No, your FMLA does not grant you license to threaten your coworkers

After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly. Among his comments was one that could be perceived as a threat violence: “he’s gonna have an accident on the dock.” When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation. Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.

Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.

Is a vacation during an FMLA leave inconsistent with an employee’s serious health condition?

A few months ago I wrote about an employee fired for taking a fishing trip while out on an FMLA leave. In that case, the court upheld the termination as lawful. Recently, however, the Supreme Court of Massachusetts considered a similar case and reached the opposite result.

The law is a floor, not a ceiling: FMLA and IEP meetings

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends—Jeff Nowak, Suzanne Lucas, and Eric Meyer—each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

Which mental health service does the FMLA not cover?

Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

Facebook video sinks employee’s FMLA claim

Everything was going swimmingly for Thomas Dunger during his approved FMLA leave from his job as a mechanic for Union Pacific Railroad … until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to Dunger’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing Dunger copped to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and Union Pacific ultimately fired him. 

The FMLA does not require that an employee use magic words to request leave

According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.

What does this look like in practice? Consider the following two examples.

Employees on medical leave aren't bulletproof, but still handle with care

One of the questions that clients ask me most often is, "________ is out on a medical / pregnancy leave (or just returned); can we fire him/her?"

My response, always: "Why?"

Are you planning to take advantage of the IRS's employer tax credit for paid family and medical leave?

When Congress reformed the tax law earlier this year, one key change that might have flown under your radar is an employer tax credit for paid family and medical leave.

The IRS has a helpful Q&A available here.

Does the FMLA protect organ-donation surgery as a "serious health condition?"

Organ donors are living saints. If you are in need of an organ to save your life, and someone is willing to sacrifice a kidney, or a liver segment, or bone marrow, and selflessly accept the pain and inconvenience, you are very, very fortunate.

Sacrificing one's organ to save another's life should not also result in sacrificing one's job.

Earlier this week, the U.S. Department of Labor Wage and Hour Division published Opinion Letter FMLA2018-2-A [pdf], which answers the question, "Does organ-donation surgery can qualify as a "serious health condition" under the FMLA?" (Thanks to Eric Meyer for bringing this to my attention.)

The answer is yes.

The FMLA defines a "serious health condition," in part, as an "illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility." "Inpatient care" means as "an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care."

According to the United Network for Organ Sharing, donors usually remain in the hospital four to seven days after the harvesting surgery. Thus, because organ donation commonly requires overnight hospitalization, it qualifies as a serious health condition covered by the FMLA.

Thus, covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must provide FMLA leave to an eligible employee-donor (someone employed for at least 12 non-consecutive months, who worked 1,250 hours during the 12-month period preceding the start of the requested leave, and who works at a location with 50 or more employees within a 75-mile radius).

What if, however, you are not an FMLA-covered employer? Or the employee-donor is not FMLA eligible? Or they already used up their 12 weeks of FMLA leave? Think twice before you deny requested time off for organ donation.

• Many states have their own specific organ-donor leave laws that require leave above and beyond the FMLA.

• The ADA may require that you grant the time off with, or without, the FMLA or state-specific law. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Nevertheless, the ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

Is it inconvenient for an employer to provide time off to any employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of a leave request for the selfless act donating an organ to save another's life? Absolutely not. While such a decision is likely illegal, it's also undoubtedly inhuman. And it's that inhumanity that will cost your company dearly in front of a judge or a jury.

* Photo by Tim Gouw on Unsplash

I ❤️ my wife, and I ❤️ attendance policies

On August 29, 2003, I married my wife.

The ceremony was to start at 11 am, and by 10:55 I was nervous. Not your normal, "I'm about to get married" nervous, but the, "What the hell, we start in 5 minutes and my bride-to-be isn't here yet" nervous. With no cell phone on me, I just had to have faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

No one should be told to "suck it up" after requesting FMLA leave

If this was August 2017, I would be touting today's post as a strong contender for the "Worst Employer of the Year." It says a lot, however, about the quality (moral suckitude?) of this year's nominees that today's post can't even scratch 2018's list of nominees.

No, you can't require your employee to work during an FMLA leave

Today, I examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let's take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov't (W.D. Ky. 5/29/18).

Must you pay employees for FMLA-related breaks during the work day?

Photo by Liam Stahnke on Unsplash

Last week, the Department of Labor Wage and Hour Division resumed its practice of publishing Opinion Letters. One of the first it published answers an interesting question about the intersection of the FLSA and the FMLA.

Must an employer pay an employee for FMLA-approved breaks taken during the work day?

I’ve taken some journalistic license and paraphrased the questions. The answers, however, are verbatim from the DOL Opinion Letter FLSA2018-19 [pdf].

The FMLA does not cover dead pets (maybe)

‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!

In all seriousness, it sucks to lose a pet.

But, does it qualify an employee for FMLA leave?

Happy 25th FMLA … and happy #SuperSickMonday

Last night, my Philadelphia Eagles won the Super Bowl.

Today, the FMLA turns 25.

Over the past 25 years, it is estimated that employees have used the FMLA over 200 million times to take job-protected, unpaid time off work to address their own serious medical condition or care for a family member.

Timing is everything when defending a retaliation claim

Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on January 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on January 19, and was scheduled to return to work on January 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

6th Circuit says you can’t spell “cat’s paw” without F-M-L-A

It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

An open issue in Staub‘s wake is whether other employment laws also apply the cat’s paw. For example, what about the FMLA? In Marshall v. The Rawlings Co. (4/20/17), the 6th Circuit concluded that the cat’s paw does apply in FMLA retaliation cases.

Wait, an employer can’t fire an employee on FMLA leave caught on Facebook on vacation?

Actual firing Facebook photo

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

New surveys reveal that most employees favor paid leave and flexible schedules

America remains the only industrialized nation that doesn’t mandate some level of paid maternity and/or family leave for employees. Meanwhile, while the FMLA provides 12 weeks of unpaid leave, many will tell you that benefit is woefully inadequate for employees. Indeed, more than 40 percent of employees are not covered by the FMLA and are not eligible to take FMLA leave.

http://dilbert.com/strip/2013-05-10

Thus, the results of a recent survey conducted by the Pew Research Center should surprise few.

Paw-ternity leave is a great idea, but please don’t forget about us humans

This is Loula, our vizsla.

We love our dog. And, when we brought her home four summers ago, it was a great benefit to our family that my wife had yet to return to work. She was home for Loula’s first two months, to acclimate her to our house and family. What if, however, you lack the luxury of not working during your puppy’s first few weeks at home?

BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.