FMLA

EMPLOYER ALERT – SOME FMLA RIGHTS ACCRUE PRIOR TO ELIGIBILITY FOR LEAVE

Can an employee who has worked for a company less than one year sue the company for violating the Family and Medical Leave Act (“FMLA”)? The answer, according to January 10, 2012 decision of the federal Eleventh Circuit Court of Appeals, is yes.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, had been employed by Brookdale for eight months when she told her employer that she was pregnant and would be requesting FMLA leave upon the birth of her child. By the time of her expected delivery date, she would have been employed by the company for 13 months, thereby satisfying the one-year of employment requirement for leave eligibility under the FMLA.

After 11 months of employment, however, she was terminated, allegedly to prevent her from becoming eligible for leave. She sued in federal district court in Miami, claiming that her employer violated the FMLA by interfering with her right to leave and by retaliating against her for requesting FMLA leave. The district court dismissed the case, stating that she had no right to bring a suit under the FMLA because at the time the events occurred, she was not an eligible employee under the FMLA since: (1) she had not worked for the company for more than one year; and (2) the triggering event that would entitle her to leave – the birth of her child – had not yet occurred.

On appeal, the Eleventh Circuit reversed that decision and remanded the case to the trial court for further proceedings. Recognizing that Pereda had a right to file a lawsuit under the FMLA even though she was not yet eligible to take leave on the date she was fired, the court stated as follows: “We are simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

In the underlying case, the plaintiff claimed that prior to advising her employer that she was pregnant and would be requesting FMLA leave, Pereda was considered “a top employee.” Afterward, according to the allegations in the lawsuit, her employer began harassing her “and denigrating her job performance and placed her on a performance improvement plan with unattainable goals.” She was then written up for excessive absenteeism (absences for medical appointments that she claimed had been authorized by her supervisor), and was fired during her 11th month of employment. Based upon the Eleventh Circuit’s ruling, this case will now proceed to trial, and a jury will determine whether or not the employer in fact did interfere with Pereda’s FMLA rights, and fired her in retaliation for her intention to take leave.

The best approach for employers is to review carefully any sudden change in performance evaluations for an employee who has provided notice of intent to take leave under the FMLA, regardless of whether the employee is eligible for FMLA at the time the request is made. If there has been a decline in performance, make sure it is objectively documented, and be certain that the supervisor is not biased by the fact that an employee who has been with the company less than one year is planning to take up to 12 weeks leave as soon as they become FMLA-eligible.

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EMPLOYER ALERT – ARE YOU FOLLOWING THE NEW FMLA NOTICE REQUIREMENTS?

The FMLA’s notice requirements for employers have been the subject of considerable confusion in the past. Under the Department of Labor regulations that went into effect January 2009, the notification requirements are consolidated into a single section (29 C.F.R. §825.300), and conflicting provisions and time periods in the former regulations have been eliminated.

Employers who fall under the FMLA (50 or more employees within a 75 mile radius) must provide the following notifications:

(1) General Notice to Employees. The employer must provide general information about the FMLA through a poster (available from the DOL) placed in a conspicuous place, and by including the information either in the employee handbook or in written material given to the employee at time of hire. A notice that may be used by employees is available from the DOL at:
www.dol.gov/esa/whd/fmla/index.htm.

(2) Eligibility Notice. Once an employee requests FMLA leave, or the employer has a basis to believe that the employee’s leave maybe for an FMLA-qualifying reason, the employer must provide an “Eligibility Notice” to the employee within five (5) days, absent extenuating circumstances. This notice must either advise the employee that they are eligible for FMLA leave, or explain why they are not. A form eligibility notice is available for download at the DOL website referenced above.

(3) Rights and Responsibilities Notice. The employer must also provide a “rights and responsibilities notice.” This notice can be combined with the eligibility notice, and is a single document on the DOL form described above. Part A of the form is the eligibility notice, and Part B explains the rights and responsibilities of the employee. This notice should include the following, as applicable:

a. a statement that the leave is counted against the employee’s 12-month entitlement under the FMLA, and an explanation of which method the employee uses to calculate the FMLA year (i.e. calendar, rolling, etc.);

b. any obligation for the employee to provide a certification of serious health condition, exigency (military), etc. and the consequences of failing to provide such certification. A copy of the certification form required by the employer may be included with this notice;

c. the employee’s right to substitute paid leave (consistent with the company’s leave policies), or the employer’s requirement that paid leave be substituted;

d. any requirement that the employee pay a portion of the health insurance premium during leave, and the consequence should the employee fail to do so;

e. any designation of the employee as a “key employee” under the FMLA, and the effect of that status on job restoration;

f. the employee’s right to maintain health insurance benefits during leave and restoration after leave;

g. the employee’s liability for health insurance premiums paid by the employer during leave, in the event that the employee fails to return to work after the leave;

h. any other appropriate information that should be communicated to the employee – for example, a requirement that the employee make periodic reports to the employer regarding intent to return to work.

(4) Designation Notice. The designation notice must be sent within five (5) days of the determination that in fact the leave is covered by the FMLA. This determination can be made in some cases when the initial request for leave if submitted by the employee, and in other cases will not be made until the employer receive a certification of serious health condition. This form must specify the number of hours, days and weeks that will be counted against the employee’s FMLA leave entitlement (if known). If the employer requires a fitness-for-duty certificate for the employee to return to work, that requirement should be stated in this notice. A form designation notice (with boxes to check off) is also available at the DOL website.

Don’t wait until an employee requests FMLA leave – take time now to review your company’s FMLA notice procedures to make sure they are in compliance with the current regulations.

EMPLOYER ALERT – FMLA COVERAGE EXPANDED

The Family and Medical Leave Act provides for 12-weeks of unpaid leave for individuals working for companies with 50 or more employees. New legislation has expanded the total amount of leave to 26 weeks for any employee who is the spouse, son, daughter, parent or “next of kin” of a member of the armed forces who needs care resulting from a serious injury or illness incurred while on active duty.

The expanded leave may only be used during a single 12-month period, and the 26 weeks is cumulative to standard FMLA. Accordingly, an employee who uses 12 weeks of FMLA leave for their own medical condition, would have a balance of 14 weeks of expanded leave to use for a relative in the armed forces during that same 12-month period. The addition of the term “next of kin” applies only to this expanded leave, and is defined by the FMLA as “closest blood relative.”

In related news . . .

The Department of Labor (“DOL”) recently proposed a number of changes to the FMLA regulations. Key changes that would benefit employers include the following:

Medical Certifications: The new regulations would allow employers, under limited circumstances, to directly contact the employer’s health care provider for clarification or authentication of FMLA medical certification forms. Employers would still have to comply with the privacy requirements of HIPAA, but would no longer be frustrated by medical certifications which, in the DOL’s words, are “vague, ambiguous or non-responsive.”

Continuing Treatment: Employees with a serious health condition requiring continuing treatment but no prescribed medication would have to receive follow-up care from their health care provider within 30 days of the initial visit to qualify under FMLA.

Notice Requirements Tightened: The open-ended notice requirement for employees who become aware of the need for FMLA leave less than 30 days from the anticipated commencement of the leave would be shortened to the same day or next business day.

Fitness-for-Duty: The current FMLA regulations severely limit the circumstances under which an employer can require a “fitness-for-duty” certification from a returning employee’s health care provider. The new regulations would increase employer rights in demanding fitness-for-duty certificates, and also expand the type of information an employer can require.

These proposed regulations are currently under review while the DOL considers comments that have been received from the public and various advocacy groups.