Since this is “emergency legislation,” it calls to mind the mantra of the current Administration — “never waste a good crisis.”

The Ohio Employer’s Law Blog has commentary here.

Please click on the following link to access all Opinion Letters from the Wage and Hour Division at:

http://www.dol.gov/esa/WHD/opinion/opinion.htm.

In Cracco v. Vitran Express, No. 07-3827, 7th Cir., 2009, Kevin Cracco worked for Vitran Express for years and received nothing but positive work reviews.  When Cracco went on FMLA leave, however, his temporary replacement discovered what he believed to be serious errors.  Vitran conducted an investigation into the alleged findings and found that Cracco had been falsifying delivery records to cover up late or missing shipments.  Based on the findings of the investigation, the day he was scheduled to return, Vitran terminated Cracco’s employment.  Cracco brought a lawsuit against Vitran based on interference with his FMLA rights.

The company argued that nothing in the FMLA prevents employers from disciplining workers for performance problems discovered while they are out on FMLA leave. Otherwise, it reasoned, it would be required to keep a subpar employee just because he took FMLA leave.  The 7th Circuit Court of Appeals agreed that employees on FMLA leave do not have rights above other employees who do not perform up to par.  The case was therefore dismissed.  Therefore, although an employee is entitled to return to his same or similar position after FMLA leave expires, he is not entitled to greater rights than non-FMLA employees.

In Smith v. The Hope School, No. 08-2176, 2009 U.s. App. LEXIS 6985 (7th Cir. March 30, 2009), an employee who was absent from work under the guise of falsified FMLA documentation was terminated by the employer.  The termination was determined to be proper by the Court. Tanum Smith worked as an instructional aide for Hope School, a residential facility for children with development disabilities.  After developing issues with students that did not allow her to work directly with students, Smith was provided medical certification forms in the event she wanted FMLA leave to cover her absence.  She provided the forms to her doctor.  After securing the FMLA paperwork from her doctor, Smith altered the medical certification in several ways.  She added to the narrative description of her condition “plus previous depression.”  Her doctor had not diagnosed or treated Smith for depression.  Smith also backdated for the FMLA form several days.  She also filled out a separate “Attending Physician’s Statement” in its entirety, listing diagnoses of muscle tension, chronic headaches, and depression.” 

After Smith submitted the forms, the school subsequently confirmed its suspicion that the form had been materially altered.  Therefore, the school denied Smith’s request for FMLA leave and terminated her for incurring unexcused absences – not for altering FMAL documents.  Smith sued alleging that her termination violated the FMLA.  The district court awarded summary judgment to the school.  The Seventh Circuit affirmed.  The court found that by altering the FMLA medical certification, Smith did not provide adequate medical certification to establish that she had a serious health condition, in support of her request for FMLA leave.  “[W]here an employee adds to a medical care provider’s certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave.”   As a result, her leave was both unprotected by the FMLA and unexcused.

Contributed by Michael K. Wilson

The district court found that the employer, Pfizer, Inc. (“Pfizer”), had interfered with Dotson’s right to leave under the FMLA, and that it retaliated against Dotson for exercising those rights.  Dotson was awarded $1,876 on the interference claim and $331,429.25 on the retaliation claim.  Dotson was also awarded $331,429.25 in liquidated damages, $375,000 in attorneys’ fees, and $14,264.88 in costs. 

Although the parties did not dispute that Dotson had taken intermittent leave in preparation for an adoption, Pfizer argued that it had never approved intermittent FMLA leave.  The Fourth Circuit rejected Pfizer’s argument, stating that the FMLA does not require an employee to “specifically invoke its protections in order to benefit from it.”  The court interpreted the FMLA provision that requires agreement between the employer and employee before intermittent leave can be taken as giving employers the option to refuse intermittent leave requests.  The court, however, found no evidence that Pfizer had refused to allow Dotson to take intermittent leave.  In fact, the court found that Pfizer had agreed to the intermittent pre-adoption leave.  The court also pointed to evidence that Pfizer had misled Dotson regarding his FMLA leave options, and stated that if that was indeed the case, Dotson “could not have come to an agreement on a more formal intermittent leave schedule.” 

With regard to Dotson’s retaliation claim, the court emphasized that the FMLA prohibits employers from unlawfully interfering with employees’ rights to leave.  Although termination is not specifically listed as a forbidden employer practice, the regulations prohibit the use of FMLA leave as a factor in making employment decisions.  The court stated that Dotson had given “adequate notice” of his need to take leave, and Pfizer had the responsibility to determine whether the leave requested fell under the FMLA.  The court found ample evidence from which the jury could conclude that Dotson had met the notice requirement and that Pfizer failed to meet its burden.  The court also found evidence from which the jury could reasonably conclude that Pfizer’s stated reason behind its decision to terminate Dotson – namely, that Dotson’s donation of sample medication to an orphanage was in violation of company policy – was mere pretext for discrimination.  In support of this contention, the court pointed to the fact that other Pfizer employees who were aware of Dotson’s intent to donate the medication did nothing to stop him.  The court also made a note that on cross-examination, a Pfizer executive had conveyed dissatisfaction with a missed deadline due to one of Dotson’s pre-adoption trips.  Finally, the court emphasized the fact that Dotson was the only one out of the five employees who were involved in the alleged mishandling of medication to have been terminated.

Turning to the question of damages, the Fourth Circuit affirmed the district court’s denial of front pay, which the district court had deemed as “too speculative.”  With regard to the issue of pre-judgment interest, however, the court reversed the district court’s denial of the award, stating that pre-judgment interest under the FMLA is “mandatory rather than discretionary.”  On the issue of attorneys’ fees, the court held that the district court’s award of $375,000 was not “clearly wrong.”  The court noted that the district court had already reduced the award from the initial request of $550,000 based on Dotson’s only-partial victory.  Nevertheless, the court vacated the fee award for recalculation based on Dotson’s right to pre-judgment interest, which would result in a fuller recovery on his claims.

Contributed by Claudia L. Guzman

This case involved interference and retaliation claims under the Family and Medical Leave Act (“FMLA”).  The plaintiff in the case had taken repeated authorized medical leaves from his position with the hospital.  The factual background section of the opinion describes at length the process of these leaves, the plaintiff’s documentation of his need for leave, his periodic failure to provide documentation, and the employer’s patient efforts in putting up with his failure to comply with the certification process.  Eventually, the plaintiff’s failure to comply with the certification requirements resulted in his termination.

The court ultimately found in favor of the employer on the FMLA claims.  In reaching its decision, the court pointed out several FMLA provisions.  First, an employer may request recertification of a chronic or permanent long-term condition under continuing supervision of a healthcare provider at least every thirty (30) days in connection with an absence by the employee.  (29 C.F.R. Section 825.308(a))  Second, when asked by an employer pursuant to a uniformly applied policy to provide medical certification at the time the employee seeks reinstatement at the end of FMLA leave, unless the employee provides either a fitness for duty certification or a new medical certification for a serious health condition at the time FMLA leave is concluded, the employee may be terminated.  (29 C.F.R. Section 825.311(c))

Although the opinion is forty (40) pages long and deals with a number of technical legal issues, footnote 1 of the opinion is perhaps most revealing of how the case was going to come out.  In footnote 1, the court notes “Howard admitted that he filled out most of the form and asserted in his deposition that his physician, Dr. Rodney Diad, authorized him to do so.  In a deposition, Dr. Diad testified that he had not authorized Howard to fill out of the form.”  In other words, the employee admitted to having filled out the physician’s certification himself and the doctor denied authorizing him to do so.  Undoubtedly, this piece of evidence effected the court’s decision.  This one fact, when coupled with the lengthy statement of facts detailing the company’s efforts to work with the employee over a long period of time, are important reminders to employers that it is important to approach the court with clean hands.  Any actions by the employer that can be construed as bad faith or deceptive will be taken into consideration by a judge or appeals panel in deciding a case.

A revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule, is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.  

The Department has provided optional forms for use by employers and employees during the FMLA process.  The Department has revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381).  In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

The poster and forms become effective on January 16, 2009.  Additional compliance assistance materials are also available on FMLA Final Rule Web site at www.dol.gov/esa/whd/fmla/finalrule.htm.

UPDATE:  See our post here for the new FMLA poster and forms (Dec. 24, 2008).

The DOL fact sheet on the new regulations contains the following summary of the regulations, which I will provide in full instead of summarizing.  The final rule also contains new DOL-approved forms for various certifications under the FMLA.  We expect those forms will be made available on the DOL website at a later date.

The Ragsdale Decision/Penalties:  The final rule includes a number of technical regulatory changes to reflect current law following the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc., which invalidated a penalty provision of the regulations. Ragsdale ruled that the current regulation’s “categorical” penalty for failure to appropriately designate FMLA leave, which in that case would have required the employer to provide an additional 12 weeks of FMLA-protected leave after the 30 weeks of leave the employee had already received, was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement that an employee demonstrate individual harm. Several other courts have also invalidated similar categorical penalties in other notice provisions of the current regulations. The final rule therefore removes these categorical penalty provisions and clarifies that where an employee suffers individualized harm because the employer failed to follow the notification rules, the employer may be liable.

Light Duty: At least two courts have held that an employee uses up his or her 12 week FMLA leave entitlement while on a “light duty” assignment following FMLA leave. Under the final rule time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement and that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

Waiver of Rights: The final rule codifies the Department’s longstanding position that employees may voluntarily settle or release their FMLA claims without court or Department approval. Although this is not a change in the law, the clarification is needed because a recent Fourth Circuit decision interpreted the Department’s regulations as prohibiting employees from either prospectively or retroactively waiving their rights. Prospective waivers of FMLA rights continue to be prohibited under the final rule.

Serious Health Condition: The final rule retains the six individual definitions of serious health condition while adding guidance on three regulatory matters. One of the definitions of serious health condition involves more than three consecutive, full calendar days of incapacity plus “two visits to a health care provider.” Because the current rule is open-ended, the Tenth Circuit has held that the “two visits to a health care provider” must occur within the more-than-three-days period of incapacity.

Under the final rule, the two visits must occur within 30 days of the beginning of the period of incapacity and the first visit to the health care provider must take place within seven days of the first day of incapacity. A second way to satisfy the definition of serious health condition under the current regulations involves more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment. The final rule clarifies here also that the first visit to the health care provider must take place within seven days of the first day of incapacity. Thirdly, the final rule defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year since that provision is also open-ended in the current regulations and potentially subjects employees to more stringent requirements by employers.

Substitution of Paid Leave: FMLA leave is unpaid. However, the statute provides that employees may take, or employers may require employees to take, any accrued paid vacation, personal, family or medical or sick leave, as offered by their employer, concurrently with any FMLA leave. This is called the “substitution of paid leave.” The current regulations apply different procedural requirements to the use of vacation or personal leave than to medical or sick leave. Complicating matters even further, the Department has treated family leave differently than vacation and personal leave. Accordingly, under the final rule, all forms of paid leave offered by an employer will be treated the same, regardless of the type of leave substituted (including generic “paid time off”). An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave. The employee is always entitled to unpaid FMLA leave if he or she does not meet the employer’s conditions for taking paid leave and the employer may waive any procedural requirements for the taking of any type of paid leave.

Perfect Attendance Awards: The final rule changes the treatment of perfect attendance awards to allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because of taking FMLA leave as long as it treats employees taking non-FMLA leave in an identical way. This addresses the unfairness perceived by employees and employers as a result of requiring an employee to obtain a perfect attendance award for a period during which the employee was absent from the workplace on FMLA leave.

Employer Notice Obligations: The final rule consolidates all the employer notice requirements into a “one-stop” section of the regulations and reconciles some conflicting provisions and time periods under the current regulations. Further, the final rule clarifies and strengthens the employer notice requirements in order to better inform employees and allow for a better exchange of information between employers and employees. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook and upon hire); an eligibility notice; a rights and responsibilities notice; and a designation notice. In order to ensure employers are able to better inform employees under the new notice provisions, the final rule extends the time for employers to provide various notices from two business days to five business days.

Employee Notice: The final rule modifies the current provision that has been interpreted to allow some employees to provide notice to an employer of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly. Lack of advance notice (e.g., before the employee’s shift starts) for unscheduled absences is one of the biggest disruptions employers point to as an unintended consequence of the current regulations. The final rule provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances. The final rule also highlights (without changing) the existing consequences if an employee does not provide proper notice of his or her need for FMLA leave.

Medical Certification Process (Content and Clarification): The final rule, which is the result of significant stakeholder feedback (including a Fall 2007 meeting at the Department on medical certifications) recognizes the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of the HIPAA privacy rule to communication between employers and employees’ health care providers. Further, in response to specific concerns raised by employees about medical privacy, the Department has added a requirement to the final rule that specifies that the employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor. Further, employers may not ask health care providers for additional information beyond that required by the certification form. The final rule also improves the exchange of medical information by updating the Department’s optional Form WH-380 to create separate forms for the employee and covered family members and by allowing-but not requiring-health care providers to provide a diagnosis of the patient’s health condition as part of the certification. In addition, the final rule specifies that if an employer deems a medical certification to be incomplete or insufficient, the employer must specify in writing what information is lacking, and give the employee seven calendar days to cure the deficiency. These changes will improve FMLA communications, protect the privacy of workers, and help ensure that the employees who need leave will get it and not be subject to repeated requests for additional information or be denied FMLA leave on a technicality.

Medical Certification Process (Timing): The final rule codifies a 2005 DOL Wage and Hour Opinion letter that stated that employers may request a new medical certification each leave year for medical conditions that last longer than one year. The final rule also clarifies the applicable time period for recertification. Under the current regulations, employers may generally request a recertification no more often than every 30 days and only in conjunction with an FMLA absence unless a minimum duration of incapacity has been specified in the certification, in which case recertification generally may not be required until the duration specified has passed. Because many stakeholders have indicated that the current regulation is unclear as to the employer’s ability to require recertification when the duration of a condition is described as “lifetime” or “unknown,” the final rule restructures and clarifies the regulatory requirements for recertification. In all cases, the final rule allows an employer to request recertification of an ongoing condition every six months in conjunction with an absence.

Fitness-For-Duty Certifications: The current FMLA regulations allow employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide a certification that they are able to resume work. This is called a “fitness-for-duty” certification. The final rule makes two changes to the fitness-for-duty certification process. First, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.

We will update this post with blog posts and articles about the new regulations as they become available.

UPDATE:  Most of the early postings on the new regulations repeat what is summarized about.  But for those who want to wander around the internet and check out other commentary, here are some links:

The Ohio Employer’s Law Blog FMLA section is here.  See the update on notice and certification requirements here.

The FMLA Blog is here.  (No commentary as of Nov. 19, 2008.)

The Connecticut Employment Law Blog — New FMLA Regulations, Part I, is here.  Part II is here.

Law.com — “New FMLA Rules Will Create More Confusion and Litigation, Attorneys Warn.”

The plaintiff alleged that her former employer had violated her rights under the FMLA by refusing to allow her to take a medical leave of absence and constructively discharged her (i.e. she resigned when she was not given the leave).  The district court granted the employer’s motion for summary judgment and dismissed the case.  The plaintiff appealed, and the Court of Appeals reversed.

The Court of Appeals first considered the issue of notice under the FMLA.  The plaintiff had provided a doctor’s note in connection with her request for leave.  The district court concluded, however, that the plaintiff had not provided adequate notice to the employer that she was entitled to leave under the FMLA.  The Court of Appeals noted that “the employee need only inform her employer that she needs leave from work for a medical reason. . . .  If the employee provides sufficient notice, the burden then shifts to the employer to gather additional information and determine if the FMLA is actually implicated.”  In other words, “the employer has the duty to elicit the details required under the FMLA.”  Based on the plaintiff’s testimony that she had discussed her health condition with the employer and the doctor’s note, the Court found that the plaintiff had met her burden and the employer had not met its.

The Court next addressed the issue of whether the plaintiff had a “serious health condition” under the FMLA.  The employer argued that the plaintiff had not been involved in a continuing course of treatment.  The Court disagreed, noting that the plaintiff had demonstrated a “serious health condition” by showing that she missed three days of work (meeting the three days or more of incapacity prong) and that she was involved in “continuing treatment by a health care provider” (the second prong of the test).  The Court found it significant that the plaintiff’s ongoing symptoms continued to be a focus of her visits and noted that, under its prior decision in Miller v. AT&T, “a doctor’s visit in which a physical exam was conducted and blood was drawn constituted ‘treatment’ under 29 C.F.R. s 825.114(b), even though there was no diagnosis and no medication given to alleviate [the employee's] symptoms.”

Before the district court, the employer argued that the plaintiff was not an eligible employee because he worked at a facility with less than 50 employees within 75 miles of the facility.  The district court agreed, and dismissed the lawsuit.  The employee appealed.  What is the outcome of the appeal?

The employee won.  The Court of Appeals held that the employee should have been allowed to proceed to trial on his state law promissory estoppel claim because the employer’s FMLA policy did not state that he would not be eligible for FMLA benefits based on the 50/75 exception.  In other words, the employer’s policy — as written — was more generous than the FMLA.  The 7th Circuit’s opinion in the case can be found here.

So what is the lesson here?  Be sure that your FMLA policy says what you mean it to say.  If you want to be more generous than the law requires, great.  But if you don’t want to be more generous, take a look at your policy and notification letters and make sure they reflect what you intend.

Several blogs have reported on this case, including the FMLA Blog, the Manpower Employment Law Blawg, and Jottings By An Employer’s Lawyer.

The case is particularly interesting because it found that a secondary employer — i.e. the company using the staffing firm’s employees — can be liable under the FMLA even if it does not independently meet the requirements for FMLA coverage (i.e. having 50 or more employees).  It is also interesting because the employer lost a pretrial motion for summary judgment, in part, because of notes from a meeting where the elimination of her position was discussed, and the question was raised “can the lawyers construct a way to make it [her termination] doable?”

The plaintiff, Grace, worked for USCAR for a number of years as a contractor provided by a staffing firm.  The plaintiff’s job duties remained the same for USCAR even though her actual employer changed several times during her tenure.  While plaintiff was out on a medical leave of absence, USCAR obstensibly eliminated her position so that no open position was available when she returned from leave.  USCAR did hire an individual on a part-time basis to take care of plaintiff’s job duties.

The court looked at whether USCAR was a joint employer with the staffing company.  The court noted that although the FMLA itself is silent on the issue, the DOL regulations provide for an “integrated employer” test and a “joint employer” test.  In this case, the court found that the two companies were not an “integrated employer,” primarily because the two companies lacked common management.  The court did find, however, that the two companies met the “joint employer” test.  The court found that the facts fit the “where one employer acts directly or indirectly in the interest of the other employer in relation to the employee” test in the DOL regulations.  The court also relied on the fact that USCAR exercised significant control over the plaintiff’s work.

Having found a joint employment situation, the court then had to decide which of the two companies was the “primary” employer under the DOL regulations, since responsibility for FMLA compliance rests upon the “primary” employer (although both employers bear a share of responsibility with respect to reinstatement).  The court found that the staffing company was the primary employer and USCAR the secondary employer.

Turning to the issue of whether her position would have been eliminated regardless of her leave, the court found that a document from the meeting where the elimination of her position was discussed with the sentence “Can the lawyers construct a way to make it [her termination] doable” was a smoking gun that raised a jury issue as to the truth of the company’s explanation.  It also found that the staffing company was a successor company to its predecessor, thereby allowing the plaintiff to satisfy the 12-month employment eligibility threshold.

The opinion is worth reading for anyone dealing with potential joint employment FMLA issues, particularly those within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee).

The law covers all New Jersey employers regardless of size.  If signed by the Governor, it goes into effect on July 1, 2009.  The benefit will be funded by additional payroll taxes.

Unlike the FMLA, the law does not provide for mandatory reinstatement of employment following leave.  Employers covered by the FMLA would continue to be obligated to provide reinstatement if the absence was occasioned by a qualifying condition.