Leaves of Absence/FMLA Law and Practice

The Supreme Court’s Defense of Marriage Act (“DOMA”) ruling will impact the “spouse” definition in the Family and Medical Leave Act (“FMLA”) (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.

It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do “in the meantime?” Continue Reading DOMA and the FMLA – What Should Employers Do “In the Meantime”?

The Department of Labor recently issued new FMLA regulations. The new regulations will take effect March 8, 2013. The regulations will have limited impact on most employers. However, the new regulations will require employers to obtain and post a new poster with the revised language contained in the regulations.

The other, more substantive impact is limited. The new regulations relate primarily to employees who are active military or retired. For a qualifying exigency leave, the definition of “active duty” is now “covered active duty” and will somewhat narrow coverage for eligible employees – the coverage will now extend only to those whose related service members are being deployed to a foreign country. On the other hand, military caregiver leave has been expanded. That leave – which provides for as much as 26 weeks of leave in 12 months – now includes eligible employees who are caring for covered veterans as well as covered service members. Covered veterans are those with a “serious injury or illness” who were discharged or released under conditions other than dishonorable within five years of an eligible employee’s initial request for leave (subject to certain exclusions extending the time for requesting leave). These and other new provisions are included on the revised FMLA Employee Rights and Responsibilities Poster (WH 1420). Employers should obtain new posters now for posting by March 8.

If you have questions about the new regulations and how they will affect your leave policies or would like assistance obtaining the revised poster, contact any of our Labor and Employment attorneys.

The EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).

Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.

Continue Reading EEOC Continues Aggressive Look at Employer Leave Policies

The Equal Employment Opportunity Commission (EEOC) has approved its strategic plan for fiscal years 2013 to 2016 to set the agency’s national enforcement priorities. The Plan identifies the following six national priorities: eliminating barriers in recruitment and hiring; protecting immigrant, migrant, and other vulnerable workers; addressing emerging and developing employment discrimination issues; enforcing equal pay laws; preserving access to the legal system; and preventing harassment through systemic enforcement and outreach.

So what does this mean for employers? A few observations:

  • Look for the focus on “emerging and developing” issues to include continued emphasis by the EEOC on employers’ leave of absence policies. See companion blog entry on these developments here; employers would be wise to re-evaluate their leave policies in light of these developments, especially in eliminating any “automatic termination” language upon expiration of available leave;
  • Look for the focus on “equal pay” – which was an added enforcement strategy from the draft plan – to develop into an EEOC enforcement response to the Supreme Court’s decision in decertifying class claims in the Wal-Mart pay and promotion case;
  • Look for the EEOC to continue its strategy of attempting to convert individual charges into larger scale investigations of possible systemic violations.

Under the Family and Medical Leave Act (“FMLA”), employers face significant challenges in understanding how much information from an employee is considered sufficient to trigger the employer’s duty to follow up. Courts have routinely found that minimal information will trigger an employer’s duty to ask if the employee needs leave and the corresponding duty to seek more information to determine if the FMLA applies. Knowledgeable employers know that an employee does not have to use any “magic language” and does not have to even mention the FMLA or even a need for “leave.” Rather, the employee must provide sufficient information “for an employer to reasonably determine whether the FMLA may apply.”

Some recent decisions address this important issue. In a recent case decided in Michigan, Byron v. St. Mary’s Medical Center, U.S. District Court – Eastern District Michigan, Sept 11, 2012, an employee’s telling her supervisor that she was “too sick to work” and was “going to the emergency room” were sufficient comments to put the employer on notice that the FMLA may be in play. Interestingly, the employer noted that although the employee had pancreatitis, her absences were never more than three consecutive days, meaning that the absences did not qualify anyway. However, the Court noted that given the condition, and the employer’s duty to gather more information, the employer would have learned that the condition was such that her not obtaining treatment would have led to absences in excess of the three-days requirement.

Continue Reading FMLA – What Information is Sufficient to Trigger Employer’s Duty to Follow Up

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave.  Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

A Cautionary Reminder for Employers

A Texas Federal Court recently ruled that terminating an employee because she wanted to pump breast milk at work is not sex discrimination.  The Equal Employment Opportunity Commission sued on behalf of an individual employee who had mentioned her need to pump breast milk at work and soon thereafter was fired for job abandonment.  The employer claimed that the employee had not kept the employer informed during her leave or about her desire to return to work.  The employer explained that its decision to terminate the employee for job abandonment already had been made before the employee’s request.

The Washington Post reported on this ruling last week. Continue Reading Texas Court Rules Against EEOC – “Lactation Discrimination” Is Not Unlawful Sex Discrimination But …

Assume an employee asks for leave, to be taken in the future.  At the time of the request, the employee is not covered by the FMLA because the employee has not yet been employed for one year.  Later, the employee is terminated, and the termination occurs before the employee has been employed for a year.  Does the employee’s advance request for leave make the employee “protected” under the FMLA, even though the employee was never eligible for leave?

In a ruling on January 10, 2012, the 11th Circuit recently said yes.  The Court found that the FMLA “protects a pre-eligibility request for post-eligibility leave.”  The Court reversed the lower court’s dismissal of the case, explaining that the lower court’s ruling would allow an employer to terminate an employee to avoid having to provide rightful FMLA leave once the employee becomes eligible. Continue Reading Employee Not Yet Eligible for Leave Still Protected Under FMLA

A recent ruling reinforces that “how” an employer does what it does often is as important as what it does.  The case appeared relatively straightforward.  An employee missed a work shift and claimed intermittent FMLA leave.  One manager, who had been skeptical about some past intermittent leave use, saw the employee at a birthday party on the same day of the missed work shift.  The employer investigated.  There was evidence that the employee was at the party at the same time as some of the hours of her missed work shift.  The employee claimed she attended the party only after her shift would have ended, and that she was feeling better after resting for most of the day.

The employer terminated the employee, explaining it had an honestly-held belief that the employee had been at the party during her shift and was lying about it.  Rather than grant summary judgment to the employer, the Court ruled a jury trial was necessary.  Why?

Here are the reasons the Court did not defer to the employer’s claimed honestly-held belief under the “honest belief” rule: Continue Reading Employers Beware – “How” You Do Is Often As Material As “What” You Do

Based on recent developments, employers wonder how much leave is really required under the ADA.  It seems that employers with even generous policies and practices have run afoul of the EEOC either in individualized cases, or, worse yet, in class claims.

Most recently, Verizon Communications Inc. settled for a record $20 million payout based on EEOC allegations that Verizon’s no-fault attendance policies did not adequately provide for an individualized assessment of an employee’s condition.  The EEOC has been focusing on such “no-fault attendance” and “maximum leave” policies.

How much leave is required, however, is not the correct question.  The better question is:  “What must be included in the employer’s process of evaluating an employee’s need for leave?”

Compliance with the ADA is often a “process driven” evaluation.  How you do something is almost as important as what you do. Continue Reading ADA Developments – “How Much Leave Is Required?” Is the Wrong Question