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Five common FMLA mistakes by employers

July 16th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

Think an FMLA leave request has to be an “FMLA” leave request? What about suggesting that an employee, who is on a tight budget and must care for a seriously ill child, telecommute part-time instead of taking FMLA leave so she can retain her salary—think that’s reasonable? In fact, some employers are now facing costly legal battles over these and other FMLA missteps. In reviewing decisions that came out in the past few months, five avoidable mistakes made more than one appearance, and a couple seemed to form a common theme:

Don’t assume an employee has to ask specifically for FMLA leave. As explained by a DOL fact sheet, an employee is not required to mention the “FMLA” when requesting leave. The notice required varies depending on whether the need for leave is foreseeable. If it is, an employee must give notice (30 days’ notice unless impracticable) sufficient to make the employer aware that FMLA leave is needed, as well as the anticipated timing and duration of the leave. If the need for leave is unforeseeable, an employee need only provide sufficient information for an employer to reasonably determine whether the FMLA may apply.

The sufficiency and timing of notice has been the subject of much litigation. In an Eleventh Circuit case, an employee who previously injured her knee opted for physical therapy instead of surgery. Months later, she reinjured her knee and requested FMLA leave for surgery. The district court found that her need for leave was foreseeable because she knew from the start that surgery was an option. But to the appeals court, she had no plan (or need) to undergo surgery until her reinjury, so the less stringent notice requirements applied, and she complied by giving notice as early as practicable—a day after the reinjury. Also, telling her supervisor that her knee “gave out,” “was painful,” that she could not put weight on it, and that she was going to an orthopedic surgeon was “plenty of information for an employer to reasonably determine” whether she needed FMLA leave.

Context matters in deciding whether an employee provided notice that FMLA leave was needed. For example, it could be significant if the employee took FMLA leave in the past for a condition that later makes a reappearance. In one case, an employee who previously took FMLA leave to care for her disabled son made a request to work from home because, due to work schedule changes, her childcare arrangements had to be adjusted. A federal court in Wisconsin ruled that a jury must decide if she was requesting FMLA leave or was merely requesting to telecommute. In another context, awareness of a health incident at work could suggest an employer knew of the potential need for FMLA-qualifying leave. For example, the Sixth Circuit found that an employee gave notice of a serious condition qualifying him for intermittent leave based on a doctor’s note limiting his workday to eight hours, together with the employer’s knowledge of a health incident at work (chest pains).

Don’t simply reject an insufficient medical certification. An employer may require employees who request FMLA leave to provide a certification from a health care provider. A “sufficient” certification must state: (1) the date the condition began, (2) probable duration, (3) medical facts, (4) that the employee is unable to perform her work, (5) the dates and duration of treatment, and (6) the expected duration of leave. An employer must notify an employee if the certification is incomplete or insufficient, must state what further information is necessary, and must provide the employee time to cure any deficiency before denying leave.

The latter requirement was center stage when the Third Circuit recently reversed summary judgment on an FMLA interference claim due to questions about whether an employer violated the FMLA by firing an employee who provided an insufficient certification. It was vague because, in stating a “probable duration of one month,” the certification failed to specify whether that duration referred to the length of her leave request or of her condition. Because the employer failed to tell her it was insufficient, or to state what information was needed and provide her a chance to cure the deficiency before denying her request, her interference claim was revived.

Don’t expect an employee to work while on leave (or in lieu of leave). Several cases involve employers who suggest that an employee work (even just a little) while on FMLA leave or in lieu of full-time leave. That is simply not a good idea, even when an employer asserts the best of intentions. In one case, while a bank employee was on maternity leave, the bank learned that she was far behind on testing for a software upgrade and called her to discuss the possibility of her working from home. Ultimately, she did not return early and was fired for performance issues while on leave. Denying summary judgment, a federal court in Ohio explained that because the bank was willing to let her to return to work if she did so early, a jury could infer that she was actually fired because she chose to fully exercise her FMLA rights.

In another case, an employee of a family-owned business told the owners her son was diagnosed with cancer. She asked for FMLA forms but, in lieu of leave, they formed a plan where she would receive full salary while working as much as she could during her son’s treatment. The owners claimed she had tearfully said she couldn’t afford unpaid leave. But she claimed she was discouraged from taking leave. While on the plan, she worked 5 to 25 hours per week, but she always had her work phone. At some point, the owners became upset and fired her for “lack of communication” during her remote, part-time work. She claimed the problem would not have arisen if she had clearly taken demarcated intermittent FMLA leave during which the employer couldn’t expect her to communicate. A federal court in North Carolina found the issue triable.

Although an employer should not expect an employee to work while on FMLA leave, some interactions are fine. For example, a federal court in Virginia dismissed the FMLA interference and retaliation claims of an employee who voluntarily checked in with his work team and answered questions while absent. It explained that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.” Likewise, the Fourth Circuit recently explained that requiring an employee to attend a pre-disciplinary conference in an ongoing investigation into misconduct did not constitute forcing him to “work,” so his interference claim failed as a matter of law.

Don’t include FMLA leave when disciplining for absences. FMLA claims often involve adverse actions taken over absences that arguably qualified for FMLA protection. For example, an employee in Tennessee advanced her claims based on evidence that she repeatedly told a supervisor that many of her absences—for which she was ultimately fired—were caused by her irritable bowel syndrome. In another case, Boeing was denied summary judgment on claims under a Washington law that mirrors the FMLA due to evidence that FMLA-protected leave was included in its calculation of unexcused absences leading to an employee’s termination. And a court in Wisconsin rejected an employer’s argument that an employee fired for excessive absences (due to his partner’s terminal illness and the emotional needs of their children) could not recover because he failed to adhere to its policy for submitting a leave request. A jury could find his designation of the absences as FMLA leave was enough.

These cases suggest the erring on the side of caution is warranted when calculating the number of absences an employee has before imposing discipline for excessive absenteeism. At the very least, consider whether the employee arguably provided notice that some of the absences might qualify for FMLA protection.

Don’t let your irritation show. Obviously, you can’t fire someone for requesting FMLA leave. But employers can get in trouble for other actions that indicate less than good faith compliance with the FMLA, or worse, retaliation. In one case, an FMLA retaliation claim survived summary judgment based in part on a supervisor’s email telling others that she was “irked” because an employee took the full six weeks of medical leave approved (the employee originally thought she might need less). It didn’t help that in the same email chain, the supervisor said she wanted to counsel the employee immediately upon her return and was cautioned by an HR rep that the employee should not be reprimanded for taking medical leave—suggesting to a federal court in Illinois that the supervisor was doing just that.

In another case, a call center employee who had PTSD told his supervisor that sitting next to a coworker who was sexually harassing him exacerbated his symptoms. She refused to move him and later told him she was “tired of walking on eggshells around him because of his disability.” Two days later the employee requested FMLA forms and was directed to the company’s intranet. Before he submitted the forms, though, he was fired for allegedly taking excessive breaks and dropping calls, which he claimed was due to panic attacks. To a federal court in Washington, this was enough to state a claim for FMLA retaliation.

Good faith compliance. While these five mistakes stood out in a review of recent cases, there are, of course, many more ways to run afoul of the FMLA’s requirements. For example, Staples agreed to pay $275,000 to a furniture sales executive who was never notified of his FMLA rights when he needed to take leave to care for his critically ill wife—for two years he used personal leave and vacation days and worked remotely. To avoid these types of costly compliance errors, employers should make sure HR staff and supervisors are well-versed in the Act’s requirements, and have information and forms readily available for employees who may need them.

Indeed, the failure to ascertain the FMLA’s requirements and to act accordingly can lead, in some cases, to the imposition of additional liquidated damages. In one case, a federal court in Michigan explained that such an award is normal where an employer fails to show that its act or omission “was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation” of the FMLA. In that case, the employer’s “cavalier manner” of handling FMLA obligations cost an additional $33,000.

Resources for employers who want to learn more about the FMLA are available online. A wealth of information is available on the Department of Labor’s website, which provides an overview of FMLA requirements and links to other resources, such as general guidance; posters; e-Tools; and fact sheets on how to calculate FMLA leave, rules for military family leave, and other topics.