Here is a “Do” and “Do Not” list based on the outcome of 10 claims for interference and retaliation filed by the U.S. Department of Labor or aggrieved employees that the courts have tried in the first four months of 2014.
Staying in compliance with the Family and Medical Leave Act and the Americans with Disabilities Act presents numerous challenges for leave administrators and employers. One way for human resources professionals to keep out of legal hot water is to pay attention to the ill-advised decisions of others.
2014 Court Outcomes Provide Snippets of Good Advice for Employers
To stay in compliance with FMLA and ADA, employers may want to consider steering clear of the actions that landed these companies in court in the first place.
Do
Do know that an employer may question a single health care provider’s opinion on whether an employee is fit for duty only after the employee has returned to work. While FMLA requires an employer to reinstate the employee to his or her job upon FMLA leave expiration (based only on one doctor’s return-to-work certification), ADA permits an employer to then require a physical or mental re-evaluation of the employee via a fitness-for-duty examination. See 29 C.F.R. §825.312(a) and White v. County of Los Angeles, et al, No. B243471 c/w B244798 (Calif. Ct. App., April 15, 2014). Related article: Once FMLA Leave Expires, ADA Permits Employer to Require a Second Fitness-for-duty Exam.
Do remember that employee rights under FMLA are not absolute. Although an employee may not waive prospective rights under FMLA, a signed severance agreement may, in fact, settle interference or retaliation claims based on past employer conduct. See 29 C.F.R. §825.220(d) and Paylor v. Hartford Fire Insurance Co., 2014 WL 1363544 (11th Cir., April 8, 2014). Related article: Employee Waived Her FMLA Rights by Signing a Severance Agreement, 11th Circuit Affirms.
Do establish and standardize the methodology and criteria to be used in selecting individual employees and positions for inclusion in a reduction in force. In selecting decision-makers for a RIF, an employer should remember that such individuals may ultimately be witnesses in any ADA- or FMLA-related litigation arising from the layoff. See 29 C.F.R. §825.216(a)(1) and Reed v. Tetra Tech, Inc., No. CIV-13-542-M (W.D. Okla., March 10, 2014). Related article: Downsized Employee with Lupus Advances ADA, FMLA Claims.
Do recognize that FMLA protects the right to leave for the physical and/or psychological care of a family member with a serious health condition. Although FMLA does not clarify the meaning of the phrase “care for,” DOL regulations recognize that terminally ill family members might not be receiving active medical treatment at all. Examples include Alzheimer’s, a severe stroke or the terminal stages of a disease. See 29 C.F.R. §825.116, 29 U.S.C. §2612(a)(1)(C) and Ballard v. Chicago Park District, No. 13-1445 (7th Cir., Jan. 28, 2014). Related article: Nonmedical Vegas Trip with Terminally Ill Mother Falls Under FMLA, 7th Circuit Holds.
Do provide the employee an unequivocal notice of dismissal when a termination decision has been reached. A clear, decisive and final employment determination should help avoid uncertainty about a termination’s timing as it relates to the employer’s knowledge of an employee’s disability. See Spurling v. C & M Fine Pack, Inc., 2014 WL 107968 (7th Cir., Jan. 13, 2014). Related article: Employer’s Failure to ‘Carry Through’ with Interactive Process Keeps ADA Claim Alive, Says Court.
Do Not
Do not forget that an employee is entitled to job reinstatement upon return from FMLA leave even if he or she has been replaced or his or her position has been restructured to accommodate the absence. While the restructuring of a business through a RIF may be a legitimate, nondiscriminatory reason for terminating an employee who had incidentally taken FMLA leave, an employer may not deny reinstatement simply for efficiency purposes. See 29 C.F.R. §825.214 and Saulter v. Detroit Area Agency on Aging, 2014 WL 1328330 (6th Cir., April 4, 2014). Related article: Business Restructuring Not Always a Valid Reason to Deny FMLA Job Reinstatement, 6th Circuit Rules.
Do not assume that a chronic health condition automatically qualifies an employee for FMLA leave protection. FMLA only protects leave for “any period of incapacity or treatment for such incapacity due to a chronic serious health condition.” FMLA defines “incapacity” as “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery there from.” See 29 C.F.R. §825.113, 29 C.F.R. §825.115(c) and Hurley v. Kent of Naples, Inc., No. 13-10298 (11th Cir., March 20, 2014). Related article: ‘Potentially Qualifying Leave’ Does Not Trigger FMLA’s Protections, 11th Circuit Rules.
Do not force FMLA leave on an unwilling employee. The employee need not expressly assert his or her rights under FMLA or even mention FMLA, but the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and to obtain the necessary details of the leave to be taken. See 29 C.F.R. §825.220(d), 29 C.F.R. §825.302(c) and Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608, 12-15320 (9th Cir., Feb. 25, 2014). Related article: When FMLA Leave Is Declined, Attendance Policy Violation Justifies Firing, 9th Circuit Affirms.
Do not institute a company policy that requires a doctor’s note for each intermittent absence. Such a policy directly violates FMLA’s recertification procedure. An employer may request recertification in less than 30 days only in the case of changed circumstances or when the employer doubts the continuing validity of the certification. See 29 C.F.R. §825.308(a)(c) and Oak Harbor Freight Lines, Inc. v. Antti, 2014 U.S. Dist. LEXIS 20203 (D. Ore., Feb. 19, 2014). Related article: Employer May Not Request Doctor’s Note for Each Intermittent FMLA Absence, Says Court.
Do not reject an extension of medical leave as a reasonable accommodation for employees with disabilities. A 100-percent-healed policy for employees returning from a leave of absence limits the ability of qualified individuals with a disability to return to work and may act as a “qualification standard” that violates ADA. See 29 C.F.R. §1630.2(q) and EEOC v. UPS, Inc., No. 09-C-5291 (N.D. Ill., Feb. 11, 2014). Related article: 100% Healed Policy when Returning to Work May Violate ADA’s ‘Qualification Standard’, Says Court.