Archive for the 'FMLA' Category

It’s Time to Start Over Again . . . Again. . . The FMLA Edition.

So once again I have been terribly negligent in keeping up on this blog.  In fact I have not posted since . . . man, since November of last year.  My only excuse is I have been a bit busy.  And busy is good, but it does mean the old blog has been neglected.  So I am going to go back to what we did before.  We will start another series on another statute.  This time I think we will focus on the Family and Medical Leave Act.  I don’t know about you, but I can use a bit of a refresher.  And we are going to do it the same way we did the FLSA series, using the Regulations as our road map.  So here we go . . .

A little bit of history to start.  For those of you that don’t know, the Family and Medical Leave Act (or as we are going to call it, the FMLA) was enacted by the 103rd Congress and signed into law by President Clinton on February 5, 1993.  That is right about the time I was just getting into this law thing (actually I graduated from law school in 1992 for those of you that are interested).  The FMLA is administered by our old friend the Wage and Hour Division of the United States Department of Labor.  Recognizing the increased number of single parent households and households in which both parents work, the purpose of the FMLA is “to balance the demands of the workplace with the needs of families to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” See https://www.dol.gov/whd/regs/statutes/fmla.htm#SEC_2_FINDINGS_AND_PURPOSES

So what does it do?

(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or Act) allows eligible employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months (see §825.200(b)) because of the birth of a child and to care for the newborn child, because of the placement of a child with the employee for adoption or foster care, because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition, because the employee’s own serious health condition makes the employee unable to perform the functions of his or her job, or because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty). In addition, eligible employees of a covered employer may take job-protected, unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness. In certain cases, FMLA leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.

29 CFR §825.100

Now that is a lot of stuff!  “Eligible employees” and “covered employers” and “workweeks” and “serious health conditions” and “ qualifying exigencies.”  And next time we will start digging into what all that means.

For the two of you that still read this thing, thanks for sticking with me.  See you next time, and it won’t be 9 months, I promise.

Department of Labor Issues Updated FMLA Forms

If you have been dealing with FMLA issues for the last month or so, you have probably noticed that the core FMLA forms available on the Department of Labor’s website expired on February 28, 2015. Or maybe you didn’t notice. If you didn’t, don’t worry, most people didn’t.

With very little, ok no, advance notice, the DOL over the Memorial Day holiday issued updated FMLA forms. The new forms are available on the DOL’s website. You can find them here: http://www.dol.gov/whd/fmla/

I’m not entirely sure why it took the DOL so long to issue the new forms or why they felt they had to do it over the holiday with no notice. As far as I can tell from a quick review, the only substantive change in the forms from the expired ones is the addition of Genetic Information Nondiscrimination Act (GINA) language to the medical certification forms.

So, that stack of forms you printed out and have in a file cabinet? Throw them away and print out the new ones.

If a tree falls in the forest and no one is around to hear it, does it make a sound?

By now, you may have heard that the federal government is shut down. Well, not all of the federal government actually, just those services deemed “nonessential.” Apparently that includes 1600 of the 1611 employees of the NLRB.  It also includes, according to the EEOC shutdown plan, 2057 of the EEOC’s 2146 staff and contract personnel. This made me wonder . . . no, sorry, too political, not going there. Let’s just get to the point.

The government shut down did get me thinking about your employees and the taking of FMLA leave. What happens when an employee goes on an FMLA leave and you realize that maybe, just maybe, you don’t really need that employee? Or what if you want to let a department go and that employee is part of the department? Those are good questions, don’t you think?  I do. And I know what you are thinking:  “No way we can let an employee go while they are in the middle of an FMLA leave, the FMLA specifically gives them a right to return. That is what you were thinking right? Of course you were, and so it does. But, what if the position your FMLA employee was going to return to is no longer necessary?  What if you were going to lay that employee off anyway?  Can you do it while they are on leave?  Well, yes you can. Who says?  The Department of Labor says.  And they say it in a regulation:

§ 825.216   Limitations on an employee’s right to reinstatement.

(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example:

(1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer’s responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.

Now, one big thing to keep in mind here:  If you let an employee go while they are on leave, the burden of proving that you would have let them go anyway is on YOU.  Which means you are going to need pretty solid proof that you would have taken the same action even if the employee was not on leave. So keep that in mind before you do anything rash. But, before you read this you were pretty sure the answer was no, and now, maybe not.

One more thing, the DOL’s website has the following disclaimer across the top “NOTICE: Due to suspension of Federal government services, this website is not being regularly updatedso you can’t call them and ask.  But don’t worry, I’m still working. You can call me.  Did you hear that tree fall?  I didn’t either.

NEW FINAL FMLA REGS TAKE EFFECT FRIDAY.

On Friday March 8, 2013, the latest set of Final Regulations implementing changes to the Family and Medical Leave Act go into effect.  The changes were passed by congress in 2010.  According to the Wage and Hour Division, the Major Provisions of the new rules are:

  • Defining a covered veteran, consistent with statutory limitations, as limited to veterans discharged or released under conditions other than dishonorable five years prior to the date the employee’s military caregiver leave begins.
  • Creating a flexible definition for serious injury or illness of a covered veteran, that includes four alternatives only one of which must be met.
  • Permitting eligible employees to obtain certification of a servicemember’s serious injury or illness (both current servicemembers and veterans) from any health care provider as defined in the FMLA regulations, not only those affiliated with the DOD, VA, or TRICARE networks (as was permitted under the 2009 regulations).
  • Extending qualifying exigency leave to eligible employees who are family members of members of the Regular Armed Forces and adding the requirement for all military members to be deployed to a foreign country in order to be on “covered active duty” under the FMLA.
  • Increasing the amount of time an employee may take for qualifying exigency leave related to the military member’s Rest and Recuperation (R&R) leave from five days to up to 15 days.
  • Creating an additional qualifying exigency leave category for parental care leave to provide care necessitated by the covered active duty of the military member for the military member’s parent who is incapable of self-care.
  • Creating a unique method of calculation of leave for airline flight crew employees, and establishing that FMLA leave for intermittent or reduced schedule leave usage, taken by airline flight crew employees, must be accounted for using an increment no greater than one day.

See Summary of the Major Provisions here.

You can find the Final rule here.  The Wage Hour Division Press release here.

YOU CAN TAKE A LEAVE BUT YOU CAN’T TELL A LIE

Every once in a while, I read a case that just makes sense. You know, one where the law is applied the way it is supposed to be.  This one involves the Family and Medical Leave Act. The purpose of the law is to protect individuals who can’t work because they have a serious health condition. It is, in short, a shield. And when it is used properly, it provides the intended protection. Unfortunately, the FMLA is often used as a sword.  An employee who is on the verge of losing his or her job suddenly comes up with some ailment and needs the leave. Then the employer feels handcuffed.

Not so fast. Come with me on a little trip, which  starts in Detroit where a hospital hired a nurse.  One day, the nurse was moving stretchers at work. The next day, she said she woke up with excruciating pain in her lower back and leg. Her doctor, who was employed by the same hospital, suggested a leave. The nurse applied for and was granted FMLA leave.

It just so happened that the nurse had a preplanned, prepaid trip to Mexico scheduled, which coincided with her FMLA leave. She didn’t want to get in trouble at work, so she got a statement from her doctor, who said the trip would not be as physically demanding as performing her work duties and would not interfere with her recovery. So off to Mexico she went.

So far, so good right?  Not quite. You see, the nurse had a Facebook page. And on it she posted pictures of her vacation in Mexico, riding in a motorboat and lying on her side holding up two bottles of beer in one hand. She also posted photos of herself while she was standing and holding her grandchildren, one in each arm, and she wrote about trips to the store, watching her grandchildren and taking online classes. Her coworkers complained to management.

And that’s not all. She sent an e-mail to her supervisor complaining that she had not received a get well card from the staff.  And thus began the e-mail chain. Her supervisor responded by saying “the staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.”

Here is what the nurse said in her reply:

Jessica,

As far as the airport, customs, etc., goes, I was in a wheelchair because I couldn’t stand that long. As far as the plane goes (3.5 hr. flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.

* * * * *

I want to come back to work as soon as possible and wouldn’t have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

One small problem: She didn’t use a wheelchair on the trip. When the nurse got back from leave, the hospital held a meeting and asked the nurse about this statement.  At first, she stuck to her statement, but then admitted that he had lied. In fact, she ultimately admitted that she walked through both airports, stood in line for more than 30 minutes and held her grandchildren, all of which violated the restrictions from her doctor.  The hospital fired her for dishonesty, which is a violation hospital policy. She sued, claiming the hospital interfered with her right to take FMLA leave and retaliated against her for taking leave.

And she lost.

The court went right to the FMLA regulations when it granted summary judgment for the hospital:

“An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.”

The court noted that the nurse lied about her abilities and about the wheelchair and  then admitted that she lied,  so that evidence was undisputed.  The hospital didn’t do everything right, however.  For example, there were some inconstancies in the reason for the termination. But the court reconciled those inconsistencies and was satisfied that the hospital had fired the nurse for lying and would have fired her for lying whether she was on a leave or not.

But then the court went on to say that it didn’t really matter if the nurse lied or not. Using the “honest belief” doctrine, the court stated:

“An employer is entitled to summary judgment under the “honest belief” doctrine when the employer honestly believes, based  on particularized facts, that an employee lied and misused her FMLA leave and disciplines/terminates such employee based on such belief.”

Now that is the way the FMLA is supposed to work. This almost restores my  faith in it.  You can read the entire case, Lineberry v. Detroit Medical Center here.

Speaking of the FMLA, look for our survey of how the FMLA has impacted you in our next HR Focus in mid-March.

FMLA SURVEY: NOW THAT’S WHAT I CALL ‘SPIN’

To recognize the 20th anniversary of the Family and Medical Leave Act (FMLA), the Department of Labor issued the results of a survey on the FMLA on Monday.  In the news release entitled, “Family and Medical Leave Act benefits workers and their families, employers” announcing the survey results the DOL made some pretty surprising statements. You can see the press release here.  And you can see the survey results here. And what exactly did the DOL have to say about the “landmark” FMLA?  Let me quote from the press release:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale. Finally, 90 percent of workers return to their employer after FMLA leave, showing little risk to businesses that investment in a worker will be lost as a result of leave granted under the act.

Really?

Far be it from me to call into question the results of the DOL’s survey, but who was surveyed?  Maybe companies in Mexico or Canada or China?  Or maybe a bunch of companies with fewer than 50 employees. I’m sure administering the FMLA is no problem for them at all.  But my experience working with larger employers has been a bit different.

I have been practicing law for slightly more than 20 years. I was a first-year lawyer when the FMLA was signed. During those 20 years, I have worked in this law firm and I have been an in-house lawyer for a major corporation. And in those years I’m willing to bet I have answered more questions from clients about the FMLA than about any other law.

The ADA is a close second, but I’m pretty sure the FMLA leads the pack. And when clients call me to ask questions, they get a bill. So they don’t do it lightly. “Easy to comply with the law”?  If that ain’t spin, I don’t know what is.

2010 Defense Budget Expands FMLA for Military Families

Last Wednesday President Obama signed the National Defense Authorization Act for Fiscal Year 2010.  The new law primarily deals with the budget for the military.  Also contained in the voluminous new law are two provisions unrelated to military spending.  The first is the Matthew Shepard and James Byrd Hate-Crimes Prevention Act.  The second is a provision that expands leave rights for military families under the FMLA.  The major changes to the FMLA include expanded leave for military exigencies and expanded caregiver leave. 

Under the prior changes to the FMLA, which added the military leave provisions, Qualifying Exigency Leave was only available to family members of those serving in the National Guard or reserve components of the Armed Forces.  Under the new law, qualifying exigency leave is now also available to family members whose “spouse, or son or daughter or parent” is serving in the regular armed forces when the qualifying exigency occurs.  The qualifying exigencies, you will recall from our seminars are the eight different things listed in the regulations, including child care activities, post deployment activities, counseling and short notice deployment, among others.

The second major change to the FMLA is that “service member care giver leave” under the Act (you remember from our seminars that this is the 26 weeks to care for a veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness incurred in the line of duty and applied only to current not former members of the armed forces) has been expanded to include a veteran who is undergoing treatment for an injury or illness incurred in the line of duty and who was a member of the armed forces at any time in the 5 years preceding the time the veteran is undergoing treatment. 

The Act does not specifically state when the FMLA changes take effect, but the Defense Budget as a whole was effective when signed.

We can expect the regulations to be modified to reflect these changes in the law

SICK AND TIRED . . .

So, is everyone sick of reading and hearing about H1N1 yet?  I am.  But what I’m really tired of hearing about is all the so called experts telling employers what they need to do when the flu hits the workplace.   “Drop your dr. slip requirement for people who are sick!”  “Pay everyone to stay home when they are sick!”  Come on, really?  Anyone know how you are supposed to pay for this?  I even read one article that quoted some government study that said something like “3 out of 5 businesses will suffer major disruptions in production if half of their employees are out of work for 2 weeks.”  Are you kidding me?  Listen, if you can survive 2 weeks with half of your staff out of work, I don’t know how to tell you this, but you just may be a bit overstaffed.

 

So how about some practical, lets not panic, what can I really do now advise?  Ok, let me give it a try. 

 

First of all, bone up on your FMLA knowledge.  The recent amendments to the FMLA make it very clear that the flu, as long as the employee is incapacitated for 3 full calendar days and gets treatment once within 7 days of first becoming incapacitated and again within 30 days or gets a prescription, is covered by the FMLA (how’s that for a run on sentence).  This is good for a couple of reasons:  First, it gives the employee some comfort that their mean old employer can’t fire them while they are out sick.  Second, it gives the mean old employer the medical information he needs so the employee can’t play games with sick time.

 

Next, go to the CDC website at http://www.cdc.gov/H1N1flu/qa.htm  Copy this part and post it in the break room where everyone can see it:

 

Take these everyday steps to protect your health:

  • Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
  • Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hand cleaners* are also effective.
  • Avoid touching your eyes, nose or mouth. Germs spread this way.
  • Try to avoid close contact with sick people.
  • If you are sick with flu-like illness, CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.) Keep away from others as much as possible to keep from making others sick.

 

And then, here are a couple of other things I thought of on my very own, that don’t require you to break the bank and start a whole new benefit program:

 

Go out with petty cash and by a bunch of tissues and alcohol based hand cleaner.  Spread them around the office.

 

Cancel unnecessary meetings and tell your employees to do the same.  Why get people together in a small room and let them all get sick if you don’t really need to get together at all.  Plus, when the panic is over you might find out you didn’t really need that meeting to begin with.

 

Let people know that where you can, and where it is necessary, you will push off deadlines.  This might take some of the pressure off and indirectly encourage sick people to stay home.

 

Think about letting people work from home when they are sick or they have a sick family member and they want work.  That way they still have some cash coming in and you still have work being done.  And you don’t have sick people walking around the office spreading their germs. 

 

These are just a couple of things I thought of off the top of my head.  They might not work for you and then again they may.  Bet if you thought about it you could come up with some other ways to prepare without writing a new benefit plan.  If you do, send a comment.

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