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. 

Sixth Circuit Affirms $173K Jury Verdict in FMLA Interference Case Where Employee Never Returned Medical Certification Because Employer Failed to Provide Unequivocal Written Notice About Consequences

In a case where a plaintiff-employee had become so emotionally distraught that she refused to tell her employer about her medical/mental problems, to return her FMLA medical certification or to provide updated medical notes from her doctor, she prevailed pro se in a FMLA interference action after her employer terminated her for violating its attendance policy by not reporting off or showing up to work for two consecutive days after the two week period mentioned in her physician’s note.  Wallace v. FedEx Corp., No. 11-5500 (6^th Cir. 8-22-14).  The primary rule from the Sixth Circuit’s case last Friday is that an employer cannot require an employee to provide a medical certification form from her physician unless the employer explains in writing to the employee the consequences for failing to return the completed form.   In this case, the twenty year plaintiff-employee had well documented attendance counseling and generally attributed it to non-medical issues because she was embarrassed.   Exacerbated, the employer provided several FMLA forms to the employee and directed her verbally to return the forms within 15 days.  She had also received a disciplinary notice suggesting that she take medical leave until she could comply with the attendance policy, but not mentioning any medical certification requirement.   She had provided the employer with verbal notice of her need for medical leave and a note from her physician which indicated that she needed to be off work for two weeks before being reassessed.  The Court found this note could reasonably be interpreted to support the plaintiff’s need for additional medical leave following the two week period and the employer interfered with her FMLA leave by terminating her a few days after the two-week period expired.   The jury awarded her $173,000 in compensatory damages (i.e., lost wages) and the Sixth Circuit reversed the magistrate judge’s ruling reducing that amount.

According to the Court’s opinion, the employee’s health had deteriorated, but she transferred to a new department with a strict attendance requirement.  When she was coached about her attendance, she apologized for “slacking.”  Her medical condition caused significant weight loss, stomach problems and interfered with her sleep.  When her physician discontinued a narcotic drug, she experienced severe withdrawal symptoms.  Sometimes, she just sat in the employer’s parking lot and cried instead of going into work and other times she reported to her desk and cried.  She told her supervisor on Monday, August 6, 2007 that she was having personal problems because of her “past/baggage/history,” but wasn’t comfortable going into detail.  He encouraged her to be open and offered to find someone with whom she was comfortable speaking.  She then called off work for the rest of week, which made her supervisor suspicious that she knew in advance that she would be sick for the rest of the week.  He directed her to meet with him promptly when she reported to work the following week. 

She was 90 minutes late to work the following Monday.  After she was then 30 minutes late the following Tuesday, the supervisor refused to accept her apology or explanation.  Instead, he gave her a written verbal warning about her repeated poor attendance.  A meeting was held with HR the next day (Wednesday) and the employee attributed her problems to getting her child off to school.  However, she also mentioned that she was having trouble with adjustments in her medication.  She was given the options of coming to work on time, taking medical leave or going through the disciplinary process.  She then met with her doctor who was concerned with her condition and gave her a medical statement covering the prior week’s absence and indicating that she needed to be off work for two more weeks before being reassessed.  She returned to her supervisor, who arranged a meeting with inhouse legal counsel.  He gave her blank FMLA forms and she was verbally directed to return them within 15 days.   The forms stated in part:

that “Family Medical Leave is not automatic” and that “[q]ualification under FMLA will be determined upon timely receipt of the medical certification form (within 15 calendar days) if requested,”   . . . (emphasis added).  In addition, the form stated that “[w]hether your absence is FMLA will be determined upon timely receipt of the medical certification.”  . . . However, the forms were left unmarked. Moreover, the memorandum that [the supervisor] gave [the plaintiff] on August 15 to sign stated: “consider taking a period of time for medical leave until such time as [you] feel[] capable of adhering to the attendance policy and completing [your] work tasks . . .There is no mention of the need for medical certification or the consequences of failing to produce it.

The plaintiff returned to her physician and he promptly completed the FMLA forms.  He also provided her a note that she should remain off work for an additional three weeks.  She never returned the FMLA forms or the updated doctor’s note to her employer.  She later explained that she was experiencing extreme disappointment and was not herself.  She was later diagnosed with depression and ADHD.   When she did not return the FMLA forms or return to work on August 30, her supervisor tried for two days to reach her by telephone and email.  Her line was always busy and she did not respond to the emails warning her of the consequences of not keeping him updated about her medical progress.  The following Tuesday, the plaintiff left a voice mail for HR that she was on her way to the hospital for ear surgery, but her employment was terminated later that day despite that information.  When she received the termination notice, she telephoned the company’s General Counsel that she had the completed medical certification form, but was told it no longer mattered.  At trial, the plaintiff testified that she would have turned in the medical certification form if she had realized the consequences of failing to do so.

On appeal, the Sixth Circuit found that plaintiff need only provide notice of her need for FMLA leave.  She is not required to mention or refer to the FMLA and she is not required to mention the possible duration of the medical leave.  The plaintiff mentioned the problems with the adjustment in her medication and provided her employer with a note from her physician about her need to be off work for two weeks before being reassessed, so she provided sufficient notice of her need for FMLA leave.   The Court rejected the employer’s reliance on the two-week period in the physician’s note:

By focusing on whether [the plaintiff] provided enough documentation for continued leave, [the employer] misses the point of this notice element. The relevant question is whether [the plaintiff] provided [the employer] notice that she needed FMLA leave, not whether she provided notice that she needed a certain amount of FMLA leave.

Granted, “in an ideal world,” the plaintiff would have provided her employer with the updated physician’s note indicating a need for an additional three weeks of medical leave.  However, since his prior note referred to a “reassessment” the jury could reasonably conclude that the two weeks were merely an estimate and that the plaintiff could not return to work before being cleared by her physician.

Being on notice of her need for FMLA leave, it was up to the employer to take action to obtain any necessary information it required about the duration of her leave and any medical certification.  The Court found that the FMLA forms which the employer provided to the plaintiff on August 15 were not clear about there being any consequences if she did not timely complete and return the forms.  There was no unequivocal statement that her FMLA leave could be denied or delayed if she failed to return the forms.  It was irrelevant that she had been verbally instructed to return the forms within 15 days because the FMLA regulations require the warning to be in writing.  Without such written notice to the employee about the consequences of failing to timely return the medical certification, the employer cannot deny or delay FMLA leave based on a failure to provide medical certification.  Accordingly, the plaintiff could not be fired not returning the medical certification.  In other words, she had begun her FMLA leave on August 16 and the employer terminated her during the FMLA leave because it could not object to the lack of information.

[Her] failure to report for work—and her subsequent termination—is a direct result of failing to perfect her FMLA leave, which is a consequence of [the employer] failing to meet its responsibilities under § 825.305. . . .

 . . .

[The employer] claims that it terminated [the plaintiff’s] employment because she was absent—without a valid excuse—for two consecutive days, but the reason her absences were unexcused was because [she] failed to perfect her FMLA leave. The reason she failed to perfect her leave was because she failed to return the medical-certification form, and the reason she failed to return the form, according to the jury, was because [the employer] failed to inform her of the consequences of failing to do so as required by 29 C.F.R. § 825.305. Thus, [the employer’s] failure to provide notice was the proximate cause of her termination, meaning that its failure to comply with the regulations prejudiced [her].

The Court rejected the employer’s argument that it was the plaintiff’s mental illness – and not its failure to comply with the FMLA notice regulations – which caused the plaintiff to fail to return the medical certification forms. “In making this argument, [the employer] disregards § 825.305’s equitable-tolling provision, elevates its attendance policy over the protections of the FMLA, and oversimplifies mental illness. It is impossible to recreate how [she] balanced her exertions in August of 2007, and if she had known that returning the certification was necessary to keep her job, she may have rearranged her priorities in dealing with her mental illness to comply with [the employer’s] request.”

 The Court also rejected the employer’s attack on the legality of the FMLA regulations. Finally, there were a host of technical procedural issues dealing with remittitur (i.e., reduction in the plaintiff’s damages), and the timeliness of post-trial motions and notices of appeal.  In short, the Court ultimately affirmed the jury’s initial award of $173,000, chastised the plaintiff for failing to timely argue her right to front pay and liquidated damages and rejected the employer’s remaining arguments.

 

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 change or be 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. 

New FMLA Regulations Change Process of Medical Certifications.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

30. §825.305: Certifications Supporting Need for Leave. Employers may still require certification of the need for leave (including medical certifications and certifications of qualifying exigencies). Employers must give at least notice of the need for certification when it is required for exigency leave and written notice for medical certifications. Employer must also advise the employee of the anticipated consequences of the employee’s failure to provide the certification.

Timing. The DOL substantially modified the timing of certification process. Employers now have five business days (instead of just two) to request certification. “The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.” Employees must return the completed certification within 15 calendar days (including employees who give at least 30 days advance notice of foreseeable leave who currently need only return the certification before the leave commences). The employee can return the certification later if it is not practicable despite the employee’s diligent, good faith efforts or if the employer agrees to a longer period of time. Employers are not required to inform employees when the employer has not received the requested FMLA certification form. Rather, employees must assume the burden of confirming with the employer and, if applicable, the healthcare provider to ensure that the certification form has been delivered (if the employee did not personally deliver it).

Deficient Certifications. If the certification received by the employer is incomplete or insufficient, the employer must so advise the employee in writing what additional information is necessary to cure the certification. “A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.” The employee has seven calendar days to cure any noted deficiency (unless the time is not practicable despite the employee’s diligent, good faith efforts). If the deficiencies are not cured by the re-submitted certification or is not resubmitted within the time frame, the employer may deny the FMLA leave until the required certification is provided. The employer is not required to provide multiple opportunities for the employee to cure a defective certification form.

Less Strict Standard. Significantly, the DOL deleted the current requirement prohibiting employers from requesting medical or other certification if the employee substituted paid leave and that paid leave policy utilized less onerous procedures. For instance, most employer sick leave policies do not require an employee to produce medical certification if an employee misses less than three days of work due to an illness. However, the DOL feels that the FMLA gives the employer the right to seek FMLA certification if that illness is covered by the FMLA (i.e., recurring, chronic conditions, etc.). Accordingly, employers may not require the employee to produce medical certification forms if the absence will be protected by the FMLA even if the employee substitutes paid sick leave for the unpaid FMLA leave and the employer’s sick leave policy does not require medical certification.

Annual Certifications of Long-Term Health Conditions. The new regulation also permits an employer to request a new medical certification form every new leave year when the absence is due to a serious health condition which lasts beyond a single leave year.
Employer can require annual recertification for chronic conditions. This is considered a new medical certification (with the right to authentication and second opinions, etc.) and not a recertification.

31. §825.306: Medical Certification forms. The DOL has created two separate forms for medical leave – one for the employee’s own condition (form WH-308-E) and one for the medical condition of a family member (form WH-308-F). Both forms are attached as Appendix B to the final regulations and may be found on the DOL website. Employers are still precluded from requesting information from a medical provider beyond what is on the DOL forms as a condition of FMLA leave, but notably may now request additional information in connection with substituting paid leave under the employer’s regular policies or state workers’ compensation system or in evaluating requests for reasonable accommodations under the ADA. Employers may consider this additional information obtained in connection with workers’ compensation claims, paid leave policies and/or ADA reasonable accommodations in evaluating requests for FMLA leave. However, employees must be informed that their failure to satisfy these additional requests for information will not affect their entitlement to FMLA leave.

Medical Releases. Employers are still precluded from seeking a release for medical records as a condition of obtaining FMLA leave, but employees are free to provide a medical release to the employer in the employee’s discretion. Providing a release/waiver does not relieve the employee of his/her obligation to provide a complete medical certification upon request. If the employee provides such a release or waiver, the employer may contact the medical provider directly.

New Information to be Requested. The new forms permit the employer to obtain the healthcare provider’s fax number, specialization (which will be helpful in the event that the employer wants a second opinion from a specialist), whether working a reduced schedule is medically necessary, whether there will be any episodic flare-ups (including the anticipated frequency and duration of the flare-ups) and whether it will be medical necessary for the employee to be absent from work if there are such flare-ups. The DOL still will not require a physician to provide a diagnosis, but is encouraged to provide medical facts which may include symptoms, diagnosis, or any regimen of continuing treatment.

32. §825.307: Authentication, clarification and other medical opinions. Although under the current regulations, an employer is not permitted to directly contact the employee’s healthcare provider, under the new regulations the employer is permitted to directly contact the employee’s healthcare provider under two circumstances to obtain authentication or clarification of the form. The employer is still not permitted to request additional information from the healthcare provider.

Authentication. After the employer has given the employee the opportunity to cure any deficiencies in the notice (as discussed above), the employer’s healthcare provider, human resources professional, leave administrator or management official (who is not the employee’s direct supervisor) may directly contact the employee’s healthcare provider, provide the provider with a copy of the certification and request verification that the information contained on the form was completed and/or authorized by the provider who signed the document. Although the employee’s consent is not necessary (and is unlikely in the event of fraud), the employee is responsible for providing the employer with any authorization required by HIPAA in order for the employer to authenticate information on the certification form.

Clarification. After the employer has given the employee the opportunity to cure any deficiencies in the notice (as discussed above), the employer’s healthcare provider, human resources professional, leave administrator or management official (who is not the employee’s direct supervisor) may directly contact the employee’s healthcare provider (without the employee’s authorization) to understand the handwriting on the medical certification or to understand the meaning of a response. The employee is responsible for providing the employer with any authorization required by HIPAA in order for the employer to clarify information on the certification form. If the employee does not provide the employer with any necessary HIPAA authorization, the employer may deny the FMLA leave if the certification form remains unclear.

Second and Third Opinions. Under the new regulations, employees will now be required to authorize the release of all medical records relevant to the FMLA leave to the healthcare providers selected to render second or third opinions (in the event of a dispute). An employer may deny FMLA leave if the employee fails to authorize the release of medical records to the second or third opinion healthcare provider. An employer now has five business days (rather than two) to provide a copy of the second/third medical opinion to the employee.

Foreign certifications. Employees who obtain medical certifications in a non-English speaking country are responsible for having the information translated into English upon request.

33. §825.308: Recertifications. The DOL reorganized and modified the process of recertifications in the new rule. In general, unless the medical certification form provides a definite duration for the condition (i.e., 60 days or lifetime), employers will now be able to request a recertification of the medical condition at least every 30 days. When the certification form provides that the medical condition will last longer than 30 days, the employer can request a recertification no more often than the stated minimum duration (i.e., 60 days) or every six months. If the requested FMLA leave is less than 30 days, the employer may only request recertification if the employee requests an extension of the leave, there has been a significant change in the circumstances described in the certification form or information has cast doubt upon the employee’s stated reason for the absence or continuing validity of the certification. For instance, if the certification form indicated that that the employee would typically miss two days of work for each migraine headache, and the employee took four days off work, the increased duration could constitute a significant change in the circumstances described in the certification form justifying a more frequent recertification request. Another example would be if the employee took four weeks off for knee surgery and then played in a softball league. The employee must return the recertification within 15 calendar days of request.

Suspicious behavior. “As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the healthcare provider if the serious health condition and needed for leave is consistent with such pattern.” This change is consistent with prior DOL letter opinions.

Employees still bear the burden of paying for any recertifications. Employers are still not entitled to second or third opinions of recertifications.

I will eventually complete my summary of the remaining significant changes in the new FMLA regulations on this blog, including at New FMLA Regulations Create New Certification Requirements for Military Leave for Exigencies and Care of Servicemembers. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

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 change or be 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.