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September 17, 2014

Should Employees Work While on FMLA Leave?

Filed under: Employment Law,FMLA8:13 am

The availability of electronic devices permits employees to work anywhere, any time.  The convenience and flexibility are generally welcomed by employees wishing to balance work and home responsibilities.  However, when does the overlap of work/life balance create a problem?  When it involves working during FMLA leave.

A pregnant employee, Tondalaya Evans, worked for the company, Books-a-Million, and was expecting a baby on September 1.  Tondalaya was the payroll manager and was in the process of implementing a new payroll system, which had been delayed until November.  She requested FMLA for the birth of her child.  Books-a-Million told her she would not be on leave, but rather would be working while on her maternity leave, and that she had no other choice, because the payroll system was due to “go-live.”  Ms. Evans had her child on August 30, and began working full time from home on September 1.  Even though, she was being paid her full wage, she was being denied the time off.

Tondalaya later returned to work, and found that she had been transferred to another position.  She was not agreeable with the change, quit her job, and sued in part for FMLA interference.  The court found that the company had violated the FMLA by denying her a benefit (FMLA leave, with no work being performed) for which she was entitled.  The company argued, to no avail, that she was being paid to work, and they were not in violation of FMLA.

The takeaway is that employees are entitled to FMLA for the purpose of being completely excused from work while they take care of a serious health condition of their own or an approved family member, without the worries of performing or losing their job.  Requiring or forcing an employee to work when eligible for FMLA can cause neither their work nor the reason for the leave to be given full attention.  Even if an employer offers to pay the employee, it is still undermining the purpose of the FMLA and is illegal.


Source:  Hyman, Jon.  “Do Not Force Employees to Work During FMLA Leave.” Workforce.  Available here.


August 28, 2014

ADA After FMLA – What Does Your Leave Policy Say?

A New Jersey healthcare provider will pay over $1 million to resolve claims before the Equal Employment Opportunity Commission (EEOC) that it committed disability discrimination. According to the EEOC, since the employer’s leave policy merely tracked the requirements of the federal Family and Medical Leave Act (FMLA), employee leaves were limited to a maximum of 12 weeks.

The employer’s policy meant that employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks, all without additional consideration of whether the Americans With Disabilities Act (ADA) required some additional accommodation, including additional leave.

Managing both FMLA and the ADA can be quite tricky at times.  Additional leave after FMLA is exhausted is considered a reasonable accommodation under the ADA guidelines and must be factored in to an employee’s recovery or health management resolutions.  Whether an employer extends leave or not could be a million dollar question!


February 6, 2014

Strange Employee Behavior May Notify Employer of FMLA Need

Filed under: Benefits,FMLA2:24 pm

A federal court in South Carolina has ruled that an employer must go to trial on a Family and Medical Leave Act (FMLA) claim involving an employee who exhibited strange behavior but was not given notice of his FMLA leave rights.

The case involved an employee whose supervisor knew he previously had been diagnosed with bi-polar disorder and was on anti-depressants and receiving counseling. His coworkers also reported that he was engaging in strange behavior. The employee did not ever ask for FMLA but did ask to take vacation time because he was stressed and needed to unwind. The employer denied the requested vacation time because it had scheduled mandatory training at the same time. When the employee did not show up at work for the training, he was fired for uncooperative behavior. The employee sued for alleged FMLA and Americans with Disabilities Act (ADA) violations. The court dismissed the ADA claims, but ruled that in this context, the reports of strange behavior may have put the employer on notice that it should have offered FMLA leave to the employee. As a result, the court allowed the employee’s claim that the employer interfered with his FMLA leave rights to go to trial.

A good lesson from this case is that the “employee did not ever ask” for FMLA.  Yes, that is right!  An employee does not have to come right out and ask for, or use the term FMLA, for it to be an employer’s responsibility to realize they have been put on notice of the employee’s need for leave.  An employer does well to know their employees and the law.  If an employee exhibits strange behavior, he/she may be trying to tell you something!




November 22, 2013

HR Fact Friday: FMLA Notice Requirements – part 2 of 2

Filed under: FMLA6:00 am


Once an employee requests FMLA leave, or an employer becomes aware that an employee’s leave may be covered by the FMLA, the employee must first be told whether or not he/she is eligible for FMLA leave. Absent extenuating circumstances, this must be done within five days. The DOL has provided a form (see below) for employers to use. Giving written eligibility notice is best because it documents the employer’s compliance with the law. An employer must notify the employee of any changes in eligibility status within five days of the change. At the same time the eligibility notice is given, the employer also must notify the employee in writing of his/her rights and responsibilities under the FMLA. DOL’s model eligibility form (see below) includes these requirements. This rights and responsibilities notice must state that the leave may be designated and counted against FMLA entitlement and must identify the 12 month period (e.g. rolling, fixed calendar, etc.) the employer uses for determining the amount of leave available. The employee must also be told at this time what it must pay in premiums to pay for insurance and whether health care provider certification is required to justify the leave (DOL also provides model health care provider certification forms…see below).



November 15, 2013

HR Fact Friday: FMLA Notice Requirements – part 1 of 2

Filed under: FMLA — Tags: 6:00 am


The federal Family and Medical Leave Act (FMLA) imposes a number of written notice requirements upon an employer. Failure to comply with them could expose an employer to claims that the employer violated the FMLA, interfered with an employee’s FMLA rights or retaliated against an employee. Thus, it is good for HR professionals to review their company’s FMLA practices from time-to-time to ensure they are complying fully with the FMLA notice mandates. Here (below) is a summary of the mandates. They are explained in more detail in the United States Department of Labor (DOL) regulations, found at

INITIAL NOTICES – Part 1 of 2 – part 2 will be posted next Friday, 11/22

The FMLA requires employers to post a notice (a poster) explaining an employee’s FMLA rights. A copy can be found here: An employer that has a written handbook or leave policy must include the general FMLA notice information in the same. Such notices must be given to all employees at least once during employment, typically at the time of hiring. It is probably not a bad idea to give them to an employee again when a leave issue arises. This information can be posted electronically if it is made accessible to all employees and applicants. The paper poster must be posted in a central place, however, if not all employees have access to the electronic notices.


August 30, 2013

HR Fact Friday: DOL Issues Guidance on FMLA and Same-Sex Spouses

Filed under: FMLA — Tags: , , 6:00 am

The United States Department of Labor (DOL) recently issued guidance on how the Family and Medical Leave Act (FMLA) will apply to same-sex spouses of covered employees. The guidance expressly confirms that same-sex spouses of such employees will fit within the definition of “spouse” under the law for those employees who live in Washington DC or one of the 13 states that recognize same-sex marriage. These states are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

The new DOL guidance did not address the issue of whether same-sex spouses of private business employees who live in states that do not recognize same-sex marriage are covered spouses under the FMLA, but right now, such persons probably are not included within the FMLA definition. The FMLA statutory language defines spouse as “a husband or wife, as the case may be.” DOL’s FMLA regulations elaborate and define spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Thus, DOL could act to change its regulations and define a spouse more broadly as anyone validly married under any state law, but that will take some time (and paperwork) to accomplish.

The federal Office of Personnel Management also recently announced that the federal government will consider all same-sex spouses of federal employees to be FMLA spouses regardless of where the federal employees live. The Department of Defense is expected to adopt the same approach for military personnel.


August 28, 2013

A Good Reason to Document!

The law firm Ogletree Deakins recently reported on a 4th U.S. Circuit Court of Appeals case that illustrates just how important it is to have good documentation.  The case, Mercer v. The Arc of Prince Georges County, Inc., sheds new light on performance reviews, the Family and Medical Leave Act (FMLA), and termination of employment.

According to the records, Mercer worked for “The Arc,” a nonprofit organization, in a position that required her to process applications, renewals, and redeterminations for benefits under the Food Stamp Program and Social Security.  Early in 2009, Mercer took medical leave, which put co-workers in a position to perform her duties, where they discovered that some individuals that were food stamp eligible were not receiving benefits.  When Mercer returned, she was instructed to take care of those clients.

Several months later, she was given her annual performance appraisal, in which she rated ‘satisfactory’ marks in all categories, but one, which was rated ‘above average.’  A couple months after that, the problem of individuals still not receiving their benefits came to light, yet again.  She was directed to take care of those clients.

Early in January, 2011, she suffered injuries in a motor vehicle accident and utilized FMLA.  Again, co-workers found that her job was not being done properly and that many individuals were still not receiving their benefits.  After her return, an investigation ensued and she was subsequently terminated.

Mercer alleged that The Arc interfered with her right to use FMLA and that her termination was a pretext for retaliation based upon her use of FMLA.  She was unable to prove either claim.  Of interest to employers is that the Court’s findings demonstrated that even though she had positive performance reviews, this “did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercer’s FMLA leave.”  Helpful, too, was The Arc had detailed documentation that specifically noted the errors of Mercer.  Another fact of note is that the co-workers who discovered the unpaid clients, were not the decision-makers in regard to her termination.

The importance of concise documentation can never be minimized.  Employers do well to document dates, times, specific information of the indiscretion/errors, all parties responsible, and persons making the discovery.  Arming themselves with proper documentation has saved many employers a lot of time, money, and unfavorable publicity.


Source:  Danaher, Maria, Ogletree Deakins – Pittsburgh Office. “Positive performance reviews do not negate employer’s ability to fire employee upon discovery of previously unknown poor performance.”  August 19, 2013.


August 7, 2013

BTW Texting May Not Be Your Best Option!

Filed under: Communication,FMLA,General HR Buzz9:06 am

Remember when picking up the phone and having a two-way conversation with your boss was the norm?  In our quest to keep up with the constantly evolving technology, texting has become a more frequent and accepted method of communication, that is unless you are requesting leave under the Family and Medical Leave Act (FMLA).

Recently an appellate court ruled that a text message is not sufficient notice to an employer of an employee’s need for FMLA.  Chrisanne Lanier brought suit against the University of Texas Southwestern Medical Center (UTSW) alleging various theories of recovery, including FMLA.

On an evening Lanier was scheduled to be on-call, she sent a text message to her supervisor, Leary, to inform him that her father was in the emergency room and that she would be unable to perform her duties that night.  Leary made other arrangements for coverage for the evening.

When she failed to respond to an operator’s call on her make-up week, Leary was notified.  The following morning Leary confronted Lanier about her having abandoned her duties by not responding.  Lanier expressed (explicitly, but not in a text message!) how upset she was with Leary in regard to her father’s heart attack.  She turned in all her equipment and stormed out.  She went directly to the UTSW Employee Assistance Program office on campus, unbeknownst to Leary and other management.  Because of her actions, Lanier was told the university accepted her resignation.

Regarding her claims of interference and retaliation, the court focused on whether Lanier had given proper notice of her intention to take FMLA leave.  Although an employee need not use the phrase “FMLA leave,” she must give notice that was sufficient to reasonably apprise her employer that her request to take time off could fall under the FMLA.  An employer may have a duty to inquire further if statements made by the employee warrant it, but “the employer is not required to be clairvoyant.”  Based on the facts and circumstances in this case, the court found that it would be unreasonable to expect Leary to know that Lanier meant to request FMLA based on her single text message request to be relieved of on-call duty for one night.  Summary judgment was awarded to UTSW.

Employers do well to have proper reporting procedures, including the desired method of communication, in place for FMLA.  Each individual employee’s circumstances will differ, but with knowledgeable Human Resources and well-trained supervisors that consider the facts of each case on its own merit, your chances for avoiding this type of litigation will be much improved!


July 12, 2013

HR Fact Friday: Supreme Court Speaks (sort of) to Issue of Same Sex Marriage

Filed under: FMLA — Tags: , , 6:00 am

Now that the Supreme Court has effectively allowed same-sex marriages to go forward in California and ruled in United States v. Windsor that a key portion of the Defense of Marriage Act (DOMA) is unconstitutional, employers must consider the implications of that decision on their employee benefit plans.

The Windsor decision made clear that same-sex couples who are recognized as validly married under state law are recognized as spouses under federal law. However, the Court did not address which state law governs (i.e., the state in which the couple currently resides or the state in which the same-sex marriage was performed). Accordingly, further regulatory guidance, legislation and/or judicial action is required to make clear the full impact of the Windsor decision.

Employers of employees residing and working in states which recognize same-sex marriages are required by federal laws governing employee benefit plans to treat same-sex spouses and opposite-sex spouses equally for purposes of the benefits that the employers extend to spouses. Those equal benefits and rights required under federal laws include, for example, automatic designation as beneficiary under 401(k) and other retirement plans, unless the same-sex spouse consents to designation of another beneficiary; spousal survivor annuities under retirement plans; COBRA continuation coverage; FMLA leave to care for a same-sex spouse; and tax-free spousal coverage under employer-provided group medical, dental or vision plans (i.e., income will no longer be imputed to same-sex spouses when same-sex spouse coverage is provided). Note:  if the repeal of DOMA is determined to be retroactive, tax refunds may be available to employees and employers if same-sex spouses paid income and employment taxes in prior years on health care coverage.

Notably, the Supreme Court confined the Windsor opinion and holding to lawful same-sex marriages in those states that recognize them and did not address the portion of DOMA which allows individual states to not recognize same-sex marriages performed in other states. As a result, employers in states which do not recognize same-sex marriages are not required by Windsor to extend benefits to same-sex spouses. However, this issue almost certainly will be the subject of future administrative guidance, litigation and/or legislation — employers in those states should watch for that future guidance. It is possible that same-sex spouses residing in states which do not recognize same-sex marriages will be classified differently for different purposes.  For example, the IRS may choose to recognize lawful same-sex marriages for purpose of income tax filing status regardless of the state in which the couples currently reside while, conversely, the employers of couples who work and reside in a state which does not recognize same-sex marriages may not be required to recognize the marriages for benefit plan purposes. It is likely that employers with employees in multiple states will have to treat same-sex couples differently in different states.

Self-insured medical and other welfare benefit plans governed by ERISA are not required by Windsor to make benefits available to same-sex spouses because there is currently no federal law requiring them to do so and state insurance law mandates are preempted by ERISA.  Commentators warn, however, that employers which continue to limit benefit coverage to opposite-sex spouses risk legal challenges claiming discrimination under federal laws.

Employers should review their retirement and welfare benefit plan documents, particularly the definition of “spouse,” to determine that they are consistent with Windsor (i.e., the plan should not reference DOMA) but should hold off making plan amendments without further guidance which will be forthcoming – hopefully soon.


July 3, 2013

Is Same-Sex Marriage Legal in Your State?

Filed under: FMLA8:54 am

The United States Supreme Court issued a ruling last week legalizing same-sex marriage.  The federal law, Defense of Marriage Act, defining marriage as a union between one man and one woman, was struck down in a 5-4 vote.  The decision affected California”s much debated Proposition 8, making same-sex marriage legal in that state.  Now, including California, 13 states and the District of Columbia, recognize same-sex marriage and will be directly affected by this ruling.  The other states are:  Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington.

Employers in those states will need to determine the actions needed to comply with this new federal law.  Until clarifications of the impact of this law are made available by the appropriate government agencies, here are a few areas for your consideration regarding federal laws that may be impacted.

  • Health and wellness benefits - coverage for same-sex spouse
  • Consolidated Omnibus Budget Reconciliation Act (COBRA) – continuation of benefits
  • Family and Medical Leave Act (FMLA) – coverage of spouse’s serious health condition and medical/non-medical leave for military purposes
  • Health Insurance Portability and Accountability Act (HIPAA) – special enrollment rights
  • Retirement plans – surviving spouse benefits, annuities, and Qualified Domestic Relations Orders

Employers should review all their benefit plans to determine if amendments are needed.  And, don”t overlook those beneficiary designation forms and tax forms as well.  There may be other tax implications, too, for which you should seek professional tax advice.

We have only touched the tip of the iceberg, and while questions and challenges remain at both the state and federal levels, it is estimated that this Supreme Court decision could affect more than 1,000 federal laws!

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