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FMLA Foibles

 

Upcoming Events/Next Webcast

 

Severance Set-Backs

 

Attendance is an Essential Function But...

 

 

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HR & the Law in the News
March 2014, Volume 13, Issue 3

Here is your latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. And don't forget to check out this month's webcast "Workplace Flexibility: The New Imperative?" - pre-approved by HRCI for 1.25 business (FKA strategic) credits. 
FMLA Foibles

Last month the US Department of Labor's Wage and Hour Division announced payment by an employer to an employee of $8,787 for violations of the Family and Medical Leave Act (FMLA). 

 

It might not sound like a lot of money but the press release provides some good reminders for covered employers e.g., generally those employing at least 50 employees for 20 or more weeks in 2013.  

  1. Remember to give an employee who may need FMLA leave not just the initial Notice of Eligibility and Rights (WH-381) but also the Designation Notice (WH-382).
  2. Do not include FMLA-covered absences in corrective action for excessive absences or lateness. FMLA is job-protected leave and covered absences may not be included or considered, including in performance appraisals.
  3. Be sure your policy complies with all the provisions of the FMLA and that you have a process in place for screening employees' requests for leave to determine whether the request is FMLA qualifying. 

Stay tuned! Another round of regulatory changes are expected this Spring and possibly this month updating the regulations with regard to the definition of spouse in light of the US Supreme Court's ruling last year, plus other updates. 

 

Also keep any eye on legislation pending before Congress (again) to expand FMLA coverage, including to employers with at least 25 employees (H.R. 3999) and providing covered employees with an FMLA Insurance benefit (H.R. 3712).
Upcoming Events
Next Webcast: Workplace Flexibility - The New Imperative?
    
The demands for flexibility in today's labor market have driven employers to develop and implement a variety of strategies to attract and retain qualified employees, enhance employee engagement and with varying degrees of success. Join this interactive program as we share, review, compare and contrast: 
  • Research for developing your business case, bottom line and ROI
  • Various models, practices and programs for workflex strategies
  • Proactive and practical considerations for implementing workflex strategies
  • Resources and toolkits for employees and employers
To register just click here.

 

$49 per person and pre-approved by HRCI for 1.25 business (FKA strategic) credit hours.

 

Discounted annual subscriptions still available.  Get the remaining nine (9) webcasts in 2014 for the price of 7 ($96 savings)!  Click here.

 

Survey Said! Don't forget to help shape our 2014 programming.  Click here to vote for topics of your choice.  

 

Upcoming Events: Click here for a full listing of public and private speaking engagements, seminars and conferences.
Severance Set-Backs
If you have ever offered an employee a severance package or thought about doing so consider this recent challenge by the U.S. EEOC. 
 
Section 706 of Title VII of the Civil Rights Act of 1964 (the "Act") provides employees with certain rights, including the right to assert charges or claims under the Act. Without going through the entire litany and history, let's suffice it to say that severance agreements are generally a promise for a promise: you, the employer promise to give the employee severance pay and maybe some additional benefits in exchange for the employee's promise to not file a claim or charge against your company alleging some form of discrimination or any one of myriad other claims.  So what's the problem?  But, Section 707 of the Act gives the EEOC as an agency the right to pursue charges or claims in the absence of an employee having filed a charge.  So when an employer's severance agreement included restrictions on the employee's ability to participate in an agency investigation, the EEOC contends that violated the Act.  In its complaint, the EEOC points out the following provisions of the severance agreement, which the agency may find problematic:
  1. It is a five-page single spaced document.
  2. It requires the employee to notify the employer if s/he receives notice of an administrative investigation.
  3. It prohibits the employee from making any statements that disparage the business.
  4. It prohibits disclosure to any third party of any confidential information without prior written authorization of the employer.
  5. It requires the employee to release the employer from any and all charges including of unlawful discrimination.
  6. It requires the employee to attest to the fact that s/he has not filed any complaint with any agency as of the date s/he signs the agreement; to agree to not initiate any complaint; and to reimburse the employer for any legal fees as a result of any breach of these provisions.
  7. In the five-page, single spaced document there is only one "single qualifying sentence that is not repeated anywhere else in the Agreement" referring to the employee's right to participate or cooperate with any agency enforcing discrimination laws. 
Next Steps? (1) Stay tuned for the court's ruling. Depending upon how that goes watch for appellate decisions. (2) Check with your company's legal counsel. Review your severance agreements and consider updates or changes, if any in light of the above. 
 
Attendance is an Essential Function But...
 
Think about all the different jobs at your workplace. Is attendance an essential function for every one? This could lead us into a protracted discussion about what it means to "attend" work, whether and why we care where or when our employee works, so long as the work gets done.  But for now, take comfort in the fact that at least one court, the 7th Circuit "has found regular job attendance to be an essential job requirement."  That's key under the Americans with Disabilities Act (ADA) because covered employers, those with 15 or more employees may not discriminate against and must provide a reasonable accommodation for qualified individuals with a disability. And being qualified means the person must be able to perform the essential functions of your job with or without a reasonable accommodation.  
 
Now back to attendance; think about your leave of absence policy or practice. When an employee is out for medical reasons, do you require the employee to be fully released to return to work? What about a release to return to work but with restrictions?  
 
In a recent case a court denied the employer's motion to dismiss and permitted the EEOC to proceed on its claim that the employer's leave of absence policy violated the ADA. The policy provided that employees who were on leave beyond twelve months would be "administratively separated" from employment.  In addition, before an employee could return from a medical leave of absence the employee had to meet a standard of fitness which required them to work without  an additional accommodation. So when an employee tried to return to work prior to twelve months but with restrictions, the employer declined the request. Then when the employee was still out on leave beyond twelve months the employee was terminated.  Here is a summary of the back and forth (I paraphrase):
 
Court: A 100% healed policy is per se impermissible because it prevents individualized assessment and thus necessarily operates to exclude disabled people that are qualified to work. 
 
Defendant Employer: But the ability to regularly attend work and not miss multiple months is an essential job function and not a qualification standard. 
 
Court: Yes, we recognize that job attendance has been found to be an essential job requirements but that's not the problem here. The problem is on the imposition of a 100% healed requirement on those seeking to return to work.  
 
Lessons learned?
  1. Any qualification standards you use including employment tests or other selection criteria must be job-related and consistent with business necessity. 
  2. So if you are going to require an employee to be fully released to return to work at 100%, you have the burden to meet the above criteria. 
  3. In the above case the employee asked to come back to work with the use of a cane and a hand cart.  For some jobs that might be a reasonable accommodation, for others it might not.  
  4. The ADA requires and this court made mention of the employer's obligation to conduct an "individualized assessment." Blanket policies related to qualification standards can lead you down a slippery slope.

This newsletter does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on employment matters. 

 

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