Thursday, July 16, 2015

FMLA/ADA: Interference, retaliation, discrimination

Both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) have many moving parts, and just as many opportunities for unaware employers to make mistakes in administering policies and procedures dealing with these laws. Making mistakes that have the effect of interfering with employees’ rights, discriminating against them for exercising those rights, or retaliating against them for exercising those rights can be very expensive and very damaging for an employer.

While doing my normal weekly review of articles related to employment law, I came across a couple of recent cases (which then led to other, less recent, cases) that highlight some of these mistakes.

First up, Must an Employer Provide Intermittent FMLA Leave So An Employee Can Attend to an Autistic Child? This case points out that we must be careful in making a judgement as to whether an employee’s, or his/her family member’s illness is a serious health condition under the FMLA. Frankly, I’m a little perplexed that anyone would think autism is not a serious health condition, but that might be another story altogether. Now granted, in this case, the employee was asking for more time than was medically necessary as stated by her child’s physician, but the real point here is that, yes, leave for the reasons cited would be covered under the FMLA.

[Jeff Nowak is one of my main sources when I have a question about FMLA. His blog is to the point, timely, and easy for even a lay-person (non-attorney) to understand. I highly recommend it.]

Next, and this could conceivably be related, is Hey, remind me, what is associational discrimination again? You can’t discriminate (refuse to hire, terminate, deny promotion, etc.) because you’re concerned that the employee who associates with someone who has a disability will [insert: take off too much time, have high health care claims, etc].

[See my above comment about Jeff Nowak and apply it to Eric Meyer in terms of general employment law topics.]

So, how can an employer run afoul of these laws? Let’s take a look at a few examples:

Interference
Failing to notify the employee of his/her rights and responsibilities under the FMLA, or failing to properly designate leave as FMLA (or as not qualifying as FMLA if that applies). Or failing to do these things in a timely manner, per the regulations. 

Remember, the employee does not have to specifically ask for FMLA, by name or otherwise. All that is required to trigger your responsibility as a covered employer is for the employee to share enough information with you to indicate a situation is potentially qualifying as FMLA. It is then your responsibility and obligation to begin the process (issuing the Rights and Responsibilities Notice, requesting the appropriate medical certification, issuing the Designation Notice). Failure to do this can be (and has been) considered interference by the courts.

Requiring more from the employee using FMLA than from those using other types of leave. Once designated as FMLA (and that often assumes a sufficient medical certification, though not always necessary) requiring an employee to provide frequent doctor’s notes, for instance, may be considered interference. A sufficient medical certification will have included some indication of how long the serious health condition will last or how often the employee will need to be absent, and asking for more documentation outside of that would be considered onerous. Also, while it is perfectly acceptable to require employees using intermittent FMLA to abide by your normal notice/call-in policies, forcing them to do more than you require from other employees using other types of leave may be considered interference, as well as retaliation or discrimination, if you’re disciplining them for not doing so.

Requiring an employee to perform work while on an FMLA approved absence? Your employee is at home taking care of a covered family member or recovering from her own serious health condition? Don’t ask her to write that whitepaper, or review that spreadsheet or complete that project. "Working" from home cannot be counted against that employee’s FMLA entitlement. You can’t have it both ways.

From the horse’s (DOL) mouth: (in part)

Recognizing when an employee gives notice of the need for FMLA leave Employees have the responsibility of providing notice of the need for FMLA leave to the employer. 29 C.F.R. § 825.301(b). However, it is the employer’s responsibility to designate leave as FMLA-qualifying once it has acquired knowledge that leave is being taken for an FMLA-qualifying reason. 29 C.F.R. § 825.301(a). Recognizing when an employee gives sufficient notice of the need for FMLA leave can be difficult. Unfortunately, even if an employer unintentionally fails to designate FMLA-qualifying absences as protected absences, it runs the risk of violating the FMLA’s interference clause. This is because a termination or any other negative employment action based only in part on an absence covered by the FMLA may violate the FMLA. 29 C.F.R. § 825.220(c).

FMLA regulations expressly provide that an employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice of the need for FMLA-qualifying leave. 29 C.F.R. § 825.301(b). Thus, a leave of absence form cannot be required as a condition precedent to taking FMLA leave. Additionally, a leave of absence request form is not likely to be completed by employees who take unforeseeable leave. Consequently, supervisors should be cautioned against relying too heavily on completed leave of absence request forms when determining whether an employee has provided notice of his or her need for FMLA leave.

 

Retaliation
Issuing discipline for absences that qualify under the FMLA or that may be considered a reasonable accommodation under the ADA. This includes scoring performance evaluations lower due to FMLA covered absences, denying opportunities for promotions, raises, and other benefits because of these absences, or firing the employee because of their need for or use of FMLA. It also includes snide remarks from co-workers or supervisors about the employee’s absence from work. 

Again, from the DOL:

Examples of prohibited conduct include:
Refusing to authorize FMLA leave for an eligible employee,
Discouraging an employee from using FMLA leave,
Manipulating an employee’s work hours to avoid responsibilities under the FMLA,
Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,
Counting FMLA leave under "no fault" attendance policies.

Discrimination
See all the above! Especially the piece on associational discrimination. You cannot judge an employee based on his/her association with someone who has a disability. The example in the cited article highlights a case where an employee was treated differently (read: discriminatory) based on the assumption that her disabled child would negatively affect her ability to do the job. Again, an employer cannot discriminate based on this association; whether in hiring, firing, promotion, training, etc. 

Need more?

When Has an Employee Provided Sufficient Notice of the Need for FMLA Leave? Good point on the importance of supervisors correctly noting reasons for leave, and asking the right questions.

Remember No Intent Necessary! Great article on why your lack of intent to interfere or retaliate is not relevant; it’s the effect your actions have that count.

How about cold, hard facts (or cold, hard cash)? There are so many examples of the risks of getting the FMLA or ADA wrong. Just Google it (go ahead, I’ll wait……..) Ok, I’ll save you a little time, cause I’m nice like that:

Cheyenne Jury Awards $1,481,000+ On FMLA Retaliation Claim
Leave of absence: $400,000 award in FMLA retaliation case
Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

All of this reminds us that we need to properly train our supervisors, and other members of management, to recognize possible FMLA claims and refer employees to HR. We have to hold them accountable for this responsibility. It also requires that your HR department have enough knowledge about the FMLA and ADA to do a proper assessment and manage the process appropriately.

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