Category Archives: Family/Medical Leave (FMLA)

March 19, 2013

Checklist for Complying with the New FMLA Regulations

FMLA_posterHave you updated your Family and Medical Leave Act (FMLA) policy and poster?  You should have.  New regulations that implement changes to the FMLA went into effect on March 8, 2013.  Covered employers need to take action now to ensure compliance with the new rules. 

A summary of the changes to the FMLA as well as a checklist for complying with the new regulations is available here.  Be sure to update your FMLA policies, poster, certification forms and notice of rights immediately.  In addition, ensure that your leave administrators, supervisors and human resources personnel are trained on the new rules.  FMLA compliance isn't hard, but it does take work!

February 12, 2013

FMLA and Facebook Don’t Mix – Vacation Pictures Catch Employee in a Lie

By Mark B. Wiletsky

Co-workers “friend” each other on Facebook all the time.  But sometimes those “friends” turn against their own, providing employers with evidence of wrongdoing.  In a recent case (Lineberry v. Richards), an employee learned the hard way that posting pictures on Facebook can come back to bite you. 

Lineberry, who worked as a full-time Registered Nurse, claimed she needed Family and Medical Leave Act (FMLA) leave after suffering severe pain in her lower back and legs.  Her employer granted her request.

About four weeks into her leave, Lineberry took a prepaid, planned vacation to Mexico.  As many people do today, Lineberry posted photos of her Mexico trip on her Facebook page.  Her co-workers, who had legitimate access to Lineberry’s Facebook page, saw the photos, including pictures of Lineberry riding in a motorboat, lying on her side while holding up two bottles of beer, standing while holding a grandchild on each hip and making trips to Home Depot.  Based on the Facebook postings, the co-workers complained to Lineberry’s supervisors.  Responding to her supervisor’s inquiry about her activities, Lineberry wrote that she had used a wheelchair at both airports while on her trip.

When Lineberry was released to return to work, her employer called her into an investigative meeting.  Initially, she stood by her claim that she had used wheelchairs in the airports on her trip, but after questioning, she admitted that she lied and had never used a wheelchair while on vacation.  A week later, Lineberry was terminated for dishonesty and falsifying or omitting information, a violation of the company’s policies.  Lineberry sued, claiming that her employer violated her FMLA rights. 

Termination Was Based on Dishonesty, Not FMLA

During her deposition, Lineberry admitted again to lying about her use of a wheelchair while on vacation.  Because of the undisputed evidence of Lineberry’s dishonesty, the Court ruled that her employer had the right to terminate her without regard to her leave status.  The Court explained that the FMLA does not afford an employee greater rights that he or she would have if not on FMLA leave.  Because her employer had the right to terminate Lineberry for dishonesty whether or not she took leave, the termination on that basis was permitted by the FMLA.

Employer Lessons

A few key pointers for employers:

1)  Although you should always be cautious before disciplining or terminating an employee on protected leave, keep in mind that the employee’s leave status is not a free pass to lie or commit fraud. 

2)  Of course, before firing or taking disciplinary action against an employee on leave, make sure you have all the facts.  If you have a progressive discipline policy, follow all procedures set forth in the policy.  The employer in Lineberry waited to make its termination decision until it called Lineberry in for an investigative meeting, as was required under its discipline policy.  Failure to follow your own procedures can lead to lawsuits even when your underlying reasons for discipline or termination are justified.

3)  Don’t “friend” your employees so that you can surf their Facebook pages – you could be liable for invasion of privacy.  In addition, you could learn characteristics that you otherwise would not know (e.g., religion, national origin, disability, etc.) that could later serve as the basis for a discrimination claim. However, if others who legitimately obtained information from Facebook report it to you, treat it like any other workplace complaint and conduct an appropriate investigation.

January 28, 2013

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

By Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves.  The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition.  The AI also clarified FMLA leave to care for an adult child injured during military service.  Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition.  If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child.  However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability. 

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met.  The adult son or daughter must:

            1)  have a disability as defined by the Americans with Disabilities Act (ADA);

            2)  be incapable of self-care due to that disability;

            3)  have a serious health condition; and

            4)  be in need of care due to the serious health condition.

Disability Determination.  Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities.  Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care.  The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.”  In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc.  Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition.  If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA.  This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.  In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA.  However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed.  Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition.  This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old.  For purposes of FMLA leave, it does not matter when the disability commenced.  The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period.  Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance.  Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.

April 24, 2012

Good Documentation Dooms FMLA Claim

by Mark Wiletsky

A recent case issued by the Tenth Circuit (which covers Colorado) provides a good reminder about the importance of good documentation, and following your employment policies.  In Peterson v. Exide Technologies, the Tenth Circuit affirmed summary judgment in favor of Exide Technologies, dismissing Peterson's Family and Medical Leave Act (FMLA) and wrongful discharge claims as a matter of law.  Peterson was involved in a forklift accident, in which he was injured.  After the accident, he was placed on FMLA leave for 10 days.  After investigating the accident, the employer determined that Peterson had violated its safety policies.  Therefore, Exide terminated Peterson four days after the accident, while Peterson was on FMLA leave.

Peterson then sued, claiming his discharge violated his rights under the FMLA, and gave rise to a common law claim for wrongful discharge in violation of public policy.  The district court and the Tenth Circuit disagreed.  Peterson had a history of documented safety violations, and he had no evidence that the stated reason for his discharge–yet another safety violation–was a mere cover-up (or pretext) for an unlawful motive.  Importantly, the court rejected Peterson's argument that Exide had failed to follow its own progressive discipline policy.  The court noted that Exide's progressive discipline policy was discretionary rather than mandatory, and it did not prevent Exide from considering past disciplinary actions, even if they were dated.

Peterson also claimed the incident giving rise to his termination was minor, and that he was not at fault for the accident.  Again, however, the court rejected his arguments, reasoning that Exide could legitimately rely on the final accident given Peterson's record of unsafe work performance.  Thus, even though Peterson was terminated while on FMLA leave, his claims were dismissed.  There are several important lessons from this case, including:

1.     Document performance and behavior issues as they occur.

2.     Review your employment policies to ensure they do not create mandatory language with respect to progressive discipline, or any other language that might limit your right to terminate an employee.

3.     It is possible to discharge employees while on FMLA leave, but be cautious when doing so.  Such a decision has a heightened possibility of leading to litigation.  Even if, as in this case, you can successfully defend the case, consider whether there is another approach that might allow you to avoid litigation altogether.