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.
Rights Provided by Employee Handbook, Quirky Question # 54
Quirky Question # 54:
We have an employee who has missed a fair amount of work due to various surgeries. As set forth in our handbook, we offer FMLA leave for employees who have worked 1250 hours in the preceding 12 months. When we were informed that our employee would need to miss additional time due to some follow-up surgeries, we belatedly explored the issue with our attorneys.
Our lawyers advised us that although our employee had worked the requisite number of hours under the FMLA, he was not FMLA eligible because we don’t have enough employees in the office where he works or within 75 miles of his worksite. Based on those facts, we informed our employee that he was not eligible for FMLA leave and told him that he could not take time off. When he went forward with his surgery and took leave anyway, we terminated his employment. He now has sued us under the FMLA and other legal theories, including “promissory estoppel.” Given that he was not FMLA eligible, do we have anything to worry about?
Roy’s Analysis:
As you may have perceived, QQ # 54 was derived from a 7th Circuit case, decided just last month, Peters v. Gilead Sciences, Inc., No. 06-4290 (July 14, 2008). In Peters, a case based on Indiana law, the employer had provided its employees with an employee handbook which paraphrased the language of the Family and Medical Leave Act (FMLA). The handbook described the FMLA eligibility requirements of 1250 hours of work in the preceding 12 months, combined with one year’s employment. The employer’s handbook, however, did not address the other nuances of the FMLA or its other applicability criteria. For example, the handbook did not address the FMLA requirement that there must be 50 employees at the worksite of the employee seeking FMLA leave, or within 75 miles of that worksite (sometimes referenced as the 50/75 rule).
Peters experienced a work-related neck and shoulder injury in late 2001. He re-injured his shoulder about one year later, leading to corrective surgery that required a brief (11-day) leave. Compounding the imprecision of its handbook, Gilead Sciences then sent Peters a letter explaining the FMLA and restating, in part, the FMLA’s eligibility requirements. Again, however, the letter omitted any reference to the 50/75 rule. The letter specified when Peters would need to return to work, and promised him reinstatement in the same or an equivalent position.
As noted above, Peters quickly returned to work and was reinstated into his job. Several months later, however, he took a second leave, caused by an adverse reaction to a prescription medication he had been using. The company sent Peters another letter, largely mirroring its first FMLA communication and specifying the date by which he needed to return to work. Somewhat carelessly, the company miscalculated the mandatory return date, miscounting the amount of leave Peters actually had taken and consequently, underestimating the amount of leave he had left.
When the incorrectly calculated leave “expired,” the company hired a new employee to fill Peters’ job. The company explained its decision to Peters by referencing another FMLA provision, the company’s right to replace an employee occupying a “key” position. Gilead Sciences offered Peters another position but he rejected it, at which point he was terminated. Peters then sued the company on a number of different legal theories, including FMLA violations, breach of contract and promissory estoppel.
Once it examined the FMLA more closely, the company discovered that Peters was not FMLA-eligible because he did not work at a site that had at least 50 employees and the company did not have 50 employees in the aggregate working within 75 miles of Peters’ work location. Peters, however, argued that his employer was “equitably estopped” from denying him coverage under the FMLA due to the company’s representations in its employee handbook and the two letters the company sent to him. Despite Peters’ equitable estoppel argument (the notion that given its representations to him in the handbook and the letters, the company was prevented, or “estopped,” from making an argument based on the eligibility requirements) the District Court granted summary judgment, dismissing Peters’ case.
The 7th Circuit reversed, though on slightly different grounds. The appellate found that it did not have to decide the “equitable estoppel” issue, since there were two other potential bases on which Peters could prevail. First, the 7th Circuit found that Peters might be able to prevail on his claim for “promissory estoppel.” Promissory estoppel is a quasi-contract theory in which the court finds that certain promises may rise to the level of a binding agreement if the person to whom the promises were made takes action in reliance and is injured as a result. For example, if a company made a job offer to an individual (the promise) and encouraged him to move across the country to accept the position, and the employee moved across the country to take the job (the reliance), and was damaged thereby (e.g., quitting his other job, selling his house, etc.) (the injury), the employer is prevented (or estopped) from denying the employee the benefits of the promises previously made.
In the Peters case, the court found that the employer’s handbook and the statements set forth in the letter could constitute promises under Indiana law upon which Peters had relied to his detriment.
Second, the court observed that the statements made in the employee handbook could simply be a unilateral contract offer, which Peters accepted by working for Gilead Sciences. The 7th Circuit noted, however, that the Indiana Supreme Court had not decided the issue of whether employee handbooks could rise to the level of binding contracts. Even if a handbook in Indiana did not constitute a contract, the appellate court concluded that Peters had set forth enough facts to pursue a claim under the legal theory of promissory estoppel.
As the 7th Circuit noted, “There is no reason employers cannot offer FMLA-like benefits using eligibility requirements less restrictive than those in the FMLA, and that is what Gilead did. Peters statutory ineligibility is irrelevant to the contract-based theories of liability.”
The Peters lawsuit is illustrative of several critical points. First, as I have observed in this Blog before, much of employment law is state law dependent. In Indiana, the courts apparently have yet to resolve the issue of whether the promises in an employee handbook can rise to the level of contract. Other states, however, have resolved that issue. In Minnesota, for example, our state Supreme Court decided about 25 years ago that handbooks could constitute unilateral contracts. Of course, that led to the use of disclaimers, boldly set forth in handbooks, to disabuse employees of the notion that it would be reasonable to view handbooks as contractually binding.
Second, there are times when state law provisions do interact with federal law. Here, the handbook analysis had direct bearing on the FMLA, a federal statute. Indeed, in some ways the federal statute complicated the situation because the FMLA requires that information about employee FMLA leave rights be included in employee handbooks (if the employer uses such a document). Moreover, the appellate court considered, but did not decide, whether Peters’ “equitable estoppel” argument would have required the employer to provide the otherwise ineligible Peters with rights provided by the FMLA. In the absence of Peters’ state law contract and quasi-contract claims, presumably the court would have reached this issue.
Third, the case illustrates the importance of crafting your employee handbook carefully. If you reference eligibility for statutory benefits, you’d better get it right. If you omit key statutory provisions, you may be obligating your company to provide benefits that exceed those of the statute or that apply to individuals who otherwise would not be eligible for the statutory benefits. There are at least two ways to address this potential problem. You could analyze each statute carefully and ensure that your summary descriptions are correct. Or, you could include a provision in your handbooks, specifying that the handbook only provides a short synopsis of the statute and, to the extent that the statute contains provisions governing eligibility or benefits not summarized in the handbook, the statute (not the handbook) will govern. This may not completely exculpate an employer that mischaracterizes a statute but it is better than the alternatives — either omitting key statutory provisions or attempting to incorporate the entire statute into the handbook.
Fourth, the Peters case also illustrates the importance of conveying information clearly, and accurately, in other employee communications. Don’t send out letters that paraphrase statutory provisions inaccurately. Don’t advise employees that they are entitled to benefits for which they would not be eligible. Do your homework before sending out the letters. Get legal advice to ensure that you are not making promises you do not intend to make. Otherwise, you may find yourself in the position of Gilead Sciences, having promised benefits that are quite likely to be enforced, regardless of the limitatons of the statute.
Finally, purely from an advocacy perspective, limit your arguments to those which are credible. As referenced above, one of the explanations that Gilead Sciences offered to Peters for why he had been replaced was that he was a “key” employee under the statute. The FMLA definition of a “key” employee is very circumscribed and there is no way Peters would have fit that definition. By including an argument that has virtually no chance of success, the company merely diminished its own credibility with the court.
Faking Illness to Avoid Shift, Quirky Question # 47
Quirky Question # 47:
Our company uses rotating shifts, one of which starts at 11:00 p.m. and continues through 7:00 a.m. Every employee is asked to work that shift, one day, every other week. Every time a particular employee is asked to work that shift, she takes a day of FMLA leave, claiming that she has migraine headaches. She jokes with her co-workers that she is going to get a migraine each time she is assigned to that shift, and no show up for work. How should be respond?
Roy’s Analysis:
Your question raises an issue similar to the inquiry addressed in our Quirky Question # 41. As you may have read, that QQ involved the unusual situation of an employee routinely stopping at a hotel near his place of employment to help himself to the “free” breakfast and “free” newspaper the hotel provided to its guests. In short, the prior question involved the issue of how an employer should deal with a dishonest employee.
The same basic question is presented here, though in a very different context – how should the employer respond to a dishonest employee who is availing herself of the FMLA leave options by periodically claiming, falsely, that she is ill and needs leave. Compounding the problem, she is boasting to her fellow employees that she is going to continue gaming the system on a regular basis in the future.
Before addressing the specific response warranted by this scenario, let’s review some of the basics. The Family and Medical Leave Act (FMLA) provides for up to 12 weeks of unpaid leave for qualifying employees. A qualifying employee is one who has worked for the employer for at least 12 months and who has worked at least 1250 hours in the preceding 12-month period. (In previous questions, I have addressed the unusual circumstances associated with the fact that the eligible employee did not have to work for 12 consecutive months to be FMLA eligible; see QQ # 7.)
One of the more difficult aspects of administering the FMLA for employers is that the leave taken by employees does not have to be taken continuously. Rather, the leave can be utilized “intermittently.” Given that employees are eligible for 60 days of leave (12 weeks times 5 business days per week) annually, the employee described in the question above would be able to skip the shift she wants to avoid during each of the 26 weeks that she otherwise would be obligated to work that shift (once every other week), and still have 34 days of potential FMLA leave remaining.
Two other fundamental points are worth addressing. First, the employer does not simply have to accept the employee’s request for FMLA leave without obtaining medical corroboration of the underlying need for the leave request. Under the statutory scheme of the FMLA, the employer may insist that the employee provide a certification from a health care provider that she has a qualifying medical condition. Moreover, if the employer is not satisfied with the explanation provided by the employee, the employer may insist that the employee visit another medical provider (at the employer’s expense) for a second opinion. If the two medical assessments are in conflict, the employer may insist upon a third opinion (again at its expense) to be provided by a medical provider agreed upon by the first two medical practitioners who provided opinions.
Second, in general, “migraine headaches” may (or may not) qualify as a “serious health condition” under the statute, sufficient to provide employees a right to take FMLA leave. Again, this determination will likely depend on various medical considerations – e.g., how frequently does the employee get the headaches, how severe are the headaches, how incapacitated is the employee because of the headaches, how long has the employee experienced the headaches, is the employee utilizing prescription or non-prescription medications that adequately address the physical problems associated with the headaches. Presumably, these and similar inquiries are the types of questions that will be explored in the medical examinations.
Turning then to the specific factual scenario described above, you have several options. One option is to simply allow the employee to take the leave she requests once every other week. In my view, however, this is a bad idea. First, presumably, you will need to get some other employee to work the shift that the employee is skipping. If that employee already has worked 40 hours that week, you will have to pay the replacement employee overtime compensation for the skipped shift. Simply put, even though you don’t have to pay the employee taking the leave for the shift she misses, her decision to skip one shift every other week could cost your firm money.
Second, the other employees (many of whom also may be unenthused about working this late-night shift) may resent the fact that their co-worker is skipping the shift and that the company is tolerating her regular absences. Other employees may perceive this situation as unfair and they would be correct.
Third, given that the employee is boasting to her co-workers that she is going to miss the shift every other week, for what she concedes is a pretextual reason, accepting this conduct by her has two adverse consequences. It could exacerbate the resentment other employees feel toward the employee and the company. And, it sends the wrong message to the workforce. Allowing the employee to take the leave basically communicates to this employee and the rest of the workforce that she can abuse the company’s leave rules (as well as misuse the legitimate benefits of the FMLA), without consequence. If this approach were utilized by the company, you should not be surprised if other employees also decide that they would like to take some time off, either intermittently or on a more protracted, consecutive-day or consecutive-week basis.
Another option then would be to confront the employee about her request for leave and her statements that she is going to get a well-timed migraine headache every time she is asked to work the late shift. Assuming you corroborate the fact that the statement was made (either by speaking with a sufficient number of other employees or by obtaining an admission from the employee that she made this statement), you simply could deny her request for FMLA leave. The corollary question you should assess is whether you also want to discipline the employee for making a fraudulent request for leave. If you conclude that the employee is dishonest, and you have a legitimate aversion to employing dishonest employees, discharge her. If you conclude that this penalty is unduly harsh, you could consider utilizing a “last chance” warning or explaining to the employee that any further acts of dishonesty will result in her termination.
A third option you may wish to consider would be to rely on the mechanisms provided in the FMLA to address this situation. For example, if other employees did not provide clear corroboration of the employee’s statements and the employee herself denied making them, you could sit tight until she requested leave. Once the request was made, you could avail yourself of your right to seek a medical opinion regarding the employee’s condition. Taking advantage of the FMLA procedures could have a couple of benefits. First, you will get some independent insights into whether a health care practitioner will rubber-stamp the employee’s leave request. Second, if the employee’s health care professional validates the employee’s “need” for the leave, you will have gained an insight into that individual’s objectivity and veracity. Third, I would expect that your own physician will point out that migraine headaches do not arrive on schedule at 6:00 p.m. (an hour before a 7:00 p.m. shift, every other week). Presumably, this health care professional will support the company’s rejection of the leave request. As described above, if there is a conflict in the opinions of the two health care practitioners, you could demand a third opinion. Of course, the biggest downside to this approach is the attendant cost.
The bottom line is that your company should not honor your employee’s request for intermittent leave every other week for “migraine headaches.” If your employee makes the imprudent decision to litigate this issue, you should prevail.
Supplement to Analysis of QQ # 47
On July 14, I posted QQ # 47, a situation presented to us by one of our clients involving an employee who advised her co-workers that she “planned” to get migraine headaches every time she was asked to work a particular late-night shift. On July 21, I posted my analysis of that question.
On July 23, 2008, I saw a report of a decision from the Seventh Circuit, Vail v. Raybestos Prods. Co., No. 07-3621 (7th Cir. July 21, 2008), involving an employee who was terminated by her employer for abusing the intermittent leave provisions of the Family and Medical Leave Act (FMLA). Coincidentally, the employee had been fired for periodically claiming that she needed leave because of her unexpected “migraine headaches.”
Although the employer previously had agreed to allow the employee to take FMLA leave as a result of her migraine headaches, it became suspicious of the employee because of the timing of the requests for leave. The employer retained a private investigator to learn what activities she engaged in during the time she was too ill to work and discovered that during these periods of ‘incapacity,’ she was cutting lawns for her husband’s lawn service business. Based on this information, the employer terminated her employment.
The employee sued her employer for interfering with her rights under the FMLA. The District Court granted summary judgment to the employer and the 7th Circuit affirmed. The appellate court pointed out that the employee must demonstrate that she took the leave “for the intended purpose of the leave,” 29 U.S.C. § 2614(a)(1), and that the employer can defeat a FMLA claim by showing that the employee did not take leave for the “intended purpose.”
The Court noted that an employer is under no obligation to reinstate an employee returning from FMLA leave if the refusal is based on the “honest suspicion” that the employee was abusing the leave. Persuaded that the employer had an “honest suspicion” that the employee was abusing the leave (as reflected by the timing of the leave requests and the lawn cutting work in which she then engaged), the Court found that the Raybestos had not violated its employee’s FMLA rights by ending her employment.
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