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The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the 12-month period immediately preceding the start of the leave). Not so fast, said the 11th Circuit in Pereda v. Brookdale Senior Living Cmtys., Inc., which opened the eligibility door a crack back in 2012. And more recently, on April 13, 2017, a federal district court in Oregon nudged that door open just a bit wider when it issued the decision in Johnson v. Jondy Chemicals, Inc., 2017 WL 1371271 (D. Or. 4/13/2017).

For those of you who don’t have the Pereda case at your fingertips, a quick refresher: In Pereda, the employee notified her employer she would be taking FMLA leave for the birth of her child on or about Nov. 30, 2009. At the time of her request, she had not yet met the eligibility requirements to take FMLA leave, but she would have become eligible by her due date. The court held that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” Thus, an employee can maintain an FMLA interference claim even though at the time of the termination, she was not an “eligible employee” with respect to the 12-month employment requirement.

The Johnson case present us with the intersection of another wrinkle. Recall that if an employee becomes FMLA-eligible during a leave (by meeting the 12-month requirement), the beginning of the leave must be designated as non-FMLA leave while the portion of the leave after the employee meets FMLA eligibility requirements would be designated as FMLA. 29 C.F.R. § 825.110(d). The Johnson case combines the prescience of the Pereda case with the hindsight of this provision to create a new animal: in some circumstances–despite the fact that the employee is not eligible for FMLA at the time of the request or at the time the leave is to begin–an employee’s request for leave could trigger FMLA protections if, at some point in time during the leave, the employee will meet the 12 months of employment eligibility requirement. The Court considered this hypothetical and concluded “the fact that an employee’s treatment commences pre-eligibility…does not, in and of itself, bar the employee’s rights in subsequent FMLA leave for the same treatment during the same contiguous absence…” The court held that an employee who notifies the employer of the need for treatment that will extend into a period of time in which the employee will be FMLA-eligible is entitled to FMLA-protected leave for that period. Therefore, any adverse treatment based on the leave request could be grounds for the employee to claim the employer interfered with his right to FMLA leave.

In the case at hand, the Court was not so sure that the employee had demonstrated that FMLA would have applied to a portion of the leave, because the claim did not specify whether the leave would have extended beyond the employee’s FMLA-eligibility date. As a result, the Court dismissed the claim; leaving open the possibility the employee could refile with more facts to support the claim.

Concerned about navigating your way through complex leave administration issues? Reed Group has options. We offer both outsourced and software solutions for clients with complex and/or multi-state employee populations. To learn more about ReedGroup’s products and services visit reedgroup.com.

Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether the requested accommodations were reasonable. The third focuses on overcoming the hurdle of establishing that an employee is, in fact, disabled under the ADA. All three cases resulted favorably for employers.

In Whitaker v. Wisconsin Dep’t of Health Servs., No. 16-1807, 2017 WL 745600 (7th Cir. Feb. 27, 2017), Whitaker worked as a corrections officer for the Wisconsin Department of Health Services, eventually transitioning into other positions due to a back injury. Her most recent position relevant to her case was that of an economic support specialist in the Department’s Income Maintenance Program. In this role, Whitaker’s job duties included processing applications for benefits, answering phone calls, and general case management, all requiring regular attendance.

Whitaker exhausted her available FMLA leave for her medical condition as well as a 30-day unpaid leave to care for her father and due to her own personal illness. Whitaker was informed by the Department that if she failed to return to work upon the conclusion of the 30-day leave, the termination process would begin. Whitaker did not return to work on her expected date but did submit notes from her doctor requesting additional time off for a medical leave. The notes did not provide any detail on her condition, course of treatment, or estimated recovery. Whitaker continued to assert she was unable to return to work and the Department terminated her employment. Whitaker sued, claiming the Department should have considered her request for an accommodation of unpaid leave rather than terminate her.

The court found that Whitaker was unable to establish that she was an “otherwise qualified” employee as required by the ADA as she provided no proof that she could fulfil the requirement of regular attendance, even with an accommodation. Whitaker argued that if she had been given additional leave as an accommodation, she could return to work on a regular basis. Consistent with other cases we have seen, the Seventh Circuit did not find this argument persuasive. Rather, the court found this accommodation to amount to an open-ended leave request, which was not reasonable and would have imposed an undue burden on the department.

Like Whitaker, Bagwell v. Morgan Cty. Comm’n, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017), analyzes an employee’s essential job functions and whether an employee’s request to accommodate those essential job functions is reasonable.

Bagwell was a County groundskeeper whose essential job functions included tasks necessary to maintain and upkeep city parks, such as traversing uneven and wet surfaces, standing, and walking. Due to stamina and endurance issues caused by a leg injury, she was unable to safely perform these functions consistently, even with the assistance of an accommodation. It was established that Bagwell could only tolerate walking and standing for one-third of her shift. Although some equipment accommodations would reduce related difficulties, Bagwell was unable to perform the essential job functions of the position, with or without accommodations; thus, the court found that Bagwell was not an “otherwise qualified” employee. Additionally, the court found that if the County were to consider an accommodation, it would be a significant one, requiring a co-groundskeeper or hiring a third-party service to complete the work. Finding in favor of the employer, the court held that this type of accommodation would be unreasonable as it was the duty of the groundskeeper to perform such work.

Two employer tips stand out in these cases:

  1. Be sure to keep your job descriptions up to date and accurate. Regular attendance is often an essential job function and the courts rely heavily on employers’ job descriptions to establish the essential functions of a job.
  2. The courts continue to side with employers when an employee is requesting indefinite leave under the ADA, which is considered unreasonable and burdensome to the employer.

The third notable ADA case of 2017 brings us to Alston v. Park Pleasant, Inc., No. 16-1464, 2017 WL 627381 (3d Cir. Feb. 15, 2017). In 2011, Park Pleasant hired Alston to be the Director of Nursing at an adult care facility; one year later, Alston was having significant performance issues. Shortly after meeting with her HR director to discuss these issues, Alston missed work to have a biopsy and was diagnosed with early-stage DCIS (a form of breast cancer). Alston’s performance continued to be in question and she was terminated in early August 2012. Upon termination, Alston sued, claiming employment discrimination under the ADA.

To establish a claim for discrimination under the ADA, Alston was required to demonstrate that she was a disabled person within the meaning of the ADA. The court relied on 29 C.F.R. § 1630.2(j)(1)(iv) in concluding that the determination of whether an employee is disabled under the ADA requires an individualized assessment to analyze whether the employee’s impairment ‘substantially limits a major life activity.’ Throughout the case, Alston failed to provide enough evidence to prove she had a disability. The court did note that cancer generally would qualify as a disability; however, based on the individualized assessment for Alston, there was no argument or proof that this condition limited any of her major life activities. Therefore, the court found that Alston failed to establish she was disabled under the ADA and dismissed her discrimination claim.

This case goes back to the basics, but it reminds employers that an individualized assessment of each employee and his or her ailment(s) or condition(s) is required to establish whether the employee is considered disabled under the ADA and thus entitled to the protections afforded by the act.

It’s evident that ADA discrimination cases continue to be brought by disgruntled employees. To avoid potential risks in litigation:

  • make sure your job descriptions are specific and in writing;
  • follow the interactive process; and
  • evaluate employees on an individual basis.

Outsourcing to a third-party administrator that specializes in ADA management, such as ReedGroup, will keep you ahead of the curve and compliant on all ADA matters. For more information, check out our solutions here.

The Latest News in Paid Family, Medical, and Sick Leave Legislation (NY, WA, CA, MI)
Lori Welty

The Latest News in Paid Family, Medical, and Sick Leave Legislation (NY, WA, CA, MI)

Although summer is turning into fall, the Paid Family, Medical, and Sick Leave landscape continues to heat up. Get up to date on the latest developments in New York, Washington, California, and Michigan.

New York Paid Family Leave (NY PFL): New York Department of Financial Services (DFS) published the NY PFL rates for the upcoming 2019 year.  According to the DFS publication, the premium rate for Family Leave Benefits for coverage beginning January 1, 2019, will increase from 0.126% to 0.153% of an employee’s gross wages each pay period up to an annual maximum employee contribution of $107.97.

Also new for NY PFL in 2019:

  • Starting January 1, 2019, the number of weeks eligible employees can take to bond with a new child, care for a sick family member, or assist loved ones when a family member is deployed abroad on active military service will increase to 10 weeks.
  • The PFL wage replacement benefit is also increasing. In 2019, employees taking Paid Family Leave will receive 55% of their average weekly wage, up to a cap of 55% of the current Statewide Average Weekly Wage of $1,357.11. The maximum weekly benefit for 2019 is $746.41.
  • Still to be determined: Will NY PFL cover organ and tissue donation as a serious health condition? NY Senate Bill 2496 remains ready for the governor’s signature. If signed, it will go into effect 90 days later.

New York’s PFL Office has issued helpful FAQ’s addressing some of the issues associated with these changes. Because leaves can span from 2018 into 2019, employees and employers may have questions about how to treat those leaves in light of the increased leave and benefit entitlement. The FAQ has provided the following guidance:

  • If an employee starts a continuous leave in 2018 that extends into 2019, the employee receives the benefit rate and number of weeks in effect on the first day of the leave.
  • If an employee starts an intermittent leave in 2018 that extends into 2019, the employee is eligible for the benefit rate and number of weeks in effect on the first day of a period of leave. When more than three months pass between days of PFL, the next day or period of leave is considered a new claim; the employee must submit new paperwork and may be eligible for the increased benefits available if the day or period of PFL begins in 2019.
  • For an employee who has a baby in the fall of 2018, she can wait until 2019 (as long as it is within the first 12 months of birth, adoption, or foster placement) to take PFL to get the enhanced benefits.
  • An employee who used all eight weeks of PFL in 2018 may be able to take an additional 2 weeks of PFL in 2019 if the employee experiences another qualifying event. Since the maximum amount of leave in 2019 is 10 weeks in a 52 week period (on a rolling back basis), if the employee took eight weeks of PFL in the prior 52 weeks, the employee would be limited to two weeks at the new rate. When it has been 52 weeks from the 2018 leave dates, the employee will accrue additional PFL.

New York has provided updated resources:

 

Washington Paid Family Leave: Washington’s PFL regulatory process continues its onward march. The Phase 2 Rulemaking, pertaining to employer responsibilities, penalties, and small business assistance, continues, with the final rules expected to be filed by November 2 for a December 3 effective date. 

The Phase 3 Rulemaking, related to benefit applications and benefit eligibility, has kicked off, with the first draft of rules filed on September 12. The rules provide detail on employee notice, employee applications and required documentation, and benefit calculations.

For employers considering a Voluntary Plan, the Washington State Employment Security Department has provide a handy Voluntary Plan Guide and resources in the form of a Voluntary Plan Customer Care Team to answer questions at 833-717-2273 or paidleave@esd.wa.gov.

 

California Paid Family Leave (CA PFL): California Senate Bill 1123 was enrolled on September 5, 2018, and has been sent to the governor for signature. This bill would expand the scope of the CA PFL program to include time off to participate in a qualifying exigency related to the covered active duty, or call to covered active duty, of the employee’s spouse, domestic partner, child, or parent. The law contains a comprehensive list of activities covered under the new leave reasons, including:

  • attending official ceremonies or programs
  • participating in a family support or assistance program
  • arranging for child care for a child of the family member in the Armed Forces
  • making financial or legal arrangements related to the call to active duty
  • addressing issues arising from the death of a family member

The governor’s deadline to sign the bill is September 30, 2018. If signed, it will go into effect on January 1, 2021.

 

Michigan Paid Sick and Safe Leave: Michigan made news last week when state legislators adopted a ballot proposal – The Earned Sick Time Act – to mandate paid sick and safe leave. Backers of the proposal were gearing up for a November ballot measure, but instead the legislature adopted the measure in regular session. Having passed the bill through the legislature, only a simple majority is now required to amend the bill. Had it been approved through the ballot measure process and vote, the legislature would have needed a three-quarters vote to make any changes.

The law, as passed, requires employers to allow employees to accrue and use 72 hours of paid sick time per year. Employees of small businesses (employers with less than 10 employees) can accrue and use up to 40 hours of paid sick time per year. The law will not go into effect until March 2019, although it is widely anticipated that the law will be amended before that time.

A controversy is heating up as to whether a legislature is permitted to amend a bill that was approved as a ballot measure in the same legislative session. Proponents of the ballot measure argue that it violates the state constitution for the legislature enacting a ballot proposal to amend the law in the same legislative session. Those supporting the legislature’s actions disagree, arguing that the state’s constitution contains no such limitation. An emergency ruling from the Michigan Supreme Court has been requested, though no decision has yet been issued.

The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the...

read more
Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether...

read more
Summer Legislative Roundup
Lori Welty

Summer Legislative Roundup

2018 has been a big year with substantial legislative activity. We’ve kept you informed throughout the year on significant measures, such as the Massachusetts Paid Family and Medical Leave law, New Jersey’s Paid Sick and Safe Leave law, and South Carolina’s Pregnancy...

read more