Category Archives: Family and Medical Leave Act

DOL Releases New Family and Medical Leave Act (FMLA) Poster and Forms

The Department of Labor (DOL) recently released revised and updated several of its forms to help employers administer leave under the Family and Medical Leave Act (FMLA).  The forms include a new form for certifying military caregiver leave for a veteran (as opposed to a current servicemember).  In addition, the DOL has issued a new FMLA poster, which employers are required to post in their workplaces by March 8, 2013.

Here are links to the most up-to-date versions of the DOL’s FMLA poster and forms:

FMLA Poster

•  New FMLA Poster

Serious Health Condition Certification Forms

•  FMLA Certification Form for an Employee’s Serious Health Condition

•  FMLA Certification Form for an Employee’s Family Member’s Serious Health Condition

Eligibility and Designation Notices

•  Form for Notifying Employee of FMLA Eligibility and Rights & Responsibilities

•  Form for Designating Leave As FMLA-Qualifying or Non-Qualifying

Military Leave Certification Forms

•  FMLA Certification Form for “Qualifying Exigency” Military Leave

•  FMLA Certification Form for Military Caregiver Leave for a Current Servicemember

•  FMLA Certification Form for Military Caregiver Leave for a Veteran

Takeaway:  Employers should post the new FMLA poster by March 8, 2013, and make sure that they are using the most up-to-date forms available for administering FMLA leave.

FMLA Leave: Can an Employee on Leave get a Bonus and Avoid the Onus?

Does an employee on leave under the Family and Medical Leave Act (FMLA) have the reinstatement right to a bonus that other employees received while the employee was on leave?

The FMLA mandates that an employee be reinstated to the “same or equivalent position” upon his or her completion of the leave and return to work, which makes this a legitimate question.  Like a lot of employment law, the answer is nuanced.

In essence, if an employee was eligible for a bonus before the leave (such as a “stay” bonus or attendance incentive pay), he or she remains eligible upon return.  For example, compliance guidance provided by the Department of Labor (DOL) states that “if an employer offers a perfect attendance bonus and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.”

An important exception is for performance bonuses – an employee who, due to an FMLA leave, has not earned a performance bonus that others have (for example one set by production levels during the leave) is not entitled to such a bonus upon reinstatement.  An example provided by the DOL’s compliance guidance is a sales bonus.  Conceptually, it is the difference between being unfairly penalized for the FMLA leave by being deprived of an earned bonus and being unfairly rewarded for it by receiving an unearned bonus.  But there is an exception to the exception, of course: if the employer’s policies allow such bonuses for employees on other types of leaves, they must apply to an FMLA leave as well.  (And that is a good point for a handbook review checklist).

Takeaway:  This is the general rule, but the devil is in the details.  Employees have litigated the issue and the DOL requires compliance, of course.  It is a good idea to seek legal counsel in matters of close interpretation.

DOL Issues Guidance on FMLA Care for an Adult Son or Daughter

On January 14, 2013, the Department of Labor (DOL) issued a new Administrator’s Interpretation (No. 2013-1), providing guidance regarding the possible eligibility of an employee to take Family and Medical Leave Act (FMLA) protected leave to care for an adult son or daughter.  While this DOL interpretation does not have the force of regulations and is not necessarily binding on the courts, it is an important official statement of compliance guidance from the administrating federal agency.

Generally, the FMLA permits an employee to take leave to care for a son or daughter with a serious health condition who is either (i) under 18 years of age or (ii) is 18 years of age or older and incapable of self-care because of a mental or physical disability as defined under the Americans with Disabilities Act (ADA).  The issue that has troubled employers and courts through the years is whether coverage to care for an adult son or daughter is dependent on whether the son or daughter became disabled before or after they turned 18 years old.  This recent DOL guidance expressly states that the son’s or daughter’s age at the commencement of their disability is not relevant.

The Administrator’s Interpretation states that an otherwise eligible employee will be entitled to take FMLA leave to care for an adult son or daughter if the following four factors are each met.  The adult son or daughter must:  (1) have an ADA-covered disability; (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 a serious health condition.  As noted in the Administrator’s Interpretation, the 2008 amendments to the ADA significantly expanded the definition of a covered disability.

The DOL guidance also expressly addresses the situation in which an employee may be requesting FMLA leave to provide care to an adult son or daughter who has been wounded or sustained an injury or illness during military service.  The FMLA specifically permits such an employee up to 26 weeks of unpaid leave in a single 12-month period to care for their son or daughter who became injured or ill in the line of duty.  The Administrator’s Interpretation notes that the service member’s serious health condition may last longer than that single 12-month period.  In that situation, an otherwise eligible employee would also be entitled to take FMLA leave in subsequent years for the purpose of providing care to an adult child.

Takeaway:  Employers should not rely on whether an adult son or daughter became disabled prior to reaching 18 years of age when analyzing an employee’s request for FMLA leave to care for that son or daughter.  The DOL has stated that the son or daughter’s age at the time their disability commenced is immaterial.

Qualifying Exigency Leave Under the Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (“FMLA”) allows an eligible employee to take leave because of any “qualifying exigency” arising out of the fact that a spouse, son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.  See 29 U.S.C. 2612(a)(1)(E).  “Covered active duty” is generally defined as deployment of either a regular or reserve member of the Armed Forces to a foreign country.  See 29 U.S.C. 2611(14).

The Department of Labor’s FMLA regulations define the types of “qualifying exigencies” for which leave may be required to include the following:

  1. Short Notice Deployments, including issues that arise from a deployment notification received seven days or less before the date of deployment;
  2. Military Events and Related Activities, including military ceremonies, programs, or events, family support or assistance programs, or informational briefings that are related to the deployment;
  3. Childcare and School Activities, including (i) making arrangements for alternative childcare; (ii) providing childcare on an urgent, immediate basis; (iii) enrolling in or transferring to a new school or day care facility; and (iv) attending meetings with staff at a school or day care facility;
  4. Financial and Legal Arrangements, including (i) making or updating financial or legal arrangements, such as executing powers of attorney or transferring bank accounts, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military ID cards, or preparing or updating a will or living trust; and (ii) acting as a covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits;
  5. Counseling, including attending counseling sessions for the employee, a covered military member, or a child related to the deployment;
  6. Rest and Recuperation, including up to five days of leave to spend time with a covered military member who is on short-term, temporary, rest and recuperation leave;
  7. Post-Deployment Activities, including (i) time to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military; or (ii) time to address issues that arise from the death of a covered military member; and
  8. Additional Activities as agreed upon by both the employer and employee.

See 29 C.F.R. § 825.126.

The DOL also has a certification form that employers can use for an employee’s request for qualifying exigency FMLA leave, which is available here.

Takeaways:  There are a variety of potential situations that may make an employee eligible for qualifying exigency leave under the FMLA.  Employers with employees who have family members in the military should make sure that they are familiar with what constitutes a “qualifying exigency” so that they can effectively administer FMLA leave.

Reinstatement Following FMLA Leave

If an employee goes on a leave of absence under the Family and Medical Leave Act (FMLA), does an employer have to reinstate the employee to the exact same position upon the employee’s return to work?  No, although in general, the employee must be reinstated to an “equivalent position.”

Upon returning from FMLA leave, employees are entitled to be returned either to their same position or to an “equivalent position.”  29 U.S.C. § 2614(a).  An “equivalent position” is defined as one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, prerequisites and status.  It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.  29 C.F.R. § 825.215.  Even if the employee has been replaced or his or her position was restructured to accommodate the employee’s FMLA absence, the employee has the right to reinstatement to an equivalent position.

This said, a reinstated employee is not entitled to any more rights or benefits than those to which the employee would have been entitled had the FMLA leave not occurred.  Additionally, there are some specific circumstances when an employer may deny reinstatement.  Layoffs and shift changes are two more common situations where an employer may legitimately deny reinstatement, depending on the facts involved.  If an employer denies reinstatement, the burden is on the employer to prove that an employee would not otherwise have been reinstated to his or her employment.   

Takeaway:     Any time an employee is returning from FMLA leave, there are several things that an employer must consider if the employer intends to reinstate an employee to a different position or deny reinstatement entirely.  The FMLA requirements regarding reinstatement can be complicated, thus, a careful review of these requirements is necessary to limit legal exposure.

The DOL’s FMLA Forms Do Not Comply with GINA

The Department of Labor’s (DOL) prior set of forms for the Family and Medical Leave Act (FMLA) expired at the end of 2011.  Most employers expected that the DOL’s newer forms, which can be found here, would comply with applicable laws.  Unfortunately, the DOL’s new FMLA forms, which state that they are valid through February 28, 2015, don’t comply with the Genetic Information Nondiscrimination Act (GINA).

Although GINA generally prohibits employers with 15 or more employees from requesting or requiring “genetic information” from any applicant or employee, there is a safe harbor for employers who inadvertently receive genetic information in response to a lawful request for medical information, such as for FMLA purposes.

Employers who lawfully request medical information from a health care provider for FMLA certification purposes should include the following recommended “safe harbor” language found in the GINA regulations when making a request:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees and their family members.  In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. 

Employers who use this language and still receive genetic information from a health care provider will be deemed to have received the information inadvertently.

Takeaway:  Employers should realize that they cannot always rely on government forms.  Employers should add the GINA “safe harbor” language to any requests for medical information under the FMLA in order to avoid potential liability for GINA discrimination claims.  The failure to do so leaves an employer at risk for possible discrimination under GINA, depending upon the type of information received in response to such a request.  For more tips on complying with GINA, click here.

Intermittent FMLA Leave

While employees often take leave under the Family and Medical Leave Act (FMLA) in continuous blocks of time, some employees may be eligible for intermittent or reduced schedule leave under the FMLA.  “Intermittent leave” is FMLA leave taken in separate blocks of time due to a single qualifying reason.  A “reduced leave schedule” is a leave schedule that reduces an employee’s usual number of working hours per workweek or workday.  In order to qualify for these types of leave, an eligible employee must show a medical need for FMLA leave that can be best accommodated through an either an intermittent or reduced leave schedule.  See 29 C.F.R. § 825.202.

The DOL’s medical certification form for FMLA leave poses questions to an employee’s health care provider that address whether intermittent or reduced schedule leave is medically necessary.  Potential reasons for intermittent or reduced schedule leave may include planned or unplanned medical treatment or appointments, periodic flare-ups of a serious health condition, morning sickness (for pregnant employees), or a medical recovery that prevents an employee from working on a full-time schedule for a period of time.

Takeaway:  When an employee asks for FMLA leave or provides an FMLA medical certification form, employers should make sure they understand whether the employee is requesting a continuous block of leave or is requesting intermittent or reduced schedule leave.

The Importance of an FMLA Intake Checklist

The federal Family and Medical Leave Act (FMLA) has been a part of the employment law world for almost 20 years.  Nevertheless, it remains often an intrinsically difficult law to administer. Its provisions against interference with an employee’s leave and reinstatement rights and right not to be retaliated against for seeking and taking an FMLA leave are very serious.  And the costs of a leave “gone wrong” can be very high.

The employer with a careful FMLA intake process can reduce the costs and burdens of FMLA administration and assure that only employees who are statutorily eligible get FMLA leave/restatement rights and those who are not, do not.  Key provisions of any FMLA intake checklist are:

  • Employer Eligibility:  Did you have 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year?  Smaller employers can fluctuate in and out of FMLA eligibility status from year to year.
  • Employee Eligibility:  Has the employee completed at least 12 months of service and worked at least 1250 hours during the preceding year?  Is the employee employed at a worksite where 50 or more employees are employed within 75 miles of that worksite?  Does your state have its own FMLA statute with different definitions of “employee”?
  • Is There Sufficient Reason for an FMLA Leave?  Does the employee have a statutorily defined “serious health condition” or have a family member with such a condition as defined in the FMLA?  Has he or she provided sufficient medical certification?  It is very easy for a sympathetic employer to “bend” on certain requests that are not FMLA eligible only to live with difficult precedent in the future when calculating the employee’s remaining leave or handling other employees’ FMLA leave requests.  Any “sympathy” leaves granted that are not FMLA eligible should not be titled an FMLA leave.
  • Don’t Overpromise Regarding Reinstatement:  Be familiar with the specific requirements of reinstatement rights and the latitude provided employers under the FMLA’s “equivalent job” and “key employee” provisions.  Employees often want to “nail down” reinstatement of a specific job at the intake – that is not their right.
  • Is it an Intermittent Leave Request?  Is the employee seeking an “intermittent” or reduced schedule leave?  Sometimes employees are not clear as to whether they need full time off or if a reduced or intermittent schedule would address their FMLA leave needs.  Determining this at the FMLA intake is critical.  If it is an intermittent leave request, then careful consideration of the FMLA’s protections against operational disruption and the possibility of alternative job options will be important.

Takeaway:  Small mistakes at the intake can have large consequences.  Have an FMLA “intake” checklist that includes the factors above as well as other factors as determined by human resources and company counsel.  The right FMLA intake checklist will help assure correct application of the FMLA for leave requests and protect against interference and retaliation claims.

Department of Labor Proposes Amended FMLA Regulations

On January 30, 2012, the U.S. Department of Labor issued a Notice of Proposed Rulemaking seeking to amend the existing Family and Medical Leave Act (FMLA) regulations.  For the most part, the proposed regulations implement statutory changes to the FMLA already enacted in 2009.

Military-Related Leave

The National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) signed into law on October 28, 2009, amended the FMLA statute to expand the parameters of available leave to eligible family members of those serving in the military for either caregiver leave or exigent circumstances leave.

Formerly, caregiver leave was limited to family members of current service members.  The proposed regulations expand coverage to permit leave for family members of military veterans who experience a serious injury or illness suffered in the line of duty within five years of completing their military service, even if the condition does not arise until after the veteran has left the military.  The proposed regulations also provide a three-part definition of a veteran’s serious injury or illness.  Further, the FY 2010 NDAA and the proposed regulations expand leave opportunities to include circumstances in which the service member aggravates a pre-existing condition in the line of military duty.

Formerly, only family members of National Guard and Reserve members were eligible for exigent circumstances leave.  The proposed regulations implement the FY 2010 NDAA extension of eligibility to family members of service members in the Regular Armed Forces as well.  Further, the proposed regulations require deployment-related exigencies to be triggered only by deployment to a foreign country.

Aviation Flight Crew Eligibility

The Airline Flight Crew Technical Corrections Act (AFCTCA) signed into law on December 21, 2009, amended the FMLA to establish special hours-worked eligibility thresholds for airline flight crews.  Previously, flight crews often did not satisfy the FMLA eligibility requirement of having worked at least 1,250 hours in the prior 12 months given safety restrictions on their flight scheduling.  The proposed regulations implement the AFCTCA’s amendment, which creates a different service threshold for flight crews.  Such employees must work or be paid for not less than 60% of the applicable total monthly guarantee (or its equivalent) and have worked or been paid for not less than 504 hours during the previous 12 months, not including personal commute time or time spent on vacation, medical, or sick leave.  The proposed amendments do not affect eligibility requirement for other airline employees. 

Other Provisions

The proposed regulations also seek to make certain other changes to the FMLA regulations.  For example, the Department of Labor seeks to remove the suggested forms and notices previously appended to the regulations.  This change is proposed to accelerate the process by which these forms and notices can be updated.

Public comments on the proposed regulations must be received by the Department of Labor within 60 days of their publication in the Federal Register.

Interference Claims Under the Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) prohibits employers from interfering with, restraining, or denying an employee’s exercise of, or attempted exercise of, any right contained in the FMLA.  29 U.S.C. § 2615(a)(1).  Interference with FMLA rights includes employer actions that deter or discourage an employee from using FMLA leave as well as manipulation by an employer to avoid its responsibilities under the FMLA.  To prove an interference claim, an employee must show that the employer denied benefits to which he or she was entitled under the FMLA.

In Terwilliger v. Howard Memorial Hospital, the court initially held that an employee presented sufficient evidence to survive summary judgment on an interference claim.  770 F.Supp.2d 980 (W.D. Ark. 2011).  The plaintiff testified that, while she was on FMLA leave, her supervisor contacted her weekly to inquire when she would return to work, and that she felt pressured to return to work because of these calls.  On one occasion, the plaintiff asked if her job was in jeopardy, and her supervisor replied that she should return to work as soon as possible.

On the employer’s renewed motion for summary judgment, the Terwilliger court reversed its previous decision and dismissed the plaintiff’s FMLA interference claim.  The court reasoned that the employee was not entitled to additional FMLA leave because her doctor cleared her to return to work.  The court held that “if Plaintiff was not entitled to additional leave under the FMLA, it is impossible to discourage her from taking that leave.”  See Case No. 09-CV-4055 (Nov. 18, 2011 Order).

Takeaway for Employers:  The reconsidered decision in the Terwilliger case is good for employers because it stands for the principle that an employee must be entitled to FMLA leave in order to assert an interference claim.  On the other hand, the supervisor in the Terwilliger case created unnecessary risk by making weekly phone calls to the plaintiff and urging her to return to work as soon as possible.  Employers can reduce this type of risk by training supervisors on appropriate FMLA procedures.

What is FMLA Estoppel?

Under the Family and Medical Leave Act (FMLA), an employer may be estopped from denying an employee’s entitlement to leave under certain circumstances if the doctrine of FMLA estoppel applies.  FMLA estoppel is based on the doctrine of equitable estoppel.  Under equitable estoppel, a party who makes a representation that misleads another person, who then reasonably relies on that representation to his detriment, may not deny the representation.  In the context of the FMLA, this means that an employer may be barred from asserting an affirmative defense contesting an employee’s entitlement to FMLA leave if the employer’s words or conduct misled the employee into relying on the leave.

FMLA estoppel is not available to an employee unless the employee first triggers the protections of the FMLA by providing his or her employer with notice that he or she may need FMLA leave.  The employee must also show that he or she reasonably believed that the employer authorized FMLA leave, as opposed to some other kind of leave.  See Murphy v. FedEx National LTL, Inc., 618 F.3d 893 (8th Cir. 2010).

Takeaway for Employers:  When an employee provides sufficient notice that he or she may need FMLA leave, the employer should be careful to avoid words or conduct indicating that the employee is entitled to FMLA leave before gathering all of the facts necessary to determine whether the employee qualifies for FMLA leave.

Are Healing Pilgrimages Protected Under the Family and Medical Leave Act (FMLA)?

Probably not.  In Tayag v. Lahey Clinic Hospital, Inc., the First Circuit Court of Appeals held that an employee who accompanied her husband on a 7-week “healing pilgrimage” in the Philippines was not protected under the Family and Medical Leave Act (FMLA)See 632 F.3d 788 (1st Cir. 2011).  The court reasoned that the healing pilgrimage did not qualify as medical care under the FMLA’s definitions of “health care provider” or “serious health condition.”

The only possible circumstance in which the court suggested that a healing pilgrimage might qualify for FMLA protection was in the case of religions that reject ordinary medical care—like Christian Science practitioners.  In that circumstance, the court explained that the employer would not need to provide duplicate FMLA leave for both ordinary medical care and spiritual care.

In Tayag, the employee’s husband did not reject ordinary medical care for religious reasons, so the religious exception did not apply.  The employee’s husband’s cardiologist also did not certify that the requested leave was medically necessary.  Therefore, the court held that the healing pilgrimage was not protected under the FMLA.