Welcome to Leave of Absence Advisor

Newsletter Article

How much do you know about USERRA? With anticipated returns of United States military personnel to the civilian workforce, every employer should brush up on this important law. Here are some questions and answers that every employer should know regarding USERRA.

USERRA, the Uniformed Services Employment and Reemployment Rights Act, provides protected leave of absence and rights to reemployment for individuals who leave their jobs to serve in the uniformed services (Army, Navy, Air Force, Marines, Coast Guard, National Guards, and others).

Summary and Best Practices

US Department of Labor Clarifies FMLA Definition of “Son or Daughter” to Include All “Families”.

The US Department of Labor has announced a clarification regarding the definition under the Family and Medical Leave Act of “son or daughter” as it applies to an employee entitled to take leave for the birth or placement of a child, to care for a newborn or newly-placed child, or to care for a child with a serious health condition. See Wage and Hour Division Administrator’s Interpretation No. 2010-3 and News Release, both issued June 22, 2010. Copies are attached.

The DOL wants to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship, or lack thereof, to the child. According to the DOL, parental rights under the FMLA extend to “the various parenting relationships that exist in today’s world . . . including families in the lesbian-gay-bisexual-transgender community.”

Summary and Best Practices

In Vitro Fertilization – Is It Covered by the FMLA?

Despite its complexity, the federal Family and Medical Leave Act and its regulations still fail to answer many questions that come up in administering FMLA leaves. One of these questions is whether time off for in vitro fertilization (IVF) is a leave of absence protected by the FMLA. There is no definitive answer. No FMLA regulation addresses whether time off for IVF or other infertility treatments is protected under the Act, and no federal court has answered the question.

IVF can require several partial or full days of intermittent leave, sometimes with little advance notice. The process includes medical appointments prior to and during the procedure, and a few days of rest and limited activity following the procedure. Other infertility treatments may have similar aspects.

Cat’s Paw Strikes Employer’s Defenses in USERRA and FMLA Cases

The “cat’s paw” theory of employer liability in employment cases has made headlines following the recent U.S. Supreme Court’s decision in Staub v. Proctor Hospital on March 1, 2011. Now, a federal court has also applied the cat’s paw theory to employees’ claims of employer interference with their FMLA rights.

Vincent Staub was employed by Proctor Hospital and also served in the United States Army Reserve, which required monthly weekend duty and an additional two to three weeks of service per year. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of a person who is a member of a uniformed service. An employer violates USERRA if an employee’s military service is a motivating factor in the employer’s adverse employment action against the employee. 38 U.S.C. §4311(a)and(c).

Requiring Doctor Notes for Absences Interferes with FMLA Rights

Employers struggle with curbing FMLA abuse, especially when an employee is certified for intermittent leave. However, there are actions an employer can take if it has an “honest suspicion” that an employee is claiming FMLA time for a non-qualifying purpose. Requiring a doctor’s note to support each intermittent absence is NOT a permissible action, however, and constitutes interference with the employee’s FMLA rights.

Jernberg Industries, Inc., a component manufacturer in the automotive industry, had a detailed system to assess points against employees for unexcused absences or late arrivals, culminating in termination of an employee after accumulation of a set number of points. In addition, Jernberg required employees requesting FMLA leave to agree that “for an intermittent leave, documentation must be presented with each absence for the absence to be applied against the FMLA status.” Without such a note, the employee would be assessed attendance points for the absence.

Matthew Jackson was employed by Jernberg to perform physically demanding manual labor. Jackson suffered from wrist problems and had surgery, for which he received approved FMLA time off. He continued to have issues with his wrist and provided Jernberg with another Certification of Health Care Provider (CHCP) form by his doctor for intermittent time off over the next year. Jernberg approved the leave request.

Employers Victorious in FMLA Call-In Cases: Lessons to be Learned

FMLA regulations allow employers to enforce absence procedure requirements when requesting leave.. Nonetheless, employees frequently challenge terminations resulting from these procedures.

A string of decisions from various courts over recent months has brought good news for employers, holding that employees seeking FMLA leave must comply with their employers’ procedural call-in or reporting requirements. Employers can take away some significant lessons from the following cases.

SMC Corp. required its employees to obtain prior approval from a supervisor before taking leave. Their policy clearly stated that a failure to report for work for two consecutive days without notifying a supervisor was grounds for termination.

Record-Setting $20 Million Settlement for Violating the ADA with Inflexible Time-Off Plans

For several months Reed Group has been reporting on the U.S. Equal Opportunity Commission’s campaign against fixed leave of absence policies that violate the Americans with Disabilities Act (ADA). On July 6 the EEOC announced its latest success: the entry of a $20 million consent decree against Verizon Communications, the largest single-case ADA settlement in EEOC history.

The EEOC contended that Verizon failed to make exceptions to its “no fault” attendance plans for individuals whose absences were caused by their disabilities. Pursuant to the policies employees were allotted a certain number of absences from work regardless of the reason. According to the EEOC, Verizon disciplined or terminated the disabled employees when they reached the plans’ limits for absences, rather than allowing additional time off as a reasonable accommodation under the ADA.

Timely Legal Notes

In the aftermath of natural disasters, employers may see a flood of requests for FMLA leave. And while compassion may call for establishing policy on time off for post-disaster clean-up, curbing FMLA abuse while staying in compliance with leave laws is important for both employers and their workforce.

Here are two potential areas employers should watch for potential FMLA abuse:

Pre-existing Intermittent Leave -- Employees with chronic health conditions may take intermittent FMLA leave. If an employee already is approved for intermittent leave for a hard-to-verify condition such as a nervous disorder, migraines or back pain, he or she may try to use FMLA leave for flood damage or other home repairs.

Caring for a Family Member -- Employees may take FMLA leave to care for a family member, but only as it relates to the family member’s personal care, such as bathing, transporting them to doctor appointments or fixing meals. FMLA does not provide leave for home cleaning and maintenance. Therefore, if an employee requests FMLA leave to deal with a parent’s flooded basement or to meet a repair crew at the parent’s house, these would not be covered under FMLA.