October 2012 Volume XI No. 8 Taking Care of Business
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The Challenge of Accommodating Intermittent FMLA Leave

The Family and Medical Leave Act, 29 U.S.C. § 2601 (“FMLA”), became law during President Bill Clinton’s first term as president, on August 5, 1993. While the law has been in effect for nearly twenty years, it remains a significant challenge for many employers to permit intermittent medical leave in accordance with the FMLA while still precluding employees from abusing leave under this federal law.

The FMLA requires covered employers to provide up to twelve weeks of unpaid, job-protected leave to eligible employees: (1) for incapacity due to pregnancy, prenatal medical care or child birth; (2) to care for the employee’s child after birth, or placement for adoption or foster care; (3) to care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or (4) for a serious health condition that makes the employee unable to perform the employee’s job. The Seventh Circuit U.S. Court of Appeals has confirmed that an employee is entitled to FMLA leave if the employee is afflicted with a “serious health condition,” and the condition renders the employee unable to perform the functions of her job. Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 590-591 (7th Cir. 2008); 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves--(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

The FMLA makes it unlawful for any employer to either interfere with, restrain, or deny the exercise of any right provided under the FMLA, or discharge or discriminate against any person for opposing any practice made unlawful by the FMLA or for involvement in any proceeding under or relating to the FMLA.

As employers are aware, an employee need not use the medical leave in one block. Rather, leave can be taken intermittently or on a reduced leave schedule when medically necessary. Yet, employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations.

An employer is entitled to require the completion of a certification form by the employee’s treating physician prior to approving FMLA leave. Further, for continuing verification of the appropriate use of FMLA leave, “an employer may require that an employee call in to verify that [the] absence is FMLA-related; may call the employee at home as means of verification; and may require that an employee submit a written personal certification attesting that an individual instance of leave was FMLA-related.” Jackson v. Jernberg Indus., 677 F. Supp. 2d 1042, 1050-1052 (N.D. Ill. 2010). An employee may also be required to keep the employer informed about all intermittent leave plans. Gilliam v. United Parcel Serv., Inc., 233 F.3d 969, 972 (7th Cir. 2000).

There are limits to the employer’s ability to require recertification of the validity of intermittent FMLA leave. The general rule is that an employer may require recertification of a serious health condition no more frequently than the duration of the prior certification or every thirty days, whichever period is longer. An employer may not require the employee to provide a doctor’s note to support each use of intermittent FMLA leave. Jackson, 677 F. Supp 2d at 1051. Rather, the regulations permitting periodic requests for recertification outline the procedures whereby the employer can seek additional information from the employee’s doctor. Id. If an employer doubts the legitimacy of an employee’s use of intermittent leave, the employer may request recertification, but absent such suspicion, the employer may not impose additional requirements, such as a doctor’s note, to support every absence. Id.

Still, when there is suspicion of intermittent leave abuse, such as when an employee conveniently takes leave to extend a weekend or holiday, some policies may be effective, particularly if they are reduced to writing, communicated to the workforce, and do not decrease employee morale. For instance, the Third Circuit U.S. Court of Appeals, in Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005), appeared to approve employer policies which required employees on sick leave to stay at home during working hours unless they left for reasons related to the cause of the absence; and which subjected employees to calls or visits by the employer.

Ultimately, if an employer intends to impose such policies, it should first consult legal counsel to determine if they are likely to be viewed as an undue restriction on FMLA leave rights. After all, the FMLA was enacted for the legitimate purpose of allowing employees to balance work and family needs, and will be so construed by the courts, even if there are some opportunists who try to take advantage of this compassionate law.

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Recent Cases under the ADA

Jim Jorgensen
Jim Jorgensen

We are going to see more and more claims brought under the Americans With Disabilities Act (“ADA”). Three (3) recent cases highlight the type of issues employers may increasingly encounter.

At the heart of the ADA, is the concept of reasonable accommodations. In one case, the issue is whether the ADA requires employers to make reasonable accommodations (typically in adjusting work schedules) to an employee so she can care for a disabled parent or child.

The answer to a related question is “yes”. The ADA prohibits “associational discrimination”. In other words, an employer cannot discriminate against an employee because of the known disability of an individual with whom the employee has a relationship or association (i.e., family member).

For example, an employer cannot fire an employee because it fears the employee will miss too much time caring for a family member with cancer. Similarly, that same employee cannot be fired because the employer fears its insurance rates will increase because the employee’s family member has cancer.

However, the ADA does not require the employer to provide reasonable accommodations to care for the family member with the disability.

The ADA does not require employers to reasonably accommodate employees who do not themselves have a disability. However, if the employer is covered by the Family and Medical Leave Act, a qualified employee may be entitled to unpaid leave or intermittent leave to care for a parent with a serious health condition.

The question of reasonable accommodations was addressed in two (2) other cases. Reassignment to a vacant position can be a possible reasonable accommodation for disabled workers. Can the employer refuse to transfer the disabled employee if it believes that another – and non-disabled – employee is better qualified for the vacant position?

A court has held that the transfer must be automatic, even if there is another more qualified candidate – at least in most instances. The only exception occurs if the employer can establish specific facts unique to it that would create such an undue hardship that a mandatory transfer, not based on merit, would be unreasonable.

In other words, unless an employer can establish undue hardship (a difficult standard to meet), the ADA requires employers to reassign disabled workers to open positions for which they are qualified, even if the disabled worker is not the most qualified candidate.

The third case answered the question whether allowing an employee to move from rotating shifts to straight daytime work is a required reasonable accommodation under the ADA?

The court ruled for the employer, determining that the rotating shift was an essential function of the employee’s position. It found that the employer had included the rotating shift in its written job description. Because the employee could not work a rotating shift, she was unable to fulfill the essential function of her job without an accommodation.

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