In Loco Parentis and Non-Traditional Caregiving Relationships

Posted on: February 4, 2020 0

By Gail I. Cohen, Director, Employment Law & Compliance

February 4, 2020

 

Recently, an Ohio federal district court heard a lawsuit filed by an Apple employee whose sister was terminally ill and claimed FMLA entitlement for his request to care for his nieces and nephews. The case, Brede v. Apple, involved a claim of FMLA interference and retaliation by a former Apple employee who worked in one of its stores at the Genius bar. That employee, Edward Brede, had requested one day of intermittent “FMLA” every 2 weeks to care for his seriously ill sister’s children. Apple granted his request under its Paid Family Care policy. After Brede was fired for violating company policy, he brought this lawsuit.

The district court granted Apple’s motion to dismiss the case.

In granting the motion to dismiss, the court took as true Brede’s claims of an in loco parentis relationship with his nieces and nephews. Even assuming that was the case, however, Brede can only take FMLA if the purpose of him doing so was to care for those children who needed care due to a “serious health condition;” and he did not ever indicate any of them did. Rather, the purpose of his request for time off was to care for them because his sister could not. Moreover, the court reasoned that if Brede had requested FMLA to care for his sister, who did have a “serious health condition,” he could only do so if he stood in loco parentis to her.

The FMLA defines a “parent” to include “an individual who stood in loco parentis to an employee when the employee was a son or daughter,” and similarly, a “son or daughter” is defined to include “a child of a person standing in loco parentis.” Employees who stand in loco parentis to a child can take FMLA to care for that child with a serious health condition and to care for an individual who stood in loco parentis when the employee was a child, when that “parent” has a serious health condition. The regulations go on to define persons who are in loco parentis as “those with day-to-day responsibilities to care for and financially support a child.”

The DOL has two (mostly) helpful Fact Sheets (#28B and #28C) that discuss in loco parentis. However, the DOL takes a broad view of who can take FMLA, stating in the fact sheets that it includes someone who has day to day responsibilities to care for a child OR financially supports a child.  As you can see from the regulations excerpted above, the FMLA actually requires BOTH.

There are not many court cases on record about the in loco parentis relationship. We previously blogged about Coutard v. Municipal Credit Union, in which the 2nd Circuit concluded an employee who sought time off to care for his grandfather provided sufficient notice to his employer of his need for FMLA. In reaching that conclusion, the court reasoned that it was incumbent upon the employer to dig further to determine whether his grandfather stood in loco parentis to him (which he, in fact, did, having raised the employee after his parents’ death).

Pings for employers

  • Be familiar with the two DOL Fact Sheets linked above. Despite that one glitch in expanding the scope, the Fact
    Sheets are otherwise quite helpful.  In particular, they offer these factors for consideration in assessing ILP status:

    • the age of the child;
    • the degree to which the child is dependent on the person;
    • the amount of support, if any, provided; and
    • the extent to which duties commonly associated with parenthood are exercised.
  • When an employee indicates he or she is seeking leave to care for a family member that is not a specific FMLA
    covered relationship (i.e., parent, son or daughter, or spouse), talk to the employee about his or her relationship
    to that individual.
  • If the employee is requesting time off to care for a “parent”, like the Coutard matter, ask:
    • Did the relative care for him or her as a child OR provide financial support?
    • Do they reside together, or did they do so in the past?
  • If the employee is requesting time off to care for a “child” (as in the Brede case), include:
    • Has the employee assumed daily responsibility for care for or financially support the child?
    • Does the employee intend to assume a “parenting” role and if so, is there a permanent intent to do so?

Consider state leave laws also

This discussion is focused on FMLA, but it is important to remember that many of the state FMLA-like leave and paid family and medical leave laws include care for family members beyond the traditional definition in FMLA. Common additions include grandparents, grandchildren, siblings, and – our favorite – the “like a family member” relationship.  For example, New Jersey allows leave for any individual with a close association with the employee equivalent to a family relationship.

In general, because of this expanded focus at the state leave level to recognize the non-traditional nature of evolving families, it is critical for employers to keep an open mind about these requests and ferret out the right facts to ensure they are providing employees with the leaves to which they may be entitled.

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. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

 

A year in review, a year ahead: A look at the DOL and EEOC

Posted on: January 19, 2020 0

by Marti Cardi, Esq – Vice President Product Compliance

January 19, 2020

 

Last month we provided a 2019 review and 2020 look ahead regarding leave law legislation.  You can find that post here.  Now let’s look at what the enforcement agencies accomplished in 2019 and what to expect for 2020.

Part 2:  DOL and EEOC Activities

US DEPARTMENT OF LABOR UPDATE

Opinion Letters

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the DOL of how a particular law applies in specific circumstances.  An opinion letter provides an official, reliable interpretation of the FMLA and its regulations. 

We may not always agree with the DOL’s opinion, but at least we know where the agency stands!

The DOL issued 3 new opinion letters in 2019:

  • Opinion Letter FMLA2019-1-A clarified the question of whether an employee, or employer, can delay
    the designation of a leave of absence taken for an FMLA-qualifying reason, to allow the employee to
    use or exhaust any paid leave benefits prior to doing so. The DOL concluded that the answer is no –
    once the employer is on notice that the employee is seeking leave for a potentially FMLA-qualifying
    reason, it is obligated to provide the required FMLA notices and, if supported, designate the leave as
    FMLA leave.  The opinion letter also reminds us that, while the FMLA allows employers to be more
    generous and grant an employee more leave than FMLA requires, any time the employer gives beyond
    FMLA is not FMLA but, rather, a company policy leave.  To read more about this opinion letter, check
    out our prior blog post.
  • The above opinion was amplified in Opinion Letter FMLA2019-3-A. An employer asked the DOL whether
    it could delay FMLA designation when the terms of a collective bargaining agreement required employees
    to take company paid leave before taking FMLA.  The DOL concluded that the employer cannot delay
    designation as FMLA any leave taken for an FMLA-qualifying reason, even if the terms of a collective
    bargaining agreement appear to require otherwise.
  • Finally, Opinion letter FMLA2019-2-A, addressed the question whether an employee could take FMLA
    to attend meetings to discuss a child’s Individualized Education Plan. The DOL concluded the answer was
    yes.  Attending such meetings constituted “care” for a child with a “serious health condition,” even if the
    meetings did not include a medical provider.  For more details, read our prior blog post on this topic

Coming in 2020:  New DOL FMLA certification forms?

In 2019 the DOL issued proposed new FMLA certification forms for public comment, which we discussed in a prior blog post.  We understand that these proposed certification forms resulted in a deluge of comments to the DOL and Matrix was among that chorus of commentators.  No one knows if or when the DOL will issue new forms but we will certainly be watching will tell you all about them when they do!

Coming in 2020:  DOL request for input on FMLA regulations?

Also in 2019 the DOL announced that it “will solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”  The notice did not provide a specific timeline for the Request for Information and nothing has happened since the announcement.  There is certainly much to improve in the FMLA regulations – see a discussion in Jeff Nowak’s FMLA Insights blog.  We hope the DOL in fact proceeds with this RFI.  If it does, we will weigh in on changes we feel are needed based our Matrix’s administration of thousands of FMLA claims every year.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION UPDATE

The Commission.

2019 brought the appointment of Janet Dhillon as Chair of the EEOC.  Chair Dhillon comes from a strong business background, which may be good news for employers.  Time will tell.  That leaves 2 openings on the Commission and about a year (or 5) for President Trump to appoint new commissioners.  The other 2 current Commissioners, in addition to Chair Dhillon, include Charlotte Burrows, appointed by President Obama (2nd term ends in 2023) and Victoria Lipnic, also appointed by President Obama (2nd term ends in 2020).

Also in 2019, Sharon Fast Gustafson was appointed as General Counsel for the Commission.

Focus on disability and pregnancy.

A couple of months ago we took a look at the prevalence of disability and pregnancy-related press releases issued by the EEOC in 2019 through October 20.  That post is available here.  We’ve updated the numbers through the end of 2019:

  • The EEOC issued over 300 press releases relating to lawsuits it filed or
    settled in 2019.
  • 134 (approximately 45%) of these were lawsuits alleging disability or
    pregnancy discrimination
    and failure to accommodate (109 disability-related, 20 pregnancy-related,
    and 5 involving both).
  • Settlements ranged from $16,000 to $2,650,000 in damages awarded to
    the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit
    alleging failure to
    accommodate a cart pusher at a Walmart store.
    More on that in the blog post linked above!

Statistics.

In late November 2019, the EEOC published its Agency Financial Report. In the report, the EEOC boasts of reducing its inventory of charges to the lowest number of pending charges – 43,580 – in 13 years.  The EEOC also touts its collection of $159.6 million in connection with its mediation process, and $39.1 million in connection with 177 litigation matters.  In its Fiscal Year 2018 (which ended September 2019), the EEOC filed 144 lawsuits, 17 of which alleged a systemic pattern and practice and 27 which were “non-systemic” but had multiple alleged victims of discriminatory practices.

A year in review, a year ahead: A whole lotta stuff going on!

Posted on: December 19, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

December 19, 2019

 

Take a deep breath and let’s review what happened in 2019, and what’s coming in 2020. First we will look at legislative activity. In another post we will check in with our favorite federal agencies, the Equal Employment Opportunity Commission and the Department of Labor. 

 

Part 1 – Legislative Activity

In 2019, state legislatures were quite busy on the leave of absence front.  Here is a summary of significant bills that were enacted and developments for those already in place:

PAID FAMILY AND MEDICAL LEAVE

California – CA PFL extended, leave reason added.  Effective July 1, 2020, CA Senate Bill 83 amended California’s existing Paid Family Leave (PFL) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.

CA Senate Bill 83 also added a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.  The pay benefit is new but the law still won’t provide job protection for such leave.  Rights to reinstatement for all PFL benefits reasons (bonding, care of a family member, and military exigencies) may be available under other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.

More changes may be on the way.  The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.

Colorado – Just a study.   Lots of legislative activities that made all of us followers of the paid family leave legislative bandwagon believe Colorado would pass such a bill ultimately resulted in a bill to fund a study to decide whether to enact such legislation in the future.

Connecticut – PFML enacted.  CT paid family leave was signed into law in June by the Governor.  Premium contributions will start on January 1, 2021, with employee benefits payable effective January 1, 2022. To learn more about the significant provisions of CT PFL, please click here  to read our Radar blog post.

New Jersey – changes to existing PFML laws.  In February New Jersey enacted significant changes and expansion of its existing Family Leave Act (FLA), Security and Financial Empowerment Act (SAFE Act), and Family Leave Insurance program (FLI).  Some of the changes were effective immediately upon passage and others are phased in over the next several months:

  • Significant expansion of the types of family relationships for which
    employees can take leave or receive benefits pursuant to the NJ FLA,
    SAFE Act, and NJ FLI, including removal of the age limit for care of
    a covered child with a serious health condition under NJ FLA and
    NJ FLI.  (Effective February 2019.)
  • Lower threshold for covered employers, from employers with 50 or
    more employees to those with 30 or more employees. (Effective July 2019.)
  • Employees who are, or whose family member is, a victim of domestic or sexual violence can now
    receive FLI benefits for leaves covered by the SAFE Act. (Effective February 2019.)
  • Increase in weeks of FLI benefits from 6 weeks to 12 weeks, or from 42 days to 56 days if taken
    intermittently.  (Effective for leaves commencing on or after July 1, 2020.)
  • Elimination of the 7-day waiting period before an employee can receive paid leave. (Effective for
    leaves commencing on or after July 1, 2019.)
  • Increase in benefits payments. (Effective for leaves commencing on or after July 1, 2020.)  These
    changes also apply to the state temporary disability benefits.
  • Increase in “wages” measurement for calendar years beginning on and after January 1, 2020.
  • A NJ employer’s private plan no longer requires approval by a majority of the employees.  (Effective
    in February 2019.)

For the details, including a handy reference chart of all the changes, check out this Radar post.

Massachusetts – Regulations and other developments.   Regulations were finalized in June 2019 and employer/employee contributions started in July, but a lot more information is yet to come.  Employers can opt out of the state plan and provide employee benefits through a private plan.  The Massachusetts Department of Family and Medical Leave issued a bond form for self-funded private plans and, together with the Department of Insurance, approved a declaration form for insured private plans.  Lots of Massachusetts PFML information is available on this blog – just put “Massachusetts” in the search bar.

Oregon – PFML enacted.  Signed by the Governor in August 2019, Oregon creates the most generous (to date) leave and benefits, with employee contributions to start January 1, 2022, and benefits as of January 1, 2023. To read more about the salient provisions of Oregon PFML, please click here.

Washington – Ready, set, go!  Matrix Radar and our WA PFML team have been furiously tracking the regulations promulgated by the State of Washington in anticipation of the January 1, 2020, launch of benefits under WA PFML.  We are ready to administer voluntary plans for clients that elected that route.  Here is the latest post, but pay close attention to Matrix Radar for all the developments! 

Washington news flash!  Here is an unsettling piece of breaking news:  the WA Employment Security Department, charged with administering the state plan benefits, just released its form for use when an employee seeks leave for his/her own or a family member’s serious health condition.  The form does not contain any questions for the provider about intermittent leave usage – no request for estimated frequency and duration.  I ask, how will the ESD monitor intermittent leave usage and gauge whether an employee is taking appropriate intermittent leave?  We all know that is hard enough under the FMLA and other laws that require this information.  The ESD will be administering intermittent leaves in a vacuum. 

 

ORGAN DONATION

California amended its existing organ and bone marrow donation law effective January 1, 2020.  Current law provides for 30 days’ paid leave of absence for organ donation and 5 days of paid leave for bone marrow donation.  Under the new law, employees are entitled to an additional 30 days of unpaid leave for organ donation. To read more, please click here.

Oregon.  Effective January 1, 2020, Oregon’s companion to FMLA, the Oregon Family Leave Act (OFLA) has been amended to allow employees to take leave for “[a]ny period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.”   In reality most situations where an employee is serving as an organ or tissue donor are already covered as a serious health condition under OFLA but this removes any doubt that such absences are covered, as well as appointments in preparation for such donation. 

New York.  Similarly, New York passed a law to include organ donation in the definition of serious health condition under the NY PFL law.  We summarized the law, passed in 2018 and effective February 3, 2019, on Matrix Radar here.  

 

LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE

New York.  Effective November 18, 2019, this new law requires employers to grant reasonable leave to victims of domestic violence.  To read our blog about this important new law and its requirements, please click here.

Puerto Rico.  In July, the Governor of Puerto Rico signed legislation effective August 1, 2019, affording employees who are, or whose family members (very broadly defined) are victims of domestic violence, sexual abuse, sexual harassment, or stalking to take up to 15 days of unpaid leave in a calendar year (on a “fractioned” or intermittent basis, too). That law also requires PR employers to provide reasonable accommodations to such individuals, which includes changes in work schedule or location and provides that requested accommodations can only be denied if “unreasonable.”

 

FLIGHT CREWS

California.  Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”).  Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews.  It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.

 

PREGNANCY ACCOMMODATIONS

Kentucky.  Effective June 27, 2019, SB 18 requires Kentucky employers to consider reasonable accommodations for their employees with “limitation(s)” (but not necessarily disabled in the fashion employers have come to expect) as a result of pregnancy and related conditions. To read more about that law, please click here.

Oregon.  Effective January 1, 2020, Oregon employers must grant reasonable accommodations to employees with known limitations as a result of pregnancy, childbirth and related conditions.  The Oregon law also requires employers to provide the notice of rights to all employees by July 1, 2020, and within 10 days of an employee providing notice of her pregnancy.  Click here  to read more.

 

MATRIX CAN HELP!  Matrix will administer all of the above new or expanded leave laws for our clients using Matrix’s FMLA/Leave of Absence services.  No client action needed!  The laws have been or will be implemented in our system as of the effective date, along with any other updates to scripts, packets, etc. that are needed due to the changes. 

Matrix manages pregnancy accommodation laws for clients with our ADA services.  The above two new laws will likewise be added to our suite of state and federal pregnancy accommodation laws managed by our ADA Specialists.

Matrix has designed a WA PFML voluntary plan for our participating clients.  We have filed and received approval for over 40 such plans.  In preparation for January 1 claims, we have made necessary system changes, added WA PFML to our letters and packets, provided extensive training for our claims staff, and held educational webinars for our clients with voluntary plans administered by Matrix.  If the thought of the state administering your employees’ claims has you concerned – especially in light of the inadequate medical certification form the state plans to use – contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering or send a message to us at ping@matrixcos.com.

 

Excess FMLA Absences: An Employer Success Story

Posted on: November 13, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

November 13, 2019

 

What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s certification?  In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy.  But it was a multi-step process to get there.  Here’s the story:

Tori’s FMLA certification.  Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service.  After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups.  There is no question in the case that her condition was real.  Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups.  The provider described her symptoms as “GI illness, oral lesions, and joint pains.”  CRC approved Tori’s FMLA leave in accordance with the provider’s certification.

Then what happened?  Tori began reporting absences in excess of her FMLA certification frequency and duration.  CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period.  CRC warned Tori of the possible consequences of absences beyond the approved certification.  Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition.  In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis. 

Total:  10.5 attendance points.  Result:  termination.  Next step:  lawsuit.

What CRC did right.  CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:

  • CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policy
    in writing and available to employees).
  • When Tori began to exceed the parameters of her certification, CRC went back to her provider, following
    the recert process, and obtained verification that the original frequency and duration were still correct.
  • CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by her
    FMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which was
    not a symptom of her reactive arthritis as stated by her provider in her original certification.  Other times
    she reported she had “lost her voice” and had a fever and was aching everywhere. On these last two
    occurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)
    (until her lawsuit, that is):

When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.

  • CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reported
    an absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts have
    generally accepted that an employer may require an employee to report an FMLA-covered absence to
    2 sources.  (See our prior blog post on this topic here.)

What’s missing?  It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only.  See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”).   The court did not acknowledge the estimate issue in its opinion.  One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval.  Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences. 

Remember, too, that this is just one case – and a district court case at that.  As such, it is not binding on any other courts outside of the federal district of Minnesota.  However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.

Pings for employers.   As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:

  • Enforce company and FMLA reporting procedures
  • Watch the frequency and duration of the employee’s absences
  • Seek recertification when an employee’s absences exceed the certification’s frequency and duration
  • Apply consequences for unexcused/non-FMLA absences

But remember to:

  • Be consistent in applying your policies to FMLA and non-FMLA situations
  • Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only

The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.

Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention.  You can read his take on the case here.

MATRIX CAN HELP!  Are your FMLA procedures up to snuff like CRC’s?  Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations.  We provide 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. For leave management and accommodation assistance, contact us through your Matrix or Reliance Standard account manager or at ping@matrixcos.com.

 

FMLA and Employee Dual-Notice Procedures – Stand Your Ground but Be Clear about Your Policies

Posted on: September 16, 2019 0

A collaborative post by:

Gail Cohen, Director, Employment Law and Compliance, Matrix Absence Management
Marti Cardi, Vice President Product Compliance, Matrix Absence Management
Megan Holstein, Senior Vice President, Absence & Claims, Fineos


September 16, 2019

 

QUESTION:  Can an employer require an employee taking FMLA leave to report absences to both a supervisor and a leave administrator?

ANSWER:  It depends – but probably yes.  Read on!

 

The Issue

Employers are struggling with the trend in rising  employment time off benefits caused by the numerous new state laws requiring job-protected leave and increasing company leave benefits due to competition for workers.  In response, many employers have strengthened their absence policies. Whether the employer outsources absence management or insources with a centralized administrative or human resources (HR) department, an employee must provide notification that they need time off in order for that leave to be approved and not counted against the employee’s attendance record.

The federal Family and Medical Leave Act (FMLA) regulations address employee notification by requiring an employee to “comply with the employer’s usual and customary notice requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. §825.302(d); §29 C.F.R. 303(c). The FMLA supports employers who have a reporting notice policy by allowing an employer to delay or deny FMLA leave if an employee does not comply with the employer’s policy and no usual circumstances justify the failure to do so. Accordingly, many employers’ absence notice requirements or FMLA policies require an employee to contact both a supervisor and a centralized absence administration office, whether that is an internal HR or Benefits department or outsourced to a third party administrator (TPA); otherwise known as a dual-notice, or two-party call in policy or procedure.

Employees have contested dual-notice policies in court claiming they violate the FMLA by interfering with their right to take FMLA leave. Courts have historically supported employers dual-notice policies. However, a recent Alabama district court decision, LaShondra Moore v. GPS Hospitality Partners IV, LLC,  declined to follow other courts’ support and instead found that an employer’s dual-notice policy that required employees to contact both HR and their manager when reporting absences violated the FMLA. While this decision is an outlier, there are still lessons to learn from the case. Read on to learn more about courts’ approaches to dual-notice policies and whether the DOL might weigh in.

Bad Facts Make Bad Law. LaShondra Moore worked for a Burger King franchise that was one of nearly 200 purchased by GPS.  The new owner required the employees of the purchased locations to complete new paperwork, including reviewing and acknowledging the employee handbook.  The handbook included GPS’s FMLA policy and the requirement to report FMLA absences to store managers and to the centralized HR office.  When Moore’s mother became ill and was hospitalized, she informed her manager multiple times of her need to take time off from work to care for her mother. In spite of awareness that Moore’s absences were the result of her mother’s hospitalization, Moore’s manager issued disciplinary action and ultimately terminated her due to these absences.

Ms. Moore sued for FMLA interference in federal court. GPS based its defense on its employee handbook, which set forth an FMLA policy requiring the employee to notify their supervisor and HR of their need for FMLA leave.

The Court’s Approach to GPS’s Dual-Notice policy. Citing the FMLA notice regulations allowing an employer to require an employee to comply with its notice requirements for requesting leave, the court took great exception to the notion that GPS’s policy required employees to do more – notify both a supervisor and HR – to request FMLA than other types of leave. Essentially, the court found that employers can only maintain a dual notice reporting policy only if the policy applies to all types of leave requests, not just FMLA.

This Case is an Outlier. Several courts that have heard claims by employees who have been disciplined for not following their employer’s dual reporting policies have drawn conclusions opposite to the Moore court. Here is a sampling of those cases:

  • 3rd Circuit – E.D. Pennsylvania- IBW v. PPL Electric Utilities Corp. (December 2017) – Relying on the Acker case
    (discussed below) and concluding no FMLA violation in connection with employer policy requiring employees
    to report absences to their supervisor and “make a three to five minute phone call to a third party administrator.”
  • 5th CircuitAcker v. General Motors, LLC (April 2017) – Judgment in favor of the employer on FMLA interference
    and retaliation claims when employee failed to follow GM call-in procedures, of which he was reminded by
    GM’s TPA. In doing so, the court noted that “[f]ormal notice of absence policies serve an employer’s legitimate
    business interests in keeping apprised of its employees and ensuring that it has an adequate workforce to
    carry out its normal operations.”
  • 6th Circuit Srouder v. Dana Light Axle Mfg. (2013) – Sixth Circuit affirmed judgment in the employer’s favor
    on an interference claim and that the termination of the plaintiff’s employment was appropriate because he
    failed to comply with the employer’s call-in policies.
  • Also in the Sixth Circuit, Alexander v. Kellogg USA Inc., (January 6, 2017), the court again rejected an FMLA
    interference claim challenging the termination of employment on the basis of the plaintiff’s failure to report
    intermittent FMLA absences to both his employer and its TPA.
  • 7th Circuit – N.D. Indiana– Reese v. Zimmer Production, Inc. (September 2018) – The court concluded that the
    employee failed to comply with his employer’s policy, which required him to notify his supervisor and the
    company’s TPA to initiate a request for FMLA.
  • 9th CircuitDuran v. Stock Building Supply West, LLC (January 2017) – The court held that the employee’s
    failure to complete an internal LOA request form and provide certification to the employer’s TPA, both
    mandated by its customary notice policies, doomed his FMLA/CFRA interference and retaliation claims.

Also in the 9th Circuit, the most recent case – Rozairo v. Wells Fargo (D. Oregon, July 17, 2019) in which the court relied on the employer’s policy requiring employees to discuss their request for leave with their manager and call its TPA, finding the employee who failed to comply with that policy for initiating leave could not state claims for violations of FMLA or Oregon’s state equivalent, the Oregon Family Leave Act.

Will the U.S. Department of Labor (DOL) Weigh In?

The DOL announced that it is considering revising the FMLA regulations by announcing its plans to publish a request for information (RFI) next spring to solicit comments to improve the FMLA regulations in two ways:

  1. Better protect workers; and
  2. Reduce employers’ FMLA compliance and administrative burdens.

We think this area of the FMLA regulations governing an employer’s ability to set forth absence notice policies and procedures is ripe for further clarification.

For more information regarding the DOL’s plan to publish a RFI, check out co-author Megan Holstein’s earlier blog here and our friend Jeff Nowak’s blog here.

Pings for Employers:

  • The weight of authority supports that an employer can require employees to report FMLA absences to
    two sources.
  • But, it may not enough to simply place your absence request policy in the employment handbook.
    Employers should broadcast the policy in ways employees can access it, including:

    • highlight the policy on a company intranet and send email reminders;
    • post the policy and FMLA posters in the breakroom and any other venue in which employees may
      congregate;
    • consider holding informational meetings about all of your benefits, including FMLA and other leave
      benefits and how to request the time off; and
    • if using a TPA, engage the TPA as a source and additional reason for further outreach to employees.
      Make sure they understand who your TPA is, what purposes they serve, and how to contact the TPA.
  • Keep your dual-notice policy simple and clear. Do not require employees to be FMLA, state leave, or
    benefits experts to navigate your policy. They don’t need to know when leave is FMLA and therefore
    the TPA must be contacted or, for example, when it’s a common cold and only a manager needs notification.
    Instead, streamline the policy to notice categories such as reasons for leave (e.g., vacation, care of family
    member, employee illness, parental leave, etc.) and/or duration of leave (e.g., absences of fewer or
    more than 3 days).
  • On the other hand, do train your manager to be issue spotters and recognize when an employee’s request
    might be time off for an FMLA-qualifying reason. Managers not only need to spot when a request may be
    covered by the FMLA, but they must know the reporting policy and be able to inform the employee how to
    correctly report an absence under the policy so that the request can be evaluated by the right people, such
    as a TPA or HR.  Then teach them to hand the issue off to those right people and not try to handle it
    themselves – they should be grateful for that!

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. For leave management and accommodation assistance, contact us at ping@matrixcos.com.