Top Takeaways from Recent FMLA Mistakes

Posted August 5, 2016 by Megan DiMartino

1. When calculating FMLA entitlement, include overtime and “working lunches”

An employee’s actual work week, which includes overtime and working breaks, is the basis for determining FMLA leave entitlement. In a recent case, an employee put his name down for certain overtime shifts and the overtime then became mandatory which the employer should have calculated into his FMLA allotment for the year in accordance with 29 C.F.R. §825.205(b)(3). The overtime hours were not considered, therefore sending the claim to trial.

2. In calculating amount of leave used, don’t include days an employee is not scheduled
FMLA leave may be taken in periods of weeks, days, hours and sometimes less than an hour. So when calculating the amount of leave taken, employers must exclude the days an employee would not be working, such as weekends, temporary closures and holidays.
In one case, an employer included weekends into the employee’s FMLA allotment and fired her when they thought her leave was used up. The employer tried to argue that their plant was closed for the holidays which would add to her FMLA leave, but the court noted that “if the employee is not scheduled to report for work, the time period involved may not be counted as FMLA leave.”

3. Neither a medical emergency nor a request using the word “FMLA” is required
One employee came out on top after her employer argued that FMLA leave was limited to medical emergencies. The court found it undisputed that her parents had serious health conditions and she was entitled to FMLA to make arrangements for their care. The court also found that her FMLA was unforeseeable and that she was only required to provide notice as soon as practicable. The employer could have asked have asked for more information regarding her parents’ health.
The employer can also ask for more information when it comes to the employee’s need for FMLA. For example, an employee with a history of migraines that was marked down as having “headaches” was wrongfully terminated under the employer’s attendance policy. In another case, an employee receiving treatment for high blood pressure was having chest pains and thought it may be a heart attack. So he advised a coworker to let his manager know of his leaving, but he was considered a “voluntary quit” since he didn’t notify his manager himself. But the federal court found triable issues on whether he provided sufficient notice of the need for FMLA leave.

4. Give employees a chance to provide certification
Lawsuits often arise if FMLA certification is found incomplete. In a recent case, an employee provided certification for the need to care for her son hospitalized with diabetes, but then also sent a new FMLA request after he broke his leg. She repeatedly asked if she needed to submit more information, and eight days later received a letter stating her paperwork did not justify her absences after never receiving a response to her initial submission. The HR director only sent back DOL brochures after the employee sent several emails asking about what paperwork was needed. She was fired for job abandonment, but in an appeals court a jury could find the employee made good-faith efforts to provide the required certification and then unjustly relieved of her job.
Another case shows that the employer fired the employee a day after requesting her medical certification. An employer may deny leave certifications, explained the federal court, but 29 C.F.R. §825.305(b) defines timeliness to be 15 calendar days from the date of request. It is required that employers warn employees in writing of the consequences of failing to return their certification in a timely manner.

5. Communicate with employees
It is important to communicate with employees who request information about their FMLA obligations as well as regarding their job status and what they can expect to change in their absence. An employer held its employee liable for liquidated damages under FMLA because they failed to answer her questions regarding the handling of her accounts and commissions while she was out on maternity leave – leaving her with lost commissions and transferred accounts.

6. You can require the use of customary notice procedures for absences, but with caveats
Most often, cases that employers face are employees that are denied leave or disciplined for not following proper call-in procedures. FMLA leave may be unforeseeable and employees need only provide notice “as soon as practicable,” although it is generally required to call-in to advice of absences. In one case, an employee overslept after taking their bipolar medication and failed to call in prior to their shift. A jury could find that calling in late was “as soon as practicable” and that firing the employee was interfering with FMLA rights.

7. Avoid derogatory remarks about those who take leave
In a federal case, an employee was fired 13 days after returning from FMLA for heart surgery and won an extra $308k when the employer failed to show it acted in good faith. The employee had a visible heart pack and the supervisor made disdainful comments such as, “don’t die at the desk or I am going to drag you outside and throw you in a ditch.” And if that wasn’t enough, the employee was also threatened with demotion.

8. Be consistent in your treatment of employees before and after leave
Taking FMLA shouldn’t be used as a punishment and if treated differently or terminated because of it is enough to file an FMLA retaliation claim. In such case, an employee claims her supervisor “watched her like a hawk” after taking more FMLA leave and was placed on two performance improvement plans and fired after allegedly violating attendance and personal phone usage policies.

9. Adjust goals downward for employees who take FMLA leave
Not only is treatment of employees before and after FMLA leave important, but so is the adjustment of the employee’s goals. In one case, an employer didn’t adjust the sales goal of an employee out on intermittent FMLA and then fired her for failing to meet such goals. So it could be ruled that she was terminated due to taking FMLA leave.

10. Not every deviation from what you expect of a seriously ill person suggests FMLA abuse
FMLA abuse is not always clear, so employers must tread carefully. In one case, an employer let an employee leave to go to the hospital after he found blood in his stool, but instead the employee walked down the road to enjoy a cup of coffee at a nearby diner and didn’t contact the health department until the next day – which he was diagnosed with colitis and diverticula. He was fired for walking off the job, but a federal court found triable questions if he gave an FMLA-qualifying condition thus triggering an FMLA retaliation action.

Source: Wolters Kluwer | Ten things employers can learn from recent FMLA suits 

Links:
DOL Wage and Hour Division – Family and Medical Leave Act
DOL Wage and Hour Division Factsheet: Joint Employment and Primary & Secondary Employer Responsibilities Under the FMLA
DOL Wage and Hour Division Factsheet: Employee Notice Requirements under the FMLA
FMLA Posters
DOL Wage and Hour Division Factsheet: Calculation of Leave under FMLA

For more information contact info@apbenefitadvisors.com. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.