FMLA Retaliation: Understanding and Managing the Risks Presented - PowerPoint PPT Presentation

FMLA Retaliation: Understanding and Managing the Risks Presented by: Meg LePage and Dan Strader September 13, 2018

FMLA Basics: An Overview

Federal FMLA Em ployee Coverage Worked for employer for 12 months total, and for 1250 hours in 12 months immediately preceding leave, and at worksite where 50 or more employees within 75 miles 3

Em ployee FMLA Eligibility 12‐month requirements need not be consecutive if break in service is less than 7 years. If an employee is on leave at time he/she meets 12‐month eligibility requirement, leave after becoming eligible is FMLA protected. 1250 hours of service is based on actual compensable work (not just on payroll) 4

Federal FMLA Leave Rights 12 weeks of leave in 12-month period (“leave year”) Intermittent leave or reduced schedule when medically necessary Health benefits if employee pays his/ her normal share Restoration to same or equivalent position Use of paid time off can be concurrent with FMLA leave 5

Maine Fam ily Medical Leave Requirem ents Act ( FMLRA) Applies to employees regardless of hours worked in previous 12 months (e.g., part-time) Applies to domestic partners, certain co-dependent siblings 10 weeks of leave in every 2 years Applies to employers with 15 or more employees at 1 site Federal regulations are good guidance, but not binding 6

FMLA: Covered Conditions The serious The serious health condition health condition of employee’s of employee parent, child, or spouse Care for a Care for a newly newborn (within adopted child or one year of newly placed birth) foster child 7

Serious Health Condition Injury, •Inpatient care illness, impairment (overnight stay) or or physical •Continuing or mental treatment by health condition care provider that involves: 8

W hat is Continuing Treatm ent? (1) Incapacity (> 3 days) plus treatment: • 2 or more visits or • 1 visit and regiment of treatment (2) Pregnancy or prenatal care (3) Chronic conditions (4) Permanent or long term incapacity (5) Conditions requiring multiple treatments 9

Pregnancy and Childbirth  Bonding time in first 12 months post birth  Both birth mother and spouse are eligible (male or female)  Could be entitled to leave pre‐birth for pregnancy complications and appointments  Spouse could need leave to care for incapacitated pregnant wife 10

I nterm ittent Leave/ Reduced Schedule Increments of one hour or more Employer required to provide intermittent leave only when medically necessary Cannot compel employee to take more leave than necessary Temporary reassignment allowed when leave is foreseeable based on planned medical treatment 11

FMLA Em ployee I nform ation Packet Employee Request for Notice of Eligibility and Certification of Health Family Medical Leave Rights and Responsibilities Provider • Employer created form • WH‐381 • WH380 (employee) • Compliant with federal • Dol.gov/whd/fmla/ • WH‐380F (family and state(s) laws index.htm member) • Not necessary if • Within 5 business days of • WH‐384 (qualifying employee had clearly notice of leave exigency) requested leave in • Payment of health care • WH‐385 (injury or illness writing (e.g., email) or in premiums of covered service other situations(e.g., member) • Use of other paid leave employee calls from • 15 Days to return • Periodic reports of intent hospital) to return to work • If certification incomplete or insufficient, at least 7 • Definition of leave year calendar days to cure 12

FMLA Post Request Packet FMLA Designation Recertification Return to Work Limited or Light Form Forms Certification Duty Restrictions • WH‐382 • For use if initial • Include job • Determine (completed by certification description availability of employer) expires or if (employee own restricted work employee’s of serious health before employee • Approves leave or intermittent leave condition) returns to duties tells employer differs from that second • Analyze whether • If FMLA leave is current opinion or you want to not expired but certification additional request IME employee wants information is • Consider letter to to return on light needed. health care duty, have provider employee sign • Within 5 business explaining how certified request days after leave pattern has for light duty receiving differed. certification form 13

14 Updated DOL Form s

Reinstatem ent Rights Same Position or Equivalent Position • “virtually identical” in terms of pay, benefits, and working conditions, including privileges, status, etc. • Must involve “same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.” 15

FMLA Notice Requirem ents of Em ployee • 30 days for foreseeable leave • If not practicable, then as soon as practicable • Employee must provide sufficient information to establish eligibility 16

Scheduling Leave • Employee duty to make “reasonable efforts” to schedule leave so as not to unduly disrupt employer operations • Must consult with employer when scheduling time off  Subject to approval of health care provider • Intermittent leave  Employer can request that employee explain why schedule is necessary and provide notice of the schedule for treatment 17

FMLA Retaliation and Interference

FMLA Retaliation/ I nterference Claim s (1) An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the FMLA. (2) An employer is prohibited from discharging or in any other way discriminating against any person(whether or not an employee) for opposing or complaining about any unlawful practice under the FMLA. (2) All persons are prohibited from discharging or in any other way discriminating against any person because they have filed a charge, provided information or testified in connection to a proceeding under the FMLA. 29 C.F.R. §825.220 19

Elem ents of I nterference Claim EE was entitled to an FMLA benefit FMLA benefit was denied (no intent required) ER Defense: EE would have suffered adverse job action regardless of request or use of FMLA leave 20

Elem ents of an FMLA Retaliation Claim EE engaged in statutorily protected conduct EE suffered adverse employment action A causal connection exists between the two. 21

Hypothetical • John Doe is on PIP for attendance • Requests intermittent leave for anxiety • John continues to have absences, some for FMLA reasons, some for other reasons. • Supervisor writes to HR: “When can we terminate John? These absences are putting a strain on our productivity.” • Coworkers make snide comments to and about John and his “convenient no-shows.” • John’s record of non-FMLA absences exceed handbook’s definition of excessive absences. 22

Major Risk Factors for Retaliation Claim s Temporal proximity: it’s all about timing Supervisor expressions of hostility or dismissiveness No fault attendance policies Inconsistent disciplinary enforcement Overly aggressive fraud prevention measures 23

Major Risk Factors for I nterference Claim s Lack of clear FMLA policy (e.g., no defined leave year) Supervisor lack of training/awareness of policies (failure to recognize protected absence) Lack of methodical record keeping and leave tracking Lack of knowledge of FMLA (and state counterpart) law 24

Recent Case Law and Guidance

W alker v. City of Pocatello ( D. I D 2 0 1 8 ) Walker was police officer who had been tasked with investigating other officers, including Chief for accessing pornography on work computers. Walker required FMLA leave, and the Chief ordered secret video surveillance of the employee on his own property. Chief’s use of private surveillance was not based on any legitimate suspicion of Walker’s misuse of leave. Court held that surveillance could amount to FMLA interference because of its “chilling effect” even though no leave benefits were denied. 26

Stew art v. W ells Fargo Bank, ( N.D. Ala. 2 0 1 7 ) Stewart put on performance warning and then took medical leave for neck surgery. Stewart terminated 5 weeks after returning from FMLA leave. Court denied summary judgment because supervisor wrote in email to HR, “I believe we need to move to termination for several reasons,” one of which was “Debby submit[ ted] a request for medical leave.” 27

Pye v. Bath I ron W orks Corp ( D. Me. 2 0 1 6 ) Pye was approved for intermittent FMLA leave to treat anxiety and depression. Used a day of leave to attend a personal court date in the morning and then to recuperate at home from the stress caused by court date. Pye sued for interference and retaliation. Court dismissed retaliation claim, finding admission he used day to go to court meant he had not engaged in protected activity Court declined to dismiss interference claim because Pye had informed BIW that his mental health had deteriorated and BIW declined to give him time off before court date incident. 28

29 DOL Opinion Letter FLSA2 0 1 8 -1 9