Roy’s Analysis of Quirky Question # 170, Unconventional Medical Care and FMLA Coverage
Quirky Question # 170:
We have a diverse workforce. While most of our employees utilize Western-style medicine for their medical needs, that is not uniformly true. Some employees rely upon non-traditional (at least not US traditions) medical treatment.
How far does the FMLA go with respect to these types of treatments? Recently, one of our employees sought FMLA coverage for faith-healing treatments. Although the employee’s belief that faith-healing might be genuine, do we have to cover it? Please, say it ain’t so.
Roy’s Analysis:
Good questions, but not necessarily susceptible to a simple answer. Let’s start with the basics. The federal Family and Medical Leave Act (FMLA) has certain qualifying criteria. In essence, an employee must have worked 1250 hours in the preceding 12 months and have been employed by the company for at least 12 months. If an employee meets these criteria, he or she may qualify for up to 12 weeks of unpaid leave. (There are some “quirks” that I have addressed in other Blog posts I’ve written on the FMLA, including for example, the fact that the 12 months of employment do not have to be consecutive and can, in fact, be separated by years. For a review of those articles, use the category index above.)
The FMLA encompasses medical care needed by the employee him/herself as well as medical care needed by certain family members. Leave may be taken intermittently when medically necessary. Read more
Defining “Family”, Quirky Question # 150
[Readers: The July 4 holiday and key decisions from the U.S. Supreme Court that have diverted our attention from the posted Quirky Questions have altered our schedule slightly. I soon will report on an important decision from the Minnesota Supreme Court addressing lawsuits by in-house counsel claiming to be "whistleblowers." After I address that decision, I will return to our more standard Quirky Question format.
In the interim, set forth below is one of our West Coast Quirky Questions, though its applicability is far broader than the West Coast. Tune in next week for the analysis. Best, Roy]
An employee has asked if they can take a leave of absence to care for a sick child who is not their own. Do I have to provide leave to an employee for the care of a sick child, even if they are not the legal parent? What if the child has two parents already?
Read more
Leave, Leave and More Leave, Quirky Question # 147
Quirky Question # 147:
We have an employee who has been with us for the past 10 years. During the past five years of her employment, she has been absent the equivalent of five (5) years due to a variety of reasons. She has taken leave to address issues with her family (including dissolution of her marriage), depression, surgeries, stress and anxiety, and caring for her son. She has taken leave in lengthy contiguous periods, and intermittently. She has exhausted every form of allowable leave, using up all her vacation days, all of her sick days, and all of the leave available to her under the Family and Medical Leave Act. During this time, we have allowed her to take additional leave, contrary to our own leave policies.
Recently, this employee fainted while at work. When the paramedics arrived to take her to the hospital, she told them that she lupus. One of her co-workers was in the room when the employee disclosed this information, as was the employee’s manager. When the employee returned to work two days later, she allegedly told her manager that she had “lupus and fibromyalgia,” although her manager does not recall her saying any such thing.
Both before and after this fainting incident, we have given this employee multiple disciplinary notices for her excessive absenteeism. In the weeks following the fainting incident, the employee has continued to be excessively absent, and has not provided us with any evidence that her absences are related to lupus or another disability.
Yesterday, the employee met with her manager and presented a note from her physician. This note stated that the employee had been under his care since just before the fainting incident, for neck, arm and back pain, which he believed was related to an on-the-job injury two years prior. The physician also alluded to “a new diagnosis of a serious nature which may have been precipitated by the work related accident,” but provided no further information. The physician went on to state that the employee would need “time off for Dr. visits and blood draws periodically,” and that she would “require special consideration for unpredictable fatigue and joint pain.” The letter makes no mention of lupus or any other specific condition.
The employee’s manager wants to terminate her employment. What should we do?
FMLA Preemptive Strike, Quirky Question # 83
Quirky Question # 83:
We have an employee who has only been with our firm for about 11 months. He recently requested FMLA leave. Although we generally like the guy and think he does good work, we have had problems in the past once employees start exercising their rights under the FMLA. Frankly, they just are not as dependable. Especially in the current economy, where all of our employees need to pull their weight, an unreliable employee presents a serious problem.
We checked into the employee’s status. Given that he has not been with us for one year, we were pleased to discover that he is not eligible for FMLA coverage. Therefore, we plan to fire him before he becomes eligible and passes that 12-month threshold. This may seem a bit cold but with the unemployment rate rising quickly, it’s an employer’s market with respect to hiring. We’re confident we can find a comparably qualified employee reasonably quickly. Any reason not to proceed as I just outlined?
Roy’s Analysis:
Your question is very timely, as this issue has recently received attention from a number of courts. Moreover, these decisions demonstrate that your plan to terminate your employee just before he qualifies for the benefits of the Family and Medical Leave Act (FMLA) is ill advised.
As you know, the FMLA provides eligible employees with the right to take 12 weeks of unpaid leave under certain circumstances. The principal eligibility requirements are that the employee has worked 1250 hours during the preceding 12-month period and has been employed with your firm for at least 12 months. (I previously have written about the fact that the 12 months of employment do not have to be consecutive, and, indeed, can be separated by multi-year gaps. For those earlier analyses, go to the “View By Topic” bar to the left and click on ‘Family and Medical Leave Act.’ That will enable you to access the earlier analyses.)
With respect to your inquiry, I will assume that the employee in question has worked more than 1250 hours during the 11 months he has been employed with your company. (Forty hours per week times 48 weeks would put him well above the 1250 minimum.) I also will assume that this employee had never worked with your company previously, so he had no prior period of employment to combine with the 11 months he has just worked. Consequently, as you have concluded, it would appear that your employee is one month shy of FMLA eligibility.
This leads me to a question not revealed by your inquiry. Is the employee seeking FMLA leave immediately? Your question states, “He recently requested FMLA leave.” If you are suggesting that he sought FMLA leave, to start right away, your conclusion would be correct – the employee would not eligible for FMLA leave. Moreover, in this context, it would be difficult for the employee to make an argument that he was retaliated against for asserting a right for which he was otherwise not eligible.
If, however, your employee was complying with the notification requirements imposed on employees (“the employee shall provide the employer with not less than 30 days’ notice, before the date of the leave is to begin, of the employee’s intention to take leave . . .”, 29 U.S.C. § 2612(e)(1)), a different outcome is likely. In this context, the employee is fulfilling his statutory obligation to his employer by providing the notice required by the statute. Moreover, at the time the leave would commence, he will have worked for your firm for more than 12 months, making him FMLA eligible. When this factual context has been examined by the courts, the employee has been found to qualify for FMLA leave.
For example, in the recent case of Reynolds vs. Inter-Industry Conference on Auto Collision Repair (a/k/a I-CAR), No. 08-CV 2115 (N.D. Ill. January 22, 2009), the employee, Reynolds, had worked for his employer just nine days shy of one full year. Due to serious health problems of Reynolds’ finance and their unborn child, Reynolds requested and was given eight days off. Reynolds’ son was born prematurely and the doctors advised Reynolds and his finance that the child would need to remain in neonatal intensive care for three months. Consequently, Reynolds requested FMLA leave to take care of his son after he came out of intensive care, at which he would have been employed with I-CAR for approximately 15 months.
I-CAR responded by terminating Reynolds’ employment in the nine-day window before he reached his first anniversary date. Reynolds sued I-CAR for violating the FMLA and other claims. In response, I-CAR moved to dismiss Reynolds’ FMLA claim in a Rule 12(b)(6) Motion, arguing that because he had not worked for the company one full year, his FMLA claim should be dismissed.
The federal court rejected the employer’s effort to dismiss Reynolds’ FMLA claim. The court’s analysis started with the FMLA’s statutory purpose – to provide eligible employees with 12 weeks of leave in connection with the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of a serious health condition that makes the employee unable to perform the functions of the employee’s position. Clearly, Reynolds’ request for time off to care for his newborn fell squarely within the defined purposes of the statute.
Next, the court looked at the notification obligations that are imposed on the employee. Since employees are, in most circumstances, expected to notify their employers 30 days in advance of the desired leave, the court found that “it would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy.”
The federal court also found support for its analysis in the Department of Labor regulations. As provided in the pertinent regulations, “[t]he determination of whether an employee has worked for the employer for at least 1250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d) (emphasis in original).
Lastly, the court looked at the public policies underlying the FMLA, the balancing of the demands of the workplace with the needs of the families and the effort to provide employees the opportunity to take reasonable leave for medical reasons. As the court stressed, “An employer has no legitimate interest in being able to terminate an eleventh month employee for simply requesting foreseeable leave for which he is eligible, when that employer would be clearly prohibited from making that same decision a month later – or, in Plaintiff’s case, a mere nine days later. If the protections of the FMLA are to serve the Act’s purpose, they must be read to cover scenarios such as Plaintiff’s.”
Apparently sensitive to potential criticisms of its analysis, the court concluded, “[t]he Court’s decision today simply means that under the FMLA, an employer may not terminate an employee who has worked less than twelve months for requesting foreseeable future leave that the employee will be eligible for and entitled to at the time the leave is to begin.” The court also cited to a number of decisions from other federal courts that had reached the same conclusion.
In sum, your tentative plan to make a preemptive decision to terminate your employee of 11 months because he has requested FMLA leave could lead to litigation that will be difficult for your company to win. If your employee would otherwise be eligible for the FMLA leave at the time such leave would begin, your employee likely would be covered by the FMLA.
The Reynolds decision does not address the more problematic scenarios that seemingly would be encompassed by the logic of the court’s analysis. For example, what if, instead of 9 days before Reynolds reached his first year employment anniversary, he announced his need for FMLA leave 9 months before the end of his first year of employment. Would that advance “notification” preclude adverse action by the employer based on the employee’s desire for FMLA leave? Would the same analysis apply to the 1250 hours requirement (i.e., an employee requests FMLA leave at a point when he only has had 1000 hours)? It will take some time before these other issues reach, and are resolved by, the courts.
Finally, as I’ve expressed in other Blog analyses, there are legal issues for you to consider and there are other, practical, employee relations issues for you to consider. I’m not sure I buy two of the premises of your question. First, you state that the employee who has requested the leave is someone liked by your Company who does quality work. Nevertheless, you suggest that you are willing to jetison him because you believe he could be replaced relatively easily. I’m not convinced. If you have an employee who is exceeding your performance expectations, are you really ready to end the employment relationship with him? Keep in mind that this is an employee who presumably understands your company, understands his job responsibilities and gets along well with his co-workers. Any new employee will have to be trained (at some cost to your firm), plus you have no guarantee that this individual will perform as satisfactorily as the employee you are planning to fire.
Second, you suggest that employees who request FMLA leave are not as “dependable” as other employees. Again, I’m not convinced. Moreover, I think you are underestimating the loyalty you can inspire by supporting your employees’ requests for leave. This is true not only for the specific recipient of the accommodated schedule but for other employees who will observe how this employee is being treated. Consider the converse as well – how would your other employees feel if you terminated a well liked colleague simply because he requested FMLA leave for which he was not quite eligible? I doubt this approach will endear your Company to your workforce. In my view, both for legal and practical reasons, you should provide your employee the leave he is seeking.
“Penalizing” Employee for Using Leave, Quirky Question # 64
Quirky Question # 64:
We have a number of programs at our company that are designed to reward employee behaviors that are important to the success of our company. For example, we provide a financial benefit to employees who have 100 percent attendance annually. Another example is that we provide our employees a bonus based on a combination of factors, including quality of their work, contributions to their department, and commitment and loyalty to our firm.
We periodically have employees take different types of leave, such as leave under the FMLA, maternity/paternity leave, and leave under the Americans With Disabilities Act. One of our employees who recently took FMLA leave advised us that she does not think she should be disqualified from 100 percent attendance bonus, and should not be penalized for the bonus we provide based on the criteria listed above.
Her position makes no sense to me. Why would she qualify for a perfect attendance bonus if she missed work? Why should she qualify for a bonus based on her contributions when other people are working year-round and contributing more than she is? Am I missing something?
Roy’s Analysis:
This is a tough question, on which courts are rendering inconsistent opinions. So, while I’ve offered a few thoughts below, I encourage you to monitor these kinds of situations carefully to see how this area of the law develops.
That said, upon first glance, your position seems eminently reasonable – how can a person who has been absent for some period of time qualify for a perfect attendance bonus? Similarly, how can an employee who has missed time (perhaps substantial amounts of time) be deemed to have made the same contribution to your firm’s performance as those who have been there every day?
The problem with this initial reaction, however, is that it fails to take into account the statutory protections afforded by the Family and Medical Leave Act (FMLA). Under the FMLA, an employee may sue her employer for “interfering” with the exercise of her statutory rights. An interference claim typically involves a five-factor prima facie case (i.e., the basic elements required to pursue a FMLA claim). The prima facie elements are: 1) she is an employee eligible for FMLA leave; 2) the defendant is a covered employer; 3) she is entitled to FMLA leave; 4) she provided notice of her intent to take leave; and 5) the defendant employer denied her the FMLA benefits to which she was entitled.
With regard to an “interference” claim, the fifth element can be that the employer somehow used the leave against the employee in an unlawful manner, as ”unlawful” is defined by the statute or the relevant regulations. Therefore, it is important to review the regulations. Under 29 C.F.R. §825.220(c), an employer cannot use the taking of FMLA leave as a “negative factor” in employment actions. As some courts have pointed out, if an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he or she was entitled.
For example, in the very recent case of Wojan v. Alcon Laboratories, Inc., Case No. 07-11544 (E.D. Mich. September 15, 2008), the court analyzed a situation where an FMLA-eligible, drug sales employee took FMLA leave. In the years before she took FMLA leave, the employee had been a very high performer, receiving high rankings on her performance evaluations based on both subjective and objective ranking methods. She had annual sales rankings that rose from number 53 to as high as number 12 in the nation, which qualified her for the company’s highest sales award, the President’s Club.
In late 2004, however, the employee took FMLA leave in connection with the birth of her child. The Company did not adjust her sales quota to account for the time she was away from work. Consequently, with 12 weeks away from her job, her comparative sales rankings dropped to number 89 nationwide. Given her low rating, she was placed on a Performance Improvement Plan, and ultimately, discharged for poor performance. The plaintiff-employee argued that the company’s refusal to adjust her sales quota based on her leave “set in motion an unbroken chain of events resulting in her termination.”
The federal district court agreed, denying the employer’s summary judgment motion on the employee’s FMLA interference claim. The court concluded that by failing to re-set the employee’s sales quota, adjusting it for the time she was away from work, the employer had allowed the leave to negatively affect a term of her employment. (I note, in passing, that the plaintiff brought a number of other claims as well, including FMLA retaliation, sex discrimination, pregnancy discrimination, marital status discrimination – she was a single mother — and retaliation under the state discrimination statutes. There also were a number of other facts that substantially strengthened the employee’s case and portrayed the employer in a negative light. For example, the plaintiff presented evidence that her supervisor had told her upon her return from leave that she had better not be showing baby pictures to her colleagues and that she had better be out selling. How these collateral facts affected the determination of the court is difficult to pin down with precision. Let’s just say, however, that they could not have helped the employer.)
Another very recent case (decided just last week), from the federal district court in Minnesota, assessed many of the same issues. In Dickinson v. St. Cloud Hospital, No. 07-3346 (D. Minn. October 20, 2008), the court considered whether the hospital’s method of calculating “absenteeism” interfered with the plaintiff-employee’s exercise of her FMLA rights. The hospital compared the amount of time an employee worked against the amount of time the employee was scheduled to work. If an employee’s absenteeism, calculated in this fashion, reached a certain percentage, the employee began a progressive disciplinary cycle. Dickinson, an LPN who had missed time off due to various physical problems that qualified her for FMLA leave, was disciplined for excessive absenteeism (first with written warnings, then with a suspension, and eventually, with discharge). She sued, claiming that the hospital’s method of determining the absenteeism percentage should have included the qualified FMLA leave time as part of the time in which she was scheduled to work. She argued that had her FMLA absence time been included in the denominator of the calculation, it would have resulted in a lower absenteeism percentage and she would not have been subject to discipline.
The Minnesota district court agreed, although it pointed out that different courts were reaching opposite conclusions on this issue. Nevertheless, the court found that the hospital’s method of calculating absenteeism had resulted in her FMLA leave constituting a “negative” factor, in violation of the regulations discussed above. Again, the employer’s summary judgment motion on the interference claim was denied.
Applying the principles of these cases to your situation suggests that you should not consider the qualified FMLA leave when assessing your employee’s “perfect attendance.” I recognize that this seems incongruous but if you disqualified the employee from receiving your “perfect attendance” bonus, you would be using the FMLA leave as a negative factor. Arguably, this would trigger your employee’s right to assert an FMLA interference claim.
The same analysis would appear to apply to the more subjective “contribution” bonus paid out by your company. If you disqualified your employee from receiving this compensation simply because she had exercised her statutory rights to take FMLA leave, you again are using your employee’s leave as a “negative” factor, potentially exposing your company to an interference claim.
In sum, I’d simply urge your firm to move cautiously in this arena. The cases described above are very recent, having been decided within the last two months. As noted, other cases have reached the opposite conclusion. But, this is an area where you should at least evaluate the relevant issues when deciding how to proceed. Finally, of course, if there are other performance problems on which your decision-making is grounded, the mere fact that an employee has taken FMLA leave will not preclude you from taking disciplinary action, up to and including termination. Just make sure that you carefully document these other reasons because in all likelihood, you will be defending your discipline or discharge decision and will need to explain why these other variables, and not the FMLA leave, led to the company’s disciplinary action.
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