10 Tough FMLA Questions and Their Answers – Working Through Leave Law Issues That Are Often Difficult and Confusing

SESSION 402

Penelope J. Phillips Felhaber Larson Minneapolis

Upper Midwest Employment Law Estate Institute – May 20-21, 2019 Minnesota CLE’s Copyright Policy

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TABLE OF CONTENTS

Introduction ...... 1

I. HOW SHOULD EMPLOYERS IDENTIFY WHEN AN EMPLOYEE NEEDS FMLA LEAVE WHEN THE EMPLOYEE DOESN’T ASK FOR IT SPECIFICALLY? AND WHEN DO EMPLOYERS NEED TO ASK FOR MORE INFORMATION RELATED TO A REQUEST FOR LEAVE? ...... 2

II. HOW SHOULD EMPLOYERS ENSURE POLICIES DON’T RUN AFOUL OF THE FMLA? ...... 4

A. Call-In Procedures ...... 4

B. Substitution of Paid Leave During FMLA ...... 5

C. Concurrent or Consecutive Leave and Incomplete Notices and Policies ...... 7

III. HOW ARE LEAVE AND ELIGIBILITY DETERMINATIONS IMPACTED BY NON- TRADITIONAL WORK SCHEDULES AND ARRANGEMENTS? ...... 8

A. Determining Eligibility for Leave ...... 8

B. Calculating Leave Usage ...... 9

C. Varying and Rotating Work Schedules ...... 10

D. Remote Workers ...... 10

IV. HOW SHOULD EMPLOYERS ADDRESS BONUSES AND INCENTIVE PAYMENTS FOR EMPLOYEES ON FMLA LEAVE? ...... 11

A. Benefits while on FMLA Leave...... 11

B. Bonuses While on Leave ...... 12

C. Holidays ...... 12

V. MEDICAL CERTIFICATIONS – WHAT IS AN ACCEPTABLE MEDICAL CERTIFICATION, AND WHAT SHOULD EMPLOYERS DO WHEN AN EMPLOYEE’S FMLA LEAVE DOESN’T MATCH THEIR CERTIFICATION? ...... 13

A. Medical Certifications Generally ...... 13

B. Required Information ...... 15

C. Incomplete Certifications ...... 16

i 3056918.v1 VI. HOW SHOULD EMPLOYERS HANDLE FMLA EXTENSION REQUESTS? ...... 16

A. Recertification ...... 16

B. Leave Not Matching Medical Certification ...... 18

VII. HOW SHOULD EMPLOYERS REGULATE INTERMITTENT FMLA LEAVE? ...... 18

A. Generally ...... 18

B. Addressing an employee’s chronic medical condition ...... 19

C. Temporary Transfers ...... 20

VIII. UNDER WHAT CIRCUMSTANCES CAN AN EMPLOYER FIRE AN EMPLOYEE WHO IS ON FMLA LEAVE OR WHO HAS JUST RETURNED FROM FMLA LEAVE? ...... 21

IX. WHAT CAN EMPLOYERS DO ABOUT SUSPECTED FMLA FRAUD AND ABUSE? .. 22

A. The “Honest Belief” Defense ...... 22

B. Conducting FMLA Fraud Investigation ...... 23

X. WHAT IS REQUIRED OF EMPLOYERS WHEN REINSTATING AN EMPLOYEE FOLLOWING FMLA LEAVE? ...... 24

A. Generally ...... 24

B. Equivalent Positions ...... 24

C. Fitness-for-Duty Certifications ...... 25

ii 3056918.v1 Introduction

The Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 – 2654, entitles eligible employees to take up to twelve workweeks of unpaid leave because of a serious health condition that makes the employee unable to perform the functions of his or her position; because of the birth of a son or daughter and to care for the newborn child; for placement with the employee of a son or daughter for adoption or foster care; to care for the employee’s spouse, son, daughter, or parent who has a serious health condition; or because of a qualifying exigency of a covered military member. 29 U.S.C. § 2612; 29 C.F.R. § 825.112. Additionally, eligible employees are entitled to up to 26 workweeks of leave to care for a covered service member with a serious injury or illness. 29 U.S.C. § 2612; 29 C.F.R. § 825.112.

Here are ten FMLA questions and their answers that can be difficult or confusing for employers:

1) How should employers identify when an employee needs FMLA leave when the employee doesn’t ask for it specifically? And when do employers need to ask for more information related to a request for leave?

2) How should employers ensure policies don’t run afoul of the FMLA?

3) How are leave and eligibility determinations impacted by non-traditional work schedules and arrangements?

4) How should employers address bonuses and incentive payments for employees on FMLA leave?

5) Medical certifications – what is an acceptance medical certification, and what should employers do when an employee’s FMLA leave doesn’t match their certification?

6) How should employers handle FMLA extension requests?

7) How should employers regulate intermittent FMLA leave?

8) Under what circumstances can an employer fire an employee who is on FMLA leave or who has just returned from FMLA leave?

9) What can employers do about suspected FMLA fraud and abuse?

10) What is required of employers when reinstating an employee following FMLA leave?

Provided below is a brief description of the law governing each of these “tough questions” and practical steps employers can take to exercise their rights under the FMLA.

1 3056918.v1 I. HOW SHOULD EMPLOYERS IDENTIFY WHEN AN EMPLOYEE NEEDS FMLA LEAVE WHEN THE EMPLOYEE DOESN’T ASK FOR IT SPECIFICALLY? AND WHEN DO EMPLOYERS NEED TO ASK FOR MORE INFORMATION RELATED TO A REQUEST FOR LEAVE?

An employee need not specifically assert rights under the FMLA or even mention the statute by name to invoke its protection. Notice is sufficient if the employee states that leave is needed for a potentially qualifying reason. It is then up to the employer to inquire further to determine if the leave is for an FMLA qualifying reason. 29 C.F.R. §§ 825.302(c), 825.303(b).

It can be difficult at times to determine whether the employer is “on notice” or not, as it requires considering the totality of the circumstances. See Rask v. Fresenius Med. Care N. Am., 509 F.3d 466, 471 (8th Cir. 2007) (“[T]he employer’s duties [under the FMLA] are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave.” (quotation omitted)).

“The Eighth Circuit has a ‘rigorous notice standard for employees seeking to use FMLA leave for absences.’” Adams v. Scalzo Hospitality, Inc., 2014 U.S. Dist. LEXIS 40424 (D. Minn. Mar. 25, 2014) (quoting Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777 (8th Cir. 2013)) (emphasis added). “Although the employee need not identify the statute, she must provide enough information to suggest that her health condition could be serious.” Id. at *14 (quotation omitted). “Employees thus have an ‘affirmative duty to indicate both the need and the reason for the leave,’ and must let employers know when they anticipate returning to their position.” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Sanders v. May Dep’t Stores Co., 315 F.3d 940, 944 (8th Cir. 2003)). Stated differently, a claim under the FMLA cannot succeed unless the plaintiff can show that he gave his employer adequate and timely notice of his need for leave. Id. at 991.

According to the FMLA regulations: “An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” Notice has been considered “inadequate” for FMLA purposes in the following circumstances:

 “Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer's obligations under the [FMLA].” See 29 C.F.R. § 825.303(b); see also Phillips v. Quebecor World RAI Inc., 450 F.3d 308 (7th Cir. 2006); Wilson v. Noble Drilling Servs. Inc., 405 Fed. App’x 909 (5th Cir. 2010); Murphy v. FedEx Nat’l LTL Inc., 618 F.3d 893 (8th Cir. 2010); Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001).

 Employee did not give notice when she simply mentioned that she “was not well enough to come in to work.” Jansson v. Stamford Health, Inc., No. 3:16-cv-260 (CSH), 2017 U.S. Dist. LEXIS 51767 (D. Conn. Apr. 5, 2017)

 Lanier v. Univ. of Tex. Southwestern Med. Ctr., 527 Fed. Appx. 312 (5th Cir. 2013) call-in business analyst who texted her supervisor to request a change in work rotations because of her sick father did not make a proper or formal request for FMLA leave. The employee’s request was only to be relieved of on-call duty for one night, and the employee had taken FMLA leave in the past and was familiar with the proper way to request it, but did not do so here.

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 Employee did not give sufficient notice of need for FMLA leave where employee failed to contact her employer for over a month due to depression but had told coworker with whom she carpooled that she was depressed and coworker could not remember if she reported this information to the employer. Bosley v. Cargill Meat Solutions Corp., 705 F.3d 777 (8th Cir. 2013).

 The employee complains of “stress” and “anxiety,” but refuses to fill out FMLA forms offered by the employer. Kobus v. College of St. Scholastica, Inc., 608 F.3d 1034 (8th Cir. 2010).

 Employee who broke his ankle and required surgery’s communication that while he may have preferred to work from home, he had no choice but to seek short term disability leave if he was not permitted to do so may have triggered employer’s obligation to inform employee of his FMLA rights, but because he was aware his employee offered FMLA leave and received a copy of his handbook he could not show he was prejudiced by employer’s failure to inform him of his rights. Crain v. Schlumberger Tech. Co., 187 F. Supp. 3d 732 (E.D. La. 2016).

It is important to remember that employees do not need to specifically mention the FMLA in an absence request; and that employers have a duty to inquire further into a potential FMLA leave request if warranted by an employee’s statements. The following cases demonstrate facts that could constitute sufficient notice to exercise FMLA rights:

. Reeder v. Cty. of Wayne, 694 F. App’x 1001 (6th Cir. 2017) Employee delivered to the County Personnel Office three notes of health-care providers certifying that he was unable to work in excess of eight hours per day but did not provide a formal request FMLA leave. This evidence created a genuine question for the jury as to whether Reeder had given the County sufficient notice that he was subject to an FMLA-qualifying condition that would excuse him from mandatory overtime work.

. In Brown v. Lester E. Cox Med. Ctrs., No. 6:14-cv-03529-MDH, 2016 U.S. Dist. LEXIS 7534 (W.D. Mo. Jan. 22, 2016) the court denied summary judgment where plaintiff called into work citing “headaches” or “being ill” but plaintiff asserted that she also called in citing migraines, and there was evidence that it was well-known she suffered from migraines.

. Employee provided her employer with a doctor’s note informing the employer of employee’s anxiety and need for medical leave one day after her termination. Clinkscale v. St. Therese of New Hope, 701 F.3d 825 (8th Cir. 2012).

. Employee referenced the FMLA and asked his employer for information on leave-taking procedures after he informed his department of his medical condition, its debilitating symptoms, and that he would likely need to take leave in the future for treatment and recovery. Rynders v. Williams, 650 F.3d 1188 (8th Cir. 2011).

. In Murphy v. FedEx Nat’l LTL, Inc., 618 F.3d 893 (8th Cir. 2010), the Eighth Circuit found a reasonable jury could conclude an employee’s request for thirty days’ leave to “take care of things” after her husband died did put the employer on notice of that she was requesting

3 3056918.v1 FMLA leave because (1) the supervisor was aware Plaintiff’s husband had died unexpectedly; (2) the Plaintiff was “noticeably distraught”; and (3) the Plaintiff was unable to work the night shift “because it reminded her too much of her husband” (who also had worked for the employer): “A jury could consider the effect that [Plaintiff’s] mental state, and [the employer’s] awareness of that state, had on the objective sufficient of [Plaintiff’s] notice.” Id. at 903-04.

There are other situations that may prompt the employer to seek more information to determine if leave qualifies as FMLA leave. For example, these issues may arise when an employee requests FMLA leave to care for a family member. Under the FMLA, leave may be taken to provide care for any individual who is the employee’s “parent.” A “parent” is defined broadly as the biological, adoptive, step, or foster parent of an employee or an individual who stood in loco parentis to the employee when the employee was a son or daughter. 29 C.F.R. § 825.122. “Parent” does not include the employee’s parents-in-law.

The employer should not necessarily rely on the basic information of a family member’s relation to the employee, but rather should inquire further. For example, in Coutard v. Mun. Credit Union, 848 F.3d 102 (2d Cir. 2017), the employee requested leave to care for his sick grandfather. The court determined that the employer should have requested more information instead of summarily rejecting request, as the grandfather was had been en loco parentis to the employee and this relationship is not so unusual that the employer should not have been expected to inquire further.

II. HOW SHOULD EMPLOYERS ENSURE POLICIES DON’T RUN AFOUL OF THE FMLA?

A. Call-In Procedures

Absent unusual circumstances, the FMLA regulations allow employers to deny FMLA leave if the employee fails to follow the employer’s call-in procedures. 29 C.F.R. §§ 825.302(d) (“An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”), 825.303(c) (“[A]n employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”); Thompson v. CenturyTel of Cent. Ark., LLC, 403 Fed. App’x 114, 117 (8th Cir. 2010) (citing Bacon v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 714 (8th Cir. 2008)); see also DOL Op. FMLA 2009-1-A (Jan. 6, 2009) (“[W]here an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer's notice requirements can be enforced,” and an employee' s failure to provide notice consistent with the employer's policy - absent extenuating circumstances - supports an employer’s denial of FMLA leave for the absence).

In Acker v. GM LLC, No. 4:15-CV-706-A, 2016 U.S. Dist. LEXIS 85730, (N.D. Tex. July 1, 2016) (upheld at Acker v. GM LLC, 853 F.3d 784 (5th Cir. 2017), the employer had an FMLA notice policy that required employees to call in requests for FMLA leave to both an absence call-in line and a benefits and services line. When advanced notice was not possible, employees were to report absences to the call-in line at least 30 minutes prior to the start of their scheduled shift and report to the benefits and services line before the end of the shift. Plaintiff knew about the policies but failed to report his absences before the deadlines. The court determined that requiring FMLA leave requests to

4 3056918.v1 be made by calling two phone numbers is not outside the scope of reasonable requirements for requesting FMLA leave. The 30-minute call-in deadline was also lawful.

However, the employer’s policy in Millea v. Metro-North R.R., 658 F.3d 154, 160 (2d Cir. 2011) did conflict with the FMLA. In this case, Metro-North’s leave policy required an employee to provide direct notice to his or her supervisor as soon possible in the event of the need for unforeseeable FMLA leave. The employee was a combat veteran and suffered from PTSD. After a heated phone call with his supervisor, he suffered a panic attack and immediately left work to see his doctor. However, he did not inform his supervisor that he was leaving and instead informed the lead clerk and asked him to inform the supervisor, which the lead clerk did. The next day, the employee called the lead clerk and asked him to report another FMLA day to the supervisor, which he did. Because the employee did not notify the supervisor of his two absences directly, the absences were logged as non-FMLA leave. On the employee’s interference claim, the court determined that the regulations implementing the FMLA condone indirect notification in the event of unforeseeable leave. § 825.303(a). Thus, Metro-North’s policy conflicted with the FMLA and was therefore invalid to the extent it requires direct notification even when the FMLA leave is unforeseen.

In another example of a policy that is more stringent than the FMLA regulations themselves, Holladay v. Rockwell Collins, Inc., No. 3:17-CV-00078-SMR-SBJ, 2019 U.S. Dist. LEXIS 12662 (S.D. Iowa Jan. 24, 2019) involved a leave of absence policy that required a doctor’s note for more than three days of leave. This policy was invalid as it imposed an undue burden that was more onerous that the medical certification requirement required by the FMLA, and therefore the policy could not be used to deny FMLA.

B. Substitution of Paid Leave During FMLA

Generally, FMLA leave is unpaid leave. 29 C.F.R. § 825.207(a). However, under certain circumstances, an eligible employee may choose, or the employer may require the employee, to substitute accrued paid leave for FMLA leave. Id. In this situation, substitute means that the “paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.” Id. Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave. Id. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. Id. “If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the employee’s FMLA leave entitlement.” 29 C.F.R. § 825.207(c).

On March 14, 2019, Keith Sonderling, the acting administrator of the Wage and Hour Division (WHD) of the Department of Labor (DOL), issued an opinion letter clarifying the DOL’s position on designating and taking leave under the FMLA. FMLA regulations have long-stated that “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” 29 C.F.R. § 301(a). The DOL letter provides further clarification of this issue by stating:

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave from an FMLA-qualifying reason, neither the employer nor the employee may decline FMLA protection for that leave.

5 3056918.v1 ***

The employer may not delay designating leave as FMLA qualifying, even if the employee would prefer that the employer delay the designation…[If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts towards his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

FMLA2019-1-A, March 14, 2019 (emphasis added).

What about employers who want to be generous to employees or simply avoid the paperwork of FMLA for a short absence? The DOL says no – the employer is not allowed to exercise discretion as to FMLA-qualifying leave. If time is taken for an FMLA-qualifying reason, it must be designated as FMLA. The opinion letter explicitly states the WHD’s disagreement with Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), a 9th Circuit decision that held employees may decline FMLA leave to preserve it for future use and instead use vacation time before using FMLA leave. Additionally, the letter prohibits an employer from designating more than 12 weeks of leave (or 26 weeks of leave for military caregiver leave) in a year as FMLA leave. Therefore, if an employee elects to take paid leave for reasons that qualify for FMLA protection over unpaid FMLA leave, the paid leave counts toward the 12-week FMLA entitlement and does not expand it. Best practice for employers outside of the 9th Circuit is to make sure that supervisors and managers understand the importance of not allowing employees to deny application of the FMLA, and ensure that there are consistent policies regarding inquiring into absences.

Generally speaking, leave taken under a disability leave plan or as a workers’ compensation absence that also qualifies as FMLA leave due to the employee’s own serious health condition may be designated by the employer as FMLA leave and counted against the employee’s FMLA leave entitlement. 29 C.F.R. § 825.207(d). “Because leave pursuant to a disability benefit plan is not unpaid, the provision for substitution of the employee's accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave.” Id. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two- thirds of an employee's salary. Id.

In Repa v. Roadway Express, Inc., 477 F.3d 938 (7th Cir. 2007), the plaintiff suffered an injury that required surgery and a six-week absence from work. During the leave the plaintiff received a weekly $300 disability benefit through a third-party disability plan. While she was on FMLA, her employer required her to use vacation and sick leave. Repa sued seeking to have her sick leave and vacation benefits restored. She prevailed at summary judgment and the Court held that an employer’s ability to require an employee to substitute paid leave during FMLA is limited if, during FMLA leave, the employee also received disability benefits. While the plaintiff, during her FMLA leave, could have been provided the opportunity to elect to substitute paid leave at the time she was also receiving disability benefits, it was unlawful for her employer to require the substitution of her vacation and sick time.

6 3056918.v1

C. Concurrent or Consecutive Leave and Incomplete Notices and Policies

It is important for employers to ensure that their leave policies are consistent with one another and free from ambiguity over whether different types of leave run concurrently or consecutively.

Rengan v. FX Direct Dealer, LLC, No. 15-cv-4137, 2017 U.S. Dist. LEXIS 123456, (S.D.N.Y. Aug. 4, 2017) illustrates the pitfalls of poorly drafted policies in this regard. The employer maintained an FMLA policy and a separate “maternity leave policy in the employee handbook. The FMLA section indicated that employees may take up to 12 weeks of leave for the birth of a child, and the maternity leave section indicated that employees may take up to eight weeks of paid leave, and an additional four weeks of unpaid leave. The maternity leave policy stated:

Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave. At present, all full-time regular employees will receive their full wages for a period of time not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.

Id at*3-4.

Crucially, both the FMLA and the maternity leave policy were silent on whether FMLA leave and maternity leave ran concurrently or consecutively. In 2014, the employee learned she was pregnant and due in November. The employee informed the company’s human resources representative that she needed leave for the upcoming birth of her child. This notice was provided about 60 days before the employee’s due date. She indicated that she would like to take 17 days of vacation followed by maternity leave. The employee was never provided with FMLA eligibility/rights & responsibilities notice or a designation notice. After being on FMLA leave for a couple months, HR sent the employee an email indicating that the last day of the 12 week leave was approaching and she was expected to return to work. When the employee did not return on the appointed day she was terminated.

The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether the employer violated the FMLA when it declined to give her additional leave.

In Tilley v. Kalamazoo County Rd. Comm’n, 777 F.3d 303 (6th Cir. 2015), the employee left work after experiencing heart attack-like symptoms and informed his employer that he would not return to work for four days and filed for FMLA leave. The employer denied the leave, relying on the 50/75 eligibility rule which holds that employees must work at or within 75 miles of a worksite employing 50 or more employees. The employee was then terminated for failing to meet a return to work deadline. The employee sued, arguing that the employer’s personnel manual misrepresented his FMLA eligibility by not including the 50/75 rule in its eligibility criteria. The 6th Circuit held in favor of the employee, determining that because the employer’s FMLA policy did not contain a

7 3056918.v1 complete list of eligibility criteria, a reasonable person in the employee’s position could have believed he was protected by the FMLA.

III. HOW ARE LEAVE AND ELIGIBILITY DETERMINATIONS IMPACTED BY NON- TRADITIONAL WORK SCHEDULES AND ARRANGEMENTS?

A. Determining Eligibility for Leave

Only eligible employees are entitled to the FMLA’s protections. Eligibility requirements are as follows:

 Be employed by a covered employer and work at a worksite within 75 miles of which that employer employs at least 50 people;

 Have worked at least 12 months (which do not have to be consecutive) for the employer prior to the leave request; and

 Have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.

29 U.S.C. § 2611(2)(A).

The employee must have actually worked the 1,250 hours – PTO does not count. The FMLA regulations clarify the “hours of service” is measured according to “actual hours worked under [the] FLSA’s principles.” 29 C.F.R. § 825.110(c) (emphasis added). As confirmed by the District of Minnesota:

The FMLA delineates that “hours of service” must be determined by the same principles used in the Fair Labor Standards Act (“FLSA”), … and by regulations created pursuant to that act, to determine “hours of work” for payment of overtime compensation. Under the FMLA, hours/days of paid vacation and sick leave cannot be included in the computation of hours of work. 29 U.S.C. § 207(e)(2).

Hastings v. Carlson Marketing, 2005 WL 2837391 at *4 (D.Minn. Oct. 27, 2005); see also Sepe v. McDonnell Douglas Corp., 176 F.3d 1113, 1115 (8th Cir. 1999) (“Because [the employee] worked only 822 hours during the year preceding his request for leave, he does not qualify as an ‘eligible employee’ and therefore is not entitled to FMLA protection”).

An employer is permitted to choose whether it will calculate the 12-month entitlement period based on either (a) the calendar year; (b) a fixed 12-month period (i.e. fiscal year); (c) a 12-month period measured forward from the first day of the employee’s FMLA leave; or (d) a “rolling” 12- month period measured backwards from the date the employee uses any FMLA leave. 29 C.F.R. § 825.200(b). The employer must apply this calculation “consistently and uniformly to all employees.” 29 C.F.R. § 825.200(d)(1). An employer must give employees 60 days’ notice if it decides to change its calculation method, “and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee.” Id.

8 3056918.v1 Employers should beware of the consequences for not selecting a method of calculating or failing to clearly and consistently define the method of calculation in policies and communication:

 Canupp v. Children’s Receiving Home of Sacramento, 181 F. Supp. 3d 767 (E.D. Cal 2016): denying summary judgment and finding genuine issues of material fact as to what method employer used to calculate FMLA leave where there was a discrepancy between calculation method plaintiff was told verbally and what was written in employer’s policy.

 Casas v. Sch. Dist. of Hillsborough Cty., No. 8:13-CV-599-T-17TBM, 2014 U.S. LEXIS 90172 (M.D. Fla. July 2, 2014): denying employer’s motion for summary judgment on plaintiff’s interference claim where policy that stated “that the 12-month period is defined as a fixed 12 month period (i.e. the “leave year” is identical for all staff members – e.g. a fiscal year or a calendar year” was facially ambiguous because it referred to two authorized calculation methods despite declaration attesting to the employer’s use of fiscal year method.

 Thom v. American Standard Inc., No. 09-3507/3508, 2012 U.S. App. LEXIS 6720 (6th Cir. Mar. 26, 2012): plaintiff entitled to liquidated damages where the employer amended its FMLA leave policy to adopt the rolling method for calculating an employee’s period of FMLA leave, but did not notify the plaintiff of its change in policy or that his leave would run out.

In Wages v. Stuart Management Corp., 798 F.3d 675 (8th Cir. 2015), the employee brought suit against her employer for a host of claims, including FMLA interference and retaliation. The employer asserted that the employee was not eligible for the FMLA’s protections because she had not been employed for an entire year when it terminated her employment. The district judge did not agree. In this case, the employee’s leave would have begun one day before her year anniversary. The court noted that federal regulations provide that an employee may use non-FMLA leave to “bridge the gap” until her eligibility date comes due. The court chided the employer for not letting the employee use PTO or vacation time to cover her reduced work schedule until she became FMLA- eligible.

B. Calculating Leave Usage

FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour. The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour. Similarly, if an employer allows for use of leave in different increments during specific times of the day (for example, requiring a one hour increment of leave at the start of the shift and using 15 minutes increments for leave at other times), the employer may use the same increment for FMLA leave at those specific times of the day. An employer may always allow FMLA leave in shorter increments than used for other forms of leave but no work may be performed during any period of time counted as FMLA leave.

Only the amount of leave actually taken may be counted against an employee’s FMLA leave entitlement. See 29 C.F.R. § 825.205(b) (“[O]nly the amount of leave actually taken may be counted toward the employee’s leave entitlement.”). Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee

9 3056918.v1 would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used.

C. Varying and Rotating Work Schedules

29 C.F.R. § 825.205(b)(3) provides that if an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) will be used for calculating the employee’s leave entitlement.

Acosta v. Alaska, No. 1:17-cv-0009-HRH, 2018 U.S. Dist. LEXIS 189656 (D. Alaska Nov. 6, 2018) involved employees with rotating work schedules. The Alaska Marine Highway System (AMHS) schedules some vessel employees in a rotational basis where they work for one or more weeks followed by one or more weeks off. When calculating FMLA leave, AMHS counted the weeks consecutively, including the weeks the employees were not scheduled to work.

The U.S. Department of Labor asserted that AMHS was miscalculating the 12 weeks of FMLA as the employer was improperly considering the weeks that that rotational employees were not scheduled to work as actual workweeks and subtracting the weeks that they were not scheduled to work as FMLA leave. The court sided with the DOL pointing out that the statute as well as the regulations provides that an eligible employee is entitled to 12 workweeks of FMLA leave each year. A workweek is time that an employee is actually required and expected to work. During the weeks an employee is not scheduled to work the employee cannot be considered to be missing work.

D. Remote Workers

The FMLA regulations state that an eligible employee under the FMLA must be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.” 29 C.F.R. § 825.110(a)(3). The FMLA regulations do not define “worksite.” However, Section 825.111(a)(2) of the regulations, which address how to determine whether 50 employees are employed within 75 miles, states:

An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

Id.

In Knutson v. Air-Land Transp. Serv. Inc., No. C15-2076, 2016 U.S. Dist. LEXIS 120689 (N.D. Iowa Sep. 6, 2016) the employee was a truck driver with no fixed worksite. The employee claimed that the employer terminated him to prevent him from taking a second medical leave for potentially upcoming heart surgery. The employee asserted that he worked at or reported to a facility with over 50 employees in a 75-mile radius and thus would have been eligible for FMLA-covered leave. The employer claimed he worked at a different facility without a sufficient number of employees to be covered by the FMLA. The Court determined that for employee with no fixed

10 3056918.v1 worksite, like a truck driver, ‘the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.’” The Court found that the employee received his work instructions from the site with 50 or more employees and thus was an eligible employee under the FMLA.

In Donahoe-Bohne v. Brinkmann Instruments, No. 16-2766, 2016 U.S. Dist. LEXIS 77934, at *1 (E.D. La. June 15, 2016), the court determined that the FMLA’s 50-employee threshold was met where a telecommuting employee in Louisiana reported to an office in Florida that had at least 50 employees. After the employee was terminated, she alleged that the employer never informed her of her rights under the FMLA. The employer argued that she failed to establish that that she was an eligible employee under the FMLA. The employee submitted an affidavit stating that although she worked from home through a telecommuting arrangement, she reported to the Tampa, Florida corporate office, which had more than 50 employees. The Court determined that the employee had provided sufficient evidence to support her claim that she was an eligible employee under the FMLA and denied the employer’s motion to dismiss because a genuine issue of material fact existed with respect to eligibility status.

IV. HOW SHOULD EMPLOYERS ADDRESS BONUSES AND INCENTIVE PAYMENTS FOR EMPLOYEES ON FMLA LEAVE?

A. Benefits while on FMLA Leave

The FMLA requires that the employer maintain the employee’s coverage under any group health plan “on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.” 29 C.F.R. § 825.209(a). (“Group health plan” does not include health-insurance programs whereby the employee purchases individual policies from an insurer, the employer makes no contributions, and participation is voluntary. 29 C.F.R. § 825.800)). “An employer has no obligation regarding the maintenance of a health insurance policy which is not a ‘group health plan.’” 29 C.F.R. § 825.212(a)(2).

This means that the employee is still required to make his/her normal contributions to the health-plan premium, including any new rate if the contribution-level is raised while the employee is on FMLA leave. 29 C.F.R. § 825.210(a). If the employee is substituting paid leave, the employee’s share should be collected pursuant to the normal method (i.e. payroll deduction). 29 C.F.R. § 825.210(b). If the employee’s FMLA leave is unpaid, the employer has several options to collect the premium: determining it is due the same time as the payroll deduction, due on the same schedule as COBRA payments, or prepaid by the employee. 29 C.F.R. § 825.210(c). However, the employer must give the employee written notice of the terms and conditions of the payments, and the employer may not require more of an employee on FMLA leave than it requires from other employees on (non- FMLA) unpaid leave. 29 C.F.R. § 825.210(d), (e).

If the employee fails to pay for coverage during FMLA leave, the employer may stop coverage during the leave. The employee’s premium payment must be more than 30 days late. 29 C.F.R. § 825.212(a)(1). Further, the employer must give the employee written notice at least 15 days before coverage will cease advising coverage will be dropped on a specified date unless payment is received. Id.

However, the employee must be re-enrolled on return to work without a waiting period. 29 C.F.R. § 825.212(c). If the insurer does not allow re-enrollment, the employer may pay the

11 3056918.v1 premiums on the employee’s behalf, and seek reimbursement from the employee (i.e. promissory note, authorization of wage deduction). 29 C.F.R. § 825.212(b).

B. Bonuses While on Leave

The regulations provide:

[I]f a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave basis for a reason that does not qualify as FMLA leave.

29 C.F.R. § 825.215(c)(2) (emphasis added).

In the comment section to the Regulations, the DOL states that an employer is “free to prorate bonuses or awards in a non-discriminatory manner. [But], whatever the program, it cannot discriminate against employees who exercise their FMLA rights.” 73 Fed. Reg. 67985 (Nov. 17th, 2008). See, e.g., Clemens v. Moody’s Analytics, Inc., No. 17-cv-410 (PAC), 2018 U.S. Dist. LEXIS 60248 (S.D.N.Y. Apr. 9, 2018) (holding that 63 days of FMLA leave for cancer treatment could be prorated against production bonus); Sommer v. The Vanguard Grp.,461 F. 3d 397, 401 (3d Cir. 2006) (“[The] employer may prorate any production bonuses to be paid to an FMLA leave taker by the amount of lost production (be it hours or another quantifiable measure of productivity) caused by the FMLA leave.”).The DOL comments further provide that the phrase “equivalent leave status” refers to, for example, vacation leave, paid time off or sick leave. 73 Fed. Reg. 67985 (Nov. 17th, 2008). The DOL also provide that the phrase “for a reason that does not qualify as FMLA leave” means, for example, the use of vacation or sick leave that is not for an FMLA purpose, e.g., sick leave that is not taken concurrently with FMLA leave. Id. (emphasis added).

However, in regards to unconditional pay increases automatically given to employees – increases such as a cost of living increase that are provided to all employees without any condition attached – an employee who has taken FMLA leave is entitled to the same increase.

C. Holidays

For the purposes of holiday pay, employers must treat employees on FMLA leave the same way they would treat another employee on non-FMLA leave. The regulations provide:

An employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate.

29 C.F.R. § 825.209(h).

If the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (for example, school closing due to summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. 29 C.F.R. § 825.200(h).

12 3056918.v1 Thus, the days during these school breaks should not be counted against the employee’s FMLA leave entitlement. See, e.g., Jones v. Maywood Melrose Park Broadview Sch. Dist. 89, No. 16-cv-09652, 2017 U.S. Dist. LEXIS 106250 (N.D. Ill. July 10, 2017).

V. MEDICAL CERTIFICATIONS – WHAT IS AN ACCEPTABLE MEDICAL CERTIFICATION, AND WHAT SHOULD EMPLOYERS DO WHEN AN EMPLOYEE’S FMLA LEAVE DOESN’T MATCH THEIR CERTIFICATION?

A. Medical Certifications Generally

Employees must notify their employers of their need for leave that may qualify under the FMLA. When leave is foreseeable, an employee must notify the employer within 30 days before the leave commences. In the case of unforeseeable leave or a medical emergency, an employee must give notice “as soon as practicable.”

The FMLA permits an employer to require medical certification only of employees who request leave for a serious health condition. 29 C.F.R. §§ 825.305, 825.312. In the case of foreseeable leave, the employer has the right to request that an employee furnish certification at the time the employee gives notice of the need for leave or within 5 business days. 29 C.F.R. § 825.305(b). In the case of unforeseen leave, the employer has the right to request certification within 5 business days after the leave commences. Id. The employee then has 15 days to provide medical certification. Id. An employee must be notified of the employer's requirements for compliance as well as the consequences of a failure to comply. 29 C.F.R. § 825.305(d).

The employer should require medical certifications:

 To verify, initially, the employee’s serious health condition and need for leave,

 Every leave year (in connection with an absence),

 Every time the reason for leave changes, and

 Every time there is a request for an extension of leave.

Medical certification should include the following content:

 Approximate date when the condition began,

 Probable duration of the condition, and

 Description of appropriate medical facts supporting the need for leave.

 If intermittent leave is required, an estimate of the frequency and duration for treatment or episodes of incapacity.

 For an employee’s own serious health condition, the certification is required to show: o Cannot perform the essential functions of the job; o Nature of any other work restriction; and

13 3056918.v1 o Likely duration.

 For a family members serious health condition, the following information should be provided: o The need for care, and o Estimate of frequency and duration of leave required.

Importantly, if an employer intends to require certification, it is incumbent on the employer to insure that the employee receives not just the certification form but notice of her FMLA rights. Failure to provide the required notice can constitute an interference claim where the employee has been prejudiced by the absence of notice. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).

For example, in Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3d Cir. 2014) the plaintiff, Lisa Lupyan, who was a Corinthian College instructor, decided to take a “personal leave of absence” after her supervisor noticed that she seemed depressed. Instead of seeking a LOA, the supervisor suggested that the instructor apply for short-term disability leave. The instructor saw a doctor and submitted a certification form. The college determined she was eligible for FMLA leave, but there was no discussion with HR about Lupyan’s FMLA rights or the college’s expectations. The college alleged that it mailed Lupyan a letter, but Lupyan claimed that she never received it. The college took no further action to check on her or follow up. When Lupyan was released to work, she was told by the college that she could not come back if there were any medical restrictions. When she provided a full release, Lupyan was told that she could not come back because she had not returned to work within 12 weeks. According to Lupyan, this was the first time she was told that she had even been on FMLA leave.

Reversing the district court’s entry of summary judgment in favor of the college, the Third Circuit rejected the college’s attempted use of the “mailbox rule,” which is the presumption that a letter placed in the mail was received. The court noted that the presumption was “weak” in this case because the college did not send the letter by certified or registered mail. According to the court, “[g]iven Lupyan's denial, and the ease with which a letter can be certified, tracked, or proof of receipt obtained, that weak rebuttable presumption is not sufficient to establish receipt as a matter of law and thereby entitle [the college] to summary judgment.” Id. at 360.

Also, as noted above, when the employer requests certification, the employer must also advise the employee of the anticipated consequences of his failure to provide adequate certification. 29 C.F.R. § 825.305(d). Failure to specify the consequences can doom the employer’s otherwise lawful denial of FMLA leave.

For example, in Wallace v. FedEx Corp., 764 F.3d 571 (6th Cir. 2014), 21-year employee Tina Wallace was working as a paralegal when she confronted a series of medical difficulties that required her to take time from work. She was reluctant to disclose these health issues, but eventually she met with HR and explained that she needed time off from work. Wallace was given a blank FMLA medical certification form and verbally told to have it completed by her doctor and return it to FedEx. After substantial litigation, a jury concluded that “FedEx failed to meet these requirements and, thus, that FedEx could not hold Wallace's failure to turn in her certification against her.” In addition, “the jury found that if FedEx had instructed Wallace on the consequences of not producing the certification form, she would have turned it in to FedEx.”

14 3056918.v1

On appeal, the Sixth Circuit upheld the jury’s verdict, noting that FedEx failed to follow the requirements of 29 C.F.R. § 825.305. The court reasoned: “There [was] no mention of the need for medical certification or the consequences of failing to produce it. Given this evidence, a reasonable jury could find that FedEx failed to comply with the FMLA regulations and, thus, that terminating Wallace's employment interfered with her ongoing FMLA leave.” Id. at 588. Ultimately, the Sixth Circuit upheld Wallace’s recovery of $173,000, plus her attorneys’ fees and costs.

The Tenth Circuit reached a different conclusion in Dalpiaz v. Carbon County, 760 F.3d 1126 (10th Cir. 2014). In this case, the plaintiff, Bridget Dalpiaz, was the county’s benefits administrator. Dalpiaz was injured in a motor vehicle accident. Seven weeks after the accident, the employer asked her to submit a request for leave under the FMLA. The employee failed to respond to the county’s request until a third request, which was made by the county’s attorney. Dalpiaz was very familiar with the FMLA and its requirements, as she routinely scheduled medical appointments for new county employees. Yet, despite repeated requests, Dalpiaz did not submit her forms until she was given a final ultimatum and turned them in at the eleventh hour. Coupled with this dilatory behavior, co-workers and community members reported that Dalpiaz had been seen engaging in physical activities that were inconsistent with her claims of injury. When the county asked her to see a doctor for an independent medical exam, Dalpiaz delayed and never scheduled the appointment. Ultimately, she was fired for, among other things, her failure to timely submit the FMLA forms. Given the record, the Tenth Circuit affirmed summary judgment for the county on Dalpiaz's FMLA interference claim, finding that she would have been fired regardless of her request for FMLA leave.

B. Required Information

The Regulations (29 C.F.R. § 825.306(a)(3)) provide the type of information that an employer can require in the certification include:

 Medical facts such as symptoms, hospitalization, and doctor’s visits;

 Information as to whether medicine has been prescribed;

 Information regarding referrals for evaluation and treatment, or any other regimen of continuing treatment;

 Information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions, and the likely duration of such inability; and

 Further, where an employee’s serious health condition may also be a disability under the ADA, the FMLA does not prevent the employer from following procedures for requesting medical information under the ADA.

The form of the medical certification is irrelevant as long as the document is signed by a health care provider and is complete and sufficient in terms of the required information discussed above. However, if the certification does not provide all of the necessary information, the employer should notify the employee in writing of his responsibility to obtain a complete and sufficient certification. According to DOL guidance, it is also the employee’s responsibility to pay any fee

15 3056918.v1 required by the health care provider for completing a medical certification. See https://www.dol.gov/whd/fmla/employeeguide.htm.

It is important to note that employees can rely upon medical certifications from different types of health care providers. Although the regulations specify that treatment by a health care provider requires an “in person” visit, the regulations are relatively broad in terms of acceptable providers. 29 C.F.R. § 825.125(b)(4) specifies that “any health care provider from whom an employer or employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.” In essence, employers must accept medical certifications from any health care provider covered by the employer or the employer’s health plan. See, e.g., Martin v. Fin. Asset Mgmt. Sys., No. 1:15-CV-769-SCJ, 2017 U.S. Dist. LEXIS 222422 (N.D. Ga. Sep. 7, 2017) (employer who administered its own FMLA leave benefits did not accept medical certification from licensed professional counselors).

C. Incomplete Certifications

An employee must provide a “complete and sufficient medical certification.” 29 C.F.R. § 825.305(c). An “incomplete” certification is one where one of the applicable entries has not been completed or it is “vague, ambiguous or non-responsive.” Id. If the employer believes the certification is “incomplete,” the employer must advise the employee in writing of what additional information is necessary to make the certification complete. Id. After an employer’s request for completeness, an employee has 7 days to cure an incomplete or insufficient certification. If no such cure is provided, the employer may deny FMLA leave. Id. Another option is for the employer to ask for authentication and clarification of the medical certification. If an employee submits a complete and sufficient certification, the employer may not request additional information from a health care provider.

The employer may contact the health care provider for the purposes of clarifying and for authenticating the medical certification (or recertification). 29 C.F.R. § 825.307(a). “Authentication” is defined as providing the heath care provider with a copy of the certification and requesting verification that the information was completed and/or authorized. An employee’s permission is not required for such authentication. Id. “‘Clarification’ means contacting the health care provider to understand the handwriting . . . or to understand the meaning of a response.” Id.

In making contact with the health care provider, the employer may not ask for any information which is not contained in the form and the employer must comply with HIPAA privacy rules that require the employee to authorize the employer – health care provider contact. An employee cannot be required to sign the authorization, but an employer may deny leave if an employee fails to provide a “complete and sufficient” certification. Id.

VI. HOW SHOULD EMPLOYERS HANDLE FMLA EXTENSION REQUESTS?

A. Recertification

Employers may ask for a recertification any time an employee seeks to extend an existing FMLA leave. 29 C.F.R. § 825.308(c). In the absence of changed or suspicious circumstances, these rules regarding recertification apply:

16 3056918.v1  employees may be asked for recertification any time they seek to extend an existing FMLA leave, 29 C.F.R. § 825.308(c);

 for long-term conditions or conditions that may require sporadic absences, an employer may request recertification every 30 days in connection with an absence, see id. § 825.308(a);

 if the employee is taking a solid block of leave for more than 30 days, the employer may ask for recertification if the leave extends beyond the requested leave period, id. § 825.308(c);

 if the employee is out on a leave that has been certified to extend for more than six months, the employer may seek recertification every six months, id. § 825.308 (b); and

 Employers may ask for a new certification at the beginning of each leave year, id. § 825.305(e).

Employers should require recertification every time there is a request for an extension of leave. As with initial certifications, the employee has 15 days to provide the recertification “unless it is not practicable under the particular circumstances to do so despite the employee s diligent, good faith efforts.” Id. § 825.308(d). Failing to properly request a recertification when a change in circumstances occurs can result in a claim of FLMA interference. As part of the information obtained upon recertification, an employer may present the health care provider with a record of the employee’s absence pattern for purposes of inquiring whether the pattern is consistent with the serious medical condition certified by that provider. 29 C.F.R. § 825.308(e).

In Hansen v. Fincantieri Marine Group, LLC., 763 F.3d 832 (7th Cir. 2014), an employee’s doctor provided in the original FMLA certification an estimated number of flare ups to be 4 episodes every 6 months, lasting between 2 to 5 days. However, the employee exceeded this estimate. The employer did not notify the employee that recertification was required but rather contacted the employee’s doctor directly to confirm the prior certification and did not ask the doctor to certify that the additional absences were due to the employee’s serious medical condition. The doctor gave an ambiguous response, and the employer terminated the employee’s employment. The employee filed suit against the employer alleging FMLA interference and retaliation. The Court found that there was sufficient evidence to go the jury.

In Whitaker v. Wisconsin Dept. of Health Services, 849 F.3d 681 (7th Cir. 2017), a vague note was insufficient to support a request for additional leave and the employer was entitled to terminate employee’s employment after requests for further information went unanswered and the employee refused to return to work. In summer 2010, the employee began continuous FMLA leave, which exhausted on October 18. On the day FMLA leave was exhausted, the employee asked for additional leave, and the County provided her another three weeks to return to work. At end of the three weeks, the employee did not return to work, but instead submitted two doctor’s notes supporting her need for even more leave. One was dated November 3 and stated simply: “medical leave of absence until 11/17/10.” The second was dated November 12 and said only “medical leave of absence until 12/17/10.” One week later, the employer informed the employee that it was contemplating terminating her employment, but before doing so, it invited her to a meeting to discuss her situation. It also invited her to bring “any documentation she wished to submit for consideration.” She attended the meeting, indicated she could not return to work, but did not produce any additional documentation. The employer terminated her employment.

17 3056918.v1

The court dismissed her claim stating:

[employee] did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes…These notes did not explain whether she was even receiving treatment, let alone the likely effectiveness of treatment.

Id. at 685 (emphasis added).

B. Leave Not Matching Medical Certification

As discussed above, employers may seek recertification only every 30 days. The exception to this rule is when there is a significant change in circumstances, meaning that:

Circumstances described in the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one or two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.

29 C.F.R. § 825.308(c)(2)

Thus, employers are entitled to ask for recertification when the employee indicates a significant change in circumstances as specified in the original certification. See, e.g.. Harris v. Chi. Transit Auth., No. 14 C 9106, 2017 U.S. Dist. LEXIS 154969 (N.D. Ill. Sep. 22, 2017) (employer’s third party claims administrator entitled to request recertification where employee had exceeded the frequency and duration of absences outlined by her physician during her leave).

VII. HOW SHOULD EMPLOYERS REGULATE INTERMITTENT FMLA LEAVE?

A. Generally

The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. See 29 C.F.R. § 825.203. Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee’s serious health condition. Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer’s approval.

Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less.

Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer’s

18 3056918.v1 operations, subject to the approval of the employee’s health-care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee’s regular job.

If an eligible employee meets all of the criteria necessary to be eligible for intermittent leave, the employee will be entitled to up to 12 weeks of unpaid intermittent FMLA leave over a 12 month leave year (or 26 weeks of leave in the case of military caregiver leave). However, this does not automatically mean the employee will necessarily be entitled to intermittent leave over a longer term or indefinitely.

B. Addressing an employee’s chronic medical condition

When an employee submits a certification for a chronic condition that will flare up and require intermittent leave – asthma or migraines, for example – the individual reviewing the certification should consider whether the certification is vague or ambiguous or whether the clarification is needed from the individuals’ health care provider.

For example, in Smith v. Virgin Islands Port Authority, 2010 U.S. Dist. LEXIS 32534 (D.V.I. Mar. 31, 2010) aff’d 457 Fed. App’x 183 (3d Cir. 2012), the plaintiff requested intermittent FMLA leave and submitted a medical certification stating her need for leave continued indefinitely into the future. The employer then contacted the employee’s health care provider to clarify the duration of the plaintiff’s requested leave. When contacted, the health care provider advised the employer that the duration of the leave was “unknown.” The employer denied the employee’s request based, in part, because the employee did not support her request with a proper medical certification that stated the anticipated duration of the leave. After the employee subsequently resigned, she brought an FMLA interference claim against the employer. Dismissing the case and granting summary judgment for the employer, the district court stated that under such circumstances, the employee failed to “properly support[] an application for intermittent leave.” Id. at *46.

However, while the employer can request more clarification, it must exercise caution in taking adverse action based on what it considers to be inadequate information to support a leave. The Second Circuit Court of Appeals reversed and remanded a district court’s grant of summary judgment to an employer on FMLA retaliation and interference claims. In Graziadio v. Culinary Inst. of America, 2016 U.S. App. LEXIS 4861 (2d Cir. N.Y. Mar. 17, 2016), the plaintiff requested intermittent FMLA to care for one of her sons, who was hospitalized for a diabetes-related illness. She supplied a medical certification supporting that leave when she returned to work, which inaccurately stated the need for additional days off, but she never requested additional time. That same day, her other son fractured his leg, and she informed her supervisor she would be off for another week to care for him. When the employer asked for an update, she asked permission to return to work on a part-time basis until the following month. The employer notified her that her medical certifications for both FMLA leaves were inadequate, and after numerous back and forth e- mails between HR and the employee, the employer requested a meeting to resolve the outstanding issues. The meeting never happened, and ultimately the employee was terminated for abandoning her position.

The court held that a jury could conclude that the employee made sufficient good-faith efforts to comply with her employer’s requests for medical certification and that the employer’s conduct excused any residual failure in her compliance. Specifically, “their imprecision in requesting certification, their failure to answer Graziadio’s questions responsively, and their failure to

19 3056918.v1 communicate with Graziadio after deeming her doctor's note deficient—relieved Graziadio of any unsatisfied obligation to provide a medical certification to support her leave. Id. at *30.

It is important to note that a “chronic serious health condition” requires an employee to produce evidence that the employee visited a health care provider at least twice in the last year for treatment. See, e.g., Watkins v. Blind & Vision Rehab. Servs., No. 2:16cv01850, 2018 U.S. Dist. LEXIS 160076 (W.D. Pa. Sep. 19, 2018) (employee’s interference claim failed when she failed to produce evidence that she visited her healthcare provider at least twice a year for PTSD treatment and was thus unable to prove that she had a serious health condition and was entitled to FMLA leave); Lusk v. Va. Panel Corp., No. 5:13cv00079, 2014 U.S. Dist. LEXIS 110490, (W.D. Va. Aug. 11, 2014) (critical time period of determining whether a condition qualifies as a chronic medical condition for purposes of the FMLA is the time at which FMLA leave is requested, therefore since employee had not accumulated two visits to healthcare provider for mental health issues in the year leading up to request she was not entitled to leave).

Employees who are granted intermittent leave are still required to follow procedures regarding notification of intent to use intermittent FMLA leave. In Alexander v. Kellogg, 674 F. App’x 496 (6th Cir. 2017) Employee production operator alleged, inter alia, claims of interference and retaliation under the FMLA in connection with employer’s termination of his employment for excessive unexcused absences. Employer maintained a call policy requiring employees to notify employer, using a call service, of their intention to be absent at least two hours before their scheduled start time, as well as a policy requiring that employees who utilize approved intermittent FMLA leave contact employer’s third party FMLA program administrator, by telephone or online, within 48 hours of missing work pursuant to FMLA leave. When employee utilized FMLA leave, he notified employer of his absence but, on a number of occasions, failed to timely notify the FMLA program administrator of his use of FMLA leave, resulting in his accrual of several unexcused absences and his subsequent termination. Employer moved for summary judgment on employee’s FMLA claims, which the district court granted.

The 6th Circuit affirmed the decision of the district court, finding that the employee had failed to state a prima facie case since the factual record clearly indicated that he had failed to notify employer of his intention to utilize FMLA leave on the dates at issue despite having been reminded by management to do so. On employee’s FMLA retaliation case, the court of appeals found that, with regard to the dates giving rise to employee’s termination for excessive unexcused absences, employee had failed to request FMLA leave by failing to contact the program administrator. Thus, the employee had not exercised a right under the FMLA for purposes of a claim for retaliation and had not satisfied the elements of a prima facie FMLA retaliation claim.

C. Temporary Transfers

If the need for intermittent leave is foreseeable, employers may transfer the employee during the period of the intermittent leave to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. See 29 C.F.R. § 825.204. The alternate position must have equivalent pay and benefits, but does not have to provide equivalent duties. If the employee asks to use leave in order to work a reduced work schedule, the employer may also transfer the employee to a part-time role at the same hourly rate as the employee’s original position, as long as benefits remain the same.

20 3056918.v1 Alternatively, the employer may allow the employee to work in the employee’s original position, but on a part-time basis. The employer may not eliminate benefits that would otherwise not be provided to part-time employees, but may proportionately reduce benefits such as vacation leave if it is the employer’s normal practice to base the benefits on the number of hours worked.

When an employee no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job that she left when the intermittent leave or reduced leave schedule began. 29 C.F.R. § 825.204(e). In transfer situations, the regulations state that “if an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.” 29 C.F.R. § 825.205(b)(2). So, the employer must use the employee’s new part time schedule to calculate the remaining available intermittent FMLA leave.

VIII. UNDER WHAT CIRCUMSTANCES CAN AN EMPLOYER FIRE AN EMPLOYEE WHO IS ON FMLA LEAVE OR WHO HAS JUST RETURNED FROM FMLA LEAVE?

While employers may terminate an employee who is on FMLA leave or who has just returned from leave for legitimate, non-discriminatory reasons, employers must be aware that the timing of such decisions will be intensely scrutinized by the courts. However, if the employer can demonstrate that it relied on its policies and would have taken the same action in the absence of leave, terminations can be justified and upheld. For example, in Nieves v. Envoy Air, Inc., No. 18- 1127, 2019 U.S. App. LEXIS 1196, at (6th Cir. Jan. 14, 2019), the employee worked as a gate agent for an affiliate of American Airlines for 19 years. His employer permitted employees to fly for free, but prohibits employees from sharing their free travel benefits with anyone other than spouses or children. In April 2015, the employer randomly selected Nieves for an audit of its free travel program. In the middle of the audit, Nieves went out on an FMLA leave of absence. Upon his return to work, the audit continued, and uncovered that the employee violated the travel benefit policy by sharing it with friends and non-qualifying relatives. The employer terminated Nieves’ employment for violating the policy. Nieves sued, claiming that his termination, less than six weeks after he returned from FMLA leave, was in retaliation for the FMLA leave. The court disagreed, finding that nothing in the record indicated that he was subjected to increased scrutiny beyond the ordinary inquiry that follows a travel audit within the company. Additionally, the employer’s policies indicated that an employee's abuse of travel privileges is a terminable offense.

In contrast, the employer in Degner v. Juneau Cty., No. 16-cv-674-wmc, 2018 U.S. Dist. LEXIS 35576 (W.D. Wis. Mar. 5, 2018) argued that performance issues discovered during FMLA leave were the “final straw” that led to an employee’s termination after leave. Yet, the court found that explanation was undermined by evidence of years of inaction on performance issues and solid performance reviews, and therefore found triable issues existed on employee’s claims.

Additionally, employers tend to fare better in these situations if they can present documentation of the legitimate business reasons for its decision and if there is some documentation that pre-dates the FMLA leave.

For example, in Gill v. Genpact, LLC, No. 1:17-cv-454 (LMB/JFA), 2017 U.S. Dist. LEXIS 187456 (E.D. Va. Nov. 13. 2017), plaintiff was diagnosed with fibromyalgia and was approved for FMLA leave. Prior to leave, plaintiff had documented performance and attendance problems. Once

21 3056918.v1 he returned from leave these problems persisted and he was eventually terminated. Plaintiff brought a retaliation claim alleging that he was placed on performance management program, given reduced hours, and fired because he took FMLA leave. The court determined that there was “ample evidence” in the record of customer, coworker, and supervisor complaints about his job performance from before he took leave. Additionally, there was documentary evidence that he did not meet his performance goals once he returned from leave. The court granted the employer’s motion for summary judgment on this record.

Evidence that an employee abused leave can be critical, but care should be taken to ensure that the employer is consistent in communications with the employee and explanations for the termination. In Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1265 (11th Cir. 2017), the employee took 12 weeks of FMLA leave for shoulder surgery and rehabilitation in the fall of 2014, and was to return to work from leave in December. Accentia Health required that Jones provide a fitness-for-duty certificate in order to be allowed to return to work. The day before his planned return to work, his doctor reported that he would not be able to return to work because he needed additional shoulder therapy. Accentia did not allow Jones to return to work on light duty, but did give him an additional 30 days of non-FMLA medical leave to complete his physical therapy. While on non-FMLA medical leave, Jones twice visited Busch Gardens and went on a trip to St. Martin. Jones sent pictures of the trip to colleagues at Accentia and posted some on Facebook. He was subsequently terminated. Jones brought suit against Accentia, claiming that Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. In February 2016, the district court granted Accentia’s motion for summary judgment, holding that Jones had failed to establish a prima facie case of either interference or retaliation under the FMLA. Jones appealed.As to retaliation, the 11th Circuit reversed, ruling that the short amount of time between Jones’ return from leave and his termination created a genuine issue of fact as to causation. The court also concluded there was a factual issue concerning pretext because Accentia offered shifting reasons for the termination. Jones was told that he was being fired because he engaged in activities that demonstrated he could have returned to work earlier. However, during litigation, Accentia offered additional and inconsistent reasons for the termination.

However, employers can conduct internal investigations, take appropriate disciplinary measures and require that employees respond to reasonable inquiries while on leave. See, e.g., Jackson v. BNSF Ry. Co., No. 4:16-CV-695-A, 2017 U.S. Dist. LEXIS 121636 (N.D. Tex. Aug. 1, 2017) (employer left voicemail for employee who had stated that she was absent from work due to a panic attack asking employee to explain why another employee had seen her at a Beyoncé concert, when employee did not respond in a timely fashion, this provided the employer with an honest belief that she was abusing leave).

IX. WHAT CAN EMPLOYERS DO ABOUT SUSPECTED FMLA FRAUD AND ABUSE?

A. The “Honest Belief” Defense

If an employer has an honest, good-faith belief that an employee on FMLA leave is using his or her leave time for non-FMLA qualifying reasons, the employer may be able to terminate or otherwise discipline the employee for abusing his or her FMLA leave. Numerous courts have extended the good-faith defense to FMLA interference claims to conclude that an employer’s honest belief that an employee is abusing FMLA leave defeats FMLA interference and retaliation claims, even if that belief is mistaken. See Vail v. Raybestos Prods. Co., 533 F.3d 904, 909 (7th Cir. 2008) (“[A]n employer has not violated the FMLA if it refused to reinstate the employee based on an

22 3056918.v1 ‘honest suspicion’ that she was abusing her leave”); Reinwald v. The Huntington Nat’l Bank, 684 F. Supp. 2d 975, 984-85 (S.D. Ohio 2010) (“[T]he honest belief defense applies to both interference and retaliation claims brought under the FMLA”).

B. Conducting FMLA Fraud Investigations

An employer may terminate an employee for fraudulent use of FMLA leave if it conducts a thorough investigation based upon an honest belief that misuse has occurred. Best practices for conducting fraud investigations include:

 Maintain thorough records of information obtained and conclusions drawn;

 Limit discussion and other communications related to investigation to objective information;

 Use an independent medical provider to review an employee’s potentially fraudulent activities in comparison with an employee’s certification for medical leave;

 Establish and apply consistent standards for when to investigate suspected fraud, how to investigate, and appropriate disciplinary measures;

 Provide employees an opportunity to respond to suspected fraudulent behavior before reaching a final decision on potential discipline.

See, e.g., Bertig v. Julia Ribaudo Healthcare Grp., LLC, No. 3:15cv2224, 2017 U.S. Dist. LEXIS 179978, (M.D. Pa. Oct. 31, 2017) (granting employer’s motion for summary judgment on employee’s FMLA claims where employee maintained call-off reports indicating reason provided for each of employee’s absences); Sharif v. United Airlines, Inc., 841 F.3d 199 (4th Cir. 2016) (affirming summary judgment for employer where employer had followed a thorough investigation pursuant to an established policy and communications about the investigation were factual and consistent prior to terminating the plaintiff).

In Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012), the Seventh Circuit upheld a termination where the employer believed the employee was abusing intermittent FMLA leave. Beginning in 2004, Scruggs requested and was provided intermittent FMLA leave to visit his mother at a nursing home and to drive her to doctor appointments. In 2006, Carrier implemented new procedures in an attempt to stop excessive absenteeism. As part of the new policy, the employer hired a private investigator to conduct surveillance on Scruggs and 35 other employees who were suspected of misusing leave or who had a high number of unexcused absences. The investigator set up video surveillance on a day Scruggs requested FMLA leave to visit his mother. Because of the video surveillance and the inconsistencies in the documentation supplied by Scruggs, Carrier terminated his employment.

The 7th Circuit noted that although the employer could have conducted a more thorough investigation, it was not required to do so. Although there was a question of fact as to whether the employee actually used his FMLA leave for an approved purpose, the employer had an “honest suspicion” that the employee had misused his FMLA leave, thus defeating the employee’s claims of FMLA interference and retaliation.

23 3056918.v1 Employers should consider whether surveillance is justified under the circumstances before proceeding, as demonstrated by Walker v. City of Pocatello, No. 4:15-cv-00498-BLW, 2018 U.S. Dist. LEXIS 17618 (D. Idaho Jan. 31, 2018). In this case, the employer – a police department – began conducting surveillance on an employee during an FMLA leave and drafted a memo which was placed in the employee’s file outlining work that the employee did not complete while on FMLA leave. Even though the employer never denied him leave and never terminated his employment, the employee nonetheless filed interference and retaliation claims based upon the surveillance activity. The court allowed these claims to proceed to a jury on the theory that conducting surveillance of an employee without any basis may chill an employee’s use of FMLA leave.

X. WHAT IS REQUIRED OF EMPLOYERS WHEN REINSTATING AN EMPLOYEE FOLLOWING FMLA LEAVE?

A. Generally

An employee returning from FMLA leave must be either “restored by the employer to the position of employment held by the employee when the leave commenced” or “restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a). A different position is considered an “equivalent” if it is “virtually identical” to the employee’s previous position. 29 C.F.R. § 825.214(a).

If the employee’s job no longer exists for reasons unrelated to the employee’s leave and the employee is no longer able to perform an essential function of the old position, the employee has no right to restoration. See, e.g., Ogden v. Pub. Util. Dist. No 2 of Grant Cty., 722 F. App’x 707 (9th Cir. 2018) (summary judgment for employer on employee’s suit to enforce rights under FMLA to restore employee to her position following return from leave appropriate where job no longer existed for reasons unrelated to employee’s leave, and employee was unable to perform essential function of her job: regular attendance).

B. Equivalent Positions

As discussed above, A different position is considered an “equivalent” if it is “virtually identical” to the employee’s previous position. 29 C.F.R. § 825.214(a).

Determining what constitutes an equivalent position can be challenging in the context of sales positions. In Isom v. JDA Software, Inc., 225 F. Supp. 3d 880 (D. Ariz. 2016), a salesperson was found to not be restored to an equivalent position when she presented evidence that she was not reassigned to substantially similar accounts, her employment was significantly altered in terms of earning potential. See also, O’Sullivan v. Siemans Indus., Inc., No. 11-11832, 2012 U.S. Dist. LEXIS 136163 (E.D. Mich. Sep. 24, 2012) (employee who was reassigned to a less lucrative territory after returning from FMLA could show that her assignment was not an equivalent position); Breeden v. Novartis Pharm. Corp., 646 F.3d 396 (D.C. Cir. 2011) (employee’s assignment was equivalent where she was more productive in new assignment and received improved performance evaluations).

In Waag v. Sotera Def. Solutions, Inc., 857 F.3d 179 (4th Cir. 2017) the 4th Circuit determined that there was no FMLA violation where the employee was placed in an equivalent position following his medical leave that was later eliminated due to budget cuts shortly upon his return from leave. The court found that the position in which the employee was placed was equivalent because the salary, the terms and conditions of employment, and employee’s title as

24 3056918.v1 “Senior Director” were all identical. His duties and responsibilities in his new position were also substantially similar. Employee also attempted to argue that the new job was essentially a “sham” position, since it was eliminated a few weeks later.

The court found that the position was genuine and not slated for layoffs at the time employee returned from leave. Finally, the court rejected employee’s argument that he was terminated in retaliation for taking leave because employee was unable to show pretext. Employer had shown legitimate reasons for terminating employee’s position. Therefore, the court affirmed the grant of summary judgment.

C. Fitness-for-Duty Certifications

Employers may have a uniform policy or practice that requires employees in similar job positions who take leave for similar health conditions to provide a return-to-work, or “fitness-for- duty,” certification from the employee’s health care provider certifying that the employee is able to resume work.

The employer may request a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. If the employer will require a fitness-for-duty certification, it must provide notice of that requirement and whether the certification must address the employee’s ability to perform the essential functions of his or her job with the FMLA designation notice.

If an employer requires certifications of an employee’s fitness-for-duty to return to work, the employer must comply with the ADA requirement that a fitness-for-duty physical be job-related and consistent with business necessity. 29 C.F.R. § 825.702(e).

For example, in Wisbey v. City of Lincoln, 612 F.3d 667 (8th Cir. 2010), the court affirmed dismissal of a plaintiff's FMLA and ADA claims, holding that it was permissible for the City to require her to see a psychiatrist before returning to work, even though she had been released to work with intermittent FMLA leave by her physician. Wisbey had the high stress job of emergency dispatcher. She applied for intermittent leave for depression and anxiety. Her doctor stated that these conditions interfered with her "sleep, energy level, motivation [and] concentration . . .” and that, although she could perform her job, she needed intermittent leave over "6 months or longer.” Employers are permitted “to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims,” and fitness-for-duty exams are considered a reasonable means of making this determination.

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