA leave: the "chilling'' effect

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Employers are naturally and understandably curious about how long an employee's FMLA leave will last. Employers do have the right to know this information, but they must be careful not to cross the line into harassing behavior.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 2011, the Western District Court of Arkansas decided that frequent contact by an employer during an employee's leave could constitute FMLA interference.⁴⁰ In the case, the employer (specifically, the plaintiff's immediate supervisor) contacted the employee weekly while she was recovering from back surgery. Because of the nature and frequency of the calls, the employee claimed that she felt pressured to cut her leave short; the court agreed that the employer's actions had a discouraging or "chilling effect" on the duration of the plaintiff's leave.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The FMLA provides procedures for contacting employees while they are on leave. Under the Act, "an employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work."^[41] However, this contact must not be arbitrarily applied or discriminatory^[42] Further, in determining the propriety of such contact, "all of the relevant facts and circumstances" of each individual case must be considered. If the employee finds out that she needs more time than originally anticipated, the employer may require the employee to provide "reasonable notice (i.e., within two business days) of the changed circumstances."⁴³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Employers can shield themselves from an FMLA interference claim by providing employees with clear, written instructions for periodic reporting during leave. Make sure that the level of contact is appropriate given each employee's FMLA-eligible situation and his or her position at work. Also, employers must ensure that anyone in contact with an FMLA employee avoids language that could potentially pressure the employee to cut his leave short or cause him to fear for his job security.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Requiring employees on FMLA leave to work from home

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Employers often lose valuable workers during FMLA leave; to soften the blow, employees are sometimes asked to work from home. This situation can be tricky, causing employers to walk a fine line between productivity and FMLA interference.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Reilly v. Revlon, ⁴⁴ a Revlon employee on FMLA leave was given a company laptop, cell phone and Internet access so she could work from home (this entailed responding to calls from her temporary replacement, answering coworkers' questions, etc.); the plaintiff complained that this request interfered with her protected time off. The court did not sympathize with this specific situation, stating that "fielding occasional calls about one's job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee's FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls."⁴⁵ Similarly, the Eastern District Court of Michigan found that calls "regarding documents the plaintiff had worked on as well as where those documents were located" did not constitute FMLA interference.⁴⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Because the case law is still developing, employers should be cautious when assigning work to employees during their FMLA leave. While minimal assignments and questions that would otherwise burden the company seem to be permissible, a jury could find that more substantial projects (e.g. training, data entry, etc.) constitute interference. Employers should provide specific written instructions to an FMLA employee stating that he is not expected to do any work other than what could be deemed to be "professional courtesy" and stick by this statement. If the employee wants to complete projects out of his or her own volition, that is a personal choice. Employers should make an effort to obtain a written statement or waiver from the employee in such cases.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Taking adverse action against employees for taking FMLA leave

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Taking adverse, tangible employment action (demotion, termination, failing to promote, reassignment with significantly different responsibilities, benefit reduction, etc.)⁴⁷ against employees upon their return from FMLA leave is retaliation, and is the number one cause of all FMLA complaints.⁴⁸ Employers are required to restore eligible employees to the same or equivalent position with equivalent pay, benefits and working conditions upon their return from leave.⁴⁹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If an employee has been designated as a "key employee" in their Rights and Responsibilities Notice, equivalent reinstatement may not be mandatory. A "key employee" is an FMLA-eligible worker who is salaried and "is among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed."⁵⁰ In order to deny a key employee equivalent reinstatement, the employer must show that her absence resulted in a "substantial and grievous economic injury" to the company⁵¹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What if the employer has a legitimate, nondiscriminatory reason to terminate an employee that is unrelated to the exercise of FMLA rights?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If an employer decides to terminate an employee who has taken FMLA leave, it should proceed with caution. Under the McDonnell-Douglas burden-shifting analysis, the employer bears the burden of demonstrating that an employee would have been laid off or terminated regardless of that employee's FMLA status.⁵² Ultimately, the question of whether the employer had a legitimate reason for employee termination unrelated to FMLA leave is a question of fact. Juries have been known to find that "downsizing" or "restructuring" is actually nothing more than pretext for giving employees on FMLA leave the boot.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0To help an employer counter an allegation of pretext and prove that it had a legitimate, nondiscriminatory reason for firing an employee, detailed records of employee performance showing unsatisfactory ratings or disciplinary infractions can be presented. If the situation of legitimate company downsizing arises, any discussions of budget cuts and restructuring should be preserved in writing to show that the termination in question would have been made regardless of any FMLA factors.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Conclusion

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Taking the time to understand the FMLA is no easy task, but having a working knowledge of each party's obligations before a dispute arises can prevent future headaches and litigation.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0J. Scott Falls practices with Law Offices of J. Scott Falls, LLC in Charleston. Emily M. Nellermoe is currently a J.D. candidate.

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Notes:

[1] 29 U.S.C. § 2612(a)(1) (2006 & Supp. 2010); 29 C.F.R. § 825.112(a) (2013).

[2] 29 U.S.C. § 2611(4) (2006); 29 C.F.R. §§ 825.104-825.109 (2013).

[3] Coleman v. Court of Appeals of Maryland, 132 S.Ct. 1327 (2012); 29 C.F.R. § 825.104(a) (2013).

[4] 29 U.S.C. § 2611(2) (2006 & Supp. 2010); 29 C.F.R. §825.111 (2013).

[5] 29 C.F.R. § 825.101(a) (2013).

[6] 29 C.F.R. § 825.101(c) (2013).

[7] 29 C.F.R. § 825.400(c) (2013).

[8] 29 C.F.R. § 825.105(b) (2013).

[9] 29 C.F.R. § 825.105(f) (2013).

[10] 29 C.F.R. § 825.105(f) (2013).

[11] 29 C.F.R. § 825.111(a)(2) (2013).

[12] 29 C.ER. § 825.311(a) (2013); Jacob A. Klerman, et. ah, U.S. Department of Labor, Family and Medical Leave in 2012: Technical Report, www.dol.gov/asp/evaluation/fmla/ FMLA-2012-Technical-Report.pdf (last updated September 13, 2013).; U.S. Department of Labor, Family and Medical Leave Act regulations: A report on the Department of Labor's request for information, 72 Fed. Reg. 35550-35638 Qune 28, 2007).

[13] 29 C.ER. §825.111 (2013).

[14] Jacob A. Klerman, et. ah, U.S. Department of Labor, Family and Medical Leave in 2012: Technical Report, www.dol.gov/asp/ e valuation/fmla/FMLA-2012-Technical-Report.pdf (last updated September 13, 2013).

[15] 29 C.F.R. § 825.300(b) (2013).

[16] Fry v. First Fid. Ban corporation, No. CIV. A. 95-6019, 1996 WL 36910 (E.D. Pa. Jan. 30, 1996).

[17] 691 E 3d 294 (3rd Cir. 2012).

[18] Id. at 298.

[19] 29 C.F.R. § 825.300(e) (2013).

[20] 29 C.F.R. § 825.300(b) (2013).

[21] 29 C.F.R. § 825.300(c) (2013).

[22] 29 C.F.R. § 825.300(d)(4) (2013).

[23] 29 C.F.R. § 825.306 (2013).

[24] 29 C.F.R. § 825.307(a) (2013).

[25] 29 C.F.R. § 825.307 (2013).

[26] 29 C.F.R. § 825.312 (2013).

[27] 29 C.F.R. §825.312(b) (2013).

[28] 29 C.F.R. § 825.113(a) (2013).

[29] 29 C.F.R. § 825.114 (2013).

[30] 29 C.F.R. § 825.113(a) (2013).

[31] 29 C.F.R. § 825.115 (2013).

[32] 29 C.F.R. § 825.115(a) (2013).

[33] 29 C.F.R. § 825.113(b) (2013).

[34] 29 C.F.R. § 825.113(d) (2013).

[35] 29 C.F.R. § 825.113(c) (2013).

[36] 29 C.F.R. § 825.113(c) (2013).

[37] 29 C.F.R. § 825.113(d) (2013).

[38] 29 C.F.R. § 825.113(d) (2013).

[39] See Navarro v. Pfizer Corp., 261 E3d 90 (1st Cir. 2001).

[40] Terwilliger v. Howard Mem. Hosp., 770 E Supp. 2d 980 (W.D. Ark. 2011).

[41] ^[41] 29 C.F.R. § 825.311(a) (2013).

[42] ^[42] Id.

[43] 29 C.F.R. § 825.311(c) (2013).

[44] 620 E Supp. 2d 524 (S.D.N.Y. 2009).

[45] Id.

[46] Kesler v. Harris, Sott, Denn & Driker, PLLC, 482 E Supp. 2d 886, 910 (E.D. Mich. 2007).

[47] See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); see also U.S. Equal Opportunity Commission, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), http://eeoc.gov/policy/docs/harassment.html.

[48] U.S. Department of Labor, Wage and Hour Division, 2008 Statistics Fact Sheet, www.dol.gov/whd/statistics/2008FiscalYear. htm (last visited July 29, 2013).

[49] 29 U.S.C. § 2612(b)(2) (2006).

[50] 29 U.S.C. § 2614(b)(2) (2006); 29 C.F.R. § 825.217(a) (2013).

[51] 29 U.S.C. § 2614(b)(1) (2006); 29 C.F.R. § 825.216(b) (2013).

[52] McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973).

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