Leave policy administration under the FMLA and the ADA presents numerous challenges to employers.
Following is a “Do” and “Do Not” list based on the outcomes of 10 interference and retaliation claims by aggrieved employees that the courts have heard in the last five months.
- Do see if short-term disability benefits are granted or denied to the employee on leave before you request FMLA medical certification. FMLA permits an employer to request medical certification — even after the requisite five business days following an employee’s notification of leave because of a serious health condition — if the employer suspects that the reason for an employee’s leave or its duration may not be appropriate. See 29 C.F.R. §825.305(b)and Kinds v. Ohio Bell Telephone Company, No. 12-4048 (6th Cir. July 29, 2013).
- Do inform your employees of their responsibility to issue notice sufficient enough to reasonably apprise you that their request to take time off could fall under FMLA. While employers may have a duty to inquire further if statements made by the employee warrant it, “the employer is not required to be clairvoyant.” See 29 C.F.R. §825.303(b) and Lanier v. University of Texas Southwestern Medical Center, No. 12-10928 (5th Cir. June 12, 2013).
- Do err on the side of caution and treat the situation as FMLA leave, even when you have doubts on whether an employee is seeking time off for a reason that could qualify under FMLA. FMLA does not require an employee to use the word “FMLA” to be protected under FMLA. See 29 C.F.R. §825.301 and Wiseman v. Awrey Bakeries, LLC, No. 11-2323 (6th Cir. May 22, 2013).
- Do require a fitness-for-duty certification as a condition of restoring the employee whose need for leave was due to his or her own serious health condition. The certification is at the employee’s own expense and there is no entitlement to reimbursement for time or travel costs. See Miles v. Nashville Electric Service, No. 12-6028 (6th Cir. May 9, 2013).
- Do limit your communications with employees on FMLA leave. There are reasonable and defensible amounts of contact for an employer to make with an employee on leave, but none involves asking your employee to do his or her core job while on leave. See Vess v. Select Medical Corp., No. 3:11 CV 2549 (N.D. Ohio, March 15, 2013).
Do Not
- Do not penalize an employee for increasing requests for, or use of, FMLA-qualifying leave. No-fault attendance policies may simplify the administration of attendance issues, but employers should be careful not to count absences protected by FMLA and ADA. See Green v. Wal-Mart Stores, East, L.P., WL 3223629 (S.D. Ohio, June 25, 2013).
- Do not assume that paid volunteers or interns are ineligible under FMLA. To determine if contractors fall under FMLA’s definition of “eligible employee,” employers should consider the “economic reality” test, adopted by the U.S. Supreme Court, and assess whether courts would perceive hourly wages as nominal fees or compensation under the Fair Labor Standards Act. See Mendel v. City of Gibraltar, No. 12-1231 (6th Cir. Aug. 15, 2013).
- Do not fail to request a recertification from your employee on leave if there is a substantial change in circumstances. FMLA permits employers to substantiate an employee’s request for leave by requesting a recertification. See 29 C.F.R. 825.308(b) and Hansen v. Fincantieri Marine Group, LLC, No. 12-C-032 (E.D. Wis., June 14, 2013).
- Do not impose probation on employees for excessive absences that include leave under FMLA as this would dissuade most employees from taking FMLA leave in the future. This is in direct violation of FMLA. See 29 C.F.R. §825.220(c) and Bravo v. Union County, 2013 WL 2285780 (D. N.J., May 23, 2013).
- Do not forget that when an employee gives notice of FMLA-related leave, the employer must provide three FMLA notices: Eligibility Notice, Rights and Responsibilities Notice and Designation Notice. See 29 C.F.R. §825.300(b).
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