Posts Tagged ‘FMLA’

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.

When Can I Be Held Personally Liable for Employment Actions?

Thursday, April 2nd, 2015

CAI’s Advice and Resolution team member Pat Rountree shares valuable information regarding liability for employment actions in today’s post.

Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

Employment laws outline employer responsibilities for compliance under the various regulations. From time to time, the Advice and Resolution team is asked, “Can I be held personally responsible?” The answer is, it depends. It depends on the definition of employer under the regulation and/or the interpretation of that definition by the court if it is ambiguous.

The Fair Labor Standards Act (FLSA) defines employer to include any person acting directly or indirectly in the interest of the employer in relation to an employee. That definition could include HR Managers and other managers or supervisors who have the authority by the employer to exercise control over the employee’s job. HR Managers and managers who review job classification could be held liable for misclassification of a job as exempt when it should have been non-exempt, resulting in failure to pay overtime.

Individuals who qualify as employers as explained above may also be liable under the Equal Pay Act if they are responsible for paying a male more than a female for the same job unless there are factors to support the differential (more experienced, merit based on documented performance, etc.).

The Family and Medical Leave Act follows the same definition as the FLSA. Supervisors and managers who have authority over an eligible employee can be held responsible for denying FMLA or failing to fulfill other requirements of FMLA. Examples of individual responsibility include failure to designate absences that qualify as FMLA resulting in disciplinary action for absences (train your supervisors), and failure to provide FMLA notices (HR take note).

Other employment laws that can hold individuals personally responsible for violations include:

  • USERRA – failure to hire or taking negative action against a person because of their military service or other actions in violation of the Act
  • Section 1981 Civil Rights Act – discrimination based on race/color (Title VII does not consider individuals as employers; Section 1981 permits individual actions)
  • HIPAA – revealing personally identifying health information
  • ERISA – fiduciary breach of responsibilities under health care plan, retirement or 401(k) plan, or other covered plans
  • Immigration and Reform Act – knowingly hiring an illegal immigrant

Employees can also sue personally responsible individuals under state tort laws for wrongful discharge, or other conduct that violates a duty of care that a supervisor, or manager may have in their role.

While employees may not know that they could sue individuals, plaintiffs’ lawyers do. Where there is individual liability, the opportunity for monetary gain increases as individuals can have the same penalties as employers.

Please contact a member of CAI’s Advice and Resolution team with questions at 919‑878‑9222 or 336‑668‑7746.

Make Time-Off Decisions Together

Thursday, October 2nd, 2014

The following post is by Bruce Clarke, CAI’s CEO and President. The article originally appeared in Bruce’s News and Observer Column, The View from HR.

Bruce Clarke, President and CEO

Bruce Clarke, President and CEO

What could be wrong with time off from work? Plenty, if you are a manager trying to get things done, or an employee who cannot get time off for family issues.

Time-off problems generate phone calls to our HR advisers every day. Most of the problems come in three categories, each with an employee and employer viewpoint.

Do I have to?

Government regulations mandate time off in several dozen ways. No single requirement is back breaking, but their total weight causes employers to dread these regulated requests. The question often becomes, “Do I have to grant the time?” It depends.

Earned vacation is owed to the employee, and the only question is timing. An employer can deny its use at inconvenient times unless the vacation is to be used during a “family and medical leave” event. These FMLA requests give employees and their doctors so much power over timing that employee abuse is common, paid or unpaid. Even if laws like FMLA do not apply, sick day and personal day policies are common. Plus, everyone has a personal need now and then.

Help employees understand the business issues so that time off can be made to fit business and personal needs. Employees, if you will start out showing concern for business needs and some flexibility on timing, you will find the process is much smoother and more pleasant for all. It is rare that something has to happen on Monday morning, or on the busiest day of the month.

Everybody wants to be met halfway. (Emergencies are different.)

Do I want to?

If time off is discretionary, do you want to say “yes” to the employee for an inconvenient day off?

Managers might say “Yes to my best employees and no to my worst.” You can use some discretion, maybe rearranging work so a star can get a day off, but be sure you can defend that choice when the poor performer seeks the same. “Sally works exceptionally hard each day, and you do not” is what you may feel like saying, but refrain. Describe ways the employee can earn future approvals.

Employees who want time off or certain vacation days in this “discretionary zone” should bring a good plan for getting work done, a record of always doing so, or both. I have never met a manager who liked to say “no” to a personal request if it is reasonable and the employee always meets them halfway.

Should I?

Maybe no law requires it, and maybe the employee does not deserve it based on past behavior, but sometimes it is good business to grant that inconvenient time-off request.

You gain nothing by punishing an employee’s family, for example. Maybe you should have dealt with this poor performer more directly last month rather than indirectly punishing him or her through a time-off denial today.

Time-off conversations require adult behavior and open discussion. Approach your next one with that in mind.

 

FMLA: Are You A Covered Employer?

Tuesday, August 26th, 2014

In today’s video blog, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution team, discusses provisions in the Family and Medical Leave Act (FMLA) and whether an employer is covered.

John starts by explaining that FMLA allows eligible employees to take up to 12 weeks of unpaid leave in a 12-month period for certain family or medical reasons. He lists several protections the law grants employees, such as continuation of a group health plan.

He addresses employer coverage in the last portion of the video. John says public employers are covered without regard to the number of employees employed. Private employers must have 50 or more employees during 20 or more workweeks during the current or preceding calendar year. John also explains which employees you should count when figuring out FMLA coverage.

If you have additional questions regarding FMLA employer coverage, please give CAI’s Advice and Resolution team a call at 919-878-9222 or 336-667-7746.

Contacting an Employee’s Health Care Provider under FMLA

Tuesday, April 22nd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the Family and Medical Leave Act (FMLA), such as this one below:

Does the Family and Medical Leave Act (FMLA) allow an employer to contact an employee’s health care provider about his or her serious health condition?

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In today’s post, Advice and Resolution Team Member John Gupton offers guidance for this employer question:

If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. However, the employer may contact the health care provider for purposes of clarification and authentication of the medical certification (whether initial certification or recertification). Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask the health care provider for additional information beyond that contained on the medical certification form.

Under the regulations, however, when contacting an employee’s health care provider for authentication or clarification of the medical certification, an employer may use a health care provider, a human resource professional, a leave administrator or a management official. But, the FMLA regulations make clear that in no case may the employee’s direct supervisor contact the employee’s health care provider.

Also, the FMLA regulations state that contact between an employer and an employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations. In order for an employee’s HIPAA-covered health care provider to provide an employer with health information, the employee will need to provide the health care provider with a written authorization allowing the health care provider to disclose such information to the employer.

If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.

For more information, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

 

12-Month Period Under FMLA

Tuesday, March 11th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Family and Medical Leave Act (FMLA).  

john g edit

John Gupton, General Counsel and HR Advisor

The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave in a defined 12-month period for specified family and medical reasons. Generally, employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave.

The employer may use any of the following methods to establish the 12-month period:

(1) The calendar year – 12-month period that runs from January 1 through December 31;
(2) Any fixed 12-months – 12-month period such as a fiscal year, or a year starting on an employee’s anniversary date;
(3) The 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or
(4) A “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Employers may select any one of the four methods to establish the 12-month period as long as the method is applied consistently and uniformly for all employees.

Before changing to a different method of calculating the 12-month period, an employer must first give all employees at least 60 days notice of the intended change and the transition must take place in such a way that the employees retain the full benefit of their leave entitlement under whichever method affords the greatest benefit to the employee.

If an employer fails to select one of the 12-month period methods discussed above, the employer must use the 12-month period method that is the most beneficial to the employee.

Lastly, under no circumstances may an employer change the 12-month period to avoid the requirements of the FMLA.

For more information on the FMLA, go to http://www.dol.gov/ whd/ fmla/ index.htm.

How Does USERRA Interact with FMLA?

Thursday, January 30th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Uniformed Services Employment and Reemployment Rights Act (USERRA) and how it interacts with the Family Medical Leave Act (FMLA)  

john g editThe Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights for veterans and members of the National Guard and Reserve following qualifying military service. It also prohibits employer discrimination against any person on the basis of that person’s past USERRA-covered service, current military obligations, or intent to join one of the uniformed services.

USERRA requires that service members who conclude their tours of duty and who are reemployed by their civilian employers receive all benefits of employment that they would have obtained if they had been continuously employed, except those benefits that are considered a form of short-term compensation, such as accrued paid vacation. If a service member had been continuously employed, one such benefit to which he or she might have been entitled is leave under the Family and Medical Leave Act (FMLA). The service member’s eligibility will depend upon whether the service member would have met the employee eligibility requirements outlined above had he or she not performed USERRA-covered service.

USERRA requires that a person reemployed under its provisions be given credit for any months of service he or she would have been employed but for the period of absence from work due to or necessitated by USERRA-covered service in determining eligibility for FMLA leave. A person reemployed following USERRA-covered service should be given credit for the period of absence from work due to or necessitated by USERRA-covered service toward the months-of-employment eligibility requirement. Each month served performing USERRA-covered service counts as a month actively employed by the employer. For example, someone who has been employed by an employer for nine months is ordered to active military service for nine months after which he or she is reemployed. Upon reemployment, the person must be considered to have been employed by the employer for more than the required 12 months (nine months actually employed plus nine months of USERRA-covered service) for purposes of FMLA eligibility. It should be noted that the 12 months of employment need not be consecutive to meet this FMLA requirement.

An employee returning from USERRA-covered service must be credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining FMLA eligibility. Accordingly, a person reemployed following USERRA-covered service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1,250 hour requirement. In order to determine the hours that would have been worked during the period of absence from work due to or necessitated by USERRA-covered service, the employee’s pre-service work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of USERRA-covered service and requests leave under the FMLA. To determine the person’s eligibility, the hours he or she would have worked during the period of USERRA-covered service (20 × 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250 hour requirement is met.

For more information on USERRA, go to http://j.mp/er-ra.

Working While on a Leave of Absence

Tuesday, August 20th, 2013

Pat Rountree 5x7 300dpiCAI’s Advice and Counsel Team answers several questions from members daily. The team often receives questions concerning leaves of absence, such as this one:

Should we allow employees to work from home while on a Leave of Absence?

In today’s post, Advice and Counsel Team Member Pat Rountree offers guidance for this employer issue:

There are several considerations in answering this question:

1) Most importantly, what are the employee’s medical restrictions while on leave and what is your policy?

You do not want to require or allow the employee to perform any work that would violate their medical restrictions. If they want to continue to work on projects at home, monitor emails to keep up with what is going on, or manage employees remotely, it will be determined by your policy/practice if the work is within their restrictions. It will also depend on their job and whether work from home is possible during leave.

2) Is the employee exempt or non-exempt?

If they are exempt and on unpaid leave, under wage and hour laws, you may be required to pay them for the entire week if they work any part of the week unless they are on FMLA (the only time you can pay only for hours worked for partial days) or there is available a permissible deduction for a full day’s absence (not a partial day absence).

If they are non-exempt and you allow them to work they must track, and you must pay them for, all hours worked.

3) Are they on company-paid leave (salary continuation, exhausting paid time under an FMLA policy, etc.)?

If they are on company-paid leave, they are being paid by you so there is no Wage and Hour violation if they work.

4) Are they receiving third party payments (short-term disability or Workers’ Compensation)?

If so, supplemental pay may affect their eligibility for third party payments. Check your disability insurance plan document to see if this is allowed. If on Workers’ Compensation leave, you would report any earnings.

Remember, if the employee is on a company leave of absence, the employee must volunteer to work and it must be approved by management. However, if the employee is working while on a leave of absence, then, in reality, they are not on a leave of absence but working remotely. This may have other unforeseen implications, for example, if out on a FMLA absence, the time they are working should not count against the employee’s FMLA time.

If you have questions regarding leaves of absence, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.