Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

A Family and Medical Leave Act (“FMLA”) plaintiff’s leave was proven fraudulent through her Facebook postings, resulting in summary judgment for her employer, dismissing her complaint. The Federal District Court for the Eastern District of Michigan concluded that the employer’s reason for her termination was legitimate and unrelated to her exercise of FMLA rights.

In Lineberry v. Richards, Plaintiff took a leave of absence based on excruciating pain she experienced in her lower back as certified by her physician. She applied for, and received approval from her employer to take, leave under the FMLA. During her leave, she went on vacation to Mexico. Plaintiff later posted on Facebook pictures of her vacation, including photographs showing her riding in a motorboat, lying on her side on a bed holding two bottles of beer in one hand, and holding her infant grandchildren, one in each arm, as she stood. She also posted details regarding certain activities she engaged in during her leave, including trips to Home Depot, watching her grandchildren and taking online classes. After Plaintiff’s co-workers revealed the Facebook postings to their employer, the employer questioned her in an investigation. The employer concluded that Plaintiff lied during the investigation about her use of a wheelchair while on leave.

Plaintiff sued her employer claiming its decision to terminate her employment interfered with her FMLA rights and retaliated against her for taking leave. On summary judgment, the Court reasoned that an employer’s interference with an employee’s FMLA rights does not violate the FMLA if it was motivated by a legitimate reason unrelated to the exercise of FMLA rights. In addition, the FMLA does not provide greater rights to an FMLA-eligible employee than to a non-FMLA-eligible employee. Here, Plaintiff was dishonest, and the employer terminated her employment after it uncovered the dishonesty. Accordingly, Plaintiff was not insulated from termination simply because she was on an FMLA-approved leave at the time.

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On February 6, 2013, the United States Department of Labor (DOL) published final regulations that amend the Family and Medical Leave Act’s (“FMLA”) military leave provisions and eligibility requirements for pilots and flight crews. Other changes impacting the minimum increments of time allowable for measuring FMLA leave and recordkeeping requirements are also part of the final regulations. The new regulations take effect on March 8, 2013, giving employers only a few weeks to ensure that their policies and forms are updated.

Key Changes

Among the critical changes found in the new FMLA regulations are:

Qualifying Exigency Leave

• Extending qualifying exigency leave to eligible employees who are family members or next of kin to those serving in the Regular Armed Forces – not just the Reserves or National Guard – but, requiring foreign deployment of that military member.
• Permitting an eligible employee to take leave to care for a covered military member’s parent who is incapable of self-care when that care is necessitated by the servicemember’s covered active duty.
• Increasing, from five to fifteen days, the amount of time an eligible employee may take qualifying exigency leave related to a military member’s rest and recuperation.

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Are employers required to provide reasonable accommodations to an employee to facilitate his or her return to the same or equivalent position at the conclusion of an FMLA leave? According to a recent decision from the Third Circuit Court of Appeals, the answer is no, provided the employee is unable to perform the essential functions of his job position. The case, Macfarlan v. Ivy Hill, provides important guidance for employers who must make such determinations upon an employee's return from FMLA-protected leave.

Factual Background

Plaintiff Alan Macfarlan worked as a maintenance director at Defendant Ivy Hill Rehabilitation and Nursing Care. On January 24, 2008, Macfarlan had a stroke, and on January 29, began a 12-week leave under the FMLA, which was set to expire on April 22. Beginning in February 2008, and continuing until August 2008, Macfarlan received short-term disability benefits from his insurer, Unum. On April 16, Macfarlan’s treating physician cleared him to return to work starting on May 1, but with the conditions that he not work more than four hours per day and that he not lift or otherwise move loads in excess of twenty pounds. After being notified by Ivy Hill’s administrator that part-time work was not available, on April 17, Macfarlan’s doctor cleared him to work full-time, but did not change the lifting restriction. On or about April 20, Ivy Hill terminated Macfarlan’s employment and notified him that he would not be hired back with any lifting restrictions. Macfarlan thereafter initiated suit, alleging that Ivy Hill violated the FMLA by refusing to allow him to return to work on April 17, once his doctor cleared him to work full-time, albeit with restrictions.

Family Medical and Leave Act

The FMLA makes it unlawful for an employer, among other things, “to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under this [statute].” The FMLA further provides that any employee who takes FMLA leave “shall be entitled, on return from such leave . . . to be restored by the employer to the position of employment [previously] held by the employee . . . or . . . to an equivalent position.” Notably, however, the FMLA does not require “an employer to provide a reasonable accommodation to an employee to facilitate his return to the same or equivalent position at the conclusion of his medical leave.”

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Without any substantive changes, new updated model Family and Medical Leave Act (FMLA) forms have been issued by the United States Department of Labor (DOL) website and are available on the DOL website (in the section for Wage and Hour Division Forms). Employers using the former model FMLA forms on the DOL website should replace their prior versions, which expired on December 31, 2011, with the new versions. Employers using their own FMLA forms should include appropriate language to prevent employee disclosure of genetic information prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Such language should generally be included in the employer’s FMLA policies and other employee communications. The Equal Employment Opportunity Commission regulations suggest a "safe harbor” notice to include in such communications to effectively lessen the chance of an inappropriate disclosure of genetic information. The notice, set forth in Section 1635.8(b)(1)(i)(B) of the Regulations, provides:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that neither you nor your physician (or your family member’s physician) provide any genetic information when responding to any requests for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

We recommend employers include this language in its Certification of Health Care Provider and its Notice of Eligibility and Rights and Responsibilities, even though the model forms do not contain the “safe harbor” notice.

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In a case of first impression, the Third Circuit Court of Appeals held that a supervisor may be individually liable for violating the Family and Medical Leave Act (“FMLA”). While noting that individual liability is not recognized in some Circuit Courts, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole reached a contrary conclusion.

Factual Background

The plaintiff in Haybarger had diabetes, heart disease and kidney problems requiring her to miss work frequently for medical attention. Her direct supervisor disciplined her concerning her attendance as well as her job performance and placed her on a 6-month probationary period. He also prepared an annual performance review which identified her attendance deficiencies. At the end of the probationary period, the supervisor recommended to his superior that the defendant County terminate the plaintiff’s employment. Although the supervisor did not have the authority to make the termination decision, it appears his recommendation to terminate was given significant weight, and he attended the termination meeting.

The plaintiff sued, asserting claims under the Americans with Disabilities Act, the Pennsylvania Human Relations Act (“PHRA”), the Rehabilitation Act and the FMLA. The defendant County moved to dismiss all of the claims, which the District Court granted except for the Rehabilitation Act claim against the County and the FMLA and PHRA claims against the individual supervisor. After discovery, the defendants moved for summary judgment. The District Court granted summary judgment to the individual supervisor, concluding that although the FMLA provides for individual liability, plaintiff did not present evidence of “sufficient control over the [employee’s] conditions and terms of employment” to impose such liability. On appeal, the Third Circuit reversed the decision of the District Court.

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On Monday, January 28, 2012 the United States Department of Labor (DOL) announced that it would publish a Notice of Proposed Rulemaking addressing statutory amendments to the Family and Medical Leave Act (FMLA) provisions concerning military family leave and flight crew eligibility. The proposed rules will be published in the Federal Register and interested parties may submit written comments within a defined period of time, which has not yet been specified.

The DOL’s proposed rules implement and interpret, as well as propose expansion of, amendments to the FMLA that were incorporated in the National Defense Authorization Act for Fiscal Year 2010 (NDAA 2010) and the Airline Flight Crew Technical Corrections Act (AFCTCA), which was enacted in 2009. Although the NDAA was silent as to its effective date, certain provisions required clarification or definition by the DOL. The proposed rules address those provisions as well as implement those that did not require definition or clarification.

A number of areas of the military family leave provisions of the FMLA are discussed in the proposed rules. Of primary interest, the rules: 

• Extend the period within which a military service member’s caregiver may apply for FMLA leave to 5 years beyond the service member’s separation from the military;
• Expand eligibility for caregiver leave to include caring for service members with conditions that arise after the service member has separated from military service; 
• Expand the definition of serious illness or injury to include those arising from a pre-existing condition;
• Increase to 15 days the allotment of time family members may spend with military members who are on rest and recuperation leave;
• Expand qualifying exigency leave eligibility to employees with service members deployed in the Regular Armed Forces (the DOL considers this provision effective October 29, 2009, the date the NDAA 2010 was enacted); and
• Clarify that qualifying exigency leave is contingent on deployment to a foreign country (the DOL considers this provision effective October 29, 2009, the date the NDAA 2010 was enacted).

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The Federal Family and Medical Leave Act (“FMLA”), which, among other things, affords eligible employees up to 12 weeks of unpaid leave for the employee’s own serious medical condition and reinstatement to the employee’s former or equivalent position, includes stringent notice obligations for employers. A New Jersey District Court recently reinforced the importance of complying with the statute’s notice requirements. In Antone v. Nobel Learning Communities, Inc.,  the court denied the defendant employer’s motion to dismiss, rejecting its argument that the employee was not protected by the FMLA when she was terminated more than 12 weeks after she commenced leave because the employer failed to provide the requisite FMLA information to the employee. The Court similarly denied the employer’s motion to dismiss disability retaliation claims based on improper notification required by the FMLA.

Federal FMLA Notice Requirements

An employee seeking to take a leave of absence under the FMLA does not need to specifically request “FMLA Leave.” Rather, the employee need only notify the employer of the need for leave. This notification triggers the employer’s obligation to inform the employee of his/her eligibility to take FMLA leave within 5 business days absent extenuating circumstances and of his/her rights and responsibilities with regard to such leave. This eligibility and rights and responsibilities notice must detail the “specific expectations and obligations of the employee and explain any consequences of a failure to meet these obligations” and may be accompanied by an required Certification of Health Care Provider form. Once an employer designates a leave as covered by the FMLA, it must provide a designation notice which informs the employee of the amount of leave counted against the employee’s FMLA leave entitlement. The Department of Labor provides sample notices of eligibility and designation, as well as health care provider certifications for an employee’s own health condition and that of a family member, when applicable.

Relevant Facts

The Plaintiff in Antone experienced health problems which affected her ability to stoop, bend and walk. On or about May 28, 2009, Plaintiff informed Defendant’s Human Resources Administrator that she needed time off for medical treatment in a hospital, a reason permitted to take FMLA leave. More than a month later, Defendant sent Plaintiff a Certification of Health Care Provider Form. Defendant, however, failed to provide an eligibility notice or otherwise inform Plaintiff of her rights under the FMLA including her right to take 12 weeks of leave. Plaintiff timely returned the completed Health Care Provider form to Defendant indicating that she would return to work by August 28, 2009 – 12 weeks and 8 days after she began leave. In late August, Defendant informed Plaintiff that she would be terminated because her physician approved her to return on August 28, which is 8 days after the 12 weeks expired.

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The New Jersey Appellate Division’s recent decision in Lapidoth v. Telcordia Techs., Inc., 2011 N.J. Super. LEXIS 103 (App. Div. June 9, 2011) serves as an important reminder that an employer must exercise care in communications with employees regarding leaves of absence to avoid unintended contractual obligations, even when the employer has complied with its statutory obligations.

Plaintiff had worked for Telcordia Technologies, Inc. (“Telcordia”) for a number of years as a part-time manager, and during the course of her employment had taken nine separate maternity leaves. When Plaintiff became pregnant with her 10th child, she requested a six-month maternity leave (a longer leave than is protected by the federal Family and Medical Leave Act or the New Jersey Family Leave Act). A short time after Plaintiff gave birth to her son, Telcordia sent Plaintiff a letter notifying her that it had approved her six-month leave of absence and that the leave would count towards her Family and Medical Leave Act (“FMLA”) entitlement. The letter also stated that the “leave was granted with a guarantee of reinstatement up to 12 months to the same or comparable job,” but that if Plaintiff’s job was “declared surplus” or if Plaintiff requested to work a different number of hours than she had worked before going out on leave, reinstatement would not be guaranteed. While out on leave, Plaintiff requested an additional six-month leave, which Telcordia granted. Telcordia again notified Plaintiff in writing that reinstatement following her leave was guaranteed so long as her position was not declared surplus and she did not request a change in her hours. As her one-year leave was about to end, Plaintiff informed her supervisor that she intended to come back to work on the same part-time schedule she had prior to her maternity leave. At her supervisor’s request, however, Plaintiff agreed to return to work as a full-time manager. Due to budgetary constraints, Telcordia could only maintain one full-time manager. Telcordia decided to terminate Plaintiff’s employment and retain the manager who had been acting as the manager during Plaintiff’s maternity leave, and who had better performance evaluations than Plaintiff.

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The recent District of New Jersey decision in Conteh v. Francis E. Parker Memorial Home, 2011 U.S. Dist. LEXIS 41360 (D.N.J. April 15, 2011) serves as a valuable reminder for employers that the exercise of basic common sense in responding to employee requests for family and medical leave can go a long way toward preventing litigation.

The plaintiff worked as a food service aide for the Memorial Home. When the plaintiff's mother, who lived in Africa, fell ill, the plaintiff contacted the Memorial Home’s human resources manager (who was individually named as a defendant in the lawsuit) and requested time off from work to care for his mother. The human resources manager advised the plaintiff that he could not take a job-protected leave unless he first provided a certification from his mother’s doctor confirming that she was ill. When the plaintiff explained that given the distance between the United States and Africa, he would be unable to provide a medical certification before leaving for Africa, the manager informed the plaintiff that the only alternative was for him to resign and then reapply for employment when he returned to the United States. Convinced that he had no other choice, the plaintiff resigned his position so that he could travel to Africa to care for his mother. After the plaintiff’s mother died a week later, the plaintiff returned to the United States and reapplied for his position at the Memorial Home, providing his mother’s death certificate. The Memorial Home refused to rehire the plaintiff.

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