Complex Challenges Under the FMLA Follow Us Blog: - PowerPoint PPT Presentation

Complex Challenges Under the FMLA Follow Us Blog: bassberrylabortalk.com @BassBerryLabor

Scenario 1: Pre-Eligible Employees A new employee, Kate, has informed her supervisor she is pregnant. While she has only worked for you for 10 months, she will have reached the 12-month threshold by the time she delivers, barring serious complications.

Scenario 1 (Continued) Soon after Kate’s announcement, you learn the company is instituting a reduction-in-force that will affect Kate’s department. Of the three people in her position, one will need to be let go.

Scenario 1 (Continued) One of the three, Jack, is a long-term, high- performing employee. The remaining employee, Sarah, has been with the company for two years. Like Kate, her performance has been satisfactory and, if not for the reduction, the company would be happy to have her on board. Sarah does have one disciplinary warning for repeated absenteeism from her first year, but she resolved the issue and has not been disciplined in over a year. Kate has never been disciplined.

Scenario 1 (Continued) Simply by observing the decisions in other departments, it will be clear to all that seniority is not the determinative criterion for selecting which employees will be included in the reduction. The department supervisor thinks Kate should be the person to go. Kate was the last one in the door, and Sarah seems committed to the job after she was counseled last year.

Scenario 1 (Continued) Management has come to you to advise on the risks of termination under the proposed RIF. How do you advise regarding the reduction in Kate’s department? What issues do you want to consider and how would you support your decision as to whether to lay off Kate?

Scenario 1 (Continued) Would your answer change if Kate had come to your office the week before and requested time off for morning sickness? ► What are your obligations under the FMLA with respect to Kate’s request for intermittent time off when her morning sickness is severe enough to prevent her from working for a time?

Scenario 2: Certification Jim, an employee with a long history of late arrivals and absences sends his supervisor, Elizabeth, an e-mail on Tuesday stating he will be out the rest of the week because he was not feeling well. Elizabeth responds by insisting he arrive on time the following Monday and meet with her first thing to discuss his schedule.

Scenario 2 (Continued) Jim arrives 90 minutes late on Monday. Elizabeth prepares a written counseling, noting Jim’s repeated tardiness, multiple informal counselings, and that continued tardiness would result in escalation of the disciplinary process. Elizabeth presents the counseling to Jim in the presence of Arnie, an HR representative.

Scenario 2 (Continued) During the counseling, Jim mentions he is having trouble arriving on time because he was struggling to get his child off to school. He also mentions he is late, in part, because his doctor has adjusted his medication.

Scenario 2 (Continued) Elizabeth tells Jim he has three options: ► Comply with the attendance policy; ► Take some medical leave until capable of complying with the attendance policy; or ► Fail to comply with the attendance policy and deal with the consequences of the progressive disciplinary process Jim leaves the meeting with the issue unresolved

Scenario 2 (Continued) After the meeting, Jim attends a pre- scheduled doctor’s appointment. The doctor notices deterioration in Jim’s condition and provides him with a note stating he needs to be off work for 2 weeks and then be reassessed. The doctor also provides a letter excusing a portion of the recent absences and tardies due to the effects of the medication change.

Scenario 2 (Continued) Jim returns to work and provides the doctor’s notes to Elizabeth. Elizabeth and Jim hold a meeting to discuss medical leave. During the meeting Elizabeth provides Jim with FMLA paperwork that is unmarked and unsigned. Elizabeth tells Jim he needs to return the certification within 15 days.

Scenario 2 (Continued) Within a few days Jim sees his doctor, who completes the certification, and also determines Jim needed an additional 3 weeks of leave. Jim never returns the certification and does not send in the note stating he requires 3 more weeks of leave. Jim’s two weeks of leave expire and he does not return to work.

Scenario 2 (Continued) Elizabeth tries to reach Jim by phone multiple times after he fails to return to work but receives only a busy signal. She sends two e-mails to his personal account re: his failure to return the certification forms and the conclusion of the 2-week period, but she receives no confirmation Jim has seen these e-mails.

Scenario 2 (Continued) Can the company terminate Jim’s employment for failing to certify the initial leave period? Can the company terminate Jim’s employment for failing to certify the subsequent 3-week leave period?

Scenario 2 (Continued)

Scenario 2 (Continued) What if Jim had provided a note from his doctor that stated he would need to be tardy occasionally as a result of his medical condition after he returned from leave? (Moving from a block of FMLA leave to intermittent leave) Would Elizabeth simply have to accept Jim would be late to work? Can she terminate his employment because he cannot perform the essential functions of his job (reporting to work for his full shift in a timely manner)?

Scenario 3: Notification Jan has received approval for FMLA Intermittent Leave for Migraines. After three months of leave in compliance with her medical certification, Jan used twice the provided-for leave time in the past month, including every Monday morning that month. Her employer wanted to follow-up by having her recertify her need for leave, which it typically only required every six months.

Scenario 3 (Continued) The employer relied upon a 3d Party leave administrator, LeaveXPRTS, to proceed with the recertification. LeaveXPRTS sent an e-mail to Jan requesting she provide a re-cert within the next three weeks. When Jan failed to comply, LeaveXPRTS denied all leave occurring as of the date of the e-mail (approximately a one month period).

Scenario 3 (Continued) Because Jan’s leave was denied, the leave she had taken that month - that she believed was covered by her FMLA leave - was not. Those absences, in combination with other absences she had accrued throughout the year unrelated to her migraines, combined to put her over her employer’s points threshold. At no time during the period Jan was accruing points unknowingly did her employer speak directly to her about the denial of her FMLA leave.

Scenario 3 (Continued) LeaveXPRTS stated Jan placed her settings at communication by e-mail only. Jan contends she did not approve FMLA- related correspondence by e-mail, she did not open the e-mail, and, LeaveXPRTS always communicated with her by postal mail prior to this communication Thus, she did not have notice of her need to recertify outside the typical 6-month period.

Scenario 3 (Continued) Can the employer terminate Jan’s employment for failure to comply with its absence policy?

Scenario 3 (Continued) Would postal mail have been sufficient?

Scenario 4: Light Duty Tony has been out on continuous FMLA leave. At his last visit, his doctor released him to return to work with lifting restrictions. Tony’s employer has a light duty job available that complies with Tony’s restrictions. Tony finds the job “mundane.” Can he refuse to accept the position?

Scenario 4 (Continued) What if Tony’s employer can adjust the duties of his regular job so that Tony can perform the work in compliance with his restrictions? ► Must the employer make the adjustment? ► Must Tony accept the position if the employer is willing to make the adjustment? ► What are the ADA ramifications of your decision? ► Must you engage in the interactive process?

Tim Garrett – tgarrett@bassberry.com Follow Us @BassBerryLabor Blog: bassberrylabortalk.com 27