Good News/Bad News: FMLA in the News

As most of you know, the federal Family and Medical Leave Act ("FMLA") generally covers employers with 50 or more employees and provides an eligible employee with up to 12 work weeks of job-protected leave for certain reasons.  So let's review three recent cases. 

Scenario #1: Let's say your company is not an FMLA covered employer because you do not employ at least 50 employees.  You have in your Employee Handbook, however, a leave of absence policy that provides that eligible employees are entitled to FMLA leave for certain medical conditions, including birth of a child.  While one of your employees is out on FMLA leave as provided for in your Handbook you realize that you cannot continue to hold her position and tell the employee that her employment will be terminated.  The employee then sues your company for FMLA "interference." Your defense is that you could not have interfered with the employee's FMLA rights because she had none since the company was not an FMLA covered employer.  How would a court decide?  Well, in a recent case an Illinois court found in favor of the employee (Reux v. Infohealth Mgmt. Corp.). But how can that be, you ask?  How can an employer violate a law under which it is not covered?  The concept is called "equitable estoppel," a fairness doctrine if you will.  If the employer is going to hold itself out as offering FMLA leave and an employee relies upon that representation, it is not fair to then pull the proverbial rug out from under the employee.  If you say you offer FMLA leave, then you may be bound by all the related provisions, even if you do not meet the definition of a covered employer under the law. NOTE: The 2nd, 5th and 8th U.S. Circuit Courts have reached the same conclusion. For listing of which states are in which federal circuits, email FiveL Company. 

Scenario #2: This time you are an FMLA covered employer and you have an employee who is out on FMLA leave. While the employee is out you discover some work performance problems such as undelivered or damaged products that the employee has not reported, pending and unresolved customer complaints, and more.  The FMLA provides for job-protected leave, generally requiring you to return the employee to his or her position upon the employee's return from FMLA leave.  Assuming these performance issues are serious enough to warrant discharge for any other employee, can you terminate this employee when you might not have discovered the errors but for the employee having taken FMLA leave?  The 7th U.S. Circuit Court of Appeals recently found in favor of the employer and held, "Yes" in Cracco v. Vitran Express, Inc., noting, "An employee's right to return to work after taking [FMLA] leave is not unlimited."  

Scenario #3: This case deals with documentation. In this case, an employee returns the FMLA medical certification form to you.  All appears in order and a qualifying medical condition is indicated on the form by the physician.  But there is also a second medical condition that appears on the form and in a different handwriting. You then contact the physician and ask only for verification that the physician completed the entire form.  The physician's office confirms that the physician completed the entire form except for the second medical condition that appears in a different handwriting. If the first medical condition does qualify for FMLA leave, can you deny the entire FMLA request because the form was altered by the employee? In this case, the 7th U.S. Circuit Court again answered, "Yes" and found in favor of the employer who had issued corrective action to the employee for her otherwise FMLA-qualifying absences. (Smith v. Hope School). NOTE: A deciding factor in this case may have been that the medical condition added to the form by the employee (depression) was one for which she had never been medically diagnosed.  From that, the court concluded that the employee was intentionally "presenting false certification paperwork." If the employee had added a medical condition that had actually been diagnosed, the outcome may have been different. 

Lessons Learned? (1) Be sure that your Employee Handbook properly expresses what you intend and does not create any express or implied obligations that you do not intend to create or offer. (2) The FMLA generally does not give an employee rights than those the employee would have had s/he not taken FMLA leave. (3) Minor details can make the difference.  If it appears an employee has provided you with altered documents do not assume an intent to falsify; take your time, get the facts (including the employee's side of the story) and then make a decision that is well considered. 

       Hot Hits!! Education Corner

May's Public Seminars & Presentations

Wednesday, May 13, "Employment Law, Legislative & Regulatory Update" presented for the Montgomery County SHRM Chapter, Rockville, MD 1:15 - 3:15 p.m.

Wednesday, May 20, "Did I Hear You Say What I Think You Meant?!" presented for the Southern Shore HRMA of New Jersey, 8: 30 - 10:30 a.m., Somers Point, NJ.

Thursday, May 21, "Did I Hear You Say What I Think You Meant?!" presented for the Cumberland Valley SHRM Chapter, Hagerstown, MD.

SNEAK PEEK!

REGISTER TODAY! Wednesday, June 3rd, "Employment Law for Maryland Employers," Woodlands Country Club, Windsor Mill, MD, 8:00 - 4:30.

May's Client Training Programs

"Conducting Prompt & Proper Workplace Investigations"

"Effective Negotiation & Conflict Management Strategies" 

NEXT WEBCAST!

As summer approaches are you thinking about using interns? Seasonal workers? Temps or volunteers? Will they be your employees or some other classification of worker? Must they be paid or can they be unpaid? Join this month's webcast on Wednesday, May 27th 10:00 - 11:00 a.m. EST when we address:

 "Non-Traditional Workforce Issues"

Register today! This webcast has been pre-approved by HRCI for 1.0 general credit hour.

"The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit."

Annual webcast subscriptions for 2009 are still available; register for the year and GET ONE FREE! Discounts are also available for groups of 5 or more.

Archived are not eligible for continuing education credits through HRCI. Visit the website for more detailed information. 

 OSHA Log 300A: Come on Down!

If you are a covered employer under OSHA's record keeping requirements (11 or more employees and not otherwise exempt) you should have posted your OSHA Log 300A on February 1st.  You may take that posting down on May 1st. Not sure if you are a covered employer?  Click here or call FiveL Company today.

   3 Strikes But Not Out: E-Verify Delayed Yet Again!