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Leaves May Evolve into a Shared Burden

The FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid leave in a 12-month period due to their own serious medical condition that renders them unable to work; or to provide care for an immediate family member with a serious medical condition; or for the birth, adoption or foster care placement of a child.

"The FMLA entitles eligible employees of covered employers up to 12 weeks of unpaid leave in a 12-month period due to their own serious medical condition."
The reasons for FMLA leave may appear simple, but a common problem for employers is receiving timely and sufficient information from employees regarding the serious health condition affecting their ability to work, or the need for care of a family member. FMLA administration has proven to be an employer's Achilles heel, where simple mistakes or oversights often lead to legal claims, grievances, investigations and lawsuits based on the alleged violations committed by the employer, creating more distractions and draining already scant resources.

It has long been the view of legislators, courts and the Department of Labor (DOL) that proper FMLA administration is solely the employer's paper tiger. For example, there are detailed notice requirements – all of which fall on the employer.

The regulations state: "In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this Act."

The DOL, has taken the position that employer mistakes and delays in response to requests for leave could result in employees being entitled to a total of more than 12 weeks of leave in a 12-month period. Whereas, the courts have consistently agreed that employer mistakes cannot convert ineligible employees into FMLA-eligible employees, the decisions from these courts have found other reasons to hold the employer liable for failure to meet all the specific requirements of the Act. A recent case decision may indicate the tail end of that trend; indicating that employees will be held accountable for their obligations in the FMLA process.

A federal appeals court decided to reject an employee's FMLA claim against his employer who fired him for attendance problems just after he requested FMLA leave. In this case, the employee called his employer stating he would be unable to return to work for some time because his wife was having a baby soon. While already absent from work, the employee completed the employer's standard time off request form on which he checked the box indicating that his wife had a serious medical condition. He provided no other details of her condition or the reason for the need for FMLA leave to his employer.

The employer subsequently denied FMLA leave, and then terminated the employee for violating its attendance policy. The employer asserted that its actions were consistent with its policy because the employee's request for FMLA leave was insufficient and he had exhausted paid time off; and thus, his leave was considered unexcused. It was only after his termination that the employee submitted to his employer a doctor's note indicating that there were complications during his wife's pregnancy, which made it necessary for the employee to care for her. Despite the note, the employee was not reinstated, so he then filed suit against his employer.

Finding the FMLA was not violated, the court held that it was the employee's responsibility to provide sufficient notice to the employer to allow the employer to determine with some degree of certainty that FMLA leave was justified. In this case, the employee only communicated to his employer that his wife was pregnant and made the conclusive statement that she had a serious medical condition.

The employee had not provided any explanation of the serious medical condition his wife was suffering, nor did he obtain any medical certification concerning her condition prior to his termination. The court decided that "employees should not be encouraged to mousetrap their employers by requesting FMLA leave on patently insufficient grounds and then after leave is denied obtaining a doctor's note indicating sufficient grounds existed, though they were never communicated to the employer."

The court, however, reminded employers that employees need not provide detailed descriptions or accounts of the medical condition – only enough information to allow the employer to recognize to some degree of probability that leave was justified under the FMLA.

"It would be prudent for a foodservice employer to review its practices, policies, procedures, notices and forms required to administer leaves of absence."
This is an important court decision for employers in the foodservice industry as it signals that courts have become more realistic, and recognize the administrative burdens imposed by the FMLA. If this trend continues, it is likely that foodservice employers will be able to administer leave requests more efficiently in the future without fear that denials due to lack of information about the employee's reason for the requested absence from work will give rise to a legal claim for a violation of the federal FMLA.

Other problems employers face due to their FMLA leave practices include: worker resentment of coworkers taking unfair, but "legal" leave; loss of productivity; increased absenteeism overall; scheduling difficulties; perceived unnecessary recordkeeping; unworkable notice requirements; and conflicts with existing attendance, paid sick leave, and disability policies.

And if an employer violates the FMLA, it can be sued for back pay and benefits, liquidated damages, interest, attorney's fees, reinstatement, and even promotion. Therefore, it would be prudent for a foodservice employer to review its practices, policies, procedures, notices and forms required to administer leaves of absence in compliance with the FMLA at least once a year.

For further protection from liability and to nip FMLA administrative problems in the bud, employers should also audit the completed employee requests; employer denials, grants, and extensions of leaves; and the related paperwork in the separate medical and employee files during the past FMLA 12-month period to identify any trends, compliance issues, or other health and safety concerns.

  • Krupin O'Brien LLC is a nationally recognized law firm specializing in employment and labor law and exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. The firm has a particular expertise in representing restaurants and the hospitality industry, and represents companies and ownership groups of all sizes, both local and nationally. For further information contact Ana Salper, an attorney with Krupin O'Brien LLC, where she represents clients on all forms of litigation, and counsels clients on diverse employment and labor matters. Ms. Salper oversees the firm's New York office and is a member of the New York State Bar. Contact her at: 212-745-1387 or ana@krupinobrien.com.

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