Tuesday, September 11, 2018
What’s New with the FMLA
I was speaking at the Columbus Bar Association’s Labor & Employment Committee last week about complex medical leave issues (i.e., when the FMLA, ADA, Workers compensation and/or disability pay overlap). In preparation, I learned that the DOL had issued two new Opinion Letters discussing the FMLA. In addition, the DOL updated the FMLA medical certification forms, meaning that the current forms (which did not change at all, including keeping the last revised date as May 2015) will not expire until August 31, 2021. To be sure that you are using the most current Medical Certification forms, download the forms from the DOL’s website and confirm that the August 31, 2021 date is in the upper right hand corner.
As for the Opinion Letters, the DOL WHD Acting Administrator confirmed that medical leave to have surgery to donate an organ is considered to be a serious health condition:
An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115. Thus, as relevant to your letter, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital. Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.” Organ-donation surgery, however, commonly requires overnight hospitalization, as you note in your letter, and that alone suffices for the surgery and the postsurgery recovery to qualify as a serious health condition.
In the other Opinion Letter, the Acting Administrator agreed that an employer could suspend the no-fault attendance policy during an employee’s FMLA leave as long as it did not discriminate against the use of FMLA leave by permitting it to expire during other types of medical leaves. In the employer’s question, the employer’s no fault attendance policy imposes points for non-FMLA absences and tardiness and automatically terminates employees who accrue 18 points within twelve months. The points are frozen during FMLA leave and do not drop off while the employee is on FMLA leave. The twelve month period is also extended by the duration of the FMLA leave.
The Acting Administrator noted that “‘[N]o-fault’ attendance policies  do not necessarily violate the FMLA as long as points are not assessed for employees who are absent due to any FMLA qualifying reason.” WHD Opinion Letter FMLA2003-4, 2003 WL 25739620, at *1.” Moreover, FMLA leave does not entitle an employee to a superior position than employees who miss work for non-FMLA reasons.
An employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.” 29 C.F.R. § 825.215(d)(2); see also WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999). An employee is also not entitled to additional benefits or payments that are contingent on achieving a specified goal that the employee was unable to achieve because he or she took FMLA leave. 29 C.F.R. § 825.215(d)(5); see also Preamble to the Final Rule, 73 Fed. Reg. 67934, 67985 (Nov. 17, 2008).
The Opinion Letter interpreted the policy as rewarding employees for working by removing points, and therefore, missing work for FMLA leave meant that the employer was not required to reward the employee by removing non-protected attendance points.
Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 750-51 (7th Cir. 2010); WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999). As you describe in your letter, the number of accrued points remains effectively frozen during FMLA leave under your employer’s attendance policy. An employee neither loses a benefit that accrued prior to taking the leave nor accrues any additional benefit to which he or she would not otherwise be entitled. WHD’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment. WHD Opinion Letter FMLA-100, 1999 WL 1002428, at *2 (Jan. 12, 1999) (stating that the FMLA would permit an employer to “neither count the FMLA leave period towards an attendance control policy for potential termination, nor credit the unpaid FMLA leave towards the recordable time for dropping such points,” as long as the employer treated other equivalent types of leave in the same manner).
If the employer, however, counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave. 29 C.F.R. § 825.220(c) (requiring that employees who take FMLA leave accrue the same benefits as employees who take equivalent non-FMLA leave).
Because the employer treated workers compensation leaves the same as FMLA leave – i.e., employees do not accrue points and the points are frozen while the employee is absent on leave – there was no evidence of unlawful retaliation.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.