Nolo's Employment Law Blog

Who counts as a "parent" entitled to take time off work to care for or bond with a child under the Family and Medical Leave Act (FMLA)? According to a new interpretation by the Department of Labor (DOL), anyone who intends to assume the role of parent to that child by providing day-to-day care or financial support. No biological, adoptive, or formal legal relationship is necessary. For example, an employee might be entitled to time off when an unmarried partner's child is born, even though the employee is not the child's biological parent, doesn't intent to adopt the child, and is not married to the child's parent.

This all adds up to good news for same-sex parents, whose rights to parental leave for a partner's biological or adoptive child are now more clearly established. The DOL's interpretation provides other examples as well, such as a grandparent who is caring for children whose own parents are unable to care for them and an aunt who raises a sibling's children after the sibling dies.

The FMLA has always covered those who stand "in loco parentis" (in the place of a parent) to a child, and the DOL's interpretation states that it is merely clarifying what that term means. However, the DOL's interpretation is a clear expansion of rights in at least one way: While the FMLA regulations (at 29 C.F.R. 122(c)(3)) state that an in loco parentis relationship includes day-to-day responsibilities to care for and financially support a child, the DOL's interpretation states that either day-to-day care or financial support is sufficient, as long as the parent intends to assume parental responsibilities toward the child. Along with the express inclusion of gay parents, this signals an intent to expand the law's coverage.

And speaking of same-sex couples and the FMLA, commentators have long opined that same-sex spouses are probably not entitled to leave to care for each other under the FMLA because of the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman. Even though the FMLA regulations state that marriage is to be defined by state law where the employee resides (and includes common law marriage, where it is recognized), the DOMA has been interpreted to override provisions like these where federal rights are concerned. But yesterday, a federal district court in Massachusetts found that the DOMA was unconstitutional. This decision applies only in Massachusetts and may be appealed. For now, however, gay parents and spouses can put these two legal events in the win column.   

 

Yet another federal court has found that an employee may sue not only the company but also individual managers -- and even an HR representative -- for violating the FMLA. As reported here in the Legal Intelligencer, a federal district court judge for the Eastern District of Pennsylvania ruled (in the case of Narodetsky v. Cardone Industries, Inc., et al.) that a fired employee's lawsuit may go forward against the former employer and five individual defendants, including the plant manager and the human resources manager, director, and representative. (The individual defendants filed a motion to dismiss the allegations against them, which the judge denied.)

The employee who was fired, Dmitry Narodestsky, claimed that the day after his wife told the company he would need leave for surgery, the defendants searched his computer looking for a reason to fire him. Narodestsky was fired about two weeks later for forwarding an email to another employee. Several of the individual defendants were present at the termination meeting.

The judge refused to dismiss the claims against the individual defendants based on the language of the FMLA regulations, which state that "any person who acts directly or indirectly in the interest of an employer to any of the employees of such employer" may qualify as an employer under the law. The judge also found that the individual defendants exercised some control over Narodetsky's employment, in that they participated in the decision to fire him and the termination meeting.

This decision is only the latest in a long line of cases that have upheld FMLA claims against individual managers and officers who have played a role in denying an employee's FMLA rights. To make sure your company is in compliance, pick up a copy of Nolo's The Essential Guide to Family and Medical Leave (full disclosure: I'm the coauthor). The most recent edition covers the 2008 revision of the FMLA regulations, recent provisions relating to leave for military family members, and the new forms and notice requirements.

 

The federal agencies have released their Regulatory Plan and Unified Agenda of Regulatory and Deregulatory Actions (known as the "Unified Agenda.") Twice a year, federal agencies must provide this information to let the public know what regulatory actions they're planning and to coordinate rulemaking among the agencies.

The Unified Agenda can be somewhat daunting, both in length and in jargon (OMB Watch, a nonprofit that works to promote greater transparency in federal regulatory and budget matters, has a nice guide to some of the terms used in the Unified Agenda). Each federal agency that's included in the Unified Agenda must indicate what rulemaking it has planned in coming months. The list of agencies in the current Unified Agenda is here; when you click on an agency's link, you can see its statement.

The EEOC has identified two regulatory priorities:

1. Implementing the employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The EEOC issued proposed regulations on the ADAAA in September 2009 (you can check out my blog post reviewing the regs here), and asked for public comments to be submitted by November 23. Now, the agency must review all of those comments and come up with final regulations.
2. Amending its regulations on the "reasonable factor other than age" defense to an age discrimination claim under the Age Discrimination in Employment Act (ADEA), an issue the Supreme Court addressed last year. (Here's my blog post on that case, Meacham v. Knolls Atomic Power Laboratory.)

The Department of Labor painted with a broader brush: It begins its regulatory plan with a sort of mission statement, lising 12 "strategic outcomes," from improving health benefits to helping injured workers return to the job, all intended to further the agency's goal of "good jobs for everyone." Here are the specific regulatory proposals that interested me:

1. Updates to the child labor regulations.
2. A review of the military leave provisions and the 2009 regulations interpreting the Family and Medical Leave Act (FMLA).
3. Changes to the record keeping regulation for Fair Labor Standards Act (FLSA). 

It looks like the military family leave provisions of the FMLA are about to be amended. The National Defense Authorization Act of 2010, which is currently awaiting the President's signature, includes the Supporting Military Families Act. (You can find it at Section 565 of this massive piece of legislation, about 120 pages in.)

This provision would make four key amendments to the FMLA:

1. Qualifying exigency leave would be available to family members of those in the regular Armed Forces as well as those in the National Guard or Reserves. This type of leave allows family members to take some time off to handle important matters (such as setting up temporary childcare, drafting a will, or making financial arrangements) relating to a child, spouse, or parent's impending call to active duty military service. If this bill passes, family members of career military personnel who are deployed would also have the right to take qualifying exigency leave.
2. Qualifying exigency leave would be available to family members of all those deployed to a foreign country. In other words, the bill removes the requirement that a member of the National Guard or Reserves be serving "in support of a contingency operation." This would expand the number of employees eligible for this type of leave.
3. Family members would be eligible to take caregiver leave to care for a veteran suffering a service-related serious illness or injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care. This new provision is intended to allow leave to care for a family member with an injury that might not manifest right away, such as post-traumatic stress disorder. Currently, the FMLA allows military caregiver leave only for current service members.
4. Military caregiver leave would be available when a family member has a preexisting serious illness or injury that is aggravated by active duty in the military. The law currently allows caregiver leave only for serious illnesses or injuries incurred while on active duty. It seems possible (to me) that this new provision could be interpreted to allow multiple 26-week periods of leave for the same injury -- first, when the service member is initially injured, and later if the service member returns to active duty and aggravates the injury. This scenario is something the current regulations explicitly disallow.

Two bills were recently introduced in Congress that would amend the Family and Medical Leave Act (FMLA). You can read them both (they're short) by searching for the bill numbers below at http://thomas.loc.gov.

The Family and Medical Leave Inclusion Act, H.R. 2132, would expand the FMLA to protect time off to care for a sibling, grandparent, adult child, parent in-law, domestic partner, or same sex spouse with a serious health condition.

The Family and Medical Leave Restoration Act, H.R. 2161, would require the Department of Labor to make a number of changes to the FMLA regulations. The DOL would have to:

• Repeal a number of the recently issued regulations and replace them with the regulations that were previously in place. The new regulations to be repealed include those dealing with notice requirements, clarifying and authenticating medical certifications, and attendance bonuses, among other things.
• Revise the new regulation on recertification to provide that recertification may be requested only when the duration of the medical condition indicated on the original certification has expired, or every year. (The new regulation allows recertification every six months.)
• Change the new definition for a "serious health condition" to remove the requirement that the employee visit a health care provider a certain number of times. The new regulation requires either two visits within 30 days or one visit within seven days of the conditions's onset, with continuing treatment; at least two visits per year are required for chronic conditions. This bill would require only such treatment as the health care provider deems necessary.

It's a good thing my employer offers paid sick leave. That meant I could stay home a few days ago with my summer cold. I was able to catch up on my sleep, and my office mate was able to not catch my cold. Many employees aren't so lucky: According to the Bureau of Labor Statistics, 39% of those who work for private employers don't get paid sick leave.

But that could be changing soon. Earlier this week, Rep. Rosa De Lauro (of Connecticut) reintroduced the Healthy Families Act, HR 2460. The bill would require some employers to offer paid sick leave. Sen. Ted Kennedy is expected to introduce a similar bill in the Senate this week, depending on the state of his own illness and how it affects his return to work. (To read the bill, search for "HR 2460" on the Library of Congress's THOMAS website.)

The bill would require employers with at least 15 employees to provide one hour of paid sick leave for every 30 hours an employee works, up to 56 hours per year. Employees could use the sick leave for their own illness, for preventive care, to care for a family member (defined broadly to include anyone related to the employee "by blood or affinity whose close association with the employee is the equivalent of a family relationship"), or to seek medical or legal assistance relating to domestic violence, sexual assault, or stalking.

This bill includes rights that already exist in a number of states and localities, although the federal bill knits together several types of state and local laws: paid sick leave laws, as are in effect in San Francisco and Washington, DC; so-called "small necessities" laws, which allow parents to take time off for their children's school-related activitites and often to take children to preventive care medical and dental visits; and domestic violence leave laws.

President Obama recently announced that he will send 4,000 additional troops to Afghanistan, on top of the deployment of 17,000 troops announced last month. Many of those deployed will be members of the National Guard and Reserve, most of whom must leave civilian jobs to serve in the military. According to Employer Support for the Guard and Reserve, members of the Guard and Reserve make up almost half of our country's total military force. As of last week, figures released by the Department of Defense showed that more than 700,000 members of the Guard and Reserve have been activated since 9/11.

When these service members return from duty and go back to their civilian jobs, they have fairly extensive employment rights. The Uniformed Services Employment and Reemployment Rights Act (USERRA) gives returning members of the Guard and Reserve the right to be restored to the position they would have held if they hadn't served -- that is, their former position, plus any additional seniority, promotions, raises, and so on they would have received had they been continuously employed. The most significant protection USERRA provides kicks in after reinstatement: Employees who return from military service are no longer at-will employees for up to one year. They may be fired only for just cause. 

A recent case from Connecticut shows just how costly it can be for employers to disregard USERRA. Michael Serricchio was called to active duty in the Air Force after 9/11. He left his job as a financial adviser at Prudential Securities; when he returned two years later, the company had been acquired by Wachovia and Serricchio was offered a position with a much lower rate of compensation than his previous job. A jury found that Wachovia had violated USERRA by failing to restore Serricchio to his previous position.

That left it to the Court to put a dollar amount on Serricchio's damages. The figure the court came up with was $778,906, plus interest, plus attorney fees and costs. And that's not all: The court also found that Serricchio was entitled to reinstatement, with a monthly salary of $12,300 for the first nine months, after which he will be entitled to the same amount as a draw against commissions for a few months, after which he will have to generate his own income from his client accounts. (You can find the opinion on damages, as well as an earlier opinion from March 2008 summarizing the issues in the case, here; use the caption search for "Serricchio.")

Recently enacted provisions of the Family and Medical Leave Act (FMLA) also provide some protections related to military service -- not directly to those who serve, but to their family members. The new provisions allow family members of Guard and Reserve members who are called to active duty to use FMLA leave to handle "qualifying exigencies," including arranging child care, helping the military member with legal matters such as making a will, or attending counseling sessions. The FMLA also now allows family members to take up to 26 weeks of leave to care for a family member who is seriously injured or becomes seriously ill while on active military duty. (These family military leave provisions are summarized here.) As more troops are deployed, we'll see how these new rights are interpreted and enforced by the courts.

An article ran last week in the National Law Journal about employers conducting surveillance on employees whom they suspect of abusing FMLA leave ("Spying Employers Raise Legal Hackles," by Tresa Baldas). The article included quotes from employer and employee advocates, predictably coming down on opposite sides of the issue. Employer attorneys claim they need to protect themselves from dishonest employees; employee attorneys counter that surveillance violates employee privacy and discourages employees from taking leave.

I think this type of surveillance is out of line, legally and as a practical matter. It fosters a relationship of distrust between workers and management, it wastes time and money, and it risks legal action for harassment, retaliation, and privacy violations (imagine what -- or who -- could be caught on a surveillance tape). It's also extremely distasteful: an investigator lurking on the sidewalk, taping employees in their front yards, picking up their kids at school, going to the grocery store. This shouldn't be the price of exercising a legal right. I know that employers feel taken advantage of by employees who abuse the FMLA, particularly for intermittent leave, but the law itself provides avenues for reining in these employees -- medical certifications, re-certifications, and second opinions, for example. These methods are neither perfect nor quick. They are a compromise that attempts to balance employer needs and employee rights.

I'll even go out on a limb and say that I think most people agree that surveillance is distasteful. So why are employers doing it -- and winning some of these lawsuits? Because bad facts make bad law. An employee calls in sick, claiming she can't work because she's taking new medication, spends the day mowing lawns for her husband's business, then calls in sick again that evening with a migraine (Vail v. Raybestos, 7th Cir. 2008). An employee claims to be too sick and dizzy to drive to work, but spends his time off at the gym and doing errands (Colburn v. Parker Hannifin, 1st Cir. 2005). After an employee's request for vacation is denied, he takes FMLA leave for a knee injury instead -- the same injury for which he took FMLA leave at the same time the previous year, after another vacation request was denied -- and goes to Las Vegas (Crouch v. Whirlpool, 7th Cir. 2006). In these cases, the method used to catch the employee gets lost because the employee's deception seems so clear.

But what about employees who are surveilled while on legitimate leave? I haven't seen a case where, for example, an employee takes leave for a knee injury and is taped being helped into the car by his male lover, thus catapulting him out of the closet at work. Or an employee's children and some of their friends are taped running through the sprinklers in their birthday suits, while the employee keeps an eye on them while trying to recover from a migraine on the front porch. Or an employee is taped attending a political rally for an unpopular candidate, buying condoms or adult diapers at the store, crying out of pain and frustration after recent surgery, or doing any of the many things that all of us would rather keep private. With facts like these, employer surveillance suddenly seems like a clear violation of societal norms.

A recent Seventh Circuit case distinguishes substance abuse from treatment for substance abuse in determining whether an employee has a serious medical condition under the FMLA. In Darst v. Interstate Brands Corporation (available here), the employee, an alcoholic, suffered a relapse and sought treatment at a hospital. Although he first contacted the hospital on July 29, he wasn't admitted until August 4. In the interim, he missed three days of work.

The employee's medical certification form (similar to the WH-380) was completed by the treating physician, who certified that the employee had a serious health condition involving "absence plus treatment." For the approximate date the condition commenced, the doctor wrote, "'7/29-8/11. Return 8/14.'" But this didn't match what appeared on an insurance-related form, and the employer called the hospital to reconcile the difference. Discovering that the employee wasn't admitted to the hospital for those three days, the employer didn't count them as FMLA-protected, and under its "point" system for absences, his employment was terminated.

The Seventh Circuit found for the employer, rationalizing, "absence because of the employee's use of substance, rather than for treatment, does not qualify for FMLA leave." The employee didn't provide any further explanation for the three-day absence, other than treatment of alcoholism, so the court determined the employer was within its rights to fire the employee.

There's another important point to this case that's easy to miss: the employer discovered the error by violating the FMLA when it contacted the hospital directly. At most, the employer was entitled to have its health care provider contact the employee's health care provider. The court recognized the error, but further determined that the FMLA didn't provide a remedy because the action didn't interfere with the employee's exercise of FMLA rights.

Alayna Schroeder

Yesterday, the Department of Labor issued proposed changes to the FMLA regulations. These proposed rule changes have been a long time coming; the DOL first announced that it was reviewing the regulations five years ago. The proposed rules include a number of changes, but doesn't go as far as some employer groups hoped -- and some employee advocates feared. (You can read all 100+ pages of the proposed regs here).

Some hotly contested issues were left alone. For example, the proposed rules make only minor changes to the definition of a "serious health condition." The rules also continue to allow employees to take intermittent FMLA leave in the smallest increments of time tracked by the employer's recordkeeping system, something many employer groups protested.

The most significant changes appear to be to the notice and medical certification requirements, including:

Notice:

• Employers now have to provide more information when employees request leave and when an employer designates time off as FMLA leave; the time limit for providing this information has been extended from two days to five.

• Employees still don't have to say that they are requesting "FMLA leave," but they can't just call in "sick." Employees must indicate that they have a condition that renders them unable to perform their job functions (or renders a family member unable to perform daily activities); how long they expect to be out; and whether the employee or a family member is getting care from a health care provider.

• Employees must comply with the employer's usual notice and procedure requirements for taking time off (for example, calling in) absent unusual circumstances. If the employee could have followed the employer's rules but didn't, FMLA leave can be delayed or denied.

• Employees still have to give 30-days' notice of foreseeable leave, but now an employee who doesn't give this much leave must explain why.

Medical Certifications. The form got longer, and the rules for unclear and incomplete certifications were changed:

• Employers would be allowed to contact health care providers directly to clarify and authenticate the certification.

• If an employer finds the certification to be incomplete or insufficient, the employer must tell the employee, in writing, what additional information is necessary and give the employee at least seven days to fix it.

• Although the proposed rules say that employees can't be required to waive their right to privacy in their medical records, they also say that FMLA leave can be denied if the certification is inadequate (after the employee has had an opportunity to fix it) and the employer can't straighten things out by talking to the health care provider.

There are no rules proposed for the new military family leave provisions; instead, the DOL raised a number of questions about how to implement the new requirements and sought comments from the public.

What happens next? The DOL will be accepting comments until April 11, 2008. After reviewing those comments, the DOL will issue final regulations. (It has said that these final rules will probably include provisions on military family leave, too.) However, Congress has a right to weigh in on -- and potentially, disapprove of -- the final regulations. Considering that we are now in the throes of a presidential (and Congressional) election year, will final, binding regulations ever see the light of day? My Magic 8-Ball says "Reply hazy, try again."

Lisa Guerin