Falsified FMLA Certifications? Employer Doesn’t Have to be Inspector Clouseau to Support Honest Belief Defense!

Posted on: April 2, 2019 0

By Gail Cohen, Director Employment Law & Compliance

April 2, 2019

 

Marion Egler was employed as a Reservations Agent for American Airlines.  From 2006 through 2013, she applied and was approved for, FMLA on thirty-four separate occasions.  In November and December 2014, Egler submitted four certification forms for continuous blocks of time that appeared to have been “whited out and/or written over.”  The FMLA regulations allow an employer to authenticate a certification form, by providing a copy to the provider and asking for verification that the information supplied was completed or authorized by the provider who signed it.  As a result of the apparent alteration of those forms, American sought authentication of the certifications and was advised by the doctor that it was not completed or signed by that provider or anyone else in his office.

Egler was confronted with these discrepancies and denied knowing anything about the forms being altered. Egler wrote a statement (she later claimed under duress) in which she indicated she understood her leave was being questioned and that while she understood the forms appeared to have been altered, she indicated she’d be following up with her doctor’s office because “she [couldn’t] speculate.” She was placed on a paid suspension and invited to submit any additional information to clarify the discrepancies.  When she did not do so, American fired her for altering FMLA forms, a violation of the company’s Code of Conduct.

Egler appealed her termination using the company’s process to do so, claiming she was “not guilty,” and had not been given the resources and time to defend herself. She submitted two additional letters purporting to come from the provider’s office. He reiterated that neither he nor anyone else in his office completed this documentation. As a result, the company upheld the decision to terminate her employment on appeal.  Egler sued American alleging, among other things, FMLA interference and retaliation.

The court quickly disposed of her FMLA interference claim because American granted her all the leave she had requested and moved on to the retaliation claim.  In evaluating that claim, the court elaborated that it is Egler’s burden to undermine American’s “honest belief,” meaning, presenting evidence that American did not honestly believe she had broken its conduct rules by submitting altered FMLA certifications.  While Egler herself “emphatically denied [she] alter[ed] the forms,” and challenged whether American had shown that she had done so, that is not the standard.  It is not the role of the court to decide that the reason given for the employer’s decision was “wise, fair or even correct;” it is Egler’s burden, as the plaintiff, to demonstrate that the reason for American’s decision was false, dishonest or more likely the result of retaliation. Her own self-assessment was not enough.

American went to her doctor, just as the FMLA allowed it to do, and had substantiated that the forms were not authentic. Armed with this information, and a good faith investigation that allowed Egler to be heard, American acted on its honest belief she violated its rules and prevailed on summary judgment.

You can read more here: Egler v American Airlines, E.D. North Carolina (February 21, 2019)  

 

PINGS FOR EMPLOYERS – What American Did Right

  • They had a written policy addressing falsification or fraud in the FMLA process
  • They allowed employee to take the leave, then reinstated her and dealt with
    the fraud issue separately.
  • They didn’t deal with the fraud issue until their investigation was complete. In
    connection with their investigation, they used the tools the FMLA affords employers
    like seeking authentication of medical information and/or certification forms that
    appear to be altered.

 

If you just can’t get enough of FMLA certifications (and let’s face it, at least it’s not Paid Family Leave!) you might want to check out the 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR. On May 8 our very own Gail Cohen and fellow legal eagle and blogger extraordinaire  Jeff Nowak will present Medical Certifications: How to Maximize one of the FMLA’s Most Important Tools. Don’t miss it!


Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

DOL to Employers: If it’s FMLA, it’s FMLA. If it’s not, it’s not.

Posted on: March 18, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

March 18, 2019

 

There is joy in my blessed li’l FMLA heart.  The US Department of Labor has issued a much-needed Opinion Letter addressing whether an employer or employee can elect not to apply the FMLA to a leave for an FMLA-qualifying event.  Spoiler alert:  The answer is NO.

This has never seemed like a gray area to me.  We blogged about this over 3 years ago.  (See prior blog posts here  and here.) As I said back then, “No, no, no!  The employee does NOT get to choose!”  The regulations are clear, and the DOL FMLA Branch Chief has spoken publicly on this issue. Yet many employers still think employees have the right to choose whether to use FMLA for a qualifying absence.

In the new Opinion Letter FMLA2019-1-A, the DOL addressed this specific question:  Can an employer delay application of FMLA to a leave that is clearly FMLA-qualifying and allow the employee to first use paid sick leave or other leave?

But the DOL went further. As stated in the Opinion Letter:

  • Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason,
    neither the employee nor the employer may decline FMLA protection for that leave.
  • Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying
    leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
  • Once the employer has enough information to make this determination, the employer must,
    absent extenuating circumstances, provide notice of the designation within five business days.
  • And so, the employer may not delay designating the leave as FMLA-qualifying even if the
    employee would prefer that the employer delay the designation.

When does this arise? Take a look at my friend Jeff Nowak’s blog FMLA Insights for a humorous example (and some additional guidance).  Here is another scenario. Your employee announces she is pregnant.  She also tells you that her husband needs surgery and she wants to take a week off to care for him during the operation and recovery.  But, she doesn’t want to use her FMLA time for that, preferring to reserve it for bonding following the birth of the child.  She’ll use her accrued sick leave and PTO instead:

EMPLOYEE: I am pregnant and want to take FMLA for bonding time after my baby is born.  I also need a week off to care for my husband following his surgery next month.  I want to use my sick leave for the time to care for my husband and save all of my FMLA for bonding.   Remember, care of my husband is an allowed use for sick leave under our policy.

YOU (the employer):  OK.

YOU (6 weeks later): Hey, you said you only needed a week off and you’ve been gone 2 weeks.  You are out of sick leave and PTO.  You’re fired.

EMPLOYEE: But you can’t fire me! My husband needed more time for recovery and care.  The time off was for an FMLA reason and I have job protection.

YOU: You said you didn’t want to use FMLA.

EMPLOYEE: Yes, but I wouldn’t have chosen that if I had known I wouldn’t have job protection during my leave!

What a mess.  I wonder who wins in front of a jury?

It’s OK to allow employees more time through company policies.  The Opinion Letter makes clear that an employer cannot designate time as FMLA in excess of the 12 (or 26) weeks, whether before OR after FMLA leave. If you want to be more generous, provide it through a company policy but don’t call it FMLA.  In fact, the FMLA regulations state that “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.”  29 C.F.R § 825.700.

But what about “substitution?”  Sometimes there is confusion due to the provision in the FMLA regulations that an employee may “substitute” other leave for FMLA leave.  But the regulations – and now the Opinion Letter – make it clear that paid leave provided by the employer will run concurrently with the unpaid FMLA leave.  29 C.F.R § 825.207(a).  As the DOL says in the Opinion Letter:

[P]roviding such additional leave outside the FMLA cannot expand the FMLA’s 12-week (or 26-week) entitlement under the FMLA. . . . Therefore, if an employee substitutes paid leave for unpaid FMLA leave the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

So here’s the deal, in my words:

  • The FMLA is a law that provides 12 (or 26) weeks of job-protected leave of absence for 5 qualifying leave
    reasons (key word: law).
  • Neither the employer nor the employee can change the law or choose not to follow it.
  • It’s the law.

Pings for Employers

  • Don’t allow an employee to decline FMLA coverage and protections for a leave you know, or have reason
    to believe, is for an FMLA-qualifying event.
  • Always provide the employee with the FMLA Notice of Rights and Responsibilities and Eligibility Notice
    within 5 days of the employee’s leave request. If you are not clear whether the leave is requested for an FMLA
    reason, be safe and provide the employee with the notices and the certification form.
    Failure to do so
    could be considered interference with the employee’s FMLA rights.
  • Don’t chafe about this rule if it is news to you: It’s actually to your benefit!  The rule gives you, the employer,
    some control over how much time your employees can take off and when. You get to choose whether and
    under what circumstances employees can take more company leave following FMLA leave by designing your
    policies accordingly
    .
  • If you live in states covered by the federal Ninth Circuit Court of Appeals, you may already be aware of the
    opinion in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). In that case the court held that
    an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order
    to preserve FMLA leave for future use.  A few lower courts in other states have followed the Escriba decision.
    In the Opinion Letter the DOL explicitly rejects the Ninth Circuit’s holding.  This causes a conundrum for
    employers within those states – whether to follow the court’s ruling or the FMLA regulations and now this
    Opinion Letter.

I strongly support the DOL’s interpretation as the only logical result from the FMLA statute and regulations, and have always maintained that the Escriba decision is flat out wrong. (But then, they didn’t ask me!) For more discussion see our prior blog posts linked above. But, you should check with your own employment counsel for advice regarding the specific fact situation you are dealing with.

 

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

Spice up your compliance with 50 Shades of FMLA!

Posted on: March 4, 2019 0

Are you struggling to manage FMLA gray areas such as intermittent leave or suspicious leave requests from employees?

The 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR, is the place to find answers and solutions that help you minimize risk in your organization and ensure you’re on the path towards ongoing compliance.

Our very own Marti Cardi, together with Jeff Nowak, will help you “color in” those gray areas of FMLA compliance. Read their recent blog post to get a peek under the covers of their general session, 50 Shades of FMLA: Dealing with Those Gray Areas.

This session is just one of many that will prepare you to confidently tackle your organization’s FMLA/ADA challenges. Check out the list of sessions and speakers online.

Early registration ends on Mar. 7. Don’t miss the chance to save $200! Secure your spot today.

 

 

STATE LEAVE LAW UPDATES – WHAT’S HAPPENING IN YOUR NECK OF THE WOODS?

Posted on: October 22, 2018 0

California – New leave reason under paid family leave

California’s paid family leave law (CA PFL) provides up to 6 weeks of paid (but not job protected) leave of absence for family reasons. Current bases for which an employee can receive paid benefits include caring for a family member with a serious health condition and bonding with a new child.  Recently the California legislature passed, and the Governor signed, a bill adding military exigencies as a leave reason for which an employee can receive paid leave.  The events for which military exigency leave can be taken are the same as under FMLA, when the need is related to the military member’s active duty or call to active duty: 

  • Matters related to short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling (other than from a health care provider)
  • Rest and recuperation
  • Post-deployment activities
  • Care for the parent of the military member
  • Additional activities agreed to by the employer and employee

The new law will be effective January 1, 2021; not clear why the big delay! The law does not expand the total paid leave time available to employees under CA PFL, nor does it provide job protection for this leave. Eligible employees will continue to have job-protected military exigency leave for up to 12 weeks under FMLA, which will run concurrently if the leave is taken for a reason covered by both laws.  However, military exigency leave is not provided by the California Family Rights Act (CFRA).

 

Pennsylvania – Expanding FMLA-like leave rights to care for more family members

The Pennsylvania legislature has revived a bill first introduced in 2017 that, if enacted, would provide FMLA-like leave based on additional family relationships and leave reasons.  Senate Bill 479  seeks to add siblings, grandparents, and grandchildren as family members for whom an employee can take job-protected leave, but only in very limited circumstances. The state bill incorporates some of the federal Family and Medical Leave Act’s provisions, such as employee eligibility rules and the definitions of employee and employer.

The additional family relationships for which leave would be provided are:

  • Grandparent: a biological or adoptive grandfather or grandmother or step-grandfather or step-grandmother
  • Grandchild: a biological or adoptive grandson or granddaughter or step-grandson or step-granddaughter
  • Sibling: a biological or adoptive brother or sister or stepbrother or stepsister

But, leave can be taken for these family members ONLY if the grandparent, grandchild, or sibling:

  • Has a certified terminal illness AND
  • Does not have a living spouse, child over 17 years of age or parent under 65 years of age

The bill, if passed, will provide 6 weeks of leave in a 12-month period that must be taken in minimum increments of one week. The leave will not run concurrently with FMLA because the new family relationships are not covered by FMLA. Conversely, however, FMLA leave taken will reduce an employee’s leave entitlement under the state statute.  How that provision will work is not entirely clear, but presumably the state is trying to provide leave for additional reasons without increasing an employee’s total leave entitlement in a 12-month period to more than the 12 weeks provided by the FMLA.

The bill also contains employee notice and certification provisions.

 

New York – Lingering attempts to expand leave reasons under the Paid Family Leave Act

New York’s Paid Family Leave Act (NY PFL), which went into effect on January 1, 2018, currently provides paid leave for bonding, caring for a family member with a serious health condition, and military exigencies related to a family member’s active duty deployment.  Benefits in 2018 are 8 weeks of leave paid at 50% of the employee’s average weekly wage (subject to a cap).  Those will increase to 10 weeks at 55% in 2019.  We provided a summary of the changes in this prior post.  For a refresher on NY PFL and other recent developments, check out our earlier posts on this blog by searching “New York.”  For more information, the official state website is here.

Several bills are currently pending in the New York legislative process for possible expansion of available leave reasons.  Here is a summary of the most pertinent.

Bereavement.   New York Senate Bill 8380A has passed both houses of the New York legislature and is awaiting (since June!) the governor’s signature or veto.  If passed, the bill adds bereavement due to the death of a family member as a leave reason for NY PFL.  Opponents of the bill point out that there is no time limit on usage of bereavement leave in relation to the date of the family member’s death, no limit on how much time can be used, and no limit on usage increments – so the employee can use bereavement leave in one-day increments as with other leaves under NY PFL.

Organ & tissue donation.  New York Senate Bill 2496 is also awaiting the governor’s signature. If signed, this bill will amend NY PFL to add “transplantation preparation and recovery from surgery related to organ or tissue donation” to the definition of serious health condition.  The bill does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Domestic violence.  Also pending, but farther back in the legislative process, is Senate Bill No 7723 that would add matters related to domestic violence as reasons for which an employee can take NY PFL.  Types of activities covered include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, relocating to a permanent or temporary residence.  The bill limits the amount of paid leave available for these reasons to 2 weeks, plus an additional 2 weeks of unpaid leave.  This bill has not made any headway in the legislature since early this year, but is still alive.  We previously provided details about this problematic bill here.

Matrix Can Help!

At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and other business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

DOL issues New “Safe Harbor” FMLA Certifications

Posted on: September 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

The Department of Labor recently issued updated versions of certifications employers can use when employees ask for FMLA leave. The new certifications are in effect until August 31, 2021. However, only the expiration date has changed.

The older forms with an expired date are still fully compliant with the FMLA but do tend to cause questions. Remember, these are just “safe harbor” forms; they are not mandatory. As many of our readers and employer clients have experienced firsthand, the DOL certification forms do not always provide employers with a “complete and sufficient certification.”

As a result, Matrix has developed its own certifications for employee’s own serious health condition and for a family member’s serious health condition that we use for managing our clients’ FMLA claims. These customized forms have resulted in fewer incomplete or unclear certifications, leading in turn to more expedient and efficient adjudication of FMLA entitlement. Matrix will be using the DOL certifications with the new expiration dates for military exigencies and for care of an ill or injured servicemember or veteran.

The new DOL forms are available here.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.

If you have questions, contact your Account Manager or ping@matrixcos.com.