LOOK OUT EMPLOYERS! FACEBOOK MESSENGER MAY BE SUFFICIENT NOTICE UNDER THE FMLA

Posted On September 21, 2022  

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

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

September 21, 2022

 

Imagine this: Your employee Kasey misses several days of work due to a recurring infection related to an emergency appendectomy. Your policy, which is provided to all employees, requires Kasey to call in on a specific phone line at least 30 minutes before a shift if going to be tardy or absent. If an employee fails to call in and misses three consecutive shifts, you consider the employee to have abandoned his job.

Kasey fails to follow your policy and instead, corresponds with his manager via Facebook Messenger (yes, you read that correctly!) rather than using the required call-in procedure.

Initially, the manager accepts these communications when Kasey misses work due to the emergency nature of Kasey's condition that requires surgery, and even responds multiple times via Facebook Messenger. Kasey returns to work and is credited with FMLA leave. But then, Kasey goes out a few days later and continues to miss work due to complications, and he is readmitted to the hospital. Kasey never calls in on the required phone line but continues to correspond back and forth with his manager via Facebook Messenger. Kasey is terminated for job abandonment.

Does Kasey have "a case"?

This scenario is based on an actual case, Roberts v. Gestamp West Virginia, LLC (4th Cir. August 15, 2022). Kasey's claim turned on whether he provided his employer with adequate notice of his need for leave under the Family and Medical Leave Act (FMLA) via Facebook Messaging.

Any guesses how this turned out? The lower court agreed with the employer. It referred to the FMLA regulations stating that Kasey did not use the "usual and customary" notice and procedural requirements for requesting leave under 29 CFR §825.303(c).

But, the appellate court disagreed. According to the appellate court, "usual and customary" are not limited to an employer's attendance policy. It could include "any method that an employer has by informal practice or course of dealing with the employee, regularly accepted, along with those in the employer's written attendance policy."

According to the appellate court, under these facts, a reasonable jury could conclude that the use of Facebook Messenger by Kasey and his manager established an additional "usual and customary" notice procedure under the FMLA because:

  • Kasey and his manager had a history and pattern of discussing Kasey's medical condition via Facebook Messenger including his hospital stays, his surgery and infection. Kasey's manager responded to Kasey's messages with follow up questions and asked for Kasey's expected return dates.
  • Kasey needed FMLA for two surgeries. For the first surgery, his manager accepted Kasey's communications via Facebook messenger, credited him with FMLA leave and did not discipline him for failing to use the call-in line.

    Although the employer stated it accepted Kasey's initial Facebook Messenger communications initially because of the emergency nature of the Kasey's first surgery, the appellate court noted that Kasey's subsequent absences involved similar circumstances.
  • Although Kasey had been disciplined a few months earlier for failing to use the call-in line for an unrelated absence, the court found that during the period related to his appendectomy, Kasey was not disciplined or asked to instead use the regular call-in line.
  • Bonus pointer! In this case, the employer's policy required the employee to call in at least 30 minutes before an absence. Under the FMLA (and many state leave laws) the employee must only call in "as soon as practicable" in the case of unforeseen absences. So be prepared to be flexible on the timing of the employee's notice of absence if there are extenuating circumstances. But even then, you can require the employee to use your company's "usual and customary" notice procedure unless extenuating circumstances (yes, again) prevents them from doing so.

Pings for employers

This case has lessons for employers far beyond just an employee's use of Facebook Messenger.

  • Do not communicate with your employees via Facebook Messenger, WhatsApp, text, or similar applications unless you are ok with accepting that method as adequate FMLA notice and/or notice for other absence reasons.
  • If an employee attempts to contact you to report an absence in a manner different from what is permitted under your policy, direct them to the policy and tell them they must follow the organization's call-in procedure. Train your supervisors on this point and apply the rule consistently!
  • No good deed goes unpunished! Don't make exceptions to your call-in rules, even if you think it's the right thing to do in a particular situation. It may preclude you from disciplining or dismissing an employee for later failing to follow policy.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and 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.

A "BACKWATER POSITION" AFTER FMLA LEAVE? SORRY, ALL THINGS ARE NOT EQUAL (OR EQUIVALENT)

Posted On June 02, 2021  

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

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

June 02, 2021

 

The Family and Medical Leave Act requires employers to reinstate an employee to the same, or an equivalent, position following an approved leave. Often this means employers are left to wrestle with the question of what constitutes an “equivalent position” under the FMLA. A recent case from federal district court in Wisconsin, Simon v. Cooperative Educational Service Agency, 2021 WL 2024921 (May 21, 2021) provides some helpful guidance.

Sarah Simon held the position of “alternative program lead teacher” for Cooperative Education (“CESA”) at REACH Academy, a school for elementary students with emotional and/or behavioral disabilities. Her duties included far more than teaching curriculum to the students in her classroom. They also involved management of paraprofessionals working under her supervision, and developing and implementing integrated education plans (“IEPs”) for her students.

Ms. Simon suffered a concussion from a physical altercation with one of her students. She left work to go to the Emergency Room and informed HR about her need for time off as a result. She was placed on worker’s compensation leave and cleared to return to full time duty after about a month. While she was on leave, her employer concluded restoring and returning her to her prior job constituted an “unreasonable risk.” She was instead placed in a position as a special education teacher at a different school, but at her same salary and benefits – until being informed that her contract would not be renewed. Simon sued, alleging CESA had failed to reinstate her to an equivalent position.

The case went to trial on that question. You know the employer is going to lose when early in the opinion the court observes that the employer “not only refused to return her to her previous position, but instead parked her in a backwater position with materially fewer responsibilities … Simon deserved better and the law demanded better.” Yikes.

The FMLA provides that, upon return from leave, an employee is entitled to be restored to the position she held prior to leave, or to an equivalent position which is “virtually identical to the employee’s former position,” with equivalent employment benefits, pay, and other terms and conditions of employment. The test for equivalency is strict: the new position must involve “the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a).

This employer thought that as long as Ms. Simon was earning the same salary, that was enough to be equivalent; but the regulations bear out that jobs are about more than just pay. In Ms. Simon’s case, the move to the special education role eliminated management responsibilities she had for the paraprofessionals with whom she worked, along with many significant duties in which she clearly took great pride and for which she was vested with authority and discretion. In Simon the court held that a new position with less prestige and visibility, or a loss of management responsibilities – even at the same pay – is not an equivalent position.

Pings for Employers:

  • “Unreasonable risk?” It is truly cringe-worthy to hear an employer make the assumption that an employee who was injured at work constituted an “unreasonable risk.” The court opinion never explains what CESA perceived this risk to be, or why reinstatement to a different position lessened that supposed risk. This consideration is irrelevant in the FMLA world, however, because the FMLA does not allow an employer to deny job restoration because of a fear of risk.
  • Same position is your best bet. When an employee is returning from leave, your best bet is to restore her to the same job she held prior to taking FMLA. If that is not available for legitimate business reasons or otherwise, look for one that is truly equivalent and comparable, not only in terms of pay and benefits but the other practical, meaningful aspects of work that employers should never forget. When an employee is “reinstated” following FMLA leave to a position that is less prestigious or has less responsibility, you are at risk for a lawsuit.
  • An ADA lesson on the side. It appears that Ms. Simon recovered quickly enough that her condition did not rise to the level of an ADA-protected disability. However, let’s consider some ADA rules that otherwise would have applied: Under the ADA, the employer’s obligation is to restore an employee to the SAME position following leave as an accommodation. An employer’s failure to reinstate the employee to the same position is justified only if it would pose an undue hardship on the business – a tough standard to meet. We touched on that topic in a prior blog post.
  • And a BONUS ADA lesson! Finally, the ADA does not permit an employer to refuse to reinstate an employee after accommodation leave due to a fear of “increased risk” unless the employee poses a direct threat to herself or others. The EEOC addressed this issue in the workers’ compensation context in its Enforcement Guidance on WC and the ADA at Question 14. Suffice it to say that, if you are going to consider an employee a risk after she is injured in your workplace, you had better have some objective support, medical or otherwise, to back up that position!

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services.[MC1] For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.


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NO EXTENSION OF FFCRA PAID SICK LEAVE/SCHOOL CLOSURE LEAVE; TAX CREDIT EXTENDED FOR 3 MONTHS

Posted On December 23, 2020  

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

December 23, 2020

 

FFCRA 300x300As of this writing, Congress has passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021, but President Trump responded with a hissy fit and the threat of a veto.  However, the paltry tax credit extension discussed in this post has not been brought up for criticism and so is likely to remain as is despite any other revisions the bill may undergo.  If anything changes, though, you can bet we’ll write about it here.

The bill has surprised many of us as it contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act.  Those mandated paid leaves expire on December 31, 2020, regardless of whether an employee has used all of his/her entitlement. If you need a refresher on the paid leave provisions of FFCRA you can check out our prior blog post here.

Tax credit extended.  On the other hand, the tax credit provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages paid through March 31, 2021.  What does this mean, you ask?  Great question.  The language of the CAA is poorly constructed.  But here is what appears to be the best interpretation:

  • There is no requirement for employers to provide further emergency paid sick leave or expanded FMLA leave for school closures after December 31, 2020.
  • An employer may choose to do so voluntarily, but further school closure leave will not count against an employee’s basic FMLA 12-week entitlement.
  • If such leave is paid in accordance with the FFCRA requirements applicable up to December 31, 2020, the employer can still claim a tax credit for wages paid through March 31, 2021.
  • However, the employer cannot claim a total tax credit in 2020 and 2021 combined for more wages per individual than the amount of paid leave required by FFCRA in 2020 – that is, 80 hours or part time equivalent of paid sick leave and 10 out of the 12 weeks of expanded FMLA, at the rates of pay specified in FFCRA.

What do employers need to do now?

  • Decide right away whether you are going to allow more FFCRA-like paid leave on a voluntary basis. If you do, apply that decision consistently across the board – either all employees with a qualifying reason can still take FFCRA-like paid leave through March 31 or none can. This includes both continuation of existing leaves and new leaves for a qualifying reason in the first 3 months of 2021.Of course, you can always allow such leave for as long and in such amounts as you choose through a company policy leave program.

    Be aware that if you do not continue FFCRA-like leaves into 2021, some employees may already be on continuous or intermittent leaves that would otherwise extend into 2021 and these will end on December 31, 2020. 

  • If you decide you are going to allow more FFCRA-like leave and care about the tax credit, be sure to get the documentation the IRS will require to support the credits. We previously summarized the IRS guidance for claiming the tax credit here.
  • Regardless of your decision on continued FFCRA-like leaves in 2021, remember that there are still many state and municipal laws, governors’ proclamations, and the like that provide at least temporary COVID-related leaves and job protections. And don’t forget the Americans with Disabilities Act as it may apply in this COVID world.

If Matrix is managing your FFCRA expanded FMLA leave for school closures, get in touch with your account manager right away to let us know your decision regarding continuation of these leaves into 2021.  We cannot charge any such leave against an employee’s FMLA entitlement after December 31, 2020, so all such pending leaves will be closed as of that date.  But we do have options for you, including switching the time requested to a personal leave of absence or instituting a company policy leave for school closures.  Congress has left us with very little time to deal with this situation, but we will do our best to stay up to date with our clients’ directions.

Matrix can help.  At Matrix we have developed a variety of pandemic-related leaves for employers that don’t have existing policies to cover all the COVID-related situations, such as leave due to quarantine or school closures.  If you are interested in learning more about these options, contact your Matrix or Reliance Standard account manager, or send a message to ping@matrixcos.com.

KEEPING UP WITH CALIFORNIA – 2019 LEGISLATIVE RECAP

Posted On November 22, 2019  

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

November 22, 2019

 

California employers perennially face challenges keeping up with the Golden State’s legislative developments, and the 2019 legislative session was certainly no exception! At Matrix Absence Management we monitor pending and enacted legislation to assist our clients in preparing for those developments, particularly in the leave of absence, disability claim, and ADA/state disability law arenas.

Here is a summary of California’s 2019 enacted legislation relevant to our industry:

CA PFL extended, leave reason added.  Effective July 1, 2020, Senate Bill 83 amended CA 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 adds 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.

Currently, these leaves are not job protected under the paid family leave program. Rights to reinstatement may come from 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%.

CFRA amendment to address flight crews. 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.

CA organ donation. Current California law requires private employers to give employees up to 30 business days of paid leave for organ donation and up to 5 business days of paid leave for bone marrow donation in a one-year period. Effective January 1, 2020, an amendment to the CA donor law (Assembly Bill 1223will require private employers with 15 or more employees to give eligible employees an additional 30 business days of unpaid leave in a one-year period (measured from the date the employee’s leave begins over the continuing 12 months) for the purpose of donating an organ to another person.  You can find more details about the new CA law in our prior blog post here.

Matrix can help!

Matrix will be ready to administer these California changes as they go into effect.  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 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.

THE FMLA IS 25!

Posted On February 02, 2018  

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

February 02, 2018

 

Happy Birthday!  Monday February 5 marks 25 years since the Family and Medical Leave Act was signed into law.  I was in private practice when the law passed, and I recall an associate with our law firm presented a summary of the new law.  My thought was, “This will never amount to anything.”  So much for my predictive talents!  Who knew that 25 years later the FMLA would be such a big part of my job every day and such a challenge for employers?  The law and regulations have gone through 2 major revisions since enactment, adding things like 26 weeks to care for an ill or injured service member and special rules for flight crews. 

If you want to learn more about this milestone event, including a “Thunderclap” scheduled for 1:00 EST on Monday, check out this page on the website for the National Partnership for Women & Families:  25th anniversary of the FMLA activities.

I also want to take this opportunity to say thank you to all of our clients.  You put your trust in Matrix to manage FMLA and state leave requests for your employees and we strive to live up to that trust. 

Matrix can help!Remember, in addition to our FMLA and state leave of absence services, we also manage ADA accommodation requests, disability claims, workers’ compensation, state paid family leaves, and more.  For information contact your account manager or send us an email at ping@matrixcos.com.