Counterpoint: Keep Selling the Reasons You Need Time Off From Work

By Lisa B. Golan, https://www.golanlawoffice.com

Per the New York Times article “The Death of the Sick Day,” due to new flexible work-from-home and time-off policies, “no longer does [an] employee have to ‘sell’ their sickness to the boss with a list of symptoms.”

I disagree. If employees want to be protected against possible disciplinary action for taking leave, the better course is to “sell it”.  Under the Family and Medical Leave Act (FMLA) eligible employees are entitled to 12 weeks of job protected leave, but only if the employee provides sufficient information for their employer to know that the leave may be for an FMLA qualifying reason. Qualifying reasons include their own or a close family member’s serious health condition (including time off needed for chronic medical conditions); pregnancy and bonding with a newborn, adopted or foster child in their first year; and for qualified exigencies for military personnel and their families.  If employees meet FMLA notice requirements,  their “employers cannot use the taking of FMLA leave as a negative factor in employment action …; nor can FMLA leave be counted under no fault attendance policies.”  29 C.F.R. §825.220(c).  And, the FMLA not only allows employees to take off full-days, with limited exceptions, it also permits employees to work reduced-hours schedules or to take intermittent leave in increments as small as the shortest period of time the employer uses to account for other forms of leave, and at a maximum in hourly increments.  29 C.F.R. §825.202-205.

If an employee with a flexible work-from-home schedule who qualifies for one of these types of leave gets behind – and hasn’t put their employer on notice of their need for FMLA qualifying leave – the employer may be able to end their employment for lack of productivity.  If, however, the employee gave the employer enough information to know that the leave was FMLA qualifying, the employee could only be required to perform at a level proportionate to their time at work. See Pagel v. Tin Inc., 695 F.3d 622, 629 (7th Cir. 2012) (“[The FMLA] require[s] that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.”).

In addition, if an employer doesn’t respect an employee’s request for FMLA-eligible leave and insists that they continue to work from home—for example when they are out on parental leave, this may provide an employee with some protection from a later adverse action or at least with a potential claim for relief under the FMLA.  See Evans v. Books-A-Million, 762 F.3d 1288, 1297 (11^th Cir. 2014) (“It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.”)

So, while the lucky few who have control over their schedules may not be “required” to “sell” why they need off, the safer course may be to disclose FMLA qualifying reasons … just in case the boss has a change of heart about how flexible she wants to be.

Is Time to Transition from Breast-Feeding to Bottle-Feeding Legally Protected?

In a recent blog post, an attorney who represents employers declares that time spent “transitioning a child from breast-feeding to bottle-feeding is not legally protected.”

Is that so? What about Family and Medical Leave Act birth and bonding provisions?  Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to up to 12 work-weeks of leave “because of the birth of a son or daughter … and in order to care for such son or daughter” during “a 12-month period beginning on the date of … birth.”  29 U.S.C. § 2612 (a)(1)(A) and (a)(2).

According to Department of Labor regulations, both mothers and fathers are entitled to FMLA leave for the “birth of their child” and “to be with the healthy newborn child (i.e. bonding time) during [those12-months].”  29 C.F.R. § 825.120 (a)(1) and (a)(2).  If both parents work for the same employer, they are entitled to a combined total of 12 weeks of leave for that purpose.  29 U.S.C. §2612(f)(1); 29 C.F.R. §825.120(3).

So, is time off to transition a healthy infant from breast-feeding to bottle-feeding always FMLA protected leave?  No, not always; such leave is protected only if an employee is FMLA-eligible, has not yet taken off 12 weeks of FMLA leave that year, and if baby is less than a year old.  29 U.S.C. § 2611(2), §2612(1)(A) and (2).

Let’s say this is the usual situation where mom is out for 6 weeks after baby’s birth.  Can she work half-time for the following 3 weeks, i.e. use FMLA reduced-hour-leave to work part-time for the next 3 weeks, to transition baby to a bottle?  That depends on whether mom’s employer will allow it.  Using intermittent or reduced hour leave to take care of a healthy infant is not permitted unless the employee and the employer agree otherwise.  See 29 U.S.C. §2612(b)(1).

So let’s say unsympathetic employer says no- we will not consent to you working part-time to transition your baby to bottle-feeding.  Does mom have any other options?

Well, she could quit her job.  Or, if she has enough remaining FMLA leave time, she could choose not to work at all for the following 3 (or 6) weeks to transition to bottles.

Instead of granting an FMLA-eligible mom any birth and baby bonding leave, can mom’s employer instead require her to continue to work full-time flexible hours from home? Yes, but only if mom agrees.  While mom has the right to 12 weeks of FMLA leave for bonding after birth, she can agree not to take it.

Allowing flexible telework may sometimes be best for mom, baby and boss.  Mom and baby bond without any loss in pay and boss retains a full-time experienced employee without any loss in coverage.  Should we applaud the boss for being flexible? Sure—but let’s give mom a little credit too.

Forcing An Employee Who Requests Intermittent Leave to Take a Continuous Leave of Absence May Violate His Rights under the Family and Medical Leave Act and the Americans with Disabilities Act

Can an employer force an employee to take more medical leave than he requests or desires?

FMLA regulations provide that an employer “may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave.” 29 C.F.R. § 825.205(a). The ADA provides that an employer cannot force an employee to accept an accommodation that he does not want.  42 U.S.C. §12201(d).

In Brown v. Gestamp of Ala. LLC, 2018 U.S. Dist. Lexis 119520, 2018 WL 3455687 (N.D. Ala. 7/18/18), Gestamp required employee George Brown to go out on leave because it alleged that Brown’s doctor’s FMLA certification showed he could not perform his essential job functions.

Brown had requested intermittent FMLA leave from his position as a Materials Handler to address flare-ups of his chronic medical conditions. In each of 2014, 2015 and 2016, Brown’s doctor certified he needed leave for gout, arthritis, hypertension, chronic joint pain, chronic headaches and dizziness. The limitations he listed on Brown’s FMLA form included an inability to lift above 10 pounds or to push, pull manipulate or bend. He stated that Brown could be incapacitated for a continuous period of time for treatment and recovery, and would need to make a doctor’s appointment every 3-4 months with “recovery after flare up in 1-2 weeks.”  He also stated Brown could have “episodic flare-ups [once a month] periodically preventing [him] from performing his job functions,” with 5 days of incapacity per episode.

In 2014 and 2015, Gestamp approved Brown for intermittent FMLA leave which he used sporadically. In 2016, however, Gestamp denied Brown’s request for intermittent leave and instead placed him on continuous leave.  Gestamp alleged that the restrictions listed on Brown’s FMLA form prevented him from safely performing his job.  Brown’s physician refused to remove the restrictions, but did not clarify whether they applied only during flare-ups.

Brown contended he was only limited during occasional flare ups and that he could have continued working with the reasonable accommodation of intermittent FMLA leave. He asserted Gestamp violated the FMLA and the ADA and constructively discharged him by instead forcing him to go out on continuous leave.

The Court found that Gestamp may have been entitled to place Brown on involuntary continuous leave if it had “correctly determined that his limitations required” such leave. The Court also found, however, that because Brown’s doctor provided the same information on the 2014, 2015 and 2016 forms; Brown had “successfully worked in the same position in [2014-2015] with the reasonable accommodation of intermittent leave”; and Brown’s medical condition did not change in 2016, a reasonable jury could find that Brown was qualified for his position and was only limited during flare-ups that could be accommodated by intermittent leave.

The Court concluded that Gestamp had not constructively discharged Brown –who resigned after a month of continuous leave, but that Brown had presented jury issues requiring trial on his ADA reasonable accommodation claim and on his FMLA interference and retaliation claims.

Part-Time Work Can Be A Reasonable Accommodation Under the ADA

A new case out of the Sixth Circuit debunks the oft-cited premise that full-time presence at work is an essential function of all jobs.  In Hostettler v. College of Wooster, 2018 U.S. App. LEXIS 19612; 2018 FED App. 0140P (6th Cir. July 17, 2018), an HR Generalist who suffered from post-partum depression and separation anxiety requested a part-time schedule after her return from maternity leave.  Her employer initially granted this request, but fired her when she asked for an extension, asserting that she could not perform her job while working part-time.  The District Court granted the College’s motion for summary judgment on Hostettler’s disability discrimination claim, holding that full-time work was an essential function of her HR position.

In opposition to her employer’s motion, Plaintiff submitted her own testimony and that of a former colleague that she was able to satisfactorily complete her essential functions while working part-time, including by working after-hours from home.  She also stated that she had offered to increase her hours. Although her employer disputed this and contended Plaintiff’s modified schedule put a strain on the rest of the department; it had given her a satisfactory review and did not replace her with a full-time employee for several months. The Court found this competing evidence precluded summary judgment and reversed the decision of the District Court.

In reversing, the Court distinguished prior cases holding that full-time work was essential, finding that those cases were based upon “a fact-intensive analysis of the actual job requirements.”  The Court concluded that “[o]n its own … full-time presence at work is not an essential function. An employer must tie time-and-presence requirements to some other job requirement.”  It summed up as follows:

“[F]ull-time presence at work is not an essential function of a job simply because an employer says that it is. If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week. That could mean denying leave for doctor’s appointments, dialysis, therapy, or anything else that requires time away from work. Aside from being antithetical to the purpose of the ADA, it also would allow employers to negate the regulation that reasonable accommodations include leave or telework. 29 C.F.R. § 1630.2(o)(2)(ii).

Wooster may have preferred that Hostettler be in the office 40 hours a week. And it may have been more efficient and easier on the department if she were. But those are not the concerns of the ADA: Congress decided that the benefits of gainful employment for individuals with disabilities—dignity, financial independence, and self-sufficiency, among others—outweigh simple calculations of ease or efficiency. To that end, the ADA requires that employers reasonably accommodate employees with disabilities, including allowing modified work schedules. An employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.”

The Sixth Circuit also reversed the district court’s grant of summary judgment on Plaintiff’s FMLA equitable estoppel claim.  The District Court had held that Plaintiff’s FMLA claim was barred because Hostettler had taken more than the 12 weeks of leave permitted by the FMLA.  In reversing, the Sixth Circuit found that equitable estoppel “can prevent a defendant from challenging not only FMLA eligibility, but also entitlement to an FMLA benefit.”  It concluded that Plaintiff had submitted sufficient evidence of reasonable reliance to her detriment on Wooster’s misrepresentations to present a jury issue.

Employer Reactions to Requests for Family and Medical Leave Act (FMLA) Leave in the Eleventh Circuit– The Good, The Bad and The Ugly

Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261 (11^th Cir. 2017)

The Good: An activities director for a long term care facility requested leave under the Family and Medical Leave Act for rotator cuff surgery and recovery.  His employer provided him with 12 weeks of FMLA leave and another 30 days of extended leave when the employee’s doctor and physical therapist were not comfortable releasing him to return to work without restrictions.

The Court rejected Plaintiff’s claim that his employer interfered with his right to FMLA leave by dissuading him from returning to work on light duty restrictions. While light duty work may be a reasonable accommodation under the Americans with Disabilities Act – the FMLA does not require an employer to provide accommodations to enable an employee to return to work.

The Bad:  During his extended leave, the employee posted photos posing at Busch Gardens and at the beach on his Facebook page.  Within a month after the he returned from leave he was suspended and then terminated allegedly because his Facebook photos demonstrated that he was abusing and misusing FMLA leave and could have earlier returned to work.

The District Court held that the more than 4 months between when Plaintiff’s leave began and the date he was terminated was too long to show that his termination was caused by his leave.  In reversing, the Eleventh Circuit held that “temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last [rather than the first] day of an employee’s FMLA leave” and that one month was sufficiently close to raise “a genuine dispute as to whether [the employee’s] taking of FMLA leave and his termination were casually related.” The Court also found that Plaintiff’s supervisor’s “alleged comment that “corporate was not going to like the fact that [Jones] was taking FMLA leave during the ‘survey window'” corroborated Jones’s claim that his FMLA leave and his termination were not “wholly unrelated.”

To rebut this prima facie case of retaliation, Jones’s supervisor asserted among other things that he was terminated because he missed physical therapy for the week he was vacationing (known by Gold Coast to be untrue before he was fired) and because his photos allegedly created a morale issue contrary to the company’s social media policy (a claim not raised before his termination and not supported by the purpose of the social media policy which was to prevent negative postings about staff or facilities).  The Court held that on this record “a jury could reasonably conclude that [Plaintiff’s supervisor’s] explanations are inconsistent, contradictory, and implausible” and remanded Jones case for a trial on the merits.

Hicks v. City of Tuscaloosa, 2017 U.S. App. LEXIS, 2017 WL 3910426, Case No. 16-13003 (11^th Cir. 9/7/17)

 The Ugly:   In Hicks, the Eleventh Circuit affirmed a jury verdict for Plaintiff on her Pregnancy Discrimination Act (PDA) and FMLA claims.  The jury awarded Hicks $374,000 – reduced by the magistrate judge to $161,319.92 plus costs and attorneys’ fees.

Hick’s supervisor told Hicks more than once that she should take only 6 weeks of FMLA leave for the birth of her child, rather than the entire 12 weeks to which she was entitled and which she actually used.  Although before this leave, Hicks’ review stated that she “exceeded expectations,” on Hicks’ first day back, her supervisor wrote her up and Hicks was thereafter reassigned to a less favorable position and refused the alternative duty requested to allow her to breastfeed. The jury concluded that the City’s actions constituted discriminatory discharge.

The jury was possibly swayed by the supervisor’s admission that she called Hicks a b****, by Hicks testimony that she overheard her supervisor calling her a b**** and telling their new Captain that she would find a way to write Hicks up and get her out of there, and another officer’s testimony that he overheard the supervisor talking loudly about Hicks saying “that stupid c*** thinks she gets 12 weeks. I know for a fact she only gets six.”  It sounds like the City would have benefited from the EEOC’s new training program on respectful workplaces.

Per the Eleventh Circuit: “The evidence taken in the light most favorable to Hicks provides ample evidence that Hicks was both discriminated against on the basis of her pregnancy and … retaliated against for taking her FMLA leave. Multiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when she returned to when she was reassigned support the inference that there was intentional discrimination.”

The Eleventh Circuit also found that a plain reading of the PDA supports the finding that it covers discrimination against breastfeeding mothers.

 

Family and Medical Leave Act Update: Federal Circuit Court Approves Mixed Motive Charge for FMLA Retaliation Case

By Lisa B. Golan

http://www.disability-discrimination-attorney.com

In Egan v. Del. River Port Auth., 851 F.3d 263 (3^rd Cir. 2017), the Third Circuit Court of Appeals held that “an employee does not need to prove that invoking [Family and Medical Leave Act] FMLA rights was the sole or most important factor upon which the employer acted;” but must only show that the employer “consider[ed] an employee’s FMLA leave ‘as a negative factor’ in employment decisions.”

The Family and Medical Leave Act of 1990, as amended, prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise, any right provided by the FMLA.  29 U.S.C. §2615(a)(1).

Congress expressly gave the Secretary of Labor the authority to prescribe regulations necessary to carry out the FMLA.  29 U.S.C. §2654.  Pursuant to this authority, the Department of Labor prepared a final rule interpreting §2615(a)(1) that states:

“The Act’s prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. … [E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions… .”

29 CFR § 825.220(c)(emphasis provided).

Although the purpose of 29 CFR § 825.220(c) was to clarify that “interference” with FMLA rights includes taking negative action against an employee for exercising FMLA rights– including the right to take medical leave,  courts typically refer to an employee’s claim that he has been discriminated against for taking FMLA leave as a “retaliation” claim.  Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1247 (11th Cir. 2015).

To state a claim for such FMLA retaliation, an employee must allege sufficient facts to plausibly suggest that: “(1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) that the decision was causally related to the protected activity.” Id.

 The Department of Labor’s regulation provides that a plaintiff can carry his burden of proof in such a case by showing that the exercise of his FMLA rights was a “negative factor” or a “motivating factor” in the defendant’s decision.

The 2013 Eleventh Circuit pattern jury charges suggest, however, that pursuant to the Supreme Court’s decisions in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009)(ADEA case) and University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 186 L. Ed. 2d 503 (2013)(Title VII retaliation case) the “traditional”  but-for causation standard should be applied to FMLA retaliation claims because the FMLA does not specify a  burden of proof.  The 2013 pattern FMLA retaliation charge states that in order to prevail a plaintiff must show that his “FMLA-protected activity was the main reason for defendant’s decision.” Eleventh Circuit Pattern Jury Instructions- Civil (2013), Instruction 4.15 (emphasis added).

The Eleventh Circuit pre-Gross and Nassar Instruction used a “substantial or motivating factor” analysis, providing: “It is not necessary for the Plaintiff to prove that leave or the request for leave was the sole or exclusive reason for Defendant’s decision.  It is sufficient if the Plaintiff proves that [taking the leave] [requesting of leave] was a determining factor that made a difference in to the employer’s decision.” Eleventh Circuit Pattern Jury Instructions- Civil (2005), Instruction 1.8.1.

Until this month, neither the Eleventh Circuit nor any other Circuit had decided whether Gross and Nassar require this change.  See Caldwell v. Clayton County Sch. Dist., 604 Fed. Appx. 855, 860 (11th Cir. 2015) (holding without considering this issue that a plaintiff  in an FMLA retaliation case must show only that “the protected activity and adverse action were not completely unrelated.” )  See also Klein v. L-3 Communs. Corp., 2013 U.S. Dist. LEXIS 156663, *47-48 n.19 (M.D. Ala. Nov. 1, 2013)(“ [T]he Court is unaware of any case law extending the holding of Nassar to FMLA retaliation claims, and, therefore, it will continue to follow the proximate cause analysis”).

The first federal circuit court to expressly consider this issue now holds that a “motivating factor” test rather than a “but for” burden of proof should be applied to FMLA retaliation claims under 29 U.S.C. §2615(a)(1).  In Egan v. Del. River Port Auth., 2017 U.S. App. LEXIS 4993 ( 3^rd Circ. March 21, 2017), the Third Circuit Court of Appeals found that although no causation standard was stated for FMLA retaliation claims, the Department of Labor’s construction of the statute was reasonable and was entitled to Chevron deference.  The Court concluded that instead of refusing to give a “mixed motive” charge because there was no direct evidence of retaliation, the District Court “should have determined whether there was [circumstantial] evidence from which a reasonable jury could conclude that the [defendant] had legitimate and illegitimate reasons for its employment decision and that [plaintiff]’s use of FMLA leave was a negative factor in the employment decision.”

In so doing, the Court reaffirmed pre-Nassar precedent holding that an employee in an FMLA retaliation case need not show that exercising FMLA rights “was the sole or most important factor upon which the employer acted;” but need only show it was a “negative factor” in an adverse employment decision.

Family and Medical Leave Act Update: Travel Costs Recoverable As Element of FMLA Damages

By Lisa B. Golan

http://www.disability-discrimination-attorney.com

Diamond v. Hospice of Fla. Keys, No. 15-15716, 2017 U.S. App. LEXIS 1483 (11th Cir. Jan. 27, 2017).

In this FMLA case out of the Southern District of Florida, the employer required  an employee to provide more than the normal Family and Medical Leave Act certification to support her request for leave to take care of her seriously ill mother.  In addition to a doctor’s note she was asked to produce gas and food receipts to prove she had in fact gone to assist her mother.

The employee was fired two weeks after she returned from a 13 day leave, which she had taken on short notice.  HR had told her that her “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization,” and had identified specific “examples of ‘quality of care’ suffering due to repeated ’emergent’ leaves of absence.”

The District Court granted summary judgment to the employer, holding as a matter of law that the employee had not shown any prejudice as the result of the employer’s interference with her right to FMLA leave.

The Eleventh Circuit disagreed:  “For example, if a jury believed Diamond’s testimony that she would have taken more days off in April 2014 had Chennault not discouraged her from doing so, Diamond could prove that she sustained “monetary losses” “as a direct result of the violation,” such as the cost of “traveling 300 miles each way to [her] parents’ home” “despite the care recommended by [her] mother’s MD for the entire month of April.”

The Eleventh Circuit also reversed the District Court’s holding that the employer had a legitimate performance-based reason for firing the employee. It held that the close nexus in time between the employee’s leave and her termination and the negative statements made to her regarding her use of FMLA leave created a question of fact for the jury:  “A reasonable jury could conclude that Hospice’s proffered reasons were not what actually motived its conduct and that Diamond was discriminated against for having exercised her FMLA rights.”

This is the first 11^th Circuit case I’ve come across that holds that travel costs are recoverable as “other compensation … lost … by reason of the violation.”  It’s consistent with FMLA legislative history – which includes testimony that leave for travel time was necessary to allow employees to care for family members with serious health conditions.  See HOUSE REPORT NO. 103-8(I) February 2, 1993.

Firing An Employee Based on FMLA Technicalities Can Result in Attorney’s Fees

An employee claims she’s injured her knee – again – and has been referred to an orthopedist.   She requests medical leave and asks for Family and Medical Act leave forms.

Then she asks for a couple of extra days to return the forms claiming that her orthopedist is on leave.  In the meantime, she faxes in past doctors notes that released her to return to work more than 10 days earlier.  Her doctor eventually faxes in her FMLA forms – 4 days late.  The forms request a total of 13 weeks leave although the FMLA allows only 12.

The employer – “shocked” that the employee is requesting leave when her doctor has already authorized her return – fires her before her FMLA forms are reviewed.  Is this okay?

No way Jose.

In White v. Beltram Edge Tool Supply, Inc. the Eleventh Circuit holds that when an employee makes a request for unforeseeable FMLA leave, she need only provide as much notice “as is practicable” and need only “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”  Whether an employee in fact has a serious health condition qualifying her for leave depends upon all the facts, not just those known to the employer at the time of termination.  And requesting more than 12 weeks leave at the outset will not disqualify an employee from getting any FMLA leave at all.