Posts Tagged ‘FMLA leave’

Can HR be Held Liable for FMLA Denial?

Friday, April 28th, 2017

An employer that took issue with an employee’s FMLA paperwork and refused to allow her to return to work until she provided new documentation, and ultimately fired her for job abandonment after a breakdown in communication, will face a jury on her FMLA interference and retaliation claims, the Second Circuit ruled in reversing summary judgment against the employee. The court also reinstated her FMLA claims against the HR director since she could be liable as her “employer” under the FLSA’s economic realities test, but refused to revive the employee’s ADA associational bias claim (Graziadio v Culinary Institute of America, 2d Cir.).

The employee, who worked for the Culinary Institute of America (CIA), took two weeks of FMLA leave in early June to care for her son after he was hospitalized for Type I diabetes. She returned on June 18, 2012, and submitted a medical certification on June 27. That same day, her other son fractured his leg and underwent surgery. She gave notice of her new need for leave, stating that she expected to return by July 9. When that date arrived, she requested a three-day week schedule for the next few weeks and asked if she needed to submit further documentation.

Despite her numerous inquiries as to when she could return, she heard nothing until the HR director sent her a letter on July 17 stating that her FMLA paperwork did not justify her absences. After she sent several emails attempting to determine what “paperwork” was needed, the HR director provided her with a Department of Labor brochure and refused to allow her to return to work until she provided proper documentation. As communication broke down, counsel for the parties became involved and the employee was fired on September 11 for job abandonment.

Individual liability. There was sufficient evidence for the employee to advance her FMLA claims against the HR director individually as her “employer.” Applying the economic-reality test used in FLSA cases, the Second Circuit found that triable issues existed as to the director’s authority since she appeared to have played an important role in the decision to fire the employee and also controlled her rights under the FMLA. Notably, the director specifically instructed her supervisor not to communicate with the employee and that she alone would handle her leave dispute.

FMLA interference. A jury could also find that the employee was denied leave to which she was entitled. First, it appeared that she may have taken intermittent leave to care for her diabetic son which was not approved by CIA. For example, the HR director’s July 17 letter stated that her documentation was insufficient and after she submitted a new certification, the director never responded (suggesting that she continued to withhold approval). Moreover, her updated certification arguably met the statutory requirements.

Good faith compliance. Regarding her injured son, a jury could conclude that the employee attempted in good faith to comply with CIA’s certification requests and that its conduct excused any residual failure in compliance. The HR director’s vague request for “paperwork” hardly sufficed to give adequate notice that CIA was requesting a medical certification, especially given the employee’s repeated requests for clarification. Although the HR director then sent her a Department of Labor brochure, she failed to respond to any of her continued pleas for clarification. Such unresponsiveness might itself run afoul of the FMLA.

After the employee submitted a doctor’s note, the HR director quickly rejected it and cut off communication by refusing to discuss the matter further until she appeared for an in-person meeting. The employee could thus have believed that she could not submit new medical information until the meeting. The director’s concurrent failure to acknowledge receipt of her updated certification for her diabetic son might also have signaled that further submissions would be futile. The meeting never occurred and the HR director never reopened the lines of communication until August 30, when CIA’s attorney demanded a new medical certification.

On this record, a jury could reasonably conclude that the employee made sufficient good faith efforts to comply with her employer’s requests and that defendants’ conduct—their imprecision in requesting certification, their failure to answer her questions responsively, and their failure to communicate with her after deeming her doctor’s note deficient—relieved her of any unsatisfied obligation to provide a medical certification to support her leave. Freed of this obligation, she may have been denied leave to which she was entitled.

FMLA retaliation. The employee also sufficiently demonstrated that CIA’s proffered reasons for firing her were pretextual since the record suggested that CIA’s assertion that it fired her because she abandoned her job was unworthy of credence. Although the August 30 email from CIA’s attorney instructed her to contact her supervisor to return to work, it also contained two paragraphs reiterating that if she wanted to return, she must submit FMLA medical certifications. The weakness of the evidence supporting CIA’s explanation, in conjunction with the very close temporal proximity between the employee’s leave and termination, suggested that the real reason for her discharge was her much-contested attempt to take FMLA leave.

ADA claim. However, the Second Circuit refused to revive the employee’s associational disability bias claim because she failed to show that she was fired because CIA feared that her concern for her diabetic son would cause her to perform inadequately. Rather, she presented evidence that she was terminated because CIA felt she had taken too much leave to care for her sons. Thus, it did not fear that she would be “inattentive at work,” but rather that she would not be at work at all.

We’ll have to wait and see how this case turns out.  In the meantime, CAI members always have access to our Advice & Resolution team for questions about FMLA leave for an employee.

CAI delivers HR, compliance, and people development solutions to 1,100+ NC companies to help them build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company.

Doug Blizzard brings a wealth of knowledge to CAI, serving as Vice President of Membership. During his first 15 years at CAI, he led the firm’s consulting and training divisions and counseled hundreds of clients on HR and Employee Relations issues. If he isn’t speaking at North Carolina conferences, teaching classes on Human Resources or consulting clients on EEO and Affirmative Action, Doug is leading the company’s membership services.

Organ/Marrow Donation: FMLA Eligible?

Tuesday, March 28th, 2017

I recently had a member call to inquire as to whether their employee’s leave to donate bone marrow would qualify as covered FMLA leave. In this particular instance, the bone marrow donation was not directed at a specific family member (rather just a donation to a bank for qualified donors/recipients) and the donation wouldn’t require an overnight stay at a medical facility. When it comes to marrow/organ donation how does the FMLA view the leave?

First, you have to remove the emotional aspect from the decision.  Donating marrow is clearly an exceptional act, however, you want to focus on whether it meets the qualifications necessary to be considered a serious health condition. Let’s review the six categories that a condition must fall in to meet a serious health condition as defined by the FMLA:

  • Inpatient care
  • Incapacity for more than three days with continuing treatment by a health care provider
  • Incapacity relating to pregnancy or prenatal care
  • Chronic serious health conditions
  • Permanent or long-term incapacity                                                                                       
  • Certain conditions requiring multiple treatments

So if we take bone marrow donation as an example, we can assume it would not meet the qualifications at face value since the employee will not be receiving inpatient or ongoing care.  In essence, they will go for the transplant donation procedure and then may have some recovery time but can expect to go on with their normal activities. Organ donation may meet the qualifications based on the fact that the individual will probably have an inpatient care several day stay and potential follow-up treatments.

As with any procedure, if the individual develops complications from the transfusion or donation and needs to have additional care, the original donation might not have met the qualification at the time of the request but the complications may now qualify. An example would be an infection or surgical complication.

There are several states that have organ/marrow donation leave laws.  North Carolina does not have an organ/marrow donation leave law for private employers.  State employees may be given reasonable time off with pay for whole blood donation, pheresis procedures and bone marrow transplants.  State employees may be given up to 30 days with pay for organ donation.

Bottom Line: As with any FMLA request, employers should review all of the request details and have a conversation with their employees to understand the circumstances regarding the request. Take the request and compare it to the items necessary to qualify for a serious illness under FMLA regulation. If it doesn’t meet the qualifications you can deny the request, but be prepared to offer another solution to the employee, for example, if the company offers personal leave or sick time that might help cover the leave. It’s important to have an open communication with the employee to help find the best solution for the business and your employee.

Complying with state and federal laws that affect your workplace is not always straight forward. That’s where CAI’s HR experts come in. Find out more about how CAI can help you in building an engaged, well-manged and low-risk workplace.

Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills.

 

Organ Donor Image Credit: Catherine Lane, 2015

FMLA – Needed to Care For a Family Member

Tuesday, January 10th, 2017

The FMLA allows leave for an eligible employee when the employee is needed to care for certain qualifying family members (child, spouse or parent) with a serious health condition. (The definition of son or daughter includes individuals for whom the employee stood for or is standing “in loco parentis.” The definition of parent includes individuals who stood for “in loco parentis” to the employee. The term “in loco parentis”, Latin for “in the place of a parent”, refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent.  Under FMLA, it specifically references a relationship whereby an individual takes on the role of “parent” to a child who is under the age of 18, or an adult (18 years of age or older) who is incapable of taking care of themselves due to a mental or physical disability.  No legal or biological relationship is necessary, provided the individual can satisfy the “in loco parentis” requirements under FMLA. 

An employee must be needed to provide care for his or her spouse, son, daughter, or parent because of the family member’s serious health condition in order for the employee to take FMLA leave. “Needed to care for” encompasses both physical and psychological care. It includes, for example:

    • Providing care for a qualifying family member who, because of a serious health condition, is unable to care for his or her own basic medical, hygienic, nutritional or safety needs, or is unable to transport himself or herself to the doctor, etc.;
    • Providing psychological comfort and reassurance that would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care; or
    • Filling in for others who normally care for the family member or to make arrangements for changes in care (transfer to a nursing home, for example).

The employee need not be the only individual or family member available to care for the qualifying family member. The need to care for could result in an employee’s need for intermittent leave or a reduced leave schedule to care for a family member where either the condition of the family member itself is intermittent or the employee is only needed intermittently (ie., other care is normally available or the care responsibilities are shared with others, family or third party).

For questions or issues regarding FMLA and how it pertains to employees within your company, CAI’s Advice & Resolution team, can help. Learn more about becoming a CAI member here.

 

CAI’s Advice & Resolution Advisor Renee Watkins is a seasoned HR professional with a diverse background in Human Resource. Renee provides CAI members with practical advice in a wide range of human resource functions including conflict resolution, compliance and regulatory issues, and employee relations.