By David J. Rowland and Megan P. Toth

Seyfarth SynopsisThe Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.

Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave.  However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.

The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.

The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual.  Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA.  If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.

If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.


By Steve Shardonofsky and Kevin A. Fritz

Seyfarth Synopsis: As employers begin to pick up the pieces following Hurricane Harvey, management will likely encounter questions about employee pay, benefits, and leaves of absence during and after this disaster, and may also have questions about how to help their workers get by during this difficult time. After making sure your workers are safe, and as you start to rebuild and repair, read on for practical guidance on these pressing issues.

This past weekend Hurricane Harvey made land fall, causing unprecedented and catastrophic flooding in southeastern Texas. Our thoughts go out to our colleagues, clients, and friends affected by this natural disaster.  We are thinking of you during this difficult and trying time.

Pay for Non-Exempt Employees

The General Rule

Under the Fair Labor Standards Act (FLSA), an employer is only required to pay non-exempt employees for hours actually worked. In other words, businesses are not required to pay non-exempt employees if they are not working, including times when the employer closes its doors or reduces hours of operation, whether or not forced to do so by inclement weather.  Moreover, while some states require some minimum “reporting” or “show up” pay for employees who show up for work and are either turned away at the door or dismissed before the end of their scheduled shifts, Texas is not one of those states.

An important exception to this general rule exists for non-exempt employees who receive fixed salaries for fluctuating hours from week to week. Because these employees must be paid a “fixed” salary, employers must pay these workers their full weekly salary for any week in which any work was performed and pay not dock their pay for days when the office is closed due to inclement weather.

Even if your business is not open during inclement weather days, you always are free to pay employees for that time, and may also permit them to use their paid leave time, if applicable.

Inclement Weather Delays and Traffic

Flooding and severe weather often cause unpredictable traffic delays, and may even result in employees becoming stranded on the road. Employees who perform work while stranded—for example, by taking phone calls or answering e-mails on their way to work—must be compensated for that time even if done away from the office.  Similarly, an employee who is stranded in an employer’s vehicle on their way to work and instructed to safeguard the vehicle or other property is generally entitled to pay for time beyond their ordinary home-to-work commute (i.e., once their scheduled shift begins).

With respect to inclement weather, the general and most practical advice is to pay for any extra time spent getting to work during a scheduled shift, particularly when employees are stranded for reasons outside their control. It is likely that the Department of Labor or even a court would find that all of the time the employee was stranded within their regular shift is compensable time.  Even where reasonable minds could differ on these questions, since the costs of defending these claims often exceed the underlying payroll costs, it often makes sense to employees for this  time in the first place.

Pay for Exempt Employees

Exempt employees under the FLSA must be paid on a “salary basis” and earn a full day’s pay when they work any part of the day, regardless of the quality or quantity of the work performed. Thus, if a business is closed because of inclement weather and an exempt employee is ready, willing, and able to work, she must be paid for that day.  On the other hand, if the exempt employee does not work for an entire workweek (for personal reasons or because the business is closed), the exempt employee need not be paid for that time—that is, the employer may “dock” her salary for the full workweek.

If the business is open and an exempt employee elects to stay home to make repairs or volunteer at a local shelter, the employer may “dock” their salary in full day increments (but perhaps consider not doing so to encourage volunteerism and aid in recovery efforts). In these instances, and including situations when exempt employees elect to arrive late or leave early for personal reasons, employers may also deduct accrued leave time in full or partial day increments as long as the employee receives his or her full pay for the week.  In the event that the employee does not have any accrued time, an employer may also simply pay him or her for the day or allow the employee to take an advance on accrued paid leave and make it up at a later time. This practice is not allowed for non-exempt employees, who must be paid overtime for all hours worked over 40 in a work week.  For more information on the FLSA salary basis rules, visit our prior blog.

Safe Harbor

Remember, improper or inadvertent deductions from pay will not typically result in the loss of exemption status if the employer reimburses the employees for the improper deductions, has a clearly communicated safe harbor policy prohibiting improper deductions, and a complaint mechanism for exempt employees to use if improper deductions are made.

Telework or Working from Home

Allowing employees to work from home during this time will aid recovery efforts and help families recover faster. Regardless of exemption status, employees who work from home during inclement weather, even if only a few hours per week, must be paid for that time.  Thus, employers who will keep their businesses up and running during the aftermath of Hurricane Harvey should clearly communicate to employees who is and who is not permitted to work from home, when that work can be done, whether overtime is permitted, and how to record time worked outside of the company’s premises.  It is also important to remind employees to record all hours worked, even when the work is done away from the employer’s premises.  Employers should be sensitive to the fact that not all employees will be able to work remotely, and therefore should consider alternative arrangements like temporary or shared offices.

On-Call and Waiting Time

Power outages are common during natural disasters, and many employers will require their employees to wait out or work through such power failures. In most cases, any employee who is required to remain at the employer’s premises or close by and therefore unable to use that time for his own benefit (even if not working) must be compensated for that time.  For example, employees who are onsite to perform emergency repairs and who are not free to leave the company’s premises must be compensated for time even if they do not ultimately perform any work.  Similarly, if an employee is onsite and required to wait through a power outage, the time waiting for the power to resume is typically considered time worked and is therefore compensable.

Volunteer Time for Company Repairs

Employers should generally be cautious about having employees “volunteer” to assist during an emergency, particularly if those duties benefit the company and are regularly performed by employees. Exempt employees who volunteer to help will not be entitled to any additional compensation. But remember that too much time spent on manual tasks or other tasks unrelated to their regular job duties could invalidate their exempt status and allow them to claim overtime compensation.  Conversely, non-exempt employees must be paid for all time worked, even if they offer to work and help make repairs for “free,” with one exception: Employers may accept free work from employees of government or non-profit agencies who volunteer out of public-spiritedness to perform work that is not at all similar to their regular duties.

Leaves of Absence After a Natural Disaster

Otherwise eligible employees affected by a natural disaster may elect to take leave under the Family and Medical Leave Act (FMLA) for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave. This includes job-protected leave to care for a family member who is a current service member with a serious injury or illness. FMLA leave for this purpose is called “military caregiver leave.”

Adding to the difficulty, employers may encounter uncommon FMLA issues during and after severe storms, including absences caused by an employee’s need to care for a family member who requires refrigerated medicine or medical equipment that is not operating properly because of a power outage. What’s more, under the Americans with Disabilities Act, an employee who is physically or emotionally injured as a result of a disaster may be entitled to leave as a reasonable accommodation, so long as it would not place undue hardship on the operation of the employer’s business.

Employees who are part of an emergency services organization may also have rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under certain conditions, USERRA provides job-protected leave for U.S. service-members.  Although USERRA does require advance notice of military service, there are no strict time limits for notice after a natural disaster as long as it is reasonably “timely.”  Employers should be prepared to receive and assist employees giving notice under USERRA and other laws allowing for job-protected leave.

Many counties in Texas have been declared in a state of emergency following Hurricane Harvey. While this does not provide pay or other protections for Texas employees, the Texas Workforce Commission advices that “absences due to closure of the business based on bad weather or other similar disaster or emergency condition should not count toward whatever absence limit a business has” —particularly for nonessential employees.  On the other hand, if other employees are able to make it in to work (including workers from similar areas), absences for personal reasons may count toward an absence limit. On balance, however, it is always advisable to discourage the discipline of any nonessential employees who are unable to report to work during a state of emergency.

Weathering the Storm Together

While legal compliance is important, there are other practical ways employers can help workers weather the storm an get back on track. Business owners should consider relaxing the usual telecommuting rules to allow affected employees to work from home as much as possible.  To minimize financial hardship, employers should continue to process payroll in a timely manner.  Consider providing pay advances, loans, or even advances for paid time off/vacation time to help employees offset unanticipated expenses for repairs and insurance deductibles.

To the extent possible, employers may consider offering employees paid leave for time spent volunteering to assist with disaster relief efforts. Employers can also implement a leave donation/sharing policy to allow employees to donate paid leave to employees who will use it to volunteer in relief services or for those otherwise affected by this terrible disaster.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Wage and Hour Team.

By Hillary J. Massey and Craig B. Simonsen

Seyfarth Synopsis: While employees who have recently taken leave may be terminated for legitimate reasons, establishing a non-retaliatory termination can be challenging. The timing of the termination alone can support causation, and even a well thought out and justified termination may raise issues of fact that would prevent quick resolution in court. The 11th Circuit recently addressed such a case.

In Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142 (11th Cir. Apr. 19, 2017), Rodney Jones brought suit against his former employer, Accentia Health and Rehabilitation Center of Tampa Bay (Accentia), a long-term-care nursing facility, in Florida state court.  Jones alleged that in suspending and later terminating him, Accentia interfered with the exercise of his rights under the Family Medical Leave Act (FMLA) and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and moved for summary judgment on both of Jones’s claims.

FMLA Leave

Jones, who was Activities Director for Accentia until he was fired in 2015, initially was approved for 12 weeks of FMLA leave for shoulder surgery. The day before Jones was scheduled to return to work, his doctor reported that he would not be able to return to work and resume regular physical activity for an additional 7 weeks. The doctor’s report also stated that Jones needed to continue physical therapy.

Jones wished to return to his job and asked his supervisor to allow him to return on light duty. His supervisor, however, refused to reinstate Jones until he submitted an unqualified fitness-for-duty certification.  Thus, Jones did not ask his doctor for a light-duty certification and instead requested additional time off from Accentia.  He was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy.

Facebook Posts

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, including pictures of himself on the beach and in the ocean.

Jones returned to work two weeks before the date estimated by his doctor and met with his supervisor at the beginning of the day.  During the meeting, Jones presented his supervisor with a fitness-for-duty certification confirming that he could immediately resume his job.  His supervisor responded by showing Jones the photos from his Facebook page.

Termination

The supervisor then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended and given an opportunity to respond to the charges in a letter, but he failed to do so and his employment was terminated.

District Court Judgment

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.

Appeal

The 11th Cir. affirmed the judgment of the district court with respect to Jones’s interference claim, but reversed the judgment with respect to his retaliation claim.

The 11th Cir. concluded there was no interference because Jones “likely” waived his FMLA right to reinstatement by taking an additional 30 days of leave, he should have submitted a fitness-for-duty certification by the end of his FMLA leave and there was no evidence that Accentia did not implement its FMLA certification policy in a uniform fashion.

As to retaliation, the 11th Cir. 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.

Employer Take-Away

Retaliation claims continue to permeate employment litigation, and often are difficult to defeat with a pretrial motion. When employees go out on medical leave, employers often uncover inefficiencies and performance issues that were not obvious before the leave.  Employers facing such circumstances may want to consider:

  • Waiting a period of time after the employee’s return in order to avoid an inference of causation
  • Placing an employee on a performance improvement plan or other interim step before termination
  • When providing reasons for a termination, using broad terms that encompass various issues
  • Documenting the reasons for a termination in an internal document that is not shared with the employee (if you are working with counsel, mark this document privileged)
  • Training managers, HR individuals and other employees who handle leave issues not to make any comments about the timing of a leave or whether a leave will be difficult for the employer to manage.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

 

 

 

By Louisa Johnson and Salomon Laguerre

Synopsis:  The Fourth Circuit Court of Appeals recently ruled that an employer had done nothing wrong when it (i) filled the plaintiff’s position during his leave, (ii) restored the plaintiff to a different, but equivalent, position upon his return, and (iii) separated the plaintiff six weeks later as part of a reduction in force.

A recurring issue for employers is whether to fill an employee’s position while that employee is absent on a leave covered by the Family and Medical Leave Act (“FMLA”) and, if so, what position can be offered to the employee upon return to work that will satisfy the “equivalent position” alternative requirement under the FMLA. In a recently published opinion, the Fourth Circuit Court of Appeals has provided some helpful guidance.

In Gary Waag v. Sotera Defense Solutions, Inc., No. 15-2521 (4th Cir. May 16, 2017),  the employer, a defense contractor, was selected by the U.S. Army as one of several non-exclusive prime contractors that could bid on task orders for a software solutions program.  When it was selected but before it won any task orders, the employer made the plaintiff the program manager.  Because there were no immediate task orders to bid on, the plaintiff’s first job was not program management but instead business development—building relationships with the government to best position the company to win work when there were tasks orders to bid on.

A few weeks after the plaintiff began his new role, he injured his hand and notified his employer that he would need to be absent from work for two to three months. The employer notified the plaintiff that it needed to make another employee the program manager in the plaintiff’s absence.  When the plaintiff asked what that would mean for his role upon return to work, the employer was careful to say that it was important to have someone in the program manager role in the interim to get the team up and running, and that it would “figure out what roles work best for all involved” once the plaintiff returned from leave.

The program never left the business development stage during the plaintiff’s leave because there were no task orders to bid upon at the time. Upon the plaintiff’s return, the employer placed the plaintiff in a new role to help grow a different government contract program where there were actually task orders to be bid upon.  Unfortunately, the employer did not win those bids.  Six weeks after the plaintiff’s return to work, the plaintiff’s was fired as part of a reduction in force caused by a federal budget sequestration that drastically decreased the employer’s government work and its revenue.  The program manager who had filled the plaintiff’s role during his leave was not part of the reduction in force not because he held the plaintiff’s former program manager role but because he was a critical member of other programs that were generating revenue.

The plaintiff sued for purported interference with his FMLA rights because he was not restored to his original position after his leave, he did not believe his post-leave job was an equivalent position, and he believed his new job had been a sham role that was pre-selected for the lay-offs. He also argued that his termination was in retaliation for taking leave.  The trial court ruled in the employer’s favor on all counts, and the plaintiff appealed.

In upholding the trial court’s ruling, the Fourth Circuit noted that, under the FMLA, the employer can restore an employee either to his original position or to an equivalent position. The FMLA does not indicate a preference for one option over the other, “and it does not require an employer to hold open an employee’s original position while that employee is on leave.”

The Fourth Circuit also agreed with the trial court that the plaintiff’s new position was “equivalent” to his pre-leave position because the plaintiff continued to receive his same salary of $189,000.00 and was still eligible for bonuses; continued to enjoy the same health benefits; had the same worksite; held the same job title (Senior Director); still reported to a Vice President; and had the same primary duty of business development in both roles.

The plaintiff pointed to differences in job duties of the two positions that would have existed had the employer won a task order. The Fourth Circuit did not find such differences to be material because no task orders were won before or after plaintiff’s leave that would have necessitated the plaintiff performing these additional, conditional duties. In addition, while the plaintiff contended that he was no longer part of the “core management group” as he had been before leave, the Court found that a “loss of prestige” was a “de minimis” difference that did not prevent the pre- and post-leave jobs from being equivalent.

Finally, the Fourth Circuit agreed that a mere six weeks between the plaintiff’s return from leave and employment termination may be sufficient temporal proximity to show causation for a retaliation claim. Nonetheless, the plaintiff had failed to present any evidence that the employer’s reason for the plaintiff’s separation—the disastrous effect of the federal budget sequestration on the programs on which the plaintiff had worked—was a pretext for retaliation.  In so ruling, the Fourth Circuit noted that the plaintiff had the burden of proving pretext, rather than the employer having the burden of proving that the plaintiff would have been fired even if he had not taken leave, because the employer did not fire the plaintiff while on leave.  Instead, the employer returned the plaintiff to an equivalent position after leave that the employer had shown was not slated for lay-offs at the time of the plaintiff’s return from leave.

The key takeaways from this case are as follows: (1) while employers should, when possible, keep an employee’s position open during his or her leave, employers do not have an obligation to do so under the FMLA, although the analysis may be different when the Americans with Disabilities Act (“ADA”) applies as well; (2) if an employer reinstates an employee to an equivalent position, the FMLA requires the post-leave position to be “virtually identical” to the prior position in terms of pay, benefits, status, privileges, and working conditions and substantially equivalent in terms of skill, effort, responsibility, and authority; (3) even if communications with an employee during leave do not have the intended effect of managing the employee’s expectations about post-leave employment, such communications can help in the defense of litigation; and (4) restoring an employee post-leave to an equivalent position when his or her job has been filled in the interim will usually be a more defensible approach than firing the employee while on leave.

By Christopher W. Kelleher, Tracy M. Billows, and Joshua D. Seidman

Seyfarth Synopsis: The Illinois General Assembly will consider the proposed Healthy Workplace Act which, if passed into law, will require most Illinois employers to provide paid sick leave to their employees.

Illinois legislators have caught the paid sick leave bug that has been going around the Country. Sponsors from both chambers of the Illinois legislature have introduced a bill called the Healthy Workplace Act which, if adopted, will mandate paid sick leave for Illinois workers.

Under the proposed law (House Bill 2771/Senate Bill 1296), employees would be entitled to a minimum of five “paid sick days” each year to: (1) care for their own physical or mental illness, injury, or health condition, or seek medical diagnosis or care; (2) care for family member for the same reasons; (3) attend a medical appointment for themselves or family members; (4) miss work due to a public health emergency; or (5) miss work because the employee or a family member has experienced domestic violence abuse.

Employees would accrue one hour of paid sick time for every 40 hours worked. This includes FLSA-exempt employees, who would be deemed to work 40 hours each week for accrual purposes in most cases.

There is some potential for tension if and when the new law is passed.

For instance:

  • Employees will be entitled to determine how much sick time they need to use, but employers will be allowed to set a “reasonable minimum increment” which cannot exceed four hours per day;
  • Employers will also be able to ask for “certification” of the illness, injury, or health condition when employees take paid sick leave for three consecutive workdays. However, “[a]ny reasonable documentation” will suffice if it meets certain criteria;
  • Employers must treat the health information of both employees and their family members confidentially, and cannot disclose this information without the employee’s permission;
  • Paid sick days must be provided at the employee’s oral request, but if need for a sick day is foreseeable, the employee must give at least seven days’ notice before leave begins. If need for a sick day is not foreseeable, however, then employees should provide notice “as soon as is practicable”;
  • And finally, while employers must not discriminate or retaliate against employees for using paid sick leave, they may discipline employees for abusing paid sick leave.

The Bill, which has accumulated dozens of co-sponsors in both houses, was presented for a second reading on March 29, 2017. Stay tuned for further developments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

 

By Anne S. Bider, Robert A. Fisher, and James M. Hlawek

Seyfarth Synopsis: On February 5, 2017, in M.C.A.D. v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) held that an employer engaged in unlawful disability discrimination when it terminated an employee whose medical leave had ended and who could not provide a definite return to work date. The MCAD found that the employer had an obligation to engage in the interactive process to determine if extending the requested leave was a reasonable accommodation for the employee’s disability.

What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee?  Not so fast.  The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee’s leave would be reasonable.

The Facts

The Complainant was a loan coordinator for Country Bank for Savings. In September 2009, she went on an approved 12-week FMLA leave to give birth.  The leave was scheduled to end on November 30, 2009.  In October, following delivery of her child, Complainant was diagnosed with post-partum depression and notified the Bank that she would not be able to return to work on November 30, as planned.  She provided the Bank with documentation from her medical providers stating that, due to her condition, she would be out of work indefinitely.

On December 11, the Bank advised Complainant that, because her latest documentation did not provide a return date, her employment would be terminated if she did not return to work by December 21. In response, on December 17, Complainant called the Bank and told her supervisor that she hoped to return to work by mid-January.  The same day, Plaintiff’s attorney addressed a letter to the Bank requesting a short extension of Complainant’s leave as an accommodation to her post-partum depression, pending upcoming evaluations from Complainant’s medical providers in mid-January.  The letter stated that after Complainant’s mid-January appointments, she would advise the Bank whether a definite return date could be set.

On December 22, the Bank terminated the Complainant’s employment without further discussion with Complainant because she had not returned to work by December 21 and had not provided a return to work date.

The MCAD’s Decision

The MCAD held that in terminating Complainant’s employment without engaging in dialogue about her return to work date, the Bank discriminated against Complainant on the basis of disability in violation of state law. The MCAD found that once Complainant identified her disability and requested an extended leave, the Bank was obligated to engage in a dialogue with Complainant to determine if the extended leave was a reasonable accommodation.  Here, the Bank mistakenly relied on the 12-week period required by the FMLA as a measure of reasonableness and assumed that all requests for leave beyond the 12-week period were automatically unreasonable.  In addition, the Bank failed to produce any evidence that an extension of Complainant’s leave until mid-January would impose an undue burden on its operations or finances.

What This Decision Means For Employers

This decision reminds employers not to be rigid in administering medical leave. In some circumstances, an extended leave — even beyond the FMLA’s 12-week limit — may be a reasonable accommodation.

Further, the decision demonstrates the importance of the interactive process. Even when an employee is unable to provide a return to work date following exhaustion of medical leave, employers have an obligation to continue the interactive process to determine if a reasonable accommodation is possible.  In this case, the employer should have extended the Complainant’s medical leave for a couple of weeks because there was at least a suggestion that she could have provided a return date by then, unless doing so would have imposed an undue burden.  As the MCAD acknowledged, if the Complainant could not provide a return date by then and had no prognosis for improvement, the obligation to extend her leave likely would have ended.

In short, the decision shows the importance of flexibility, reasonableness, and interaction in dealing with employees who are unable to return from medical leave.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Lucas Deloach

Seyfarth Synopsis: Recent research suggests employers will manage an increasing number of employee requests for caregiving leave.

The U.S. Department of Labor’s Chief Evaluation Office has issued research briefs discussing two commissioned studies that examined paid family leave programs in California, New Jersey, and Rhode Island. Those studies reveal trend lines in paid family leave and may assist employers in anticipating future compliance challenges.

Currently, requests for leave to care for infirm relatives (“caregiving leave”) pale in comparison to requests for leave to care for newborn children (“bonding leave”), but that could change. In one of the studies examining the use of paid family leave in caregiver and parental groups, the researchers found that “[u]tilization of paid family leave programs in both California and New Jersey has grown steadily since implementation,” but claims for bonding leave far outweighed claims for caregiving leave.  Russell Tisinger et al., L&M Policy Research, LLC, Understanding Attitudes on Paid Family Leave: Discussions with Parents and Caregivers in California, New Jersey and Rhode Island 8 (July 2016). For example, in 2014, 88 percent of claims in California were for bonding leave. Id. at 9.  However, in summarizing the second study — focused exclusively on the effect of paid family leave benefits on adult child caregivers — the researchers noted that one in five individuals will be 65 or older by 2030, foretelling an upswing in the percentage of workers who may find it necessary to take leave and care for an aging relative.  Brant Morefield et al., L&M Policy Research, LLC, Leaving it to the Family: the Effects of Paid Leave on Adult Child Caregivers 3 (July 2016).  Of course, any increase in such requests could be mitigated by employees who choose to forego or limit leave and request the services of paid caregivers.  In fact, the Bureau of Labor Statistics projects employment of home health aides will grow of 38 percent from 2014 to 2024 and notes “[a]s the baby-boom population ages and the elderly population grows, demand for the services of home health aides to provide assistance will continue to increase.”

Demographic shifts are not the only driver of the potential increase in requests for caregiving leave. Legislative and administrative action may also influence caregiving leave utilization rates, as well.  As we have discussed, California recently decided to increase the level of benefits provided to individuals in its Paid Family Leave program, and only days later, New York passed a Paid Family Leave law that will go into effect on January 1, 2018.  As paid family leave benefits expand into other jurisdictions, so may employees’ willingness to take leave and care for an infirm relative.  As the researchers note, “the most commonly cited reason for unmet leave was an inability to afford it.” Morefield et al., at 3.

Many employers, in jurisdictions with paid family leave or otherwise, have developed robust bonding leave policies and/or policies addressing unpaid leave pursuant to the Family and Medical Leave Act. However, due to its comparative infrequency, employers may not have devoted particular attention to caregiving leave.  For the reasons above, employers should scrutinize their policies related to paid time off, leaves of absence, and family and medical leave.  As noted in the aforementioned studies, there may be important practical differences between requests for bonding leave and leave for adult caregiving purposes, insofar as “[e]ldercare givers typically hold a different place in the earnings life cycle than new parents and face leave spells that likely differ from a maternity- or paternity-type leave.” Id. at 4.  Thus, caregiving leave requests likely require individualized attention and employers should evaluate their related procedures to ensure they reflect that reality.  Of course, policies and procedures should also be crafted in harmony with other employee benefits, should address the interplay between paid and unpaid leave, where applicable, and should satisfy the particular requirements of state or local law.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

By Megan P. Toth and Joshua D. Seidman

Seyfarth Synopsis: In case you missed it, on June 22, 2016, Chicago added itself to the growing roster of many major U.S. cities to pass a Paid Sick Leave Ordinance.  

The Council’s Committee on Workforce Development and Audit passed the Chicago Minimum Wage and Paid Sick Leave Ordinance (“PSLO”), which amends the Chicago Minimum Wage Ordinance e (2-25-050).

The new ordinance is effective July 1, 2017.  Thus, employers with employees in Chicago must be aware of the major provisions and requirements of the PSLO, which are summarized below and more thoroughly explained by our colleagues here.

Summary of Major Provisions

  • Effective Date: July 1, 2017
  • Covered Employers: Any individual or entity with one or more employee that maintains a business facility within the city of Chicago or that is subject to city licensing requirements.
  • Covered Employees[1]: Employees working 80 hours within any 120-day period.
  • Eligibility: Employees must be eligible to use paid sick leave (“PSL”) no later than 180 days after the first calendar day of their continuous employment, unless the employer sets an earlier date.
  • Accrual: Employees must begin accruing PSL on the first calendar day after the commencement of their employment, or on the effective date of the PSLO (July 1, 2017) if already employed, at a minimum rate of one hour for every 40 hours worked.[2]
  • PSL Caps: Employers may cap accrual and use of PSL at 40 hours per 12-month period, but are free to set a higher limit.
  • Qualifying Usage: An employee may use paid sick leave for the following purposes: (1) employee or a covered family member is ill or injured, or is receiving medical diagnosis, care, or treatment, or preventive medical or health care;(2) absence of employee or the employee’s family member related to domestic violence or “a sex offense”; and (3) closure of employee’s place of business or the employee’s child’s school or place of care by order of a public official due to a public health emergency.
  • Unused PSL: Employees must be permitted to carry over half of any unused accrued PSL from year to year, up to a max of 20 hours. In addition, if the employer is subject to the Family and Medical Leave Act (FMLA), employees can carry over up to 40 hours exclusively for FMLA-eligible purposes. However, if an employee carries over and uses the additional 40 FMLA hours, they cannot use more than an additional 20 hours of PSL in that 12-month period. Employers are not required to pay out unused PSL from year to year or upon termination.
  • Notice to Employer: If an employee’s need for PSL is reasonably foreseeable, an employer may require up to seven days’ notice. If an employee’s need for PSL is not reasonably foreseeable, an employer may only require notice as soon as practicable on the day intended for PSL.
  • Medical Certification: If an employee is absent for more than three consecutive work days, an employer may require certification that the PSL was in fact used for covered purposes.
  • No Retaliation, Discipline or Coverage: Employers cannot retaliate against or discipline employees for use of PSL and cannot require  employees to find coverage for hours missed due to use of PSL.
  • Notice of the PSLO to Employees: Every covered employer must (1) post notice of the PSLO at each facility where covered employees work (with in the City of Chicago) and (2) provide notice advising covered employees of the PSLO with their first paycheck issues after the PSLO is passed.

Takeaway for Employers:

Employers with employees in the City of Chicago must ensure their leave policies are in compliance. We will continue to monitor news related to the ordinance and will provide any updates here. In the meantime, please contact the author or your Seyfarth attorney if you a have any questions regarding the PSLO, or if you would like help reviewing your paid sick leave policies for compliance with state and local laws.

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[1] Specifically excluded employees: (1) certain employees employed in agriculture or aquaculture, (2) outside salesmen, (3) members of a religious corporation or organization, (4) an individual permitted to work “[a]t an accredited Illinois college or university employed by the college or university at which he is a student who is covered under the provisions of the Fair Labor Standards Act,” (5) certain motor carriers, and (6) any employee working in the construction industry who is covered by a bona fide collective bargaining agreement.

[2] Employees who are exempt from overtime requirements are assumed to work 40 hours each week, unless their normal workweek is less than 40 hours, in which case paid sick leave accrues based on the employee’s normal work week.

By Lawrence Postol

In Seyfarth’s continuing effort to stay on top of all topics relevant and interesting, several colleagues have started “The Blunt Truth” blog, which will address the legal and practical implications of cannabis laws across the U.S. and their impacts on the business community. Check out this week’s blog piece HERE.  And if you like what you see – don’t forget to subscribe to that blog as well!

By Erin Dougherty Foley and Craig B. Simonsen

In an opinion last week, the Second Circuit ruled that a company’s human resources (HR) director could be held individually liable for Family and Medical Leave Act violations.

The Court said that the HR director had enough control over an employee’s job and enough input into her firing to qualify her as an “employer” under the statute!  Graziadio v. Culinary Institute of America, Shaynan Garrioch, and Loreen Gardella, No. 15-888-cv (March 17, 2016).

We have blogged previously on other important FMLA policy and case law, including Employer Beware: The FMLA Can Reach Further Than You May Think, New Guidance From The EEOC Requires Employers To Provide Reasonable Accommodations Under The Pregnancy Discrimination Act, Employer Intent Is Immaterial In FMLA Interference Claims, and The Family and Medical Leave Act: 10 Years Later.

In the facts of this case, as explained by the Court, the plaintiff took FMLA leave to care for her son, and then took additional leave a few weeks later when her second son broke his leg. During the plaintiff’s second term of absence, the employer took issue with the paperwork supporting the leave request, and refused to allow her to return until she provided new documentation. Communication between the plaintiff and the employer broke down, and ultimately the employer fired the plaintiff for abandoning her job. The plaintiff subsequently sued the employer and two of her supervisors alleging interference and retaliation under the FMLA, and discrimination under the Americans with Disabilities Act (ADA).

At the District Court, summary judgment was granted to the employer. The District Court found that the plaintiff could not establish that she was wrongfully denied FMLA leave, or that the employer’s actions were retaliatory or discriminatory. Importantly in this case, the District Court dismissed the plaintiff’s individual FMLA claims against the HR employees, finding that neither employee qualified as an “employer” subject to liability under the FMLA. Graziadio v. Culinary Inst. of Am., No. 13 Civ. 1082 (NSR), 2015 WL 1344327 (S.D.N.Y. Mar. 20, 2015).

The District Court also determined that the plaintiff could not sustain her claims of FMLA interference because she had “not been denied any leave to care for [her son] and, having failed to submit a medical certification form, had no entitlement to leave to care for [her second son].” In addition it rejected the plaintiff’s FMLA retaliation and ADA discrimination claims, finding that the employer had proffered legitimate reasons for the termination—namely, plaintiff’s failure to comply with FMLA certification requirements and her failure to contact her supervisor to return to work, and she had not shown these employer reasons to be pretextual.

Opposite, the Second Circuit concluded that the plaintiff had presented genuine disputes as to material fact with respect to her claims of FMLA interference and FMLA retaliation, but it agreed with the District Court that the plaintiff failed to provide evidence supporting a claim of discrimination under the ADA.

As to individual employee liability for the HR director, the Circuit Court noted that:

An individual may be held liable under the FMLA only if she is an “employer,” which is defined as encompassing “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer,” 29 U.S.C. § 19 2611(4)(A)(ii)(I); see also 29 C.F.R. § 825.104(d).

The Court indicated that the Second Circuit had not yet tested the “contours of this provision,” but that several of other circuits, as well as district courts within the Second Circuit, had observed that the “FMLA’s definition of ‘employer’ largely tracks the definition of ‘employer’ used in the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(d), and have come to the reasoned conclusion that the standards used to evaluate ‘employers’ under the FLSA should therefore be applied to govern the FMLA as well.” The Court cited to Haybarger v. Lawrence Cty. Adult Prob. & Parole, 667 F.3d 408 (3d Cir. 2012), Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006), Wascura v. Carver, 169 F.3d 683 (11th Cir. 1999), and Santiago v. Dep’t. of Transp., 50 F. Supp. 3d 136 (D. Conn. 2014), and agreed “with these courts and apply the economic-reality test used to analyze individual liability in the FLSA to the FMLA case before us.”

While the employer’s Vice President of Administration and Shared Services (VP) retained “ultimate termination authority,” the Court found that the VP had merely “directed th[e] issue to [his subordinate] for handling.” In testimony the subordinate HR director described her role in the “termination as a joint ‘decision that was made between myself and [the VP].” Additionally, the HR director had exercised control over the plaintiff’s schedule and conditions of employment relating to her return from FMLA leave.

Specifically, the Court found that the HR director: (a) reviewed plaintiff’s FMLA paperwork; (b) determined its adequacy; (c) controlled plaintiff’s ability to return to work and under what conditions; and (d) sent nearly every communication regarding her leave and employment (including the letter that ultimately communicated her termination). As such, a “rational jury could find, under the totality of the circumstances, that [the HR director] exercised sufficient control over [plaintiff’s] employment to be subject to liability under the FMLA.”

As to the FMLA violation, the Court noted that “we cannot help but note, however, that in making this still rather oblique request, [the HR director] studiously avoided responding to any of [the plaintiff’s] pleas for clarification on ‘what [paperwork] you would specifically like me to obtain’ and for transmission of any 6 specific desired FMLA forms. And such unresponsiveness may itself run afoul of the FMLA’s explicit requirement that employers ‘responsively answer questions from employees concerning their rights and responsibilities under the FMLA’.”

The Court concluded that “in light of our conclusion that a jury can find that [the employer] interfered with [the plaintiff’s] leave, the first of the district court’s grounds no longer supports a grant of summary judgment.”

In light of this startling Circuit Court opinion, employers may wish to consider the ramifications of this case as they analyze their organizational structure, chain-of-command, policy, procedures, and training systems. It’s one thing to deliberately decide as a business to subject lower level managers to individual employer liability, but something quite else for it to happen accidentally.