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Two Sixth Circuit decisions issued last week underscore the hazards associated with terminating an employee between the time that she announces her pregnancy and any time shortly after she returns from pregnancy leave. Fortunately, both decisions, which uphold lower court summary judgment decisions, also demonstrate that an employer can escape liability when it has valid reasons for the termination, even when the termination was made at a time that was temporally close to the pregnancy announcement or the pregnancy itself. In the first decision, Madry v. Gibraltar National Corporation, the court upheld summary judgment for the employer on Madry’s claim that the FMLA required her employer, Gibraltar, to reinstate her to the position that she held prior to her leave. Gibraltar defended on the grounds that an employee returning from FMLA leave is not entitled to restoration unless she would have continued to be employed if she had not taken FMLA leave. Gibraltar claimed that Madry was terminated for lack of work caused by economic reasons. It does not appear that Madry relied on the retaliation provisions of the FMLA nor any state or federal pregnancy discrimination statutes to support her contention that her termination was unlawful.

Madry offered four reasons why the employer’s “lack of work” explanation should not be believed. First, she argued that another similarly situated employee whom the employer identified as having also been laid off during her FMLA leave for a “lack of work” really was a “problem employee who at best was laid off for multiple reasons and at worst because she performed poorly.” The court, however, easily rejected this argument because it did not refute that “lack of work” was one of the reasons for the layoff. Second, she argued that the economic data did not support the employer’s claim that it suffered a downturn in business, but in fact shows that business was slightly increasing. The court again, however, rejected this argument because the economic data for the critical two months leading up to the decision not to reinstate Madry supported the employer’s argument that its business was in decline prior to the termination decision. In addition, to the extent that Madry argued that Gibraltar was required to show that her termination was economically required, the court noted that reducing labor costs and improving efficiency are valid business reasons for conducting layoffs, even when the degree to which such actions are motivated by economic hardship is debatable. Third, Madry argued that any terminations occurring after her termination were irrelevant to her claim and Gibraltar’s proffered reason for her termination. Though the Sixth Circuit agreed with this argument, it also held that this evidence is not necessary in finding the employer’s proffered reason legitimate, as the pre-termination economic data amply supported its burden of production. Finally, Madry argued that Gibraltar did not produce any company communications from around the time of her leave and termination that indicate a necessity for company layoffs as a result of reduced business. The court held, however, that the lack of any formal communications regarding the necessity to lay off employees does not render its decision unreasonable.

In the second case -- Megivern v. Glacier Hills Incorporated -- the plaintiff alleged that her employment was unlawfully terminated on the basis of her pregnancy and that her employer interfered with benefits due her under the FMLA and ERISA. The facts of this case are quite long and involved. Suffice it to say that Megivern had ongoing performance issues that resulted in her being placed on a performance improvement plan (“PIP”) approximately two weeks after announcing her pregnancy to co-workers. Approximately five weeks later, she was terminated for not improving to satisfactory status after being placed on the PIP. As these cases typically develop, in upholding the lower court’s grant of summary judgment in Glacier Hills’ favor, the Sixth Circuit focused ultimately on whether Megivern had sufficient evidence to prove that Glacier Hills’ proffered performance reasons for the termination decision were pretextual. In particular, the court found that the temporal proximity between the pregnancy announcement and the termination was not sufficient by itself to establish pretext. Instead, the court required Megivern to present other, independent evidence of pretext, which she was unable to do. The court rejected Megivern’s primary argument that the reasons for her termination shifted over time, finding instead that “the rationale given for terminating Megivern’s employment was clearly articulated in the termination notice prepared by Thompson and has remained the same since. In addition, the court not surprisingly found that the final decision-maker’s failure to congratulate her on her pregnancy did not provide evidence of pretext, especially since there was no evidence that Megivern had ever told that she was pregnant directly. Finally, Megivern presented “me too” testimony from three other employees who contended that they too were treated badly based on their pregnancy, but the court upheld the rejection of this evidence because the others’ situations were all factually distinct from Megivern’s.

Madry and Megivern demonstrate that an employee’s pregnancy does not immunize her from discipline or termination. This, of course, does not mean that a discipline or termination decision is not going to result in lengthy and costly litigation against a potentially sympathetic plaintiff. Nevertheless, particularly where legitimate business reasons -- whether they be economic or performance-based -- can be documented, the employer may be better served by taking the litigation risk rather than whatever risks may be associated with retaining the employee.
 

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Seventh Circuit Court of Appeals affirmed the District Court's grant of Summary Judgment in James v. Hyatt Regency Chicago reminding employers they are under no obligation under the FMLA to restore an employee to his or her position if the employee is unable to perform the essential functions of the job.

So here are the facts—Carris James was employed at Hyatt Regency as a steward for over 22 years. Although James was born with very poor vision, he was able to perform his job functions by wearing correctable eyeglasses and using magnifying glasses. Hyatt also accommodated him by increasing the print size of his work assignments and schedules. As a steward, James was responsible for maintaining the cleanliness of Hyatt's food service areas and ballrooms and transporting food items and equipment. Most of James' job responsibilities required he bend over, lift heavy objects, or both.

Well, in March or April of 2007, James' eye trouble got even worse! He was punched in the face while away from work. James developed retinal detachment in his left eye, so he had corrective surgery on April 20, 2007. When Hyatt learned James was away from work due to a medical issue, the human resources official sent the necessary FMLA paperwork to James. James provided the requested documents on April 25, 2007, and Hyatt retroactively dated his leave back to April 19th, his first day away from work. Although James had exhausted his FMLA leave on July 13, 2007, as a member of the Local Union he was entitled to job protection for up to one year from his original absence—April 19, 2008.

Things got confusing when James began submitting doctors' certifications regarding his ability to return to work. See if you can follow this...

Are you confused yet? Well, Hyatt was!

Hyatt attempted to contact James in September and December of 2007 regarding the conflicting doctors' certifications and to obtain further clarification regarding the lifting and bending restrictions, but James provided no further clarification. On January 15, 2008, Hyatt sought further clarification directly from Dr. Scott. Dr. Scott provided a certification on January 28, 2008, stating James could return to work, but would not be able to complete any task that required vision better than 20/200. Hyatt met with James shortly thereafter, and he returned to work in the same position, shift and seniority level on February 17, 2008.
 

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The DOL recently issued its final regulations regarding expansion of military caregiver and qualifying exigency leave and regulations affecting flight crews. These new rules take effect this Friday, March 8. We covered these rules when they were initially proposed by the DOL. The rules issued in their final form are consistent with our previous summary, and the official commentary and final rules can be accessed here.

The updated forms are available here, and the updated poster is available here.

What are the changes?

Most employers will need to be concerned only with the changes to leave available for military family members, and should review their FMLA policies and practices to ensure compliance with these new rules. Employees may take leave to care for the injuries of veterans who have left service within the past five years. Leave is also available for injuries that preexisted military service but were aggravated in the line of duty. (Before, employees could only take leave for current servicemembers whose injury occurred in the line of duty in the first instance.) Qualifying exigency leave has also been expanded, allowing leave for employees whose qualifying family members serve in the regular Armed Forces as well as the National Guard and Reserves, requiring in both cases a foreign deployment. Qualifying exigency leave is also expanded to 15 days for qualifying family members of servicemembers on rest and recuperation leave.

As mentioned in our previous summary, the DOL's rules also incorporate new eligibility and recordkeeping requirements for airline flight crew members, which should be closely reviewed by affected employers.

What do employers need to know about the FMLA forms and poster?

As part of its final rule issuance, the DOL also updated its FMLA model forms regarding military family leave and required poster to be used starting March 8, 2013. Although employers are not required to use the DOL's forms, many employers do. (However, if you use the DOL's forms, we recommend you add GINA "safe harbor" language.)

All FMLA-covered employers must post the DOL's FMLA poster in a conspicuous place. Covered employers who also have FMLA-eligible employees must also provide a copy of the FMLA poster to employees as part of the employee handbook or in a handout provided to employees upon hire.

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We hope you enjoyed our five-part series last week addressing the Top 5 Holiday Headaches for Employers. Due to popular demand, we have compiled this series into an eBook for you and have added a special bonus:

Three FMLA Stocking Stuffers: How to Avoid a
Big Lump of Coal

We couldn't do a holiday-blog series and NOT include something about every employer's favorite holiday topic. Like fruitcake, it is a gift that nobody really wants or knows what do with... the FMLA.

Here we tackle three prickly FMLA-holiday questions. First, do holidays count against an employee's FLMA leave entitlement? Second, how does FMLA work in the case of a week-long plant, office or school shutdown? Lastly, does an employer have to pay an employee on FMLA leave holiday pay?

#1 - Does a Holiday Count Against an Employee's FMLA Leave Entitlement?

Let's say you have an employee who is out on FMLA leave from Monday, December 3, 2012 through Thursday, January 31, 2012. Let's also say that your office is closed Tuesday, January 1, 2013 to celebrate New Year's Day. Does the January 1, 2013 holiday count against the employee's FMLA leave entitlement?

The FMLA itself does not directly answer this question, so we look to the general rule for counting FMLA leave during a holiday week. The key here is whether or not the employee is absent for the entire week in which the holiday is observed. In our example, the answer is "yes." Under the FMLA, leave is calculated in workweek increments. While there are some exceptions when employers have to deal with intermittent or reduced schedule leaves when shorter periods of leave of observed, the week is the standard unit. If an employee is out on FMLA for the entire workweek, like in our example, the holiday would count against the employee's FMLA leave entitlement.

If, however, the employee works part of the week, e.g., if the FMLA leave is certified from Friday, December 21, 2012 through Wednesday, January 2, 2012, then only the days the employee would have been expected to report to work would count against the employee's FMLA leave entitlement. In this case, the holiday days will not count against the employee's FMLA leave entitlement unless the employee was otherwise scheduled to work as the FMLA provides:

For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.
29 C.F.R. § 825.200(h) (emphasis supplied).

Here's what it looks like in application. In our example, the employee has FMLA leave certified from Monday, December 3, 2012 to Thursday, January 31, 2012. So, the whole week, which includes the holiday, counts against the employee's FMLA leave entitlement.

-- Count Whole Week as FMLA Leave --

In the second example, where the employee has FMLA leave certified from Friday, December 21, 2012 through Wednesday, January 2, 2012, only Monday and Wednesday count against the employee's FMLA leave entitlement.

-- Count Monday and Wednesday
as FMLA Leave --

FMLA leave the employee used for the week. For this, divide the hours the employee missed for FMLA leave over the hours the employee would have worked but for the FMLA leave and get the fraction of FMLA leave to charge the employment's leave allotment. Using our second example, and an 8-hour workday, here is what that looks like:

Hours missed for FMLA                            16  = 1

Hours would have worked but for FMLA      32     2 

Instead of

Hours missed for FMLA                            16  = 2

Hours would have worked but for FMLA      40     5 

In our example, the employee missed 16 hours for FMLA leave divided by the 32 hours the employee would have worked that week but for the FMLA leave. Divide the hours missed for FMLA, which is 16, over the hours the employee worked have worked, 32, and you get 1/2 a workweek FMLA used, instead of 2/5 the employee would be charged in a five-day workweek.

If an employer cannot determine how many hours the employee typically works in a workweek, i.e., the employee's schedule varies from week to week, the employer should take the average number of hours the employee works (including hours worked, leave time used and overtime) taken over the past twelve months. The 12-week period is a look-back period from the date of the leave, not the date of the request for leave. When it comes to overtime, the regulations provide a bright-line rule that if an employee is typically required to work overtime, but is unable to do so because of an FMLA qualifying reason that precludes that employee from working overtime, the overtime hours should be counted against that employee's FMLA entitlement. This is essentially intermittent leave, and the hours counted against the employee are counted at straight time, not time and a half. Voluntary overtime, however, is not to be counted against the employee's FMLA leave allotment.

#2 – How Does This Work In Case of a Weeklong Plant, Office or School Shutdown?

If there is a weeklong shutdown, like a plant closing or school shutdown, where employees are not expected to work, the regulations are clear that the shutdown period cannot count against the employee's FMLA allotment. This is referred to in 29 C.F.R. § 825.200(h), cited above.

#3 - Do Employees on FMLA leave Get Holiday Pay?

Last issue: Do employees on FMLA leave get holiday pay if they are on FMLA leave during the holiday? This issue has presented quite a conundrum, and if you Google this issue, you will be find a number of varying responses.

There are two regulations on point. 29 C.F.R. § 825.09, which provides how an employer must maintain an employee's benefits while on FMLA leave, provides "[a]n employee's entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate)."

In addition, 29 C.F.R. § 825.215(c)(2), which provides how an employer must maintain equivalent pay, provides:

Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary, made to employees consistent with the provisions of paragraph (c)(1) of this section. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

Here's what these regulations mean: Under FMLA, you treat FMLA leave like you would treat comparable non-FMLA leave. Suppose you have an employee who is taking vacation time during the holiday week and your policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday. Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee's paid vacation leave, or whether it is simply an unpaid leave under the FMLA. If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow that for the employee on FMLA leave. On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the employee on FMLA leave. Employers just have to be sure they are treating employee consistently with similar forms of non-FMLA leave under your policies.

This year, the United States Court of Appeals for Eighth Circuit held in Keeler v. Aramark, that an employee out on FMLA leave was not entitled to holiday pay when his employer had a policy of not providing such pay to employees who did not work the day before the holiday regardless of the reason. In Keeler, the employer requested various leaves in the fall of 2007. His FMLA time went through Labor Day, a day the employer typically paid its employees, even though they were not required to work.

The employer's policy provided that it did not provide holiday pay for any employee on unpaid leave during the holiday, or for any employee who did not work the last regularly scheduled workday before the holiday, unless that absence was previously approved. Pursuant to this policy, the employer did not pay the employee for Labor Day because the employee was absent on the last workday before Labor Day.

The employee sued claiming he was entitled to holiday pay for Labor Day even though he was out on FMLA leave. The employee argued that because the FMLA prohibits an employer from using an employee’s use of FMLA leave as a negative factor in employment actions, he was entitled to the same paid leave he would have received as had he not been out on FMLA leave. The court disagreed and relied on 29 U.S.C. § 825.215(c)(2), set forth above, in particular: “if a bonus or other payment is based on the achievement of a specified goal such as hours worked … or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied." Relying on this regulation, the court found that so long as the employer treats other employees who were absent for non-FMLA reasons in the same manner. This regulation, with the employer's policy of not providing holiday pay for any employee on unpaid leave during the holiday, meant the employee had no claim.

The takeaway here for employers is simple: check your leave policies and check them twice, and make sure you are applying FMLA leave entitlements in conformity with the FMLA and your own policies.

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The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment's protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to nine current and former hospital employees (and others) that according to the court, read as follows:

Lisa got officially ax (sic) today! I am singing DING DONG THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years...including turning me into the board...God does grind a fine mill when revenge is taken on by him...back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

As inevitably happens in this kind of situation, the email was given to the supervisor who sent it on further and eventually an investigation was initiated. When confronted with the email, Ms. Barnett denied that she had typed it and intimated that someone had hacked into her Facebook account. Ms. Barnett was suspended pending the results of the investigation. While Ms. Barnett continued to push her hacking theory, the investigation worked its way back to the employee who originally gave the email to the supervisor. She confirmed that Ms. Barnett had admitted to sending the "celebratory" email. Another employee came forward and offered to show the investigator text messages she had received from Ms. Barnett. Although she was unable to retrieve the text messages, she confirmed that they said something along the lines of, "The witch is dead… Lisa got fired."

As the investigation proceeded, Ms. Barnett contacted the hospital's employee responsible for processing leaves of absences for FMLA paperwork. Meanwhile, apparently unaware of the FMLA request, the investigator and the hospital's vice president of human resources decided to terminate Ms. Barnett for dishonesty pursuant to its employee handbook. Plaintiff was specifically told she was not being terminated because of the content of the email, but rather because she had repeatedly lied about sending it. Ms. Barnett was given the opportunity to resign, which she accepted, but still had the audacity to maintain the lie about sending the email. (She later came clean at her deposition.)

Ms. Barnett's subsequent lawsuit against the hospital claimed that she was terminated in violation of Ohio's public policy protecting freedom of speech, and for FMLA interference and retaliation. The court had no trouble dispensing with each of these claims. First, the court noted that there is no clear public policy forbidding private actors from restricting free speech. Instead, the First Amendment guarantee of freedom of speech is a restraint on governmental actors only. Therefore, the court concluded that the guarantees of freedom of speech under the federal and state constitutions cannot provide the basis for a public policy exception in a wrongful discharge claim in the absence of state action.

Moving on to the FMLA claims, the court noted that Ms. Barnett's only claimed interference was that the hospital failed to provide her with notice as to whether the leave requested would be counted as FMLA. Of course, as the court also commented, the period of time had not expired as of the date that Ms. Barnett offered her resignation. Furthermore, the court noted that Ms. Barnett was not harmed by any failure to provide her the requisite notice because she had already been terminated.

Finally, the court also disposed of Ms. Barnett's retaliation claim based on the evidence presented that demonstrated that the decision to terminate her was made without any knowledge that she was attempting to pursue an FMLA claim. In addition, relying on a Sixth Circuit decision in Gipson v. Vought Aircraft Industries, Inc., the court held that an employee may not insulate herself from termination by "opportunistically invoking the FMLA."

Though the result of this case was rather predictable to everyone other than apparently Ms. Barnett and her counsel, it probably does bear emphasizing that:

1. An employee of a private employer has no automatic right to freedom of speech.
2. In this case, the hospital was best served by terminating Ms. Barnett based on her dishonesty. This decision probably helped avoid disputes over whether other similarly situated employees had not been terminated over similar comments about their supervisor. (No, I don't think that the email would have been protected by Section 7 of the NLRA, had Ms. Barnett filed an unfair labor practice charge.)
3. Offering an employee the opportunity to resign rather than accept being terminated does not always avoid a lawsuit, which can be based on a constructive discharge theory.
4. There is nothing that is beyond the capabilities of some employees.

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Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012) involves three seemingly-unrelated topics: social media, Polish festivals, and the honest belief defense to FMLA claims. When combined, however, they turn into a fun set of facts that the Sixth Circuit recently got to chew on.

The Facts

Advantage Health Physician Network ("Advantage") hired Sara Jaszczyszyn ("Plaintiff") to work at its Staffing Center Float Pool on a part-time basis. She eventually was promoted to a full-time customer service representative. Nine months in, Plaintiff began complaining of back pain, which was the result of an old accident, and asked for time off work from August 31 to September 7 because she would be "completely incapacitated". Because Plaintiff did not have enough paid time off under Advantage's attendance policy to cover her absences, her leave was considered FMLA leave to protect her job. As such, Plaintiff was asked to provide a "Certification of Health Care Provider" to show she suffered from a serious medical condition, as required under the FMLA. She also was reminded that she was to comply with Advantage's attendance policy, which expressly provided she was to inform her supervisor of any planned absences.

Plaintiff returned to work on September 8, and submitted paperwork from her doctor that she would need intermittent leave for flare ups, which were estimated to occur four times a month and last a few hours to a few days. While the Certification indicated the leave was to be intermittent leave for flare ups, Plaintiff treated the leave as continuous, open-ended, effective immediately leave and never returned to work after September 9th. Advantage reminded Plaintiff repeatedly that she had to inform her supervisor every day that she was in too much pain to work. Sometimes she gave notice and sometime she did not. When she did, it was typically through a voicemail left late at night or over the weekend when no one was around. There were also issues with Plaintiff turning in required paperwork. Despite these issues, Advantage treated Plaintiff's absences as being taken pursuant to intermittent FMLA. Because there had been some confusion with Plaintiff's leave entitlement, Plaintiff went to the doctor on September 22 and her doctor completed the Health Care Provider Certification form and put Plaintiff on leave from September 10 through October 5. Just eight days later, however, Plaintiff's doctor completed a work release form, as opposed to a Health Care Provider Certification form, and advised that Plaintiff was completely incapacitated for another three weeks, from October 5 through October 26. Advantage approved the September 10 through October 5 leave, but not the October 5 through October 26 leave extension.

The Fun Facts

So here's where it gets interesting. On October 3, while on her approved-FMLA leave, Plaintiff attended Pulaski Days, a Polish festival in Grand Rapids, Michigan with some friends. Plaintiff posted a number of pictures of herself, some of which showed her drinking, smoking and having a grand old time engaging in a pub crawl, on her Facebook page. Not too shabby for a "completely incapacitated" gal! Even better, that same weekend, Plaintiff left numerous voicemail messages with Advantage letting Advantage know how much pain she was in and that she would not be at work Monday morning. But wait, the story gets better: Plaintiff was Facebook "friends" with several of her Advantage co-workers, including her supervisor for whom she left a voicemail message indicating she was too sick to come to work.

After one of Plaintiff's co-workers/Facebook "friends" brought the matter to her supervisor's attention, the supervisor, noting that other co-workers felt "betrayed or duped" by Plaintiff, reviewed the Facebook photos. Advantage then conducted an investigation. It reviewed Plaintiff's medical certifications and eventually confronted Plaintiff on October 8. During the meeting Advantage discussed Plaintiff's communications issues, including her request for extended leave through October 26 without discussing it with her supervisor; her job requirements; and the scope of her injuries that prevented her from being able to perform her job. Before confronting her with her Facebook pictures, however, Advantage asked Plaintiff whether she knew how seriously Advantage took fraud, and Plaintiff responded that she did. Ah ... to be a fly on the wall the rest of that meeting, where Advantage discussed the Facebook pictures and Plaintiff's time at the festival. Not surprisingly, Plaintiff disagreed with Advantage's characterization of the pictures. (You can judge for yourself. Some are available here). She also defended attending the festival by arguing that no one had told her it was prohibited. When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, Plaintiff did not have a response and was often silent, occasionally saying that she was in pain at the festival and just was not showing it. Advantage terminated Plaintiff for fraud.

The Lawsuit

In turn, Plaintiff sued Advantage for retaliation and interference under the FMLA. Advantage moved for summary judgment arguing there was no evidence showing anyone at Advantage had a retaliatory motive and because it had an "honest suspicion" Plaintiff was abusing her FMLA leave. The district court granted summary judgment.

The Sixth Circuit's Decision

The Sixth Circuit affirmed. The key for the Court in disposing of the retaliation claim was the honest belief rule. The "honest belief" rule provides, "so long as the employer honestly believed in the proffered reason given for its employment action, the employee establish pretext even if the employer's reason is ultimately found to be mistaken, foolish, trivial, or baseless." Here, the Court held that Plaintiff failed refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.

The more difficult question, however, is whether the honest defense rule applies in FMLA interference claims. While the Sixth Circuit raised the issue, it skirted it, and here's how.

The Court first noted that the requisite proofs in interference versus retaliation cases differ. The key element in an interference claim is whether “the defendant denied FMLA benefits or interfered with FMLA rights to which [s]he was entitled.” The key issue in a retaliation claim is whether "there was a causal connection between the protected FMLA activity and the adverse employment action.” The difference is that the retaliation case requires proof of employer intent to retaliate while the issue of intent is irrelevant in the interference context. The Court, however, rejected the notion that interference cases are strict liability cases, noting that "interference with an employee's FMLA rights does not violate the FMLA if the employer "has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct." The Court, however, did not reach any conclusion on whether this carve-out precluded Plaintiff's FMLA interference claim.

The Court then jumped into its analysis of whether the honest belief rule applies in interference cases, noting that its prior decision in Donald v. Sybra, Inc., which we blogged on here, should not be read as either adopting or rejecting the honest belief rule in FMLA interference claims. With that, however, the Court failed to go further and decide if the honest belief rule in fact does apply to FMLA interference cases and/or to further explain what the legitimate, unrelated reason carve-out means in application to interference claims.

Instead, the Court ultimately settled on another of its decisions from earlier this year, Seeger v. Cincinnati Bell Telephone Co., which we blogged on here, as the one that provided Advantage's defense to Plaintiff's interference claim. In Seeger, as in this case, an employee sued after he was terminated for attending Oktoberfest while on FMLA leave. The Court found Seeger instructive because, like the facts in this case, the employee received all the FMLA leave to which the employee was entitled and, therefore, there could be no interference.

Because Plaintiff limited her interference claim to Advantage's failure to reinstate her at the end of her FMLA-approved leave and never argued her termination interfered with her requested extension of leave, the Court never had to address the "honest belief. Had Plaintiff argued her termination was in connection with her second request for leave, instead of arguing it was because Advantage failed to reinstate her after her first approved leave, the Court probably would have resolved the issue.

As for Plaintiff's retaliation claim, the Court did what you expect it would given that Advantage acted appropriately. The Court applied the “honest belief” rule and found that Advantage's proffered reason for terminating Plaintiff, i.e., FMLA fraud, was not pretextual. The Court's decision focused in large part on Advantage's investigation and Plaintiff's conduct during the investigation interview.

Takeaways

• Use the Honest-Belief Defense, and Make Sure You Do It Right By Performing a Thorough Investigation. This case reinforces an employer's right to rely on the "honest belief" defense, especially in response to FMLA retaliation claims. It remains to be seen whether the "honest belief" defense will provide a defense to FMLA interference cases, but it is not likely given the Court's footnote, "[t]he honest rule is inextricably linked with questions of discriminatory intent, and as the Donald court noted, bringing that rule into the interference realm would further erode the boundaries between the interference and retaliation claims."

1. Use Your Resources – all of them. Employers should use their resources to determine if their employees are abusing FMLA leave or taking leave fraudulently. Social media sites, like Facebook and Twitter, are a treasure trove of information, if publicly available. More often than not, if your employee is gaming the system, one of his or her co-worker/Facebook "friends" will turn the employee in to human resources. So keep your ears open.
2. Conduct a Thorough Investigation. This case also highlights the importance of a thorough investigation. Had the employer been rash and automatically terminated Plaintiff after seeing the Facebook photos, the employer's honest belief defense may not have been given as much weight by the Court. Instead, the employer thoroughly reviewed the record, which included Plaintiff's medical certifications, its policy against fraud, and gave Plaintiff a sufficient opportunity to clarify the pictures. This played significantly in the Court decision to allow the use of the honest belief defense to bar Plaintiff's retaliation claim.

• Be Aware of the "Legitimate, Unrelated Reason" Carve-Out When Terminating An Employee Who Has Not Yet Used All Their Certified Leave. In this case, the Sixth Circuit endorsed an employer's reliance on a "legitimate, unrelated reason" as a defense to FMLA interference claims. Of course, however, the court will also be on the look out for evidence that the claimed unrelated reason is pretextual, and several question regarding this defense remain open: (1) what does "legitimate, unrelated reason" mean; (2) how does it differ in application from the honest belief rule; and (3) how can employers use it to terminate an employee mid-leave or who has not taken all their leave entitlement without FMLA-interference liability.
• Employees, Stay Away from Festivals When You Are On FMLA Leave. While it would appear that the Sixth Circuit's recent attention to the honest belief defense is focused on employees who flaunt their good condition in public, specifically at public festivals, it is likely that the Sixth Circuit would find the honest belief defense in other scenarios, but employees, you have been warned.

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The Family Medical Leave Act ("FMLA") requires an employer to restore an eligible employee who takes FMLA to the position the employee held when the FMLA leave commenced or to an equivalent position. Most cautious employers take this to mean that they cannot terminate an employee on the day he or she returns from FMLA leave; however, in Winterhalter v. Dykhuis Farms, Inc., Case No. 11-1743 (6th Cir. July 23, 2012), the Sixth Circuit allowed an employer to do just that under certain circumstances.

In Winterhalter, Robert Winterhalter ("Winterhalter") began working for Dykhuis Farms ("Dykhuis"), a pig farm, in 2007 as a manager of the breeding herd earning $55,000 a year. In 2009, Dykhuis converted one of its facilities to raise young female pigs for breeding and transferred Winterhalter to manage this herd without reducing his salary. Winterhalter supervised two employees. The prior manager only earned $45,000, and one of the employees Winterhalter supervised earned less than $30,000 a year.

In May 2009, Winterhalter injured himself at work but continued to work into the fall of that year. During this time period, Dykhuis' bank informed it that it must take "immediate and drastic measures to improve its financial performance, including immediately reducing the size of its operations and overhead." In response, Dykhuis laid off thirteen full-time employees over a seven-month period and reduced the size of its breeding herds. In total, the farm Winterhalter worked at suffered a twenty-seven percent reduction of herd from September 2009 to January 2010.
By October 12, 2009, and shortly after Dykhuis started its reductions, Winterhalter gave Dykhuis notice and went on FMLA leave. While Winterhalter was on leave, Dykhuis discussed laying Winterhalter off due to lack of work. Dykhuis determined that those employees who had assumed Winterhalter's duties in his absence were doing "great" and decided to go through with the lay-off.
On the day Winterhalter returned from leave, Dykhuis informed him by letter that his position was being eliminated because of "financial reasons," and reference was also made to his "job performance" and verbal warnings he had received over the past two and a half years. Two weeks after Winterhalter's termination, however, Dykhuis posted internally for a pig manager position, which paid $12.00 per hour.

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The recent decision out of Texas in Sechler v. Modular Space Corporation highlights a recurring issue for employers -- managing employees who return to work following rehabilitation for substance abuse. In Sechler, the plaintiff, a recovering alcoholic, was by all accounts an excellent employee for approximately 10 years until he experienced a relapse. He requested EAP services and, as a result received outpatient treatment for about a month.

Upon returning to work, he was asked to sign a "Return-to-Work” agreement, outlining the requirements with which he had to comply as a condition of his return to work. The Agreement specified that Sechler was to attend weekly Alcoholics Anonymous meetings and provide proof of attendance, as well as submit to at-will drug and alcohol screenings. He also agreed that a positive result on any screening would result in his termination.

Upon his return to work, Sechler asked that he be given permission to leave work early to attend his AA meetings, but was told he needed to schedule them on his own time. He then was scheduled for and passed a drug screening. A few weeks later, he then began exhibiting what his coworkers described as unusual behavior; that his speech was slurred and that he smelled of alcohol. One co-worker said that he thought he had seen Sechler go to the passenger side of his car and take a drink.

As a result, ModSpace scheduled Sechler for another screening and, out of a concern for his and others' safety, insisted that he not drive there himself. He refused to go unless he could drive himself to the screening. ModSpace's chief human resources officer, Sean McManus, then offered to pay for a taxi to take Sechler to the testing facility, which Sechler also refused. Because Sechler refused to allow someone to drive him to the facility, he could not produce a complying test result, and McManus made the decision to terminate his employment.

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Employers often defend against discrimination and retaliation claims by arguing that courts should not act like super human resources managers who second guess their employment decisions. A panel of the Sixth Circuit took that argument to heart in its May 8th decision in Seeger v. Cincinnati Bell Telephone Co., in which the court upheld summary judgment in favor of the employer on the ground that the employer had an "honest belief" that the plaintiff had engaged in disability fraud.

Tom Seeger was on FMLA leave for aback injury when he was spotted at the Cincinnati Oktoterfest by several of his co-workers. One of the employees contacted human resources to say at Seeger was able to walk 50 to 75 feet, seemingly unimpaired. During the employer's investigation, however, others remarked that Seeger seemed to to be in pain. The employer's investigation investigation also included an interview of Seeger and a review of his medical records, disability file and employment history. Seeger was suspended and was given an opportunity to submit a statement as well as a statement from his physician. After considering all of this information, the employer decided that Seeger's activity at Oktoberfest was inconsistent with his claimed disability and terminated him for disability fraud.

Seeger filed suit for interference with his FMLA rights and for retaliation in violation of the FMLA. With respect to the interference claim, the court concluded that Seeger had been given all of the FMLA leave he had requested since he had actually returned to full duty during the course of the investigation. With respect to the retaliation claim, the court noted the closeness in time between the FMLA leave and the termination, but concluded that CBT made a “reasonably informed and considered decision” before it terminated Seeger, and that Seeger has failed to show that CBT's decision-making process was unworthy of credence.

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On March 20, 2012, in a 5-4 decision, the Supreme Court of the United States ruled that states cannot be sued for denying workers sick leave under the FMLA.

Daniel Coleman, an African-American male, was employed with the Maryland State Court of Appeals from March 2001- August 2007 and served most recently as executive director of procurement and contract administration. Coleman requested a 10-day medical leave under the "self-care" provision of the Family and Medical Leave Act ("FMLA") to deal with his hypertension and diabetes. Coleman claims he was forced to resign or be terminated because he was African-American and had requested sick leave.

Coleman filed a lawsuit in the District Court alleging the State violated Title VII and the FMLA. He was seeking $1.1 million in monetary damages. The State of Maryland moved to dismiss the complaint based on the grounds that Coleman failed to state a claim for which relief could be granted and that his FMLA claim was barred by Eleventh Amendment immunity.

The State argued Congress did not enact the FMLA "self-care" provision to remedy a pattern of sex-based discrimination found in states' sick leave policies. The "self-care" provision of the FMLA was passed pursuant to the Commerce Clause, which cannot be used to pierce a states' sovereign immunity. The District Court and the Fourth Circuit Court of Appeals agreed.

This decision only denies employees of state agencies, state universities, and their political subdivisions (cities, counties, public boards, etc.), the right to sue state employers under the "self-care" provision of the FMLA. Public employers are reminded that all other forms of FMLA leave remain protected, so to avoid liability under other employment laws, public employers should continue enforcing medical leave policies consistently.
 

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The Department of Labor ("DOL") published proposed regulations to the Family and Medical Leave Act ("FMLA") on February 15, 2012, and the deadline for public comments has been extended through Monday, April 30, 2012.

The DOL introduced the proposed regulations to implement and interpret the 2009 amendments to the federal FMLA. They address three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.

The proposed regulations include several changes in regards to Military Family Leave. First, military caregiver leave has been expanded to cover eligible employees whose family members are recent veterans (active within the past 5 years) with serious injuries or illnesses incurred in the line of active duty, where the veteran is undergoing medical treatment, recuperation or therapy. Previously, only current service members were covered.

Secondly, the definition of a serious injury or illness has been expanded to include serious injuries or illnesses that existed prior to service and were aggravated in the line of active duty.

Thirdly, private health care providers not affiliated with the Department of Defense ("DOD") or Veteran's Affairs ("VA") have been added as authorized health care providers that may provide the necessary "serious illness or injury" certification for military caregiver leave.

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The FMLA is a confusing topic for employers and human resource professionals. Many times, the mere mention of the letters "F" "M" "L" "A" out of an employee's mouth are enough for the employer to grant the employee leave, no more questions asked.

This is why two recent Ohio federal district court opinions are helpful to employers navigating the FMLA terrain as they highlight that an employer does not have to take the employee at his or her word that FMLA time off is needed. Rather, the employer has the right to request and receive proper medical certification of a serious medical condition from a health care provider or else the employee's leave is simply not covered under the FMLA and the employer may proceed with its discipline procedures.

The first decision, Huberty v. Time Warner Entertainment, concerns an employee who informed his supervisor that he needed to take time off for a stress in his life. He was referred to human resources who began dealing with his request for time off. In the meantime, he began taking time off and apparently started to search for a doctor who would certify his need for time off.. Needless to say, the employee never found a doctor to certify his condition and the employee was terminated for violating the company's no call no show policy. The employee sued for FMLA retaliation and interference.

Judge Adams granted the employer's request for summary judgment and held that the employee's own subjective assessment of his health condition was insufficient to satisfy his burden to prove that he was suffering from a "serious health condition" under the FMLA and made clear that a "health care provider" must make the determination that the employee cannot work:

It does not mean that, in the employee’s own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a “health care provider” has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness. If it were otherwise, a note from a spouse, parent, or even one’s own claim that one cannot work because of illness would suffice. Given the legislative history surrounding its enactment, the FMLA cannot be understood to establish such liberal standards for its application.

The next day, the Southern District of Ohio through Judge Frost issued Poling v. Core Molding Technologies. In Poling, the plaintiff requested intermittent leave due to a condition known as Reflex Sympathetic Dystrophy Syndrome (“RSD”). The employer accepted and certified plaintiff’s FMLA leave for his requested monthly treatments and physical therapy. Between May and September 2008, however, the employee never took FMLA leave. On September 20, 2008, the employee called in, left a voice mail message that merely stated: “Terry Poling, Night Shift, FMLA.” The employer sent the employer a letter informing him of his FMLA eligibility and requested medical certification for his absence. The letter warned the employee that his failure to provide the certification could result in a violation of the company's attendance policy because the employee had exhausted all other leave entitlements. The employee was asked numerous times for the medical certification but never provided sufficient medical certification. The medical documentation he did submit merely mentioned plaintiff's RDS condition, but was silent on the reason for the employee's absence from work. The employer gave the employee another chance to provide proper medical certification, but he failed to submit any and was terminated.

He sued for FMLA interference and discrimination and the court granted summary judgment for the employer and reaffirmed the black letter language of the FMLA that allows an employer to require that a request for leave be supported by a certification issued by the employee's health care provider. An employee's failure to do so means that the "leave is not FMLA leave".

These cases highlights that employers have ways to make the FMLA pill easier to swallow and defenses at their disposal. They just need to know what they are, be thorough, be thoughtful, and be consistent.
 

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Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members of Reservists and members of the National Guard.

Highlights of the Proposed Regulations:

Qualifying Exigency Leave

• Expanded to allow qualifying exigency leave for qualifying family members of individuals who serve in the regular armed services
• Addition of a foreign deployment requirement associated with the active duty for which exigency leave is requested
• Expanded leave available (from 5 to 15 days) for qualifying family members of servicemembers on rest and recuperation leave

Military Caregiver Leave

• Expanded to allow military caregiver leave for qualifying family members of individuals who serve in the regular armed services and to recent veterans
• Definition of "serious injury or illness"
  • Expanded to include conditions that existed before the servicemember joined the military or served active duty but were aggravated in the line of duty
  • For veterans, defined to include any of the following: (1) conditions that occurred while the veteran served and continued after the veteran's discharge; (2) physical or mental conditions for which the veteran has received a VA Service Related Disability Rating of 50% or higher; or (3) any injury or illness of similar severity as (1) or (2) that substantially impairs the veteran's ability to secure or follow a substantially gainful occupation by reason of a service-connected disability, or would do so absent treatment.

Flight Crew Employees

• Hours of service eligibility criteria: Flight crew employees must meet at least 60% of the applicable monthly guarantee and must have worked or been paid for at least 504 hours (not including personal commute time or time spent on vacation, sick leave or medical leave)
• Calculation of leave taken: Includes specific calculations for leave usage with different methods for "line holders" and flight crew members on reserve status.
• "Physical impossibility": The proposed rules clarify that the physical impossibility provision is to be used only in limited circumstances where, as applied to flight crew members, there are truly no flights available to restore the employee returning from FMLA leave. In such cases, the employer may count the delay to return the employee to work due to physical impossibility against the flight crew member's FMLA entitlement. However, the DOL is considering removing the "physical impossibility" requirement from the regulations altogether if it finds that employers have applying the provision more broadly than intended.

Note that these are proposed regulations not requiring employer compliance at this time—the DOL will collect comments from the public for the next 60 days, and after those comments are collected, the DOL will issue final rules that employers will be required to follow.

FMLA Model Forms and Notices:

As we reported previously, the optional FMLA forms supplied by the DOL expired on December 31, 2011. On Monday of this week, they reissued the identical forms as published before (available here) under a new expiration date of February 28, 2015. These forms still do not include the GINA safe harbor language we recommended in our previous post, nor do they account for the 2010 changes for military exigency leave. So they remain less than ideal, but at least are no longer past their expiration date.

At the same time, in the proposed rules published yesterday, the DOL stated that it intends to remove its current model forms and notices from the regulations' Appendices entirely, and to issue a revised FMLA poster and model forms and notices to reflect the final changes to the regulations that result from their latest proposal.
 

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Last month, the Eleventh Circuit Court of Appeals (which has jurisdiction over Florida, Georgia and Alabama) held that a pregnant employee, who provided several months notice to her employer of her intention to take leave upon the birth of her child, was protected under the Family and Medical Leave Act ("FMLA") despite the fact that at the time she provided the notice, she was not eligible for FMLA. In short, the court held that the FMLA protected employees who make pre-eligibility requests for post-eligibility leave from both interference with the leave and from retaliation.

Appellant Kathryn Pereda ("Pereda") began working for Brookdale Senior Living Communities, Inc. on October 5, 2008. In June of 2009, Pereda advised Brookdale of her pregnancy and that she would be requesting FMLA leave around November 30, 2009, after the birth of her child.

Pereda alleges everything changed after she announced her pregnancy. First, she was no longer considered one of the top employees at Brookdale. Second, Brookdale began harassing her, causing stress and complications in her pregnancy. Third, Brookdale's management placed her on a performance improvement plan with unattainable goals. Lastly, Pereda alleges that although she was eligible for sick and personal leave and was told she could use that time for doctor's visits, management wrote her up for taking leave time to visit the doctor.

In August of 2009, Pereda took a few days off, and notified Brookdale management of her absence via email. When she returned to work she was written up for failure to obtain verbal authorization for her absence.

In September 2009, Pereda's physician placed her on bed rest. Pereda left a phone message with the executive director, but did not receive a return call. Pereda was unable to reach someone at Brookdale until several days later, at which time she was fired.

Pereda filed a Complaint against Brookdale on May 11, 2010, asserting that "Brookdale interfered with her FMLA rights, insofar as Brookdale denied her benefits under the FMLA to which she was entitled, and terminated her for attempting to exercise those rights."

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We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor's FMLA forms that we posted here. The Department has requested approval for the renewal of these forms from the federal Office of Management and Budget. In the meantime, employers may continue to use these forms. In order to comply with the Genetic Information NonDiscrimination Act ("GINA"), however, employers should also send a note to the healthcare provider that includes the following safe harbor language recommended by the EEOC:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

Using this language will ensure that if the healthcare provider actually provides genetic information regarding the employee or family member in completing the FMLA forms, the employer can establish that its receipt of the genetic information was inadvertent.

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Even though the FMLA has been around since 1993, the Sixth Circuit did not get around to designating the appropriate framework for reviewing FMLA interference claims until January 17, 2012.

In Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012) the Sixth Circuit held that the McDonnell Douglas burden-shifting framework applies to FMLA interference cases.

The case concerned an Arby’s franchise that terminated Gwendolyn Donald’s employment after it determined that she had been improperly discounting drive-in window orders and pocketing the difference. Among other allegations, she claimed that her employer terminated her employment in retaliation for taking FMLA leave and to interfere with her FMLA rights. The main issue underlying Donald's claims was timing because she was terminated the day she returned from a short FMLA absence.

The district court dismissed Donald's claims after concluding that the timing of her termination the day she returned from her FMLA leave was insufficient to overcome Sybra's claim that she was fired because of her suspicious conduct.

In affirming the district court, the Sixth Circuit began its analysis by laying out the elements for an FMLA interference case:

1. the plaintiff must be an "eligible employee" under the FMLA;
2. the defendant be an "employer" under the FMLA;
3. the plaintiff must be "entitled" for leave under the FMLA;
4. the plaintiff must give her employer notice of the intent to take leave; and
5. the employer must deny the employee FMLA benefits.

The Court then went on to conclude that its decision Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008) (holding that an employer may defend against an FMLA interference case by showing that it had a legitimate reason unrelated to the exercise of FMLA rights for terminating an employee and that the employee can then rebut this reason by showing that it has no basis in fact and did not actually motivate the termination decision), "effectively adopted the McDonnell Douglas tripartite test without saying as much."

Oddly enough, even though the Court took the time to outline all the elements of an FMLA interference claim under McDonnell Douglas, it opted not to analyze them. Instead, it skipped on to Donald's pretext burden and ultimately concluded that the timing of Sybra's decision to terminate Donald's employer was not enough to establish that Sybra's decision was improper.

This case is useful to employers because it puts finality on the issue of the proper standard of proof in FMLA interference cases; and, in doing so, ensures that plaintiffs have the burden to prove pretext.
 

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The recent Utah district court decision in Kuhn v. Comfort Hospice Care, LLC highlights the importance of evaluating relationships with professional employer organizations ("PEO's"), as these relationships may cause an unknowing employer to be held liable under the FMLA.

Comfort Hospice Care, LLC ("Comfort") provides medical care to terminally ill patients in Las Vegas, Nevada and Layton, Utah.

Comfort had a contract with a PEO, Innovative Staffing, Inc. ("Innovative") for human resource assistance, and Comfort employees were listed as employees of Innovative for compensation purposes. Innovative employees had no supervisory control over Comfort employees, they just performed administrative functions.

At the time Regina Kuhn was laid off, Comfort had a total of 36 employees. Kuhn filed a claim against Comfort and Comfort's Chief Executive, alleging violations of the Family and Medical Leave Act ("FMLA"). Comfort responded by filing a motion for summary judgment arguing that Comfort was not an "employer" as defined by the FMLA. The FMLA defines an employer as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." In addition, the FMLA definition of an eligible employee excludes, "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50."

Throughout 2010 and 2011, Comfort never had as many as 50 employees in any workweek. Therefore, the Court granted Comfort's motion on the ground that it is not a covered employer under FMLA, and Kuhn was not an eligible employee.

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As demonstrated by the Sixth Circuit's recent decision in Farhner v. United Transportation Union Discipline Income Protection Program, a well-drafted ERISA income protection or severance pay plan should enable the plan administrator to rely on the employer's stated reason for termination of an employee, rather than conducting an independent review of the facts regarding the termination.

In May 2004, Mark Farhner, a trackman and conductor for the Kansas City Southern Railroad sought a three-month leave of absence for "medical reasons." KCSR's human resources manager requested additional information from Farhner to justify his request. When Farhner's vacation leave had been exhausted, his supervisor told him that he needed to provide the requested documentation or return to work within 48 hours. Rather than doing either, Farhner faxed a request for FMLA leave. After conducting an investigation (which included an actual hearing), KCSR terminated Farhner for insubordination.

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As the Seventh Circuit in Righi v. SMC Corporation of America noted, it generally does not take much for an employee to preserve his rights under the FMLA; he must simply provide enough information "to place the employer on notice of a probable basis for FMLA leave."

When Robert Righi abruptly left a mandatory training seminar to care for his ill mother, however, he only sent an e-mail that said that he needed "the next couple days off" to arrange for his mother's care and that he had vacation time available or "could apply for the family care act, which I do not want to do at this time." Mr. Righi's manager attempted to call him on his cell phone several times over the next week or so to clarify his request for leave, but Mr. Righi had turned off his phone. His manager also left two messages with his roommate. It wasn't until the ninth day after taking his leave that Mr. Righi called in. At that point, however, his manager called him into the office and fired him the next day.

When an employee fails to give his employer proper notice of the need for FMLA leave, the employer has no duty to provide it. Stated otherwise, an employee's failure to comply with the FMLA's notice requirements precludes a claim that the employer interfered with his rights under the FMLA because he failed to fulfill his obligations in order to be protected. While not sufficiently clear to trigger SMC's obligation to provide written FMLA materials and certification forms to Righi, his email did trigger SMC's obligation to make further inquiry as to whether he intended to designate his leave as FMLA. The Seventh Circuit held that SMC met that obligation by making multiple phone calls to him and that Righi's failure to respond "doom[ed] his FMLA claim because he not only failed to designate his leave as FMLA, but he also failed to give SMC any indication as to when he would be returning to work." 

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In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up on Mr. Staub’s concern with his supervisors, Ms. Buck simply conferred with another human resources staff member and adhered to her termination decision. Mr. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Ms. Buck had any such hostility but that his supervisors did, and that their actions influenced Ms. Buck’s ultimate employment decision. (This type of case has been referred to as a "Cat's Paw" case, based on an Aesop's fable involving a cat, a monkey, chestnuts and fire. Justice Scalia provides more information at footnote 1 of his majority opinion.)

A jury found that Mr. Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” and awarded $57,640 in damages. The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because Ms. Buck had relied on more than just the supervisors' advice in making her termination decision.

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Current and former employees of the City of Columbus, Division of Police, challenged the City's Directive requiring employees returning from sick leave to submit a doctor's note, stating the "nature of the illness" and whether the employee is capable of returning to regular duty to their immediate supervisors. The employees filed suit in the United States District Court for the Southern District of Ohio, alleging that the Directive violates the Rehabilitation Act, which prohibits discrimination against individuals with disabilities by programs receiving federal funding. The plaintiffs also alleged that the Directive violates the privacy provisions of the First, Fifth and Fourteenth Amendments of the United States Constitution. The District Court granted summary judgment in favor of the plaintiffs and entered a permanent injunction prohibiting the City from enforcing its Directive.

The Sixth Circuit Court vacated the injunction and found in favor of the City. The Court emphasized that the Rehabilitation Act expressly prohibits discrimination solely on the basis of disability. It concluded that the mere fact that the City is requesting information that may tend to lead to information about disabilities falls short of the requisite proof that the employer is discriminating solely on the basis of disability. The Court further held that because the City's Directive is a universally applied request for information justifying the use of sick leave, it does not violate the Rehabilitation Act.

The Court also held that the plaintiffs' privacy rights under the First, Fifth and Fourteenth Amendments were not violated by the requirements of the City's directive. The Court found that the requirement that employees inform their immediate supervisors of the nature of their illness does not raise an informational-privacy concern of a constitutional dimension.

While this case, Lee v. City of Columbus, 6th Cir. No. 09-3899, confirms an employer's ability to make inquiries about the reason for an employee's sick leave, employers must ensure that any such policies are applied consistently and uniformly. Also, employers should be cautious when requiring doctor's notes from those employees returning from intermittent FMLA leave. The FMLA regulations provide guidance on when and how often an employer can request medical information.

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In Branham v. Gannett Satellite Information Network, Inc., No. 09-6149, 2010 WL 3431617 (6th Cir. Sept. 2, 2010), the Sixth Circuit Court of Appeals held that an employer is not necessarily entitled to rely on a “negative certification” submitted by an employee's health care provider in denying a request for FMLA leave. 

The plaintiff-employee in Branham initially claimed that the absences for which her employment was terminated were related to a “serious health condition” within the meaning of 29 CFR § 825.113. Her employer responded by requesting that the employee produce a medical certification confirming her inability to work. However, the employer's request was not made in writing, it did not expressly provide the employee with 15 days to comply, and it did not expressly inform her that a failure to certify an FMLA-qualifying reason for the absence would result in a denial of the leave. These requirements for a proper request for medical certification are all set forth in 29 CFR § 825.305.

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The U.S. Department of Labor (DOL) issued an Administrator’s Interpretation of the Family and Medical Leave Act’s (FMLA) definition of “son and daughter” under Section 101(12) of the Act on June 22, 2010. The Interpretation clarifies that an employee who lacks a legal or biological parent-child relationship but provides either day-to-day care or financial support, and intends to assume the responsibilities of a parent with regard to the child, is eligible for parental rights to FMLA leave. 

The Interpretation relies on an expansive reading of “in loco parentis” in the FMLA definition of “son or daughter.” “Son or daughter” is defined to include a biological or adopted child, as well as a foster child, stepchild, legal ward, or child of a person standing “in loco parentis.” 29 U.S.C. § 2611(12); see also 29 C.F.R. §§ 825.122(c), 825.800.

Eligible employees are entitled to take 12 work weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2612(a)(1)(A)–(C); 29 C.F.R. § 825.200.

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The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time... each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a bathroom, for purposes of the break.

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Employers should take notice of Ohio Revised Code Chapter 5906, which became effective on July 2, 2010. This law requires employers with 50 or more employees to provide up to two weeks of unpaid leave to an employee who is the spouse, parent, or a person with legal custody of a uniformed service member called into active duty or injured while on active duty. Under the new Ohio law, employers must allow employees to take leave up to 10 days or 80 hours, whichever is less, once per calendar year. During this time, employers must continue to provide benefits other than salary and wages to employees and, upon their return, restore these employees to the positions they held prior to taking leave with equivalent benefits, pay, and other terms and conditions of employment. 

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As an update to my previous post on this case, the Ohio Supreme Court last week released an opinion in Ohio Civ. Rights Comm’n v. Nursing Care Mgmt. of Am., Inc., reversing the decision of the Ohio Fifth District Court of Appeals, which previously held that an employer unlawfully discriminated by terminating an employee requiring pregnancy-related leave who did not meet the length of service requirement of the employer’s general leave policy. The Court held that pregnant employees must only be treated the same as all other employees under an employer’s leave policy and can be terminated while on a pregnancy-related leave pursuant to a neutral policy.

Facts:  

In Nursing Care, employee Tiffany McFee requested leave for a pregnancy-related medical disability after being employed only eight months. Under the policy of her employer, Pataskala Oaks, employees became eligible for twelve weeks of leave after one year of service. Employees with less than one year of service were ineligible for leave. As a result, Pataskala Oaks terminated Ms. McFee’s employment because she did not qualify for leave. The termination came approximately one week after her request for leave and three days after she gave birth.

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Even in the face of an undisputed national workforce reduction, in a recent decision (Cutcher v. Kmart), the Sixth Circuit found an issue of disputed fact existed as to whether Kmart’s termination of an hourly associate as part of a reduction in force interfered with and was in retaliation for that associate’s recent exercise of her FMLA rights.

Cutcher had been employed by Kmart for about 20 years. In the four years she had been evaluated by her then current supervisor, Cutcher had received either the highest or second-highest rating in Kmart’s appraisal system. While her supervisor did comment in certain appraisals that Cutcher had some challenges in the area of teamwork, the supervisor never documented Cutcher for any such episode and still rated her as a high performer. 

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On Monday, February 1, 2010, the U.S. Department of Labor (DOL) released its budget for the 2011 fiscal year. In a 95-page summary of the new budget, the DOL elaborated upon its plans for the approximately $14 billion it seeks in discretionary budget authority. According to the summary, the DOL will focus its efforts in 2011 on supporting reform of the Workforce Investment Act, rebuilding Worker Protection Programs, initiating a multi-agency legislative proposal to establish automatic workplace pensions, and boosting funds for unemployment insurance integrity efforts. From our perspective, however, the two most notable aspects of the 2011 budget are its provisions concerning employer misclassification of workers and paid family leave. 

The DOL proposes to devote $25 million to a joint Labor-Treasury Misclassification Initiative that will enable the agency to better detect, investigate, and prosecute employers who misclassify their workers, and to offer competitive grants to boost states’ incentives to address the problem. In addition, the DOL proposes to further limit the possibility of employer misclassification by:

1. requiring employers to demonstrate that their employees are classified correctly,
2. closing the safe harbor created by Section 530 of the Revenue Act of 1978, and
3. making misclassification of employees an explicit violation of the FLSA.  

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The much-publicized COBRA subsidy contained in the American Recovery and Reinvestment Act (ARRA), commonly known as the “stimulus bill,” has been extended and expanded by Congress through House Resolution 3326. Under ARRA, individuals who were involuntarily terminated and became eligible for COBRA benefits between September 1, 2008 and December 31, 2009 were eligible for 9 months of subsidized COBRA premiums. The government, through a payroll tax rebate to employers, paid 65% of an eligible employee’s COBRA premiums for 9 months. This meant that employees could pay just 35% of what they would ordinarily pay for COBRA benefits. (Please see our earlier blog posting relating to the original passage of ARRA.)

HR 3326 expands the eligibility period to include individuals involuntarily terminated before February 28, 2010. In addition, it extends the length of the subsidy period to 15 months (from 9 months). 

Individuals who were on COBRA coverage for the 9-month subsidy, may re-enroll in COBRA and receive benefits without any gap in coverage for the newly extended 15 months, less the 9 months they already received. The amendment gives employees a period of 60 days to re-enroll or, if later, 30 days after they receive notice of the extended subsidy. Employers are required to notify employees of the 15-month extended COBRA subsidy who were on COBRA on or after October 31, 2009 or who have a qualifying event on or after October 31, 2009. It is unclear how long of a COBRA coverage lapse can exist before an individual is no longer eligible to make up the premiums and re-enroll. We will be watching for further guidance form the DOL on this point and reporting further on the blog. Any employees who paid full COBRA premiums after expiration of their 9-month subsidy period who are now eligible for the new 15-month premium subsidy, will be given a refund of 65% of their premiums for any periods now covered by the extended subsidy. 

In addition, this amendment to ARRA conditions the eligibility for the subsidy on only the involuntary termination date. Thus, if the COBRA start date is deferred until after February 28, 2010 but the involuntary termination date was pre-February 28, the employee will still be eligible for the subsidy. All of the remaining rules for the COBRA subsidy set forth by the Department of Labor presumably remain in effect for this extension and expansion.

We will update you as more details become available on this COBRA subsidy extension from the Department of Labor. In the meantime, here are some action items to be thinking about:

• Identify all individuals who were on COBRA coverage on or after October 31, 2009 or had a COBRA qualifying event on or after October 31, 2009 and would be eligible for notice of the 15-month subsidy.
• Identify any individuals who allowed COBRA coverage to lapse after the termination of the 9-month COBRA subsidy.
• Identify any individuals who paid their full COBRA premiums because of the expiration of the subsidy and will now be eligible for a refund or credit on future premiums.
• Watch for new sample notices from the Department of Labor reflecting these changes. We will post a link to these notices when they are available.
• Informally notify employees who are involuntarily terminated between now and when the COBRA notices are distributed about the existence of the extended COBRA subsidy to avoid confusion in the interim.

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CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the insurance carrier, which acknowledges that it uses Facebook for investigation purposes, terminated her long-term disability benefits.

Though anecdotal news flashes like this one may embolden employers to use Facebook and other social media to investigate employee activity while they are on a medical leave of absence or workers' compensation leave, caution is still necessary. For instance, Manulife confirmed that ít "would not deny or terminate a valid claim solely based on information published on websites such as Facebook." Presumably, Manulife forwarded Ms. Blanchard's Facebook photos and perhaps other evidence to a medical professional for an opinion as to whether the photos evidenced Ms. Blanchard's ability to return to work. Similarly, employers should resist the urge to make their own medical judgments as to an employee's ability to work when they obtain this kind of photographic or video evidence.

In addition, Ms. Blanchard apparently contends that she kept her Facebook photos private and does not understand how the insurance carrier obtained them. As I have preached before on this blog, employers should not circumvent an employee's Facebook privacy settings in order to investigate alleged misconduct. In this instance, a co-worker or other Facebook "friend" of Ms. Blanchard likely dropped the dime on her. When faced with this kind of evidence, employers and their insurance carriers would be wise to consider the motivations of the person providing the evidence and to conduct its own investigation. If employers avoid the temptation to immediately jump to conclusions, they will find that Facebook can be their "friend" when conducting investigations of workers' compensation or medical leave fraud.

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The Family and Medical Leave Act has undergone yet another expansion. On October 27, 2009, President Obama signed H.R. 2647, known as the "Fiscal Year 2010 National Defense Authorization Act.” This new law comes on the heels of new FMLA rights that were just drafted at the end of 2008 for employees with family members serving in the military. 

As we described at the time in 2008 Final Regulations for the FMLA:  A Summary, the FMLA military leave provision effective at the beginning of 2009 originally extended the following protections:

(a) up to 12 weeks of leave for families of National Guard and Reserve personnel on active duty in order to manage activities associated with such service, known as “qualifying exigencies,” and 

(b) up to 26 weeks of leave for employees needed to care for family members in the military with a “serious injury or illness” that was incurred in the line of duty.

The new law expands both of these protections: 

(a) The 12-week “qualifying exigency” leave now applies to employees whose spouses, children or parents are on “regular” active military duty (i.e., not just National Guard and Reserve personnel) and are deployed to a foreign country. The prior language of the statute was ambiguous as to protection for families of regular military personnel.

(b)  Likewise, the 26-week “caregiver” leave now expressly extends to employees whose family members or next of kin have been discharged from the military (i.e., veterans) within five years before the need for treatment of a serious injury or illness. “Serious injury and illness” is now defined by the statute to include instances where a preexisting impairment merely has been aggravated by military service. 

These expansions of the FMLA went into effect upon signing. It seems likely that the U.S. Department of Labor will promulgate yet another set of recommended forms to cover these new circumstances in the near future. We will continue to monitor the issue and keep readers informed.

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As concerns about the potential scope of the H1N1 flu continue to grow, one question we keep hearing from clients is whether employees who believe they have contracted H1N1 in the workplace may have compensable workers' compensation claims. In the vast majority of cases, we believe the answer will be a resounding "No."

Ohio defines an occupational disease as:

"a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general."

Therefore, for instance, the office worker who contracts H1N1 because somebody in the next cubicle had it does not have a compensable claim. The situation is no different than the seasonal flu from year to year.

One likely exception to my general proposition come to mind:  healthcare workers, who by the nature of their work may be exposed to H1N1 in a greater and different manner than members of the general public. Childcare workers also may have an outside chance at establishing a viable claim. Even then, however, most healthcare and childcare workers will still have a difficult time proving actual causation; that is, that they actually contracted H1N1 as a result of their work rather than from a sick family member, at a restaurant or some other public place.

The H1N1 vaccine may also pose a potential risk if it ever becomes widely available. Workers who experience side effects from getting an H1N1 vaccine may claim they are entitled to workers' compensation benefits. In the absence of evidence that the employer actually required its employees to get vaccinated and demonstrated illness based on any known side effects, these claims should be rejected.

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I wanted to post a follow up to my earlier post - Ohio Fifth District Court of Appeals Decision Requires That Employers Provide a Reasonable Period of Time for Unpaid Maternity Leave Regardless of Length of Service or Leave Policy.

On July 29, 2009, the Ohio Supreme Court, with Justices Pfeifer and O'Donnell, dissenting, agreed to accept the defendant employer's appeal for review. We will keep you posted as this case proceeds to oral argument and decision.  For more details about this case, please read our earlier post.

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Concerns about H1N1 Influenza are beginning to creep back into everyone's consciousness as summer is drawing to a close. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at:

CDC Guidance for Businesses, Employers, and Workplaces to Plan and Respond to 2009 H1N1 Influenza

Preparing for the Flu: A Communication Toolkit for Businesses and Employers

Employers should be ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

1. Encourage workers who are sick to stay home (or go home if they've reported to work);
    
2. Encourage good hygiene in the workplace;
    
3. Prepare for increased numbers of employee absences due to illness in employees and their family members, and plan ways for essential business functions to continue;
    
4. Prepare for the possibility of school and daycare dismissal and closure; and
    
5. Encourage workers to get vaccinated.

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On May 18, 2009, Representative Rosa L. DeLauro, a Democrat from Connecticut, introduced the Healthy Families Act of 2009 (H.R. 2460) in the U.S. House of Representatives. The bill, which is largely the same as bills issued in prior sessions of Congress, would require employers with more than 15 employees to provide workers with up to 56 hours of paid sick leave each year. Under the bill, workers would accrue paid sick leave at the rate of one hour for every 30 hours worked, could begin using the paid sick leave after 60 days of employment, and could roll over unused sick leave into the next calendar year. Similar to the proposed Ohio legislation that was withdrawn before the 2008 November elections, employers would not be permitted to ask for written documentation of the need for leave until after the employee has missed three consecutive days.

Most of you will recall that last year's Ohio legislative proposal was withdrawn following political negotiations with Governor Strickland's office due to concern that the bill would devastate Ohio's business climate. While H.R. 2460 would not appear to disproportionately impact Ohio, it would impact more Ohio employers than the proposed Ohio legislation would have impacted since the Ohio law would not have required employers with 25 or fewer employees to provide paid sick leave. At a time when American businesses, particularly small businesses, are still reeling from the economic downturn, federally mandated paid sick leave -- while perhaps laudable in its intent -- looks like it will create more problems than it cures. The change in Presidential administrations and the make up of Congress, together with the concerns over the H1N1 flu virus, suggest that this might be the year that mandated paid sick leave passes. 

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On May 18, 2009, the Supreme Court of the United States issued its opinion in AT&T v. Hulteen. Reversing the Ninth Circuit’s decision, the Court held that AT&T did not violate the Pregnancy Discrimination Act of 1978 (PDA) by calculating the accrual of pension benefits in a way that gives less retirement credit to employees who took pregnancy leave before enactment of the PDA than to employees who took other kinds of medical leave.

AT&T offered pension benefits based on Net Credited Service, which was calculated based on an employee’s date of hire and adjusted for any time the employee was not working, i.e. not earning service credits. Before 1978 (and the enactment of the PDA), employees were credited a maximum of 30 days for pregnancy leave. In contrast, employees on regular temporary disability had no limit on the days they could remain off work while continuing to accrue service credits. This method of accrual was changed after the PDA went into effect, but not retroactively. As a result, the plaintiffs in Hulteen received smaller pensions than they otherwise would have received had they received full credit for pregnancy leave taken before enactment of the PDA.

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One of the underappreciated benefits for employers in the recent amendments to the FMLA regulations announced by the Department of Labor (DOL) effective January 2009 was clarification of an employee’s obligation to comply with the employer’s procedural requirements for requesting leave.  This employee obligation was further strengthened this month.

In Opinion Letter FMLA 2009-1-A, released on May 5, 2009, the DOL responded to an employer inquiry challenging the prior regulations and an earlier Opinion Letter, FMLA-101 (dated January 15, 1999).  Those earlier authorities had been widely interpreted as prohibiting employers from enforcing any internal call-in and no-call/no-show policies if employees eventually provided notice of the need for FMLA leave within two business days, regardless of whether the employees could have reasonably provided notice sooner. 

In the new Opinion Letter, which applies equally to both foreseeable leave under 29 C.F.R. § 825.302 and to unforeseeable leave under 29 C.F.R. § 825.303, the DOL expressly rescinds FMLA-101, meaning employees are no longer automatically entitled to two business days before having to provide notice of their need for FMLA leave.  Instead, the new Opinion Letter confirms that under the amended regulations:

[W]here an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.  

Consequently, in the absence of unusual circumstances, if an employee fails to comply with the employer’s usual and customary procedures for reporting an absence, the employee is subject to whatever discipline the employer’s rules provide for such a failure even where the absence is otherwise protected by the FMLA, and the employer may delay FMLA coverage until the employee complies with the employer’s rules. 

Although this is welcome news, employers should be mindful that, particularly with respect to unforeseeable leave, a court may view the individual facts and circumstances leniently in favor of the employee when determining what kind of notice was “practicable” for FMLA leave.  Employers should make sure that their call-in procedures are realistic, reasonable and understandable for all employees.

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Now that we have the first confirmed case of swine flu here in Ohio, it makes sense to dust off the guidance we received from the U.S. Department of Labor and the Center for Disease Control when the avian flu was prompting concerns about a pandemic flu in the United States. Thus far, the confirmed cases of swine flu in the United States appear to have been relatively mild, but employers nevertheless should prepare to do their part to reduce the threat of pandemic flu and to respond should their workplaces be hard hit.

Those employers who want to be ahead of the game if the outbreak becomes more widespread should review the attached handbook entitled Guidance for Preparing Workplaces for an Influenza Pandemic, which was prepared by OSHA back in 2007. The handbook contains common sense advice for all employers to help reduce the risk of spreading the disease. For most employers, the recommendations are not rocket science nor difficult to implement. They mostly involve encouraging sick employees to stay home, encouraging basic hygiene practices in the workplace, and encouraging "social distancing" (i.e. avoiding close contact and crowds of people). The handbook also sets forth more extreme recommendations for employers with a medium exposure risk because of frequent close employee contact with the general public and for employers with high exposure risk due to frequent close employee contact with infected individuals. For healthcare workers and employees, OSHA also issued a handbook in 2007, which can be accessed here.  If the CDC and/or OSHA issue any further guidance in light of this most recent flu outbreak, we will let you know.

Though, the risks of pandemic flu still are being downplayed at this point, employers may also want to revisit their disaster plans for continuing operations in case of widespread employee absences.

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On April 22, 2009, the EEOC issued a technical assistance document entitled "Employer Best Practices for Workers with Caregiving Responsibilities" which provides "suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity."  The guidance is designed to supplement the enforcement guidance it issued in 2007 on the "Unlawful Disparate Treatment of Workers with Caregiving Responsibilities."   Among other things, the guidance encourages employers to adopt flexible work options, to provide reduced-time options, to reassign job duties that a worker cannot perform due to pregnancy or caregiving responsibilities, and to offer personal or sick leave to allow employees to engage in caregiving even if not required to do so by the FMLA.

Because the document admittedly suggests "proactive measures that go beyond federal non-discrimination requirements" an employer's decision not to embrace the EEOC's suggestions would not constitute a violation of law. On the other hand, to the extent employers adopt the EEOC's suggestions, they will have a better chance of avoiding liability for discrimination based on an employee's caregiver status. Employers adopting any of these recommended accommodations will want to ensure that their policies are uniform and consistently applied, regardless of gender. Any favoritism towards one gender or the other, especially if based on stereotypes, likely will be found to be a violation of state and federal sex discrimination laws.

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 The Ohio Fifth District Court of Appeals last week released an opinion in Nursing Care Mgmt. of Am., Inc. v. Ohio Civ. Rights Comm’n, that upheld the Ohio Civil Rights Commission’s determination that an employer unlawfully terminated an employee on the basis of pregnancy when the employer terminated the employee because she required pregnancy-related disability leave but had not met the minimum length of service requirements for maternity leave under the employer’s leave policy. In the decision, the Fifth District sets forth a rule requiring employers to provide maternity leave for a “reasonable period of time” and then reinstate the employees to their former positions—or positions of like status and pay—regardless of the employers’ policies on disability or maternity leave or whether the employees qualify for leave under the federal Family and Medical Leave Act (FMLA). 

Facts:

In Nursing Care, employee Tiffany McFee, who was already pregnant at the time of her hire, requested leave for a pregnancy-related medical disability after being employed only eight months. Under the policy of her employer, Pataskala Oaks, employees were eligible for 12 weeks of leave after one year of service. Employees with less than one year of service were not eligible for leave. Keep in mind as well that the FMLA only guarantees an employee 12 weeks of unpaid family or medical leave after an employee has 12 months of service—provided the FMLA applies to the employer and the other FMLA requirements are met. As a result, Pataskala Oaks terminated Ms. McFee’s employment because she did not qualify for leave. The termination came approximately one week after her request for leave and three days after she gave birth. 

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As reported previously, the new Family and Medical Leave Act regulations took effect on January 16, 2009. The new regulations included reference to new required notices to employees and a new required workplace poster. The Department of Labor (“DOL”) included as appendices to the regulations suggested prototype notices, new suggested medical certification forms, and the text for the new poster. (See earlier blog post.)

Not surprisingly, employers are already experiencing some confusion about how to use these new notices. The following is a brief “step-by-step” approach.
 

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With the FMLA Final Regulations going into effect on Friday, January 16, 2009, we thought it would be a good idea to provide our readers with a single easy place to locate all of the new and revised forms provided by the Department of Labor.

New and Revised Forms:

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)

WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

WH-382 Designation Notice (PDF)

WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (PDF)

 These forms are also available at http://www.dol.gov/esa/whd/fmla/finalrule.htm

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As we noted Monday, the Department of Labor (DOL) published its long-awaited final regulations implementing the Family and Medical Leave Act (FMLA) last Friday. The new rules will become effective January 16, 2009.

Most of the changes in the new regulations were foreshadowed when the DOL first released a set of proposed amendments in February 2008. Although the final regulations differ in significant ways from the original regulations drafted in 1995 by the previous presidential administration, they have stayed pretty consistent with the amendments proposed earlier this year. There are a few new beneficial tools for employers, but there are some new obligations as well.

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On November 14, 2008, the Department of Labor (DOL) issued its new final regulations implementing the Family and Medical Leave Act of 1993 ("FMLA"). These regulations represent the first changes and additions to the regulations since they were first issued in 1995.

As previously noted in this space (see "Proposed FMLA Regulations Largely Disappointing for Employers"), the DOL had originally issued a set of proposed amended regulations on February 11, 2008, which had left the employment legal community wondering whether publication of final regulations could be completed before the end of the year. In a 752-page flourish (available in its entirety here: http://www.federalregister.gov/OFRUpload/OFRData/2008-26577_PI.pdf), the DOL kept its promise.

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Many employers have been pulling their hair out attempting to address runaway intermittent leave under the FMLA. The Sixth Circuit’s decision in Davis v. Michigan Bell authorizes one creative solution – change your 12-month FMLA period to a calendar-year basis.

On September 24, 2004, – the first day she became eligible for FMLA leave after having worked for her employer since 1997 – Candice Davis was granted FMLA intermittent leave for chronic depression certified by her health care provider. Between September 24 and December 13, 2004, she took several discrete absences from work due to her depression and each absence was approved for FMLA. Beginning on December 13th, she began a more extended leave due to her depression but, despite her employer’s efforts, did not return her FMLA medical certification form for this period. Her employer did, however, initiate a short-term disability leave for her in accordance with the company’s benefits package. On January 7, 2005, Ms. Davis’s therapist informed her employer that she was no longer disabled and could have returned to work as early as January 3rd. As a result, Ms. Davis’s employer informed her that every absence after January 2nd would be considered an unexcused absence unless she sought and received FMLA leave to cover those days off. It also told her that she would be considered to have resigned if she did not report to work on January 14th. When January 14th passed without a return to work, she was suspended pending her dismissal.

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At a press conference this morning, the SEIU is announcing that it is withdrawing the paid sick leave mandate (Issue 4 -- the Ohio Healthy Families Act) from the November ballot. We will provide more information here as it becomes available.

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This afternoon, opponents of the Ohio Healthy Families were given a boost when Governor Strickland announced his opposition to the Ohio Healthy Families Act hours after discussions with business leaders and the SEIU failed(see article from today's Columbus Dispatch).

In his statement, Gov. Strickand states:

"While important members of the business community and SEIU participated in good faith discussions, it was, unfortunately, not possible to achieve a compromise acceptable to a sufficient portion of the business community and the proponents to cause its removal from the ballot. We regret that a reasonable compromise was not possible. This reality means that there will be a hard fought campaign centering on this initiative in the coming months. During that campaign, we call upon both sides to avoid portraying Ohio as unfriendly to business and economic development.

We also recognize it is important to make clear our thoughts on important public policy issues and today are announcing that we cannot support the paid sick-day ballot initiative. While we would hope that all Ohio businesses would make paid sick days available to their employees whenever possible, we believe that this initiative is unworkable, unwieldy and would be detrimental to Ohio's economy, and we will be opposing it and asking Ohioans to oppose it as a result."

In the coming months, we can expect an all out media blitz from both sides of this issue. As a result, the Ohio business community needs to understand how to legally and effectively communicate with their workforces so that they understand the detriments of this paid sick leave mandate. Just as important, because employers will not be able to reduce or eliminate other forms of leave in order to comply with the OHFA after enactment, all employers with at least 25 employees in Ohio need to begin the process of planning how they will comply with the OHFA, if it passes.

Check back here for any further developments. In addition, employers that are interested in joining the official statewide campaign against paid sick leave mandates should visit the Ohioans to Protect Jobs & Fair Benefits website.

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On August 8, 2008, the Los Angeles Times reported that a California bill that would have required employers to provide paid sick leave to their employees has been killed in the California legislature. The bill had met with significant opposition from the California business community for many of the same reasons that the paid sick leave mandate is bad for Ohio; specifically:

• The cost to small businesses that can't afford to provide paid sick leave, the disruptions caused by unplanned and unscheduled absences;
   
• The disruptions caused by unplanned and unscheduled absences;
   
• The disincentive that the law would cause for businesses to locate or expand operations in the state; and
   
• The lack of controls and safeguards to prevent abuse.

Unless Governor Strickland's office is able to obtain a compromise that keeps the mandate off the November ballot, it will be up to Ohio's business community to educate the voters on why the costs of the proposed Ohio mandated paid sick leave program far outweigh its benefits. We will keep you posted on any new developments as they occur.

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The employer in Vail v. Raybestos Products Company had received tips from other employees that the plaintiff was abusing her intermittent leave, which she allegedly was taking because of her migraine headaches. Specifically, the employees reported that the plaintiff was calling in sick with a migraine, then helping her husband with his yard care business during the day. The employer hired an off-duty police officer to investigate. The officer reported seeing the employee cutting the grass for several of her husband’s clients while absent from work because of an alleged migraine. Relying on this report, the employer refused to reinstate the employee upon her return from work and terminated her employment for fraud. 

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With each passing day, it appears more likely that Ohioans will be going to the polls on November 4, 2008 to vote on whether employers that employ at least 25 workers in Ohio will be required by law to provide workers with up to seven days of paid sick leave annually. Passage of this measure would be both costly and disruptive to Ohio businesses. As a result, Ohio’s business community must become more vocal in educating the voting public, particularly their employees, on the detriments of the so-called Ohio Healthy Families Act and, at the same time, begin taking steps to prepare for its potential enactment.

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The Columbus Dispatch reported this afternoon that the Strickland administration is sending letters to about 500 business leaders in a final attempt to reach a compromise that would keep the Ohio Healthy Families Act off the Nov. 4 ballot.

In the letter, Gov. Ted Strickland and Lt. Gov. Lee Fisher urge the business community to engage in compromise discussions with the proponents of this Act and the legislature. As the letter states, if compromise language can be reached, the compromise bill would need to be crafted, passed by the legislature, and signed into law by September 5 – the last day to get the issue off of the November 4 ballot.

According to The Dispatch, enclosed with the letter are two documents: “Why a Compromise and Why Now?,” which provides further information to business leaders promoting a compromise solution that would remove this issue from the ballot this November, and “Principles of a Paid Sick Leave Act,” which outlines the administration’s position on this controversial topic.

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Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin of a servicemember who is recovering from a serious illness or injury sustained in the line of duty on active duty. 

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Washington, D.C. City Council recently passed the Accrued Sick and Safe Leave Act, which requires all city businesses to provide paid sick leave for their employees. The Act does not become effective until the Mayor approves it and until a 30-day Congressional review period passes without Congress acting on the bill. If the Act becomes law, D.C. will become the second city in the United States to require employers to provide paid sick leave. San Francisco became the first in 2006. D.C. would become, however, the first jurisdiction to provide paid leave related to incidents of domestic or sexual violence. 

Under the Act, all business within the District must provide their qualifying employees with paid leave time that can be used in cases of physical or mental illness or injury, to care for a sick family member, for preventative medical care, or to cover certain absences associated with domestic or sexual violence. The number of paid leave days depends on company size, and certain employees are not covered by the Act. The Act also imposes obligations on employees who seek leave, including notification requirements for both foreseeable and unforeseeable leave and medical certifications in some instances. Finally, the Act makes it unlawful for employers to discriminate or retaliate against employees who use paid leave and requires employers to post in the workplace a notice outlining the provisions of the Act.

The D.C. Act is part of a growing movement – including the proposed Ohio Healthy Families Act (OHFA) – to push for paid sick leave laws. OHFA and the D.C. Act, which are similar in many respects, both would impose significant burdens on employers. Companies following this trend should continue to watch closely as D.C. and other jurisdictions, including Ohio, take action on paid sick leave legislation.

As for Ohio’s efforts to pass a paid sick leave law, progress on the proposed law seems to be at a standstill. After being sent to the General Assembly in early January, Ohio’s Healthy Families Act has received no formal attention by the legislature. Neither the House or Senate has taken any action on the proposal. It has not been given a number and has not been assigned to a committee. Ohio legislators have until early May to act. If they don’t, backers of the OHFA will have 90 days to collect a second set of different signatures to place the Act on the November 2008 general election ballot. 

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As we reported yesterday, the Department of Labor (DOL) issued new proposed regulations governing enforcement of the Family and Medical Leave Act (FMLA). Although there are some useful new provisions, the changes are largely disappointing for employers who were hoping that the new regulations would offer much-needed clarification and relief from administrative burdens. Despite the disappointment, employers must still take the time to understand the differences between the “old” 1995 regulations and these “new” 2008 proposed regulations. To that end, the most significant changes affecting employers are listed below.

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On January 28, 2008, President Bush signed into law the National Defense Authorization Act, which amends and expands the Family Medical Leave Act (FMLA) to provide leave rights to family members of those in the Armed Forces. The new amendment entitles employees to 12 weeks of leave due to any “qualifying exigency” arising out of the fact that an employee’s family member is on active duty or has been notified of an impending call to active duty in the Armed Forces. What constitutes a “qualifying exigency” will be determined when the Department of Labor (DOL) issues its implementing regulations.

The Act also entitles immediate family members and next of kin to 26 weeks of leave during a 12 month period to care for covered servicemembers. The term “covered servicemember” means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.
 

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Secretary of State Jennifer Brunner announced that the Ohio Healthy Families Act (see previous post), which mandates seven paid sick days for employees at Ohio companies with 25 or more workers, easily had enough signatures to pass petition requirements. The petition had 154,693 valid signatures of Ohio registered voters and only 120,683 were required. The Act will now be passed on to the General Assembly for action.

Secretary Brunner's office also said the petition contains signatures equaling 1.5 percent of the ballots cast in the last gubernatorial election from 65 counties, exceeding the necessary 44 county threshold.

The General Assembly has 120 days to enact the requested legislation. If they don’t, the coalition can gather another 120,683 valid signatures to put the measure on the November 2008 ballot in the general election.

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Last month, the Ohio Civil Rights Commission (OCRC) approved new maternity leave regulations requiring all Ohio employers having 4 or more employees to give each pregnant employee up to 12 weeks paid or unpaid maternity leave, regardless of whether the employee is in her first year of employment and regardless of whether she has previously exhausted any other leave that might have been available to her for non-maternity purposes. On Monday, December 3, 2007, the Joint Committee on Agency Rule Review (JCARR) voted 9-1 to reject the Commission’s proposal.

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Employers take notice: the group “Ohioans for Healthy Families,” a union-led coalition, has been collecting signatures for a proposal that would mandate at least seven paid sick days annually for all full-time Ohio workers. They appear to have more signatures than they need to push the initiative forward. Tuesday the group submitted a petition with 250,000 voter signatures to the Secretary of State Jennifer Brunner. If the Secretary certifies that there are at least 120,683 valid signatures of registered voters, the proposed statute will be introduced in the General Assembly early next year. The General Assembly will then have 120 days to enact the requested legislation. If they don’t, the coalition can gather another 120,683 valid signatures to put the measure on the November 2008 ballot in the general election.

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