Facebook may not always be an employee's "friend"...

From time to time, employers may suspect that an employee is abusing FMLA leave.  In such instances, the challenge becomes obtaining sufficient evidence on which to prove that the employee has engaged in such abuse, knowing that any decision to deny FMLA leave or discipline an employee for FMLA abuse will be subject to challenge.

In a recent decision,  Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697, 2012 U.S. App. LEXIS 23162 (6th Cir. Nov. 7, 2012), the Sixth Circuit determined that the employer had adequately supported its determination that the employee had abused FMLA leave.  The source of proof?  Facebook photos published by the employee.

In Jaszczyszyn, an employee took intermittent leave under the FMLA for pain associated with a prior back injury.  The certification submitted by the employee’s physician stated that the pain caused her to be incapacitated, such that she could not report to work when having a flare up.  While on leave, the employee attended a local Polish heritage festival.  Over the eight-hour period the festival ran, the employee was photographed visiting various Polish Halls with friends.  When those 127 photos surfaced on Facebook and were discovered by the employee’s coworkers (her Facebook friends), Advantage Health took steps to investigate. 

Advantage Health met with the employee to discuss the exact limitations imposed by her medical condition and confirm that the pain rendered her incapacitated and unable to work.  It then questioned her about the Facebook photos.  The employee did not deny engaging in the conduct and did not dispute that the photos painted a picture quite unlike that presented in her medical certification.  Because the employee could offer no satisfactory explanation for her conduct, Advantage Health terminated her employment.

The Court of Appeals for the Sixth Circuit granted summary judgment to the employer on both the FMLA interference and retaliation claims.  With respect to the retaliation claim, the Sixth Circuit agreed with the district court that the employer had an honest belief that the employee’s behavior was fraudulent, and the employee did not present any evidence that the employer has acted for any other reason. 

Next week, Duane Morris Institute will be offering a Webinar on the Department of Labor's Final FMLA Regulations.

https://www.societyinsight.com/WebcastDesc.aspx?brandingid=1738&webcast_id=76069

On February 5, 2013, the U.S. Department of Labor (DOL) issued its Final Rule implementing important expansions of the Family and Medical Leave Act (FMLA) relating to the military leave provisions and the eligibility for and calculation of FMLA for certain airline personnel. These regulatory changes implement and interpret statutory amendments to the FMLA pursuant to the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The Final Rule also clarifies the manner in which employers calculate an employee’s use of intermittent FMLA leave as well as reiterates an employer’s obligation to comply with the confidentiality provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).

In anticipation of these changes, employers must update their FMLA policy and practices and ensure that they are using the modified DOL notice and certification forms. This 1 hour webinar will highlight the necessary policy changes employers should implement as well as the impact of these changes on day to day FMLA compliance practices.

To register, please see the link below.

https://www.societyinsight.com/WebcastDesc.aspx?brandingid=1738&webcast_id=76069

I am pleased to share with you a recent Client Alert I co-authored on the Department of Labor's Final FMLA Regulations.  http://www.duanemorris.com/alerts/DOL_issues_final_FMLA_regulations_4769.html

These regulatory changes implement and interpret statutory amendments to the FMLA pursuant to the National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The Final Rule also clarifies the manner in which employers calculate an employee's use of intermittent FMLA leave, as well as reiterates an employer's obligation to comply with the confidentiality provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).

Thank you.

Linda Hollinshead

This week, the Eleventh Circuit held that a former employee may pursue FMLA claims against her employer, despite the fact that she was a new employee and failed to meet the eligibility requirements under the law.  How is this possible?   

In Pereda v. Brookdale Senior Living Communities, Inc., 11^th Cir., No. 10-14723, Jan. 10, 2012, an employee gave advanced notice of her need for FMLA leave in connection with her pregnancy.  Shortly after informing her employer of her pregnancy, the employee was placed on a performance improvement plan and ultimately terminated from her position.  The now former employee brought FMLA interference and retaliation claims against her employer.   

At the time the employee made the request for leave, she had not met the FMLA’s eligibility requirements.  Her employer, Brookdale, alleged that her FMLA claims failed because she was not eligible for FMLA leave.  It was undisputed that the employee would have met the eligibility requirements at the time she would have taken her leave.  The former employee asserted that if her FMLA claims were not permitted to proceed, employees would fear that they would be retaliated against for providing advanced notice of their need for leave as required under the FMLA.   

The Eleventh Circuit ruled that because the FMLA requires employees to provide advanced notice of their need for FMLA leave in some instances, employees who provide such notice are protected from interference prior to the event for which leave is needed (in this case, pregnancy).  With respect to the FMLA retaliation claim, the Eleventh Circuit held that the employee engaged in protected activity when she made a pre-eligible request for post-eligible leave.  As a result, the Eleventh Circuit ruled that the former employee could pursue her FMLA interference and retaliation claims.   

This issue has not yet been addressed by other circuit courts.  Therefore, at the moment, only employers in the Eleventh Circuit must comply with this precedent.  However, employers should be mindful that other courts could find the Eleventh Circuit’s reasoning persuasive if faced with similar employee claims.  Bottom line?  When analyzing the risk of an employee termination, an employer must consider the potential for FMLA claims, even by an employee who has yet to meet the FMLA's eligibility requirements.  Moreover, an employee who is denied a leave request may bring other claims under the Americans With Disabilities Act or similar state law. 

In two upcoming webinars, we address the risks associated with denying employee leave requests, including complications resulting from the interplay of the ADA, FMLA and other state laws.  Please join us to review best practices in leave administration:   

January 19, 2012 -  The Painful Pentagon: FMLA, ADA, GINA, WC and STD     

(One-Hour Webinar) https://www.societyinsight.com/WebcastDesc.aspx?brandingid=1738&webcast_id=28234   

February 8, 2012 - Leaves of Absence - Lessons Learned    

(One Hour Webinar) https://www.societyinsight.com/WebcastDesc.aspx?brandingid=1738&webcast_id=28242 

Good news... finally.  A number of recent FMLA court decisions reaffirm an employer’s right to discipline or discharge an employee for failing to follow the employer’s call out procedures. 

In Righi v. SMC Corporation of America, No. 09-1775 (7th Cir., Feb. 14, 2011), the employee was away from work and failed to make any effort to contact his supervisor for more than a week, in violation of his employer’s call out procedure.  This call out procedure provided that the failure to report to work for two (2) consecutive days without notifying his supervisor was grounds for termination of employment. 

In Thompson v. CenturyTel of Central Arkansas, LLC, No 09-3602 (8^th Cir., Dec. 3, 2010), the employee violated her employer’s call out policy when she failed to regularly call her supervisor (and either speak directly with her supervisor or leave a voicemail message) if she was going to be absent. 

In Brown v. Automotive Components Holdings LLC, No. 09-1641 (7^th Cir., Sept. 8, 2010), the employee violated notice procedures set forth in a collective bargaining agreement when she failed to show up for work or explain her absence in person or by phone within 5 days of receiving a quit notice from her employer.

In each of these cases, the former employee brought a claim for interference under the FMLA after being terminated for violation of the employer’s call out procedures. 

In response, the employer defended the decision to terminate, citing that, under the FMLA, an employer has the right to insist that its employees comply with its “usual and customary notice and procedural” requirements related to taking leave. 

The courts in each of these decisions agreed with the employers and denied the employee’s claims for interference under FMLA, finding that an employer may insist that its employees comply with its call out procedures.  

The take away for employers? 

Courts will uphold an employer’s decision to discipline or terminate an employee for failing to comply with a call-out procedure.  In order to be well positioned to defend against an FMLA interference claim, employers should consider the following:

• Establish clear, written call out procedures and ensure that employees are aware of those procedures. 
  
• Review the call out procedure to ensure that it is not more burdensome than the FMLA notice requirements for foreseeable and unforeseeable leave set forth in the current FMLA regulations, 29 C.F.R. § 825.302(d); 29 C.F.R. § 825.303(c).
  
• Be sure that the employee is being disciplined/discharged for violating the call out procedure and not for taking protected FMLA leave in the first place. 
  
• Consistent with FMLA regulations, be prepared to create exceptions for unusual circumstances where the employee is unable to follow the procedure.
• Make sure that the call out procedures are applied consistently to FMLA and non-FMLA absences (otherwise, you may not have an FMLA interference claim, but you will have a potential discrimination claim). 

This Blog should not be construed as legal advice or as pertaining to any particular factual scenario.

Most employers assume that an employee may not use FMLA to take a vacation.  However, the line between a vacation, and time away for medical care, may not always be so clear.

An employee who tried to use FMLA leave to go on a “faith healing” trip for her ill spouse recently found herself on the wrong side of that line in Tayag v. Lahey Clinical Hospital, Inc., No 10-1169 (1^st Cir., Jan. 27, 2011).  

*   *   *

In Tayag, the employer, Lahey Clinical Hospital, Inc., provided its employee, Maria Lucia Tayag, with intermittent FMLA from 2003 until July, 2006 to enable Ms. Tayag to provide care for her ill spouse.  There was no dispute that her husband suffered from serious medical conditions, including gout, chronic liver and heart disease and kidney problems.

Ms. Tayag later sought to take a 7-week leave to go with her husband on a faith-healing pilgrimage to the Philippines.  Her husband’s doctor submitted a note indicating that she needed the leave because her husband needed physical assistance on a regular basis.  However, her husband’s cardiologist provided an FMLA certification indicating that Ms. Tayag’s husband was “presently . . . not incapacitated.”

Not surprisingly, Ms. Tayag’s employer denied her leave request and, when she failed to respond to her employer’s messages directing her to return to work (because she was on her trip), Ms. Tayag’s employment was terminated.

Ms. Tayag filed claims for interference and retaliation under the FMLA.  Ms. Tayag argued that the faith-healing pilgrimage constituted medical care under the FMLA and that she was needed to care for her spouse while he received such medical care. 

The court disagreed, finding that during her trip, Ms. Tayag and her husband prayed, went to Mass, spoke with others in the pilgrimage and visited other churches and family.  No conventional medical treatment was provided.  Ms. Tayag’s husband saw no doctors or healthcare providers on the trip and his own cardiologist said he was not incapacitated.  The court found that FMLA leave to care for an immediate family member does not extend to vacations in which no medical care is provided. 

Bottom line in this case:  No medical care, no FMLA.  But at least Ms. Tayag got a nice vacation.

This Blog should not be construed as legal advice or as pertaining to any particular factual scenarios.