IMPORTANT TAKEAWAYS FROM THE DOL AND EEOC AT THE AUGUST 2022 DMEC ANNUAL CONFERENCE!

Posted On August 04, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

August 04, 2022

 

This week, while attending the 2022 Disability Management Employer Coalition (DMEC) Annual Conference, Marti Cardi had the honor of acting as one of the moderators (together with Marjory Robertson of Sun Life) for a panel that included Helen M. Applewhaite, Director of the FMLA Division for the U.S. Department of Labor and Rita Byrnes Kittle, Supervisory Trial Attorney from the Denver Field Office of the Equal Employment Opportunity Commission.

In this lively and interactive session, the panel covered various topics facing employers under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Here are some of the key takeaways!

Common Mistakes Employers Make

Applewhaite and Kittle identified common employer mistakes that cause easily avoided problems under the FMLA and ADA:

  • FMLA Mistake 1, Fail to Communicate

    Applewhaite reminded the attendees that employers should communicate with employees before, during, and after leave!

    • Employers are often overly cautious in communicating with employees about their FMLA leave. Talking with employees about problems during the certification process and return-to-work plans, as well as just checking in with employees while on leave, can help avoid miscommunication and can resolve FMLA leave issues that could be fixed easily.
    • Such actions are not only permissible under the FMLA, but personal contact with an employee out on leave will continue to engage the employee and help protect the employer in any later litigation.
  • FMLA Mistake 2, Inflexibility

    Employers who are inflexible on employee notice requirements and late certification submissions often find themselves in trouble. An example includes employers who strictly follow the 15-day return of certification requirement.

    • Again, communication is key. The employer should first find out from the employee why the certification is late.
    • Was it caused by circumstances beyond the employee’s control?
    • Employers who win FMLA lawsuits often go above and beyond just the minimum requirements set forth in the FMLA regulations to assist the employee in requesting leave and complying with all the requirements.
    • Successful employers also look beyond the rules alone and apply an element of fairness in analyzing a specific situation
  • ADA Mistake 1, Inflexibility

    Like the FMLA, inflexible employer policies which do not permit any exceptions will often run afoul of the ADA.

    • Kittle stressed that under the ADA, employers may be required to make exceptions to their policies and procedures as a reasonable accommodation.
  • ADA Mistake 2, Failing to Follow Up

    Kittle also reminded employers that once an accommodation is provided, that is not the end of the story.

    • Employers should periodically check in with the employee to evaluate how the accommodation is working, especially during the early days of the accommodation.
    • If circumstances change (for example, the employee’s impairment improves or declines), the employer may need to reevaluate the effectiveness of the accommodation through a new interactive process
  • ADA Mistake 3, Making Decisions based upon Stereotypes

    Employers may not make decisions based upon stereotypes or assumptions about an employee’s protected class, including a disability. Each employee’s situation must be analyzed on the particular facts.

    • Caregiver discrimination is a current example. Employers should not assume the mother is the caregiver and not the father.

COVID-19 Issues

  • Request to Work from Home as Accommodation

    The panel discussed how to handle accommodation requests from employees who want to continue to work from home when the rest of the workforce is returning to the office. Key points include:

    • An employer cannot decline to make an exception to a return-to-work policy as an accommodation on the basis that other employees will also want to work from home.
    • Undue hardship needs to be an actual disruption of operations based on facts, not something based upon fear or speculation as to how an accommodation might work out.
    • Employers may not discuss medical information or medical facts with other employees who inquire about why an employee appears to be treated more favorably.
    • Based on experience during the COVID-19 pandemic, employers may need to revisit whether working in the office in person is still an essential job function for a given position.
  • COVID-19 does not always equal Serious Health Condition

    • An employee who has COVID-19 must still meet the FMLA definition of a serious health condition to be entitled to FMLA leave and protections.

The Dobbs Decision and Aftermath

  • Request to Work from Home as Accommodation

    The panel discussed how the U.S. Supreme Court decision, Dobbs v. Jackson Women's Health Organization, impacts the FMLA and ADA.

    • Applewhaite reminded attendees that there are no changes to the FMLA requirements and the definition of serious health condition as a result of Dobbs. An employee who needs time off to obtain an abortion must still meet the definition of serious health condition.
    • The panel also agreed that time off for travel to a medical procedure would, in most instances, be covered by the FMLA.
    • As an example, the panel discussed how an employer who needs to travel out of state to receive special cancer treatment should not be treated any differently than an employee who needs to travel out of state to obtain an abortion (if the individual’s condition equates to a serious health condition) – and vice versa.
    • Kittle similarly stated that under the Pregnancy Discrimination Act, pregnancy cannot be treated differently from other medical conditions that are similar on the employee’s ability to work.

The panel provided several resources for employers who are wrestling with these issues, which can be found here.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

READY FOR REGULAR OL’ FMLA?

Posted On May 12, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 12, 2020

 

So enough with the coronavirus already, right? Let’s get back to basics and one of the most challenging FMLA issues: employee abuse and misuse.

On Thursday, May 21 at 12:00 Eastern/9:00 Pacific I will join Angie Brown, ClaimVantage Absence Practice Leader, in presenting a Disability Management Employer Coalition webinar.Martidmec

As an employer, suspected abuse of the Family and Medical Leave Act (FMLA) can present many challenges. Leave abuse can increase an employer’s costs and deplete resources, while also greatly decreasing employee productivity and morale. However, there are ways to effectively navigate the leave abuse landscape, especially considering the court’s support of the honest belief defense.

In this session, we will discuss scenarios where the honest belief defense has been effective in defending FMLA decisions. We will contrast these examples with highlights of areas where employers failed to make their case, and examine the differences. Attendees will leave with an understanding of what elements are critical to substantiate an honest belief defense.

You can register here or just go to http://dmec.org/ and click on the Conferences & Events tab. We invite you to use this discount code for free registration: 20CLAIMVANTAGE1

And of course, keep watching this blog for COVID-19 updates – we have more waiting in the chutes!

FALSIFIED FMLA CERTIFICATIONS? EMPLOYER DOESN’T HAVE TO BE INSPECTOR CLOUSEAU TO SUPPORT HONEST BELIEF DEFENSE!

Posted On April 02, 2019  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

April 02, 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.

SPICE UP YOUR COMPLIANCE WITH 50 SHADES OF FMLA!

Posted On March 04, 2019  

March 04, 2019

 

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.

 

 

MATRIX COMPLIANCE EXPERTS TAKE THE STAGE!

Posted On December 11, 2018  

December 11, 2018

 

Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar

By Gail Cohen, Director, Employment Law/Compliance

I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).

In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:

  • Telework as a Reasonable Accommodation: Courts have often
    sided with employers who deny telework as an accommodation on
    the basis that the job requires teamwork and/or face-to-face
    collaboration with clients and/or colleagues. But beware! The
    EEOC will challenge employers who cannot demonstrate that
    this is truly an essential job function.  As a result, it is critical
    for employers to conduct a job analysis and confirm that the
    job description accurately captures the essential job functions as performed by employees. And, this job description
    should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
    to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
    necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
    employer can offer.
  • Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
    confusing qualification standards (requirements intended to predict whether someone can perform the job,
    such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
    does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
    qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
    Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
    business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
    behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
    lifting standard that the employer was unable to demonstrate was job-related and consistent with business
    necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
    they never lifted more than 35 pounds.
  • Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
    accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
    it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
    requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
    employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
    whether such leave will enable the employee to return to work and perform the essential functions of his
    or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
    for the employee to report to work.
  • Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
    employee cannot be accommodated in his or her current role, the accommodation of last resort must be
    considered – reassignment. To the EEOC, this means the employer and employee working together to
    identify positions open now or in the foreseeable future for which the employee is qualified and which are
    substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
    search and apply for open positions.
  • BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
    if an employee refuses to participate in the interactive process. Chris explained that an employer who has
    told the employee about the ADA process upfront, including the need for both parties to engage in good
    faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
    prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
    in such matters is on the party who is responsible for a breakdown in the interactive process and,
    if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
    to that employee.

DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:

  • Webinar recording: (Name and email are required to be directed into the recording)

 

Meanwhile, Marti is presenting too!

By Marti Cardi, Vice President, Product Compliance

While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

MATRIX AND EEOC TO PRESENT AT DMEC ADA WEBINAR: THE EEOC WEIGHS IN ON WHAT EMPLOYERS STILL GET WRONG ABOUT THE ADA

Posted On November 09, 2018  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

November 09, 2018

 

I am pleased to announce that Matrix will be presenting at an upcoming DMEC webinar on December 6, 2018.  Our co-presenter will be Chris Kuczynski, Assistant Legal Counsel and Director of the ADA/GINA Policy Division of the EEOC.  The webinar, “The EEOC Weighs in on What Employers Still Get Wrong About the ADA,” will provide EEOC guidance and practical advice on the following tricky ADA issues often confronting employers:

 

 

  • Telework as a reasonable accommodation: What should an employer do when an employee asks for
    telework for reasons related to a disability?  Can the job be done from home?  What if the employee
    has performance problems?
  • Qualification Standards v. Essential Functions: What is a qualification standard, how does it differ from
    essential functions, and why does it matter?
  • Managing leaves of absence under the ADA: Inflexible leave policies may violate the ADA and an indefinite
    leave of absence is not a reasonable accommodation, but what can an employer do in the vast majority of
    leaves that fall in between?  How do you assess a leave request for reasonableness?  How do you manage
    multiple requests for extensions? What medical inquiries can you make?
  • Reinstatement and reassignment following leave: When, why, and for how long do you have to hold the
    employee’s specific job open? What are your obligations for reassignment?  When can you call it quits?

DMEC member groups may register for the webinar here: December 6th Webinar. Non-members may register for a $29.95 fee. Contact your Reliance Standard/Matrix account manager for information/assistance!

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

THE WORK/LIFE SQUEEZE – FOCUS ON CAREGIVER LEAVES

Posted On August 06, 2018  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 06, 2018

 

It is not often that trends in life, legal issues, and employment practices coincide, but we are in that situation now.  Increasing numbers of employees have caregiver responsibilities for family members – children, elderly parents, family members with health needs, and others. The legal protections for caregiver employees are broad and numerous, and growing every year.  Some employers are trying to get ahead of these issues by implementing family-friendly policies and benefits to assist employees dealing with caregiver responsibilities.   With approximately 1 in 6 American workers concurrently serving as caregivers for family members, we are seeing:

  • An increase in state laws that provide workplace protections and benefits – think state paid family and
    medical leaves like California, New York, and others. Washington State, District of Columbia, and
    Massachusetts have passed PFML laws and are on the horizon.   Watch this blog for reports on developments.
  • An increase in family caregiver benefits offered voluntarily by employers – partly to be competitive in this
    tight hiring market but also because it is the right thing to do. You can take look at what leading companies
    are doing regarding voluntary paid maternity, parental, and caregiver leave benefits in this resource from the
    National Partnership for Women and Families:
    Leading on Leave: Companies With New or Expanded Paid Leave Policies (2015-2018).
  • Increased employee success in lawsuits and EEOC charges based on caregiver responsibilities. For an excellent
    summary, check out   Caregivers in the Workplace – Family Responsibilities Discrimination Litigation Update 2016.

The Work/Life Squeeze: Policies and Protections for Caregiver Employees.  The DMEC’s Annual Conference is being held in Austin August 6-9.  I will have the pleasure of presenting on workplace caregiver issues during the conference.   My share of the presentation will focus on the legal protections (FMLA, ADA, Title VII, state laws, etc.).  My co-presenter is Jim Tierney, Sr. Program Manager, Total Absence Management, Corporate Benefits from Medtronic. He will discuss Medtronic’s new industry-leading caregiver paid leave program – providing not just paid maternity and bonding leave, but also paid leave for many other caregiver reasons, such as caring for an ill family member.

Please join Jim and me at the DMEC conference if you will be there – 1:30-2:30 Wednesday, August 8.

Medtronic, based in Minneapolis, is a global leader in medical technology, services, and solutions.

Disability Management Employer Coalition (DMEC) is a national association dedicated to providing focused education, knowledge, and networking for absence and disability professionals.  Visit their website at http://dmec.org/.

We previously wrote about caregiver workplace protections in this blog postIt is still up to date except for the expansion of states that now or in the near future will provide paid family and medical leave benefits.

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.

DON'T MISS IT: THE 2018 DMEC FMLA/ADA EMPLOYER COMPLIANCE CONFERENCE

Posted On April 24, 2018  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 24, 2018

 

Join your peers and prepare to confidently tackle your organization’s FMLA/ADA challenges at the 2018 DMEC FMLA/ADA Employer Compliance Conference, Apr. 30-May 3, in Orlando!

This year, Matrix Absence Management is a National Sponsor and I have the privilege of facilitating four sessions! I would love for you to join me and my colleagues at any or all of the below:

Monday, April 30 12:00 pm -2:00 pmLiability Alert! HR and Supervisor Ethical Missteps:

This session will highlight real ADA and FMLA cases to help you gain a deeper understanding of ethical pitfalls in managing leaves and disabilities, such as misplaced benevolence, relying on stereotypes, what you ask, and how you communicate. Throughout, you will learn best practices to promote ethical ideals.  Join Marti Cardi, Vice President, Product Compliance, Matrix Absence Management, Inc. and Jaclyn Kugell, Partner, Morgan, Brown and Joy, LLP

Monday, April 30 4:30 pm -5:30 Preconference Wrap-Up: Ask the Experts!

Join me and other presenters  as we wrap up the first day of sessions with a chance to ask questions of our experts on the topics covered during the afternoon preconference workshops.

Wednesday, May 2 9:00 am -10:00 amDOL Red Flags in FMLA Investigations:

Helen Applewhaite, DOL Branch Chief for FMLA will headline in this sessionto help you to identify red flags that could reveal issues with your practices and policies.  I will bring in the practical advice on how you can proactively address these issues to stay in the clear and – occasionally perhaps – will disagree with Ms. Applewhaite and the DOL.

Wednesday, May 2 4:15 pm-5:15 pmRoundtable Mental Health in the Workplace – The Do’s, Don’ts, and Shoulds:

Join your peers for a small-group discussion and  bring your questions about how to manage mental-health claims in the workplace under the ADA and FMLA:  performance and conduct issues, obtaining medical information, requiring counseling as a condition of continued employment . . .

These sessions with be equally engaging and enlightening, and offer true real-world examples you can put into practice (with the help of Matrix Absence Management, of course).  I hope you decide to join us but if not, stay tuned for my recap of the conference.

To learn more about the 2018 DMEC FMLA/ADA Employer Compliance Conference and to download the full program click here:  http://dmec.org/conferences-and-events/compliance-conference/.   

HIGH POINTS IN RECENT FMLA CASE LAW

Posted On May 11, 2017  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 11, 2017

 

Last week I had the distinct pleasure of co-presenting one of the opening general sessions at the Disability Management Employer Coalition Compliance Conference with my buddy and fellow blogger, Jeff Nowak. Those of you who know Jeff and me will understand sharing the stage with him is tough duty: He’s cuter, funnier, and a better singer than me! Nonetheless, I soldiered through and together we provided updates on key FMLA cases decided by the courts in the past 12 months or so. Although there were no headline-making court decisions (think Escriba v. Foster Poultry Farms from a couple of years ago) there is still plenty to learn, and important reminders to gain, from recent FMLA cases. Here are some highlights:

Year of the Third Party Administrator. (Jeff’s title, not mine.) The past few months brought us a spate of cases dealing with an employer’s ability to require employees to provide notice of FMLA leave to both the employer and the employer’s third party administrator. For example, you can require your employees to call one number to report the absence for operational and attendance purposes, and another number (like Matrix!) to comply with and benefit from FMLA processes and protections. The key is to ensure that your employees are aware of the required two-notice process.

What employers should do: Enact a policy and distribute it to your employees spelling out the two-notice requirement, providing both numbers, and – while you’re at it – include time limits within which employees must report to each number. Some of the cases: Scales v. FedEx Ground Package Sys. (N.D. Ill. Jan. 2017); Alexander v. Kellogg USA, Inc. (6th Cir. Jan. 2017); Perry v. American Red Cross (6th Cir. 2016)

Employer’s duty to inquire for more information. The FMLA regulations provide that if an employer is on notice of an employee’s possible need for FMLA leave, the employer has the duty to ask for further information if needed to determine whether the employee’s leave request is for an FMLA-qualifying reason. 29 C.F.R. § 825.3(c); 825.303(b). This rule came up in two different contexts in recent cases.

In Reeder v. County of Wayne (E.D.Mich. Apr. 2016), employee Yasin provided a doctor’s note that identified his health conditions, stated he was under treatment, and directed that he should not work more than 8 hours per day – and thus no overtime (which was frequently required to ensure security at the county jail where he worked). The County did not provide Yasin with an FMLA certification form or a notice of rights and responsibilities. After missing many overtime shifts and receiving discipline, Yasin was terminated. The court ruled that a jury could find the information in the doctor’s note sufficient to put the County on notice that Yasin might need FMLA leave, thus giving rise to the County’s duty to inquire further if it needed more information.

EPILOGUE: The case indeed went to a jury that found the County had interfered with Yasin’s FMLA rights. He won over $187,000 in damages, $125,000 in attorneys’ fees, interest, and costs for a total in excess of $325,000.

Coutard v. Municipal Credit Union (2d Cir. Feb. 2017) reinforces the employer’s duty to inquire but this time in a situation that might surprise employers. Frantz Courtard asked for a leave of absence to care for his grandfather. MCU summarily denied the leave request, stating that the FMLA does not cover leave for grandfathers. Frantz took time off anyway due to his grandfather’s need for home care following hospitalization. Frantz was terminated for unexcused absences. Turns out, Frantz‘s grandfather had cared for him from age 4 when Frantz’s father died to age 14, providing a home, food, clothing, schooling, and other support typical of a parent – in short, a classic in loco parentis relationship. MCU argued that Frantz should have volunteered the information to establish the in loco parentis relationship. The court disagreed, holding instead that MCU had a duty to inquire whether Frantz’s grandfather qualified as ILP. Thus, Frantz’s termination constituted interference with his FMLA rights.

What employers should do: Always follow up with an employee if he or she provides information that a leave request might qualify under the FMLA, depending on additional facts. The regulations clearly state that merely “calling in sick” is not enough, but beyond that (and maybe even in that situation, depending on other facts) you should ask informally for more information to assess whether you should initiate the FMLA notice certification process. You will still be able to deny FMLA protections if the certification does not support the leave under the FMLA.

Beware the FMLA mandatory overtime rules! They can get you coming and going, as tire maker Bridgestone learned. Under Bridgestone’s overtime process, workers were not required to sign up for overtime, but if an employee did sign up and was selected for an OT shift, the employee had to work the assigned shift or be assessed an attendance violation. Employee Lucas was approved for intermittent leave to care for his son, who had asthma. Over time Lucas missed many OT shifts he had signed up for. Bridgestone applied FMLA to excuse most of the missed shifts, but ultimately Lucas exhausted his FMLA and was terminated for attendance violations.

The questions before the court included whether the OT shifts were mandatory, and whether Bridgestone had properly accounted for those shifts under the FMLA. Lucas argued the shifts were not mandatory because an employee could choose to sign up; as a result, they should not have been counted against his FMLA usage – and hence, he would not have exhausted his FMLA. Bridgestone countered that the shifts were mandatory once the employee signed up and was selected for a shift; as a result, Bridgestone argued, it was correct in deducting FMLA hours for the mandatory OT shifts Lucas missed to care for his son.

The court agreed that the shifts were mandatory due to Bridgestone’s OT sign-up, selection, and discipline process. But, Bridgestone had it only half right: The company was in compliance with the FMLA regulations when it deducted missed OT shifts from Lucas’s FMLA entitlement, but the company should also have included Lucas’s mandatory OT hours in its calculation of his “workweek” for FMLA purposes, using the variable workweek method permitted by the regulations. 29 C.F.R. § 825.205(b)(3). By failing to do so Bridgestone shorted Lucas on entitlement. Hernandez v. Bridgestone (8th Cir. Aug. 2016).

Lesson learned: Mandatory overtime counts toward both FMLA entitlement and FMLA usage.

Certification from a treating specialist? Maybe yes. Good news! A court has approved an employer’s request for an initial certification from a treating specialist. Erica was a difficult employee, to say the least. Her many complaints and ultimate termination landed her employer, City of Milford, in court. Lucky us! Erica’s groundless FMLA claims yielded a court ruling that is good news for employers. Erica was a community outreach employee for the City and requested FMLA leave for severe anxiety. She provided an FMLA certification from her primary care provider, who indicated that she was under treatment with a psychiatrist. The City asked for a new certification from the treating psychiatrist, which Erica provided. She received all the leave she requested but later – lots going on in the background, folks – she was fired. She sued and claimed, among many other things, that the City’s requirement that she provide a certification from her specialist was FMLA interference. Au contraire, said the court. Under these facts (a treating specialist referenced on the provider’s certification) the employer was justified in asking for a cert from that specialist.

But there are limits to how far we can rely upon this court decision. If the initial certification does not reference treatment by a specialist, a court may not be as willing to support an employer’s request for a certification from a specialist. After all, who would that specialist be if the employee is not treating? This is a reminder of the advantages of reviewing an employee’s initial certification carefully. The DOL prototype forms have questions to identify whether the employee/patient is receiving treatment from any other provider (WH-380-E and 380-F):

Was the patient referred to other health care provider(s) for evaluation or treatment (e.g., physical therapist)? ____No ____Yes. If so, state the nature of such treatments and expected duration of treatment: ___________________________________.

If the form is blank in this regard, follow the incomplete process spelled out in the regulations. If the form is filled in and indicates no other treatment, the second/third opinion process may be appropriate because the employee’s provider has given a certification on a specialty condition not within his/her practice. Either way, the employer ends up with more precise information about the employee’s need for leave – always a good thing!

The FMLA continues to be a challenge for employers – there seems to be no end to the fact situations employers face in managing employee leaves. If you have questions about the cases above other leave management issues, please contact us for help.

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.