Buddy Phillips injured his ribs while playing with his grandchildren.
Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.
He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.
In Phillips v. United Trailers, the 7th Circuit Court of Appeals held that in this instance, the employee’s FMLA rights trumped the employer’s attendance and reporting policy.
Even if Phillips failed to comply with the FMLA by failing to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least nine business days after he first reported his rib injury to United. Under the regulations, United had five business days after receiving notice of Phillips’s rib injury to determine whether he qualified for FMLA leave.
In other words, an employer cannot rely on its attendance and reporting-off policy to terminate an AWOL employee if the employer is already on notice that an FMLA-qualifying event might be the cause of the employee’s unreported absences.
So what should an employer do in this situation, when an employee might have triggered the FMLA’s protections? The FMLA’s regulations offer some guidance.
If the need for leave is foreseeable to the employee, it’s a much easier issue. The employee must give 30 days notice, which gives the employer and the employee more than enough time to work out their leave and attendance issues.
If the need for leave is unforeseeable, however, the employee must provide notice of his intent to take leave to the employer as soon as practical under the circumstances. That notice must “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” Critically, an employee “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.”
The burden then shifts to the employer. The employer must decide whether to designate the request for leave as FMLA-qualifying. Its decision to designate FMLA leave “must be based only on information received from the employee.” If the employer lacks information about the reason for an employee’s request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. The employer should not, however, bury its head in the sand and ignore the employee, because if the leave turns out to be FMLA-covered, the employer will have a big legal problem. Just ask United Trailers.
Importantly, the employer only has five business days to notify the employee whether leave will be designated as FMLA-qualifying, absent extenuating circumstances.
Throughout this back-and-forth time period, the employee must comply with the employer’s “usual and customary notice and procedural requirements for requesting leave.” If the employee does not comply with the employer’s usual leave-request requirements, the employer is within its rights to deny or delay the FMLA leave. If, however, the employee provides notice and complies with the employer’s attendance policy, the employer’s failure to timely determine whether the employee’s leave counts as FMLA-qualifying may constitute an interference with the employee’s FMLA rights.
These are complicated issues that often do not have cut-and-dried answers and can carry seriously expensive consequences for an employer’s missteps. If an employee presents you with an injury- or illness-related absence that may or may not qualify for FMLA protections, your first call should be to your employment lawyer to make sure that you are handling this issue correctly under the FMLA’s maze of rules and regulations.
Joey Kramer, Aerosmith’s founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend’s honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend’s Grammys.
Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required the Aerosmith drummer to audition to prove he was “able to play at an appropriate level” before he could regain his drummer role. He further claims that this audition is unprecedented in the band’s 50-year history, during which each of other members had to step away for various reasons.
This story about the Aerosmith drummer got me thinking about an employer’s rights when an employee seeks to return to work after a medically related leave of absence. Two laws potentially apply — the Americans with Disabilities Act and the Family and Medical Leave Act.
If an employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.
As a precondition of restoring an employee out on FMLA leave for his or her own serious health condition, an employer can require the employee to obtain and present certification from the employee’s health care provider that the employee is able to resume work.
The fitness-for-duty requirement must be made pursuant to a uniformly-applied policy or practice that requires it for all similarly-situated employees (i.e., same occupation, same serious health condition).
An employer may only require a fitness-for-duty certification if it advised the employee of the requirement in the required FMLA designation notice at the outset of the leave.
The requested fitness-for-duty certification is limited to the particular serious health condition that caused the need for the FMLA leave, must certify that the employee is able to return to work, and may also certify (if requested) that the employee is able to perform the essential functions of the job.
Unlike medical certifications at the outset of an FMLA leave, fitness-for-duty certifications are a one-shot deal. No second or third certifications are permitted.
Failure by an employee to submit a requested fitness-for-duty certification strips an employee of his or her job restoration rights (unless the employer failed to advise the employee of the requirement at the outset of the leave).
The employer can require the employee to bear the cost of the fitness-for-duty certification.
Here’s where it can get really tricky. A failure by an employee’s medical provider to certify the employee as fit to return to work could trigger an employer’s obligation to engage in the ADA’s interactive process with the employee for a reasonable accommodation. If the employee’s medical provider, instead of returning the employee to work without restrictions, either asks for additional, finite unpaid time off or restrictions upon the return to work, the employer should engage with the employee to determine what accommodations are possible under the ADA. The failure to do so could result in an ADA violation.
These issues are tricky and fraught with legal risk. You should be contacting your employment counsel to help you navigate these issues when they arise.
A German court recently ruled that a hangover qualifies as an “illness.”
Which got me thinking … are hangovers the next frontier of your FMLA headaches?
Thankfully, the answer to this question is almost certainly “no.”
But it’s worth reviewing the FMLA’s definition of “serious health condition” to see how I reach that conclusion.
The FMLA defines a “serious health condition entitling an employee to FMLA leave” as “an illness, injury, impairment or physical or mental condition that involves inpatient care …or continuing treatment by a health care provider.”
“Inpatient care” means “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.”
“Incapacity” means an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom”
“Continuing treatment by a health care provider” means “a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves” either “treatment two or more times, within 30 days of the first day of incapacity by a health care provider,” or “treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.”
It’s difficult to imagine a hangover meeting any of these criteria. No hangover should ever require an overnight stay, continuing treatment of three or more days, or a regimen of supervised continuing treatment, even if an employee feels so ill that he or she cannot work or perform other regular daily activities as a result.
HR folks and leave administrators, rest easy knowing that you will not have to grant FMLA to your hungover employees.
An employee suffering from epilepsy, migraines and heart condition asks (with a medical note) for two unpaid days off from work to treat symptoms related to her disabilities.
Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.
A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues.
These policies, however, carry, a certain degree of risk — namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy. And, in this case (assuming the medical note is legit), and for this reason, it appears this employer has a big problem with the EEOC.
On a more basic level, where’s the humanity in denying two days off for an employee to deal with medical symptoms, especially when the request is accompanied by a doctor’s note?
The ADA requires reasonable accommodations. Unless the employee is a serial abuser of unpaid days off, it’s hard to imagine a situation in which two days is not a reasonable request.
Kevin LaBelle, a lab technician for mining company Cleveland-Cliffs, took occasional days off from work for approved intermittent FMLA leave for flare-ups related to a shoulder injury.
His employer noticed that LaBelle seems to always take his FMLA leave by combining it with scheduled days off and vacation days.
Noticing the pattern of suspected abuse, the company hired a private investigator to watch LaBelle during his FMLA leave, and twice found him playing golf. The employer concluded that if LaBelle was experiencing a shoulder flare-up that prevented him from working, he would not be able to golf, and that if he could golf, he could work. Accordingly, it fired him for FMLA fraud and abuse.
The 6th Circuit affirmed the trial court’s dismissal of LaBelle’s FMLA retaliation claim:
There is no evidence in the record to show that Cliffs’ proffered reason lacked a basis in fact. Cliffs approved LaBelle’s request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting LaBelle’s explanation of why it was ok for him to golf, or why he “stacked” his leave, LaBelle did not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.… If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.
Intermittent leave is (one of) the biggest FMLA-management problems for employers. And the “stacking” of intermittent leave against other scheduled days off is one of the biggest intermittent-leave management problems. This case gives employers a great tool to combat this form of FMLA abuse.
Mani Mueller is one of the millions of Americans who has cared for an elderly parent or children while working a full-time job. Photo by Paulius Musteikis
When Mani Mueller landed a plum job at a biotech firm in Wisconsin in 2013 she brought her parents from Pennsylvania to help care for her two young daughters while she found her footing at work.
The timing was perfect. Her mother had just retired and her father, who suffered from Parkinson’s disease, was doing well and looked forward to spending time with his granddaughters. But what promised to be a dream scenario fell apart within a few months as her father’s condition declined and her mom couldn’t keep up with his care.
Parkinson’s is a progressive nervous system disorder that affects movement, and her father began falling frequently, requiring constant supervision. Soon, Mueller was tackling not only the demands of a new job, but also working a second shift as her father’s primary caregiver and power of attorney, shuttling him to doctor’s appointments, researching treatments, and learning to navigate the Medicare and Medicaid systems. Since her father, a Laotian immigrant, spoke little English she also became his translator.
At 37, Mueller had joined the ranks of 44 million adults in the United States who provide unpaid care for a loved one who needs support, according to AARP. She also became a member of the “sandwich generation,” caring for both a parent and children. Like many caregivers in the workplace, she never told her employer for fear of damaging her career. Instead, she used her vacation and personal days to meet the demands of caregiving.
In January 2018, five years after she placed her father in a nursing home, her company, Promega, introduced a caregiver leave benefit that provides employees with an additional two weeks of paid time off a year to care for a sick parent, spouse or child, or to welcome a new child. But even then Mueller was reluctant to come forward.
Mani Mueller was the primary caregiver for her father. Photo courtesy of Mani Mueller.
“I didn’t want to advertise that I was dealing with all of this or put on paper that my dad has this condition and my kids have that condition,” said Mueller, now 43 and a manager in supplier quality at Fitchburg, Wisconsin-based Promega. “I keep everything to myself. I thought sharing this information would negatively impact my career. I’m very quiet and private, but internally, I thought ‘How much more can I deal with?’ I was exhausted and stressed out.”
Mueller’s story illustrates the dilemmas faced by many caregivers who must choose between what’s best for their families and what’s best for their careers. It also sheds light on the complexities of caregiving in a time of great demographic change. Older people will outnumber children for the first time in U.S. history by 2030, traditional family structures are changing with families getting smaller and more geographically dispersed, and thanks to medical advances people are living longer with disabilities and chronic conditions.
This is resulting in a caregiving crisis that many employers are failing to acknowledge or understand, according to a Harvard Business School studyreleased in January. “The Caring Company” report highlights a disconnect between the kinds of supports caregivers in the workplace need and what most companies provide.
Fear Factor
One reason that employers don’t understand the impact of caregiving on their businesses is that many employees are afraid to tell them, according to Linda Roundtree, an HR consultant who specializes in the aging workforce.
“When people don’t feel free to come forward, they have to make an excuse for why things happen or why they’re distracted at work,” she said. “There’s fear about hurting their careers. You see that fear when women are afraid to disclose that they’re pregnant.”
Only 28 percent of employees who care for a loved one were willing to admit that their family responsibilities harmed their careers, according to the Harvard Business School report. Around half of caregivers surveyed were afraid of being overlooked for challenging assignments, or missing out on salary increases or bonuses. And while 80 percent of employees admit that caregiving has affected their productivity, less than one-fourth of employers said that caregiving influences employee performance.
Mueller said that if Promega had a caregiving benefit when she started there it’s unlikely that she would have taken it. But by 2018 Mueller had been a manager for two years and was confident in her position. So, when her dad’s condition worsened again that May and her daughter was diagnosed with a kidney infection she signed up for time off under the company’s caregiver leave policy. Her father died the following November.
“Exceptional caregiving” is the term that Roundtree uses to describe the new realities for caregivers who are caring for loved ones with a host of cognitive impairments, physical disabilities and chronic conditions.
“There is a huge chunk of the workforce that will be taking care of a child with special health care needs or an elderly parent,” said Roundtree, who co-authored a 2018 paperon the changing nature of caregiving for Boston College Center for Work and Family. “Today even young, single people understand that complex things will happen either to themselves or to a partner or spouse and they need employers that know how to support them.”
The Young Caregivers
While the typical caregiver is a white woman in her late 50s, about one-fourth of all caregivers are between the ages of 18 and 29, according to AARP. They are also the fastest growing and most diverse demographic in the workplace. Employers need to understand that caregiving affects workers of all ages, Roundtree said.
The scope of the problem came as a surprise to executives at Promega when the company surveyed its own workforce in 2017 to better understand the caregiving needs of its employees.
It looked at all kinds of situations from parents of newborns to parents of children with special needs to children caring for parents and adults caring for a spouse, according to Promega benefits manager Diana Clark. She said that everyone was surprised by the variety and intensity of the demands on employee caregivers. They discovered a hidden population of employees who were spending about 29 hours a week on caregiving duties, basically working a second unpaid shift.
Also a surprise was the average age of their caregivers: 33 years old.
Promega Benefits Manager Diana Clark
“I would have thought three years ago that average caregiver is 55 or 60 years old and nearly retired, but it’s a parent with kids and an elderly parent who is struggling with cancer or some other health condition,” Clark said.
“When you talk to people in those roles they will tell you that’s just what they do and that it’s not a burden. They’ll say that ‘dad just needs me to get groceries, or he can’t drive, or I have to make sure that mom takes her meds.’ There so many tactile details involved that we couldn’t help but see the strain.”
This led Promega to launch caregiver leave benefits in January 2018 that provide employees with an additional two weeks of paid time off a year to care for a sick parent, spouse or child, or to welcome a new child. The benefit can be used in daily increments or all at once. So far, 120 employees, or 12 percent of Promega’s 1,400 employees, including subsidiaries, have used the benefit.
Employees Open Up
Clark said that the program has taken on a life of its own with employees coming forward to share their stories and even launching their own initiative called Circle of Caring. The initiative connects caregivers and employee volunteers willing to help with meals, shopping, lawn care, transportation and other errands. One group of volunteers even planted a garden for an employee who was an avid gardener but was unable to use his arm after a surgery.
This year, the company also began offering free onsite psychological counseling one day a week for caregivers and plans to offer health care navigation services, among other supports for caregivers, such as bereavement support and financial counseling.
Deb Notstad, right, cares for her son Adam, who is physically and developmentally disabled. Photo courtesy of Deb Notstad.
Deb Notstad, 57, a complaint investigations specialist at Promega, is grateful for the benefits, even though they came too late to help her. In 2016 her elderly mother was dying and she was caring for her 28-year-old son Adam, who is physically and developmentally disabled. Notstad, a single mother, is also the legal guardian for her brother who is a critical diabetic and is developmentally disabled. While she thinks that two weeks of paid leave is great, it’s not nearly enough for those with complex caregiving needs.
“When they introduced the benefit I had already spent weeks in the hospital with my son,” she said. “My first reaction was, ‘Are you kidding? This is a drop in the bucket.’ But I don’t know too many businesses that offer something like this.”
While a growing number of companies including Starbucks, Cigna, Best Buy and Microsoft offer caregiver supports such as extended paid leave, long-term care insurance for parents and grandparents, and counseling, the vast majority do not offer benefits that are valued by caregivers, according to the Harvard Business School study.
The top reasons that caregivers quit their jobs is the high cost of paid help, the difficulty in finding trustworthy support, and the inability to manage the demands of work and home — all areas where employers could provide support,the study found.
Those that fail to address the problem will pay the price in “hidden costs” such as turnover, loss of institutional knowledge, absenteeism and other factors that are difficult to quantify, according to the study.
Katie Boer cares for her mother who suffers from dementia. Photos courtesy of Katie Boer.
Katie Boer, 31, never thought that two years after landing her dream job as a broadcast journalist she would be quitting to look after her 71-year-old mother. In 2016, shortly after she began working at a Las Vegas television station, Boer’s mother, who lives in Seattle, was diagnosed with Lewy body dementia, which can cause hallucinations and Parkinson’s-like symptoms such as body rigidity, tremors and balance problems.
At first, Boer handled things by phone and took paid time off for regular trips to Seattle, but as her mother’s condition worsened the situation became unmanageable. Her mother would call her at work several times a day confused and agitated, often minutes before she went on the air. Eventually, Boer installed a video camera in her mom’s apartment to keep a closer eye on her. But when she saw her mom lying on the floor in the middle of the night crying out Boer’s name for hours, she reached a breaking point.
“I’d be lying in bed watching her not sleeping with tears falling sideways down my cheeks,” she said.
“I’d cry all night and go to the bathroom and throw up. Even though I had a dream job I felt like I was selfish for not being there. So I sacrificed my job and moved to Seattle.”
For employees at smaller companies without caregiving supports or benefits like flex time or paid time off the burden of caregiving can be especially crushing.
Amanda Smith, 34, works at a small nonprofit arts foundation on the East Coast that is not required to provide leave under the Family and Medical Leave Act. With a toddler who has cerebral palsy along with other disabilities and requires round-the-clock care, managing a career is an enormous challenge.
While her boss was initially accommodating, allowing her to work from home one day a week, he has become impatient with the lack of flexibility in her schedule, she said.
“He’d like me to come in without any warning but our lives our very, very choreographed because of all the doctor’s appointments, services and nursing care that my son needs,” she said. “We can’t just call a babysitter. My husband would have to call in sick or my mother-in-law would need to come because she’s the only one besides us who knows how to take care of him. I don’t think employers really understand how complicated caring for a child with a disability can be.”
But many are trying, according to LuAnn Heinen, vice president at the National Business Group on Health, a coalition of large employers.
“It’s definitely on their radar,” she said. “We did a survey in 2017 and 88 percent of employers think caregiving will be a big issue over the next few years. Paid leave is important but we know that it won’t solve the problem if you’re caring for someone over a number of years. There must be more supports like flexible work arrangements, health care navigation, and services to help employees find caregiving services. Employers realize this.”
For those that fail to address the needs of caregivers, Clark warned that companies like Promega will be happy to hire their employees away.
“Unemployment is low and there are great people out there who are not getting their needs met and will want to work for an employer who recognizes them as a whole person,” she said. “You lose so many aspects of what that person can bring to the table when they are trying to take care of their families and are not supported.”
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.
Ellis cannot demonstrate a causal link between his FMLA leave and his termination. He consistently used FMLA leave for two years without issue. Each time he called out sick, his supervisors covered his shifts, and each year that he applied for recertification, FedEx approved. It also actively accommodated FMLA leave for 42 employees between May 2013 and May 2017 at the Delanco service center.
Instead, FedEx terminated Ellis because it concluded he violated the company’s prohibition on workplace violence. He admitted to his supervisors that his Facebook message could be perceived as threatening, and he was fired shortly after the investigation concluded.
Many employees who engage in protected activity (such as taking FMLA leave) mis-perceive that their jobs are bulletproof. Nothing is further from the truth.
Yes, employers need to be diligent when firing an employee who has engaged in some form of protected activity. But, if you would fire the employee absent the protected activity, and have consistently done so with others under similar circumstances, why give an employee a free pass?
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.
Richard DaPrato, an IT manager for the Massachusetts Water Resource Authority, took an approved FMLA leave of absence to have a tumor removed from his right foot. During the last few weeks of his leave, DaPrato took a previously scheduled vacation to Mexico with his family, a trip he took every year. According to DaPrato, he limited his activities during his trip based on the limitations imposed by his foot surgery.
When the employer learned of DaPrato’s Mexican vacation, its HR director launched an immediate investigation, which included obtaining video of DePrato lifting luggage out of a car at the airport. DaPrato maintained that he did nothing that was inconsistent with the limitations set forth in his FMLA medical certifications. Nevertheless, the company fired him for misrepresenting his disability.
DePrato sued for FMLA retaliation, which resulted in a $1.3 million judgment.
On appeal, the court affirmed, and had this to say about whether and when an employee on FMLA leave can take a vacation.
We clarify today that an employer may validly consider an employee’s conduct on vacation — or, for that matter, anywhere — that is inconsistent with his or her claimed reasons for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used.
Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.
What can employers learn from this case? Don’t make a knee-jerk decision to fire an employee who does something recreational during his or her FMLA leave. Gather the facts and make a reasoned decision over whether the activity is, or is not, consistent with the medical reason(s) for the leave. Fishing while recovered from hernia surgery might be a tough sell for the employee. Convalescing on the beach while recovering from foot surgery, however, might be a different story. Without all of the information and facts coupled with a careful deliberation of their consistence or inconsistency with the FMLA leave, however, you might have a difficult (and costly) time justifying a decision if challenged in court.
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.
According to the National Center for Educational Statistics, in 2017-18, 7 million, or 14 percent of all public-school students, received special education services under the Individuals with Disabilities Education Act. Among those students, 34 percent had specific learning disabilities. Many are on IEPs, and even more are on 504 plans.
What’s the difference? An IEP is made available through the Individuals with Disabilities Education Act, and applies to students with 13 specific disability categories, including, for example, ADHD and autism. 504 plans are more generally available under the Rehabilitation Act and apply to any student with a disability that interferes with the child’s ability to learn in a general education classroom. Both IEPs and 504 plans require a team effort to work. That team always should include the parent(s) or primary caregivers.
Managing a child with special needs is hard. Employment obstacles should not make it harder. A parent shouldn’t have to worry about whether their special needs child is receiving the educational support they need to thrive in school and whether they will have a job when they return from a school meeting.
Bravo to the DOL for applying a common sense interpretation to the FMLA to conclude that attendance at IEP meetings “care for a family member … with a serious health condition,” which is “essential to her ability to provide appropriate physical or psychological care to [her] children.” No employee should have to choose between their family and their job, and this opinion helps ensure these protections.
Yet, with or without the FMLA, all employers should be offering these small amounts of time off. The law is a floor, not a ceiling.
I can hear the protesting cries: “We can’t give every employee time off for every little thing they need. They’ll take advantage of us.”
Seriously? An employee is not taking advantage of you by taking a few hours to meet with the educational team for their special needs child. If you are that worried that an employee is taking advantage of a situation, then deal with that employee.
But don’t deny the time off to all employees just because one employee has taken (or might take) advantage of you. It’s a performance issue specific to one employee. And, if employee leave abuse is a systemic problem throughout your workforce, you should take a look at what you’re doing wrong. Maybe it’s you and not your employees.
Employers, we should be better than this. We have to be better than this. We are better than this.
Don’t do the bare minimum that the law requires. Strive to do more. Make yourself an employer of choice for your employees. You’ll attract and retain better employees who will work harder for you. Don’t just try to reach the floor, but establish your own ceiling.
An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.
Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.
Do you …
(a) Fire him.
(b) Deny the request and force him to quit to have the surgery.
(c) Grant the request, but ask the employee to provide medical information supporting the disability, the need for time off, and an expected return-to-work date.
I hope you picked “c.”
An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:
“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …
Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”
Takeaways?
1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.
2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.
3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).
“I’d cry all night and go to the bathroom and throw up. Even though I had a dream job I felt like I was selfish for not being there. So I sacrificed my job and moved to Seattle.”
