Two months ago, many Americans were unfamiliar with the term “Ebola."  It’s amazing how quickly things can change.  Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak.  Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans.  If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus.  Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are:  fever, fatigue, muscle pain, headache, and sore throat.  As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to:  nausea, vomiting, diarrhea, a rash, and impaired organ function(s).  The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q:  What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue.  If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:

• Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
• Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
• Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
• Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
• National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.

Q:  May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA.  Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard?  The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so.  As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present:  (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q:  To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored.  In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus.  Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q:  May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances.  In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others.  Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk.  The governing standard here is one of reasonableness.  For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms.  Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q:  What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury.  Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm.  According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States.  Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern.  Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q:  What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed.  In other words, don’t panic.  Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:

• Educate the workforce.  Lack of information or misinformation spawns unnecessary hysteria.  The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
• Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
• Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
• Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
• Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
• Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.

It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States.  However, what is abundantly clear is that this situation is constantly changing.  What may seem reasonable today may need to be modified tomorrow.  As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.

On Friday, June 20, 2014, the Wage and Hour Division for the U.S. Department of Labor (“DOL”) announced a proposed rule that would extend the spousal leave protections afforded by the Family and Medical Leave Act (“FMLA”) to include all eligible employees in legal same-sex marriages – regardless of where the employees live. The FMLA provides eligible employees with the right to take unpaid leave for a variety of qualifying reasons and to various qualifying family members.  When focusing purely on FMLA leave for spouses, eligible employees may take FMLA leave to care for their spouse under the following circumstances:  (1) when time off is needed to care for a spouse with a serious health condition; (2) when time off is needed to care for a spouse who is a covered servicemember with a serious injury or illness; and/or (3) when time off is needed for a qualifying exigency related to the covered military service of a spouse. The FMLA regulations currently define the term “spouse” to mean a “husband or wife, as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”  This definition of spouse has historically excluded same-sex marriages because of certain definitions contained in Section 3 of the Defense of Marriage Act (“DOMA”), a federal law that permits states to refuse to recognize same-sex marriages granted under the laws of other states.  However, in June 2013, the United States Supreme Court declared Section 3 of DOMA unconstitutional in its U.S. v. Windsor decision.  What result did the Court’s Windsor decision have on the FMLA?  In sum, this decision enabled eligible employees in legal same-sex marriages residing in states that recognize their marriage to avail themselves of the various leave rights and protections to care for spouses offered under the FMLA. Despite the practical developments stemming from Windsor, many same-sex couples remain unable to take FMLA spousal leave.  For example, employees who are legally married in a state which recognizes same-sex marriages, but subsequently move to a state which does not, may not be entitled to seek FMLA spousal benefits because FMLA spousal benefits are governed by the state of the employee’s residence.  With its newly proposed rule, the DOL is attempting to rectify this inconsistency by revising the definition of spouse so that the FMLA regulations will look to the law of the state (or country) where the marriage was entered into, as opposed to the law of the state where the employee resides.  The DOL believes that this change from a “place of residence” rule to a “place of celebration” rule will allow all legally married couples, whether opposite-sex or same-sex, to have consistent FMLA rights, regardless of the state in which they reside. The DOL’s proposed rule would also permit eligible employees to take FMLA leave to care for their stepchild (child of the employee’s same-sex spouse) or stepparent (employee’s parent’s same-sex spouse) without establishing an in loco parentis relationship. Like all proposed administrative changes, this DOL rule is subject to a notice and comment period before it can be implemented.  We will continue to follow this FMLA issue and provide additional updates if and when a final rule is issued.

On or about June 20, 2012, the U.S. Department of Labor, Wage and Hour Division, released a 16-page guide to the Family and Medical Leave Act (“FMLA”) in an effort to inform employees about the FMLA and to make the law more accessible to them.  This publication, entitled “Need Time? The Employee’s Guide to The Family and Medical Leave Act” (“Guide”), provides a basic overview of the FMLA.  Through a combination of text, flow-charts, and examples, it answers common questions that employees may have about their rights under the FMLA.

So what does this new publication mean for employers?

Although the Guide is specifically geared toward employees, it may also be useful to employers for the reasons set forth below.

• The Guide is written in plain English. For this reason, the document serves as a useful reference to refresh employers’ understanding regarding the basic rights and protections afforded to employees under the FMLA, as well as the obligations that the statute places on employers themselves.  For example, the Guide contains a flowchart which employers may find useful when determining whether an employee is eligible for FMLA leave.
• The Guide also reminds employees of their own responsibilities under the FMLA.  For instance, it notifies employees of their obligation to provide an employer with appropriate notice of the need for leave.  In addition, the Guide reminds employees that they are responsible, at their own expense, for ensuring that their employer receives a timely, compete, and sufficient medical certification form.  The Guide also reminds employees that their request for FMLA leave may be denied if they fail to provide employers with requested medical certification(s).  Finally, as a practical matter, the Guide stresses the need for employees to communicate with their employers.

A word of caution . . .

Many employers who are well-versed in the FMLA may not be inclined to utilize or familiar themselves with the Guide.  However, it is important for all employers to understand that this Guide also advises employees, in specific detail, regarding an employer’s obligations to the employee under the FMLA.  For example, the Guide states that employers must notify employees of their eligibility and rights and responsibilities within 5 business days, and must also notify employees within 5 business days if a leave request has, in fact, been designated as FMLA leave.  In addition, the Guide informs employees of their right to continued health benefits while on leave, as well as their right to be returned to the same or nearly identical position upon their return from FMLA leave.  Most importantly, employers should be aware that the Guide contains an entire page of detailed information informing employees how to file a complaint with the U.S. Department of Labor if they feel their FMLA rights have been violated.

Finally, employers are reminded that while the Guide can be a helpful and informative resource to employers and employees alike, it does not serve as a substitute for a well-drafted FMLA policy that is compliant with the law.

The Third Circuit Court of Appeals recently held, in Haybarger v. Lawrence County Adult Probation and Parole, that supervisors may be subject to individual liability under the Family and Medical Leave Act ("FMLA").  Although this Third Circuit decision is not binding on U.S. District Courts in New York or the Second Circuit Court of Appeals, the decision potentially opens the door for plaintiffs in FMLA cases filed in New York to name individual supervisors as defendants in their lawsuits.

In Haybarger, the plaintiff, Debra Haybarger, was an office manager for Lawrence County Adult Probation and Parole.  Ms. Haybarger's supervisor was William Mancino, the Director of Probation and Parole.  Ms. Haybarger had Type II diabetes, heart disease, and kidney problems, which constituted serious health conditions under the FMLA and caused her to miss work frequently to seek medical attention.  Mr. Mancino allegedly expressed dissatisfaction with Ms. Haybarger's absences and wrote on her performance evaluation that Ms. Haybarger needed "[t]o improve her overall health and cut down on the days that she misses due to illness."  On March 23, 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period due to alleged performance problems, and subsequently recommended the termination of Ms. Haybarger's employment.  Ms. Haybarger's employment was terminated on October 4, 2004.

After her discharge from employment, Ms. Haybarger filed a lawsuit against Lawrence County Adult Probation and Parole and Mr. Mancino.  Part of her lawsuit included a claim against Mr. Mancino in his individual capacity for an alleged violation of her rights under the FMLA.  The U.S. District Court for the District of New Jersey granted summary judgment to Mr. Mancino with respect to the FMLA claim against him in his individual capacity, but the Third Circuit reversed and remanded the case back to the District Court.

The Third Circuit examined the definition of "employer" under the FMLA, which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."  The Third Circuit also reviewed the Department of Labor's regulations implementing the FMLA, which provide that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA."  Based on the text of the statute and the regulations, the Third Circuit concluded that "liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff's 'employer.'"  Although the employer at issue in the Haybarger case was a public agency, the Third Circuit's analysis appears to apply equally to individual supervisors at private employers as well.

The Third Circuit also held that there was a genuine dispute of material fact regarding whether Mr. Mancino exercised sufficient authority over Ms. Haybarger's employment to qualify as an "employer" under the FMLA, and remanded the case back to the District Court for a jury trial.  The Third Circuit applied an "economic reality" test to determine whether a reasonable jury could determine that Mr. Mancino qualified as Ms. Haybarger's employer under the FMLA.  Citing to a Second Circuit Court of Appeals case in the context of a Fair Labor Standards Act ("FLSA") claim, the Third Circuit examined the following factors in applying the "economic reality" test:  (1) whether the individual had the power to hire and fire the employee; (2) whether the individual supervised and controlled employee work schedules or conditions of employment; (3) whether the individual determined the rate and method of payment; and (4) whether the individual maintained employment records.  Based on these factors, the Third Circuit concluded that a reasonable jury could find that Mr. Mancino acted as Ms. Haybarger's employer under the FMLA.

Employers in New York should be aware that plaintiffs who allege a violation of their FMLA rights may name individual supervisors as defendants in their lawsuits.  Employers should take this opportunity to train their supervisors regarding their obligations under the FMLA.  Employers should also remind their supervisors that their actions could result not only in liability for the employer, but also potentially in liability for themselves.

The U.S. Department of Labor ("DOL") recently issued "updated" Family and Medical Leave Act ("FMLA") model notices and medical certification forms.  The prior notices and forms expired on December 31, 2011, but employers may now use the following DOL model notices and forms through February 28, 2015:

• Certification of Health Care Provider for Employee's Serious Health Condition (WH-380-E);
• Certification of Health Care Provider for Family Member's Serious Health Condition (WH-380-F);
• Notice of Eligibility and Rights & Responsibilities (WH-381);
• Designation Notice (WH-382);
• Certification of Qualifying Exigency For Military Family Leave (WH-384);
• Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave (WH-385).

At this time, it does not appear as though the DOL has made any substantive changes to these model FMLA forms.  In fact, the only modification that seems to have been incorporated by the DOL and the Office of Management and Budget ("OMB") is the new 2015 expiration date.  These forms do not address important changes that have occurred since the FMLA was amended in November 2008.  Specifically, these forms do not incorporate changes brought about by the 2010 amendments pertaining to military family leave (i.e., changes in exigency leave, the inquiry of a servicemember's past military service given the expanded definition of a "covered servicemember," etc.).

In addition, the DOL's forms do not contain the proposed "safe harbor" language that employers should insert on particular FMLA medical certification forms (e.g., WH-380-E) in order to avoid the disclosure of genetic information under the Genetic Information Nondisclosure Act of 2008 ("GINA").  In our January 14, 2011 blog post, we issued a reminder that employers may inadvertently obtain genetic information when they request that health care providers complete certification forms to support a leave under the FMLA or an accommodation request under the Americans with Disabilities Act ("ADA").  The GINA regulations, however, created a safe harbor for employers who integrate specific language (which is set forth in our January 14, 2011 blog post) into their requests for medical information in order to certify an employee's own serious health condition under the FMLA.  In light of the fact that the DOL's FMLA model forms have not been amended to incorporate the GINA safe harbor language, we continue to recommend that employers take their own proactive measures to add and/or use the GINA safe harbor language when requesting medical information to certify an employee's own serious health condition under the FMLA.

It is entirely possible that the DOL will propose and/or make substantive changes to the FMLA model forms prior to February 2015, particularly because the DOL published its proposed changes to the FMLA regulations on February 15, 2012.  The proposed changes to the regulations address topics such as military family leave, calculation of leave usage, and FMLA eligibility for flight crews.  In the meantime, employers are encouraged to use the most recent published version of the FMLA model forms and to include any appropriate modifications needed to afford themselves protection under GINA's safe harbor provisions.

Recently, the U.S. Department of Labor's Wage and Hour Division released three new Fact Sheets on unlawful retaliation under the Fair Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), and the Migrant and Seasonal Agricultural Worker Protection Act ("MSPA").  Although the Fact Sheets do not contain any new information on the prohibition against retaliation, they provide a good reminder to employers regarding the scope of the anti-retaliation provisions in these three statutes.

Fact Sheet #77A provides general information concerning the FLSA's prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation.  The Fact Sheet reminds employers that an employee who files a complaint under the FLSA is protected from retaliation regardless of whether the complaint was made orally or in writing.  The Fact Sheet also states that the anti-retaliation provision of the FLSA applies even in situations where there is no current employment relationship; for example, former employees are also protected from retaliation.  The Fact Sheet further indicates that complaints made to the Wage and Hour Division are protected and that "most courts have ruled that internal complaints to an employer are also protected."

Fact Sheet #77B provides general information concerning the FMLA's prohibition of retaliation against an individual for exercising his or her rights protected under the FMLA.  The Fact Sheet provides examples of prohibited conduct, which include:  discouraging an employee from using FMLA leave, manipulating an employee's work hours to avoid responsibilities under the FMLA, and counting FMLA leave as absences under "no fault" attendance policies.

Fact Sheet #77C provides general information concerning the MSPA's prohibition of discrimination against a migrant or seasonal agricultural worker who has filed a complaint or participated in any proceeding under the MSPA.  The MSPA applies to agricultural employers, agricultural associations, and farm labor contractors who engage in at least one of the following activities:  furnishing, employing, soliciting, hiring, or transporting one or more migrant or seasonal agricultural workers.

A recent decision from the United States Court of Appeals for the Eighth Circuit raises an interesting issue: can an employer be held liable for interference with FMLA rights if it discharges an employee after giving the employee reason to believe FMLA leave has been approved -- even if the employee is not in fact entitled to FMLA leave? In Murphy v. FedEx National LTL, Inc., the Court held that an employer could be liable, if the employee reasonably believes she has been granted FMLA leave and if she has put her employer on notice that she may need FMLA leave.

The following facts are taken from the Court’s opinion. Susan Murphy and her husband worked as truck drivers for FedEx. Ms. Murphy requested FMLA leave to care for her hospitalized husband, which was approved on August 31, 2006. On September 7, 2006, her husband died. Ms. Murphy called to notify her supervisor and to inquire about specific employee and bereavement-related benefits. Her supervisor offered to obtain the information for her because she was upset. Ms. Murphy remained out of work for three days on bereavement leave provided by FedEx.

Ms. Murphy’s supervisor spoke with her again on September 11, 2006, to inform her that her FMLA leave had expired on September 7. He also asked Ms. Murphy when she would return to work. She replied that she needed thirty days to “take care of things.” The supervisor then stated, “okay, cool, not a problem, I’ll let HR know.” The two had no further discussions regarding her leave request, nor did Ms. Murphy contact FedEx to seek any additional approval regarding the leave of absence. At trial, Ms. Murphy testified that following her husband’s death, she experienced difficulty sleeping and functioning, and she cried frequently. She also acknowledged that she did not notify FedEx that she was experiencing these symptoms. On September 12, her supervisor contacted the Human Resources Department and relayed Ms. Murphy’s request for a 30-day leave of absence to “put her affairs in order.” FedEx denied the leave request, and on September 15, the supervisor contacted Ms. Murphy to notify her that FedEx was terminating her employment. Ms. Murphy subsequently sued FedEx, claiming that FedEx interfered with her FMLA rights by denying her leave request and ending the employment relationship.

One of Murphy’s legal theories was equitable estoppel; that FedEx interfered with Murphy’s FMLA rights by representing that it had granted her leave, inducing her reasonable reliance on that representation and later terminating her. On that claim, the District Court rejected FedEx’s proposed jury instruction that would have required the jury to find, among other things, that Murphy had a serious health condition and had put FedEx on notice that she potentially had such a condition. The jury returned a verdict in favor of Ms. Murphy on the equitable estoppel claim.

On appeal, the Eighth Circuit found that the District Court erred when it gave the jury instructions on the equitable estoppel claim. Specifically, the Court of Appeals found that, while an employee need not actually have a serious health condition to prevail on an estoppel theory, the employee still bears the responsibility of adhering to the FMLA’s notice requirements, including providing the employer with information sufficient to indicate the requested leave may be FMLA protected. Simply stated: “[b]efore an employee can claim FMLA protection, whether through estoppel, waiver, or otherwise, the employee must put the statute in play – she must notify her employer that she may need FMLA leave… .”

Finally, the Court noted that on retrial, Murphy has to prove that she “reasonably believed,” FedEx approved her request for thirty days as FMLA leave, rather than “some other type of leave.” The Court noted that while vague representations by the employer are not sufficient, the employer does not have to mention the FMLA to create a reasonable belief. Consequently, employers should be aware that even simple affirmations of a leave request (i.e., okay, cool, not a problem, etc.) may be sufficient to support a claim of equitable estoppel.
 

Recently the U.S. Department of Labor’s Wage and Hour Division issued an Administrator’s Interpretation (the “Interpretation”) clarifying the definition of “son or daughter” under Section 101(12) of the Family Medical Leave Act (“FMLA”) as it applies to an employee standing “in loco parentis” to a child. The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a child after adoption or birth, or to care for a child with a serious health condition. The Interpretation concludes that these rights extend to any individual who assumes the role of caring for a child, regardless of the legal or biological relationship.

The definition of a “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” According to the Interpretation, the legislative intent behind this definition was to reflect the reality that often the day-to-day responsibility of caring for a child falls to someone without a biological or legal relationship to the child, and that employees with such a responsibility are therefore entitled to leave under the FMLA.

In loco parentis, or “in the place of a parent,” is commonly understood to mean a person who has assumed obligations typical of a parent without formally adopting the child. Courts have routinely looked to the intent of the person allegedly in loco parentis to determine whether such a relationship is established; such intent is inferred from the acts of the parties. Whether an employee stands in loco parentis depends on multiple factors such as the age of the child, the child’s dependence on the employee, the amount of support provided and to what extent the employee performs duties commonly associated with parenthood.
 

Although FMLA regulations define persons standing in loco parentis as including those with day-to-day responsibilities to care for and financially support a child, the Interpretation views the regulations as not requiring an employee to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis. In addition, the Interpretation makes special note that neither the statute or the regulations restrict the number of parents a child may have under the FMLA. Although an employer may require the employee to provide reasonable documentation of the family relationship, a simple statement asserting that the requisite relationship exists is sufficient.

Examples of situations in which an in loco parentis relationship may be found include:

• A grandparent assuming ongoing responsibility for a grandchild due to the parents’ incapacity;
• An aunt assuming responsibility for raising a child after the death of the child’s parents; and
• A person sharing in the raising his or her unmarried partner’s biological child.

 

A recent case decided by the United States Court of Appeals for the Eleventh Circuit serves as a helpful reminder that an employee is not immune from performance-based discipline just because the employee has taken leave protected by the Family and Medical Leave Act (“FMLA”). Earlier this month, in Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, the Eleventh Circuit held that the demotion of a female vice president returning from maternity leave did not violate the FMLA because her demotion stemmed not from taking FMLA leave, but rather from performance issues which the employer learned about during her absence.

According to the Court’s written opinion, the plaintiff, Ellen Schaaf, worked for GlaxoSmithKline (“GSK”) as a Regional Vice President. In 2003, she took FMLA leave for the birth of her child. While on maternity leave, Schaaf’s subordinates reported to GSK’s management that Schaaf’s region was performing significantly better in her absence. Overall, productivity increased, communication improved, and morale was markedly higher as well.

Also according to the Court’s opinion, when Schaaf returned to work, GSK told her that she could accept a demotion to District Sales Manager – the position she held prior to her promotion to the position of Regional Vice President – or she could leave the company. Schaaf ultimately accepted the demotion. GSK explained that its decision was based on complaints from Schaaf’s subordinates regarding her aggressive management style and the fact that Schaaf’s region performed significantly better when she was out on leave. Schaaf sued GSK, alleging: (1) interference with her FMLA rights; and (2) a claim of retaliation for exercising her FMLA rights.

To state an FMLA interference claim, an individual need only allege that she was denied a benefit to which she was entitled under the statute. Schaaf claimed that her FMLA reinstatement rights were denied when GSK refused to reinstate her to the Regional Vice President position following her return from maternity leave. GSK contended that Schaaf was not returned to her position due to performance-related concerns. Schaaf countered by arguing that because GSK learned of the performance issues during her maternity leave, the leave, in effect, caused her demotion. In other words, but for Schaaf taking maternity leave, she would not have been demoted. The Court rejected that argument, explaining that Schaaf was demoted because of managerial ineffectiveness discovered while she was on FMLA leave, not because she took FMLA leave.

With respect to her retaliation claim, the Court found Schaaf could establish a prima facie case of retaliation based on the timing of the demotion, which occurred very shortly after the leave. However, GSK met its burden of proof by articulating a legitimate, nondiscriminatory reason for the adverse employment action – namely Schaaf’s managerial ineffectiveness coupled with a noticeable improvement in performance from Schaaf’s region during her absence. Because Schaaf was unable to demonstrate that GSK’s stated reasons for her demotion were a pretext for discrimination, the Court dismissed Schaaf’s retaliation claim.

Schaaf serves as a reminder that an individual who has taken FMLA leave is not insulated from disciplinary action, or other performance-based decisions, simply because that individual has taken protected leave. Nevertheless, employers should be cautious and conservative when taking such actions. An adverse employment action following a protected leave will be suspect, and can enable the employee to establish a prima facie case based on timing alone. In particular, employers should not act without well-documented proof of the performance problems, and should not treat the FMLA-protected employee less favorably than a non-FMLA-using employee who exhibits similar performance problems.
 

The recently enacted National Defense Authorization Act for Fiscal Year 2010 amends the Family and Medical Leave Act (“FMLA”), by expanding the availability of “military caregiver leave” and “qualifying exigency leave.” The legislation does not include an effective date, so it is prudent for employers to adjust their workplace practices and policies now in order to comply with the new law. The coverage expansions are explained below.

Military Caregiver Leave Expanded to Cover Certain Veterans

The FMLA provides that eligible employees may take up to 26 weeks of job-protected leave in a single 12-month period to care for a “covered servicemember” with a serious injury or illness. The term “covered servicemember” was defined as a member of the Armed Forces, including a member of the National Guard or the Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. The new law expands the definition of “covered servicemember” to include veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who were members of the Armed Forces, including the National Guard or the Reserves, at any time during the five years preceding the date on which the veteran undergoes such treatment, recuperation or therapy.

Military Caregiver Leave Expanded to Cover Preexisting Injuries

As noted above, the FMLA’s military caregiver leave provisions require that the covered servicemember have a “serious injury or illness.” Pre-amendment, the “serious injury or illness” must have been incurred in the line of duty on active duty in the Armed Forces. The recent amendments expand this definition to include illnesses or injuries that existed prior to the beginning of the covered servicemember’s active duty and were aggravated by service in the line of duty on active duty. With respect to a veteran who was previously a member of the Armed Forces, including the National Guard or the Reserves, a “serious injury or illness” is defined as “a qualifying injury or illness” that was incurred in the line of duty, or aggravated by service in the line of duty while on active duty in the Armed Forces and that manifested itself before or after the individual became a veteran.

Qualifying Exigency Leave Expanded to Cover Members of the Regular Armed Forces

The FMLA also provides eligible employees with up to 12 weeks of job-protected leave in a single 12-month period for a “qualifying exigency.” Until the most recent amendments, “qualifying exigency” leave was limited to eligible family members of individuals serving in the National Guard or Reserves. The most recent amendments expand the scope of “qualifying exigency” leave to include active-duty members in the regular Armed Forces. The covered military member must be on “covered active duty.” For servicemembers in a regular component of the Armed Forces, “covered active duty” means duty during deployment to a foreign country. For members of the National Guard or Reserves, it means deployment to a foreign country under a call or order to active duty.

The Secretary of Labor, in consultation with the Secretary of Defense and the Secretary of Veterans Affairs, is responsible for issuing regulations to implement the most recent amendments. It is not certain when those regulations will be issued.

 

The task of handling leave requests pursuant to the Family and Medical Leave Act (“FMLA”) became more formalized earlier this year when the U.S. Department of Labor’s (“DOL ”) revised FMLA regulations took effect on January 16, 2009. Those regulations provide greater clarity for employers with respect to the processing of FMLA leave requests, but in doing so, they impose strict time limits for communicating with employees who have requested leave, and require employers to provide particular types of information to employees who have made the requests.  Employers should set up a regularized leave response process that ensures compliance with both the timing and notice content requirements of the new regulations. This blog provides a very basic summary of some of the regulations’ notice provisions to assist employers in developing a leave response process. At a minimum, an effective response process should include the following elements:

 

1. If the designated FMLA representative is out for an extended period of time, assign another employee to monitor FMLA leave requests until the designated representative returns to work. In addition, make sure that employees are aware that another individual has been temporarily assigned responsibility for FMLA requests.

2. Once an FMLA request has been made, or you have knowledge that an employee’s leave may be for an FMLA-qualifying reason, determine whether the employee is eligible for FMLA leave. For example, determine whether the employee:

• worked for the employer for 12 months;
• worked for 1,250 hours;
• works at a site with 50 or more employees within 75-miles; and
• has an FMLA-qualifying condition (if you can).

3. Notify the employee regarding eligibility within five days, and provide a notice describing the employee’s rights and responsibilities under the FMLA (e.g., employee benefits during leave, substitution of paid for unpaid leave, providing medical certification, reinstatement, etc.). While the “Notice of Eligibility” may be oral, the “Notice of Rights & Responsibilities” must be in writing and contain particular types of information. A sample form  that combines the two notices is available from DOL.

4. In many circumstances, the employee will have to provide medical certification to support the leave request. Offer the appropriate medical certification form to the employee at the time the “Notice of Eligibility” and “Notice of Rights & Responsibilities” are provided, unless, of course, the employee is not eligible. Different certification forms  are used depending on the reason leave is requested (e.g., serious health condition of employee or family member, military leave exigency, or service member's illness or injury).  The employee has 15 days to return the medical certification form, unless the employee is unable to do so, despite the employee’s good faith efforts.

5. When the medical certification is returned, review the documentation to make sure that it is complete. If the form is incomplete or insufficient (e.g., the information provided is vague, ambiguous, or non-responsive), advise the employee in writing of the additional information necessary to complete the medical certification form. The employee must be given at least seven calendar days to cure any deficiency. Also inform the employee of the potential consequences for failing to providing adequate medical certification (i.e., denial of FMLA coverage until sufficient medical documentation is provided).

6. Once sufficient documentation is received, determine whether the employee is requesting and/or taking leave for an FMLA-qualifying reason, and issue a “Designation Notice” regarding the leave within five business days. This notice must be provided even if the employer has determined that the leave will not be designated as FMLA-qualifying. The notice must provide the employee with several pieces of information, including, but not limited to:

• the number of hours counted against the individual’s leave entitlement, if known;
• whether the employer will require substitution of paid leave time;
• whether the employee has requested use of paid time during the leave;
• whether second and/or third medical opinions are being sought; and
• whether a fitness-for-duty certification will be required before the employee returns to work.

The Designation Notice may be given at the same time as the Eligibility Notice, if the employer has sufficient information to do so when it provides the Eligibility Notice.

7. Use a tickler system to set reminders or track due dates for when specific notices need to be provided and when employee information is due.

The new regulations are extensive and complex. The basics described above are not a complete statement of an employer’s FMLA obligations, but are intended only to provide very general guidance on some of the regulation’s notice provisions.