How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation

Fixed or no-fault leave policies were once considered easy way to manage attendance and long term leave of absence issues.   Once the employee reaches the maximum number of absences, or is gone the maximum number of weeks on medical leave, the employee is terminated; no questions asked, no exceptions.   The benefit of these kinds of policies is that they remove discretion from the decision makers and therefore result in the same treatment for all employees. In more recent years, these types of policies have fallen out of favor.   Employers have found that  applying a no-fault policy blindly may conflict with its obligation to engage with an employee to find a reasonable accommodation for a disability.   The EEOC is strongly opposed to no fault policies. Its Enforcement Guidance takes the position that application of a no fault leave policy to an employee with a disability is a per se violation of the law.  However, as the recent case of Cash v. Siegel-Robert, Inc.(6th Cir. 12/3/2013) shows, there is no reason employers cannot maintain a no fault policy so long as it has some flexibility built in to account for employees with disabilities. Siegel-Robert, Inc. (SRI) had a policy that resulted in automatic termination if an employee was unable to work for six months within any 12 month period.   SRI’s policy also allowed employees who used up the six months to request an extension.   The policy said an extension would be considered so long as the request was received before the termination would take effect, and if it was supported by medical documentation showing a return to work on a date certain or within a reasonable period of time.  Cash was scheduled for back surgery on March 18. Because Cash’s job was physically demanding, his doctor told him he may not be able to work for a full year following surgery. SRI granted Cash job protected leave from March 18 until September 17, pursuant to its policy.  At the beginning of his leave period, Cash received a copy of SRI’s policy.   Even though Cash knew he may be off work for one year, he did not ask the HR Manager how to obtain an extension of medical leave beyond six months; nor did the HR Manager tell him.   By August 17 Cash thought he could return to work and asked the doctor to release him.   The doctor wrote in the chart that he thought Cash would be able to return to work in a month. A follow-up visit was scheduled on September 14.   For some reason Cash could not keep the September 14 appointment. He rescheduled the appointment for September 21, at which time the doctor gave him a work release with restrictions. Cash presented the work release to the HR Manager on September 21. “Thanks”, responded the HR Manager, “but unfortunately you were terminated three days ago because your medical leave expired.” SRI did not offer Cash another position or part time employment, nor did he ask whether those were available. He simply left the plant.   Cash ultimately sued SRI claiming that it violated the ADA in failing to accommodate his restrictions and in terminating his employment.   Notably, after Cash filed his lawsuit, the company adopted the practice of notifying employees on long term leave before their leave expired.   The Court granted SRI summary judgment. The crucial fact was that Cash took no action before the expiration of the no-fault leave period to ask for an extension of his leave. Even though SRI later changed its practice, the Court did not impose on the company an obligation to notify the employee about the expiring leave as the date approached. The Court also ruled that SRI had no obligation to engage with Cash about potential accommodations for his work restrictions because the termination was effective before Cash presented the restrictions to HR.   An important take-away from the Cash case is that a no-fault system can be used without legal liability, so long as there is a safety valve that permits employees to obtain additional leave time if necessary.   While it was a good idea for SRI to change its practice and notify employees about expiring leave, this case also reinforces the fact that employees themselves have obligations to keep track of and follow the company’s policies with respect to leave.   At least in this court, ignorance was not an excuse.

FMLA provides a qualifying employee up twelve weeks of job protected leave. That means the employee is entitled to return to the same position held before the leave, or to an “equivalent position” with equivalent pay, benefits, and other terms and conditions.   FMLA does not require an employer to restore employment if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition.   But, as the recent case of Dollar v. Smithway Motor Express,Inc. (8th Cir. 3/27/13) demonstrates, and employers should tread with caution when deciding whether to terminate an employee on FMLA leave in these circumstances.

Christine Dollar was on FMLA leave from her job as a driver manager because of depression and anxiety.   She went on leave June 10, and was excused from work until July 9.   In the middle of the leave, approximately June 13 or 14, Smithway told Dollar she could not return to the driver manager position because of her poor attendance before she went on FMLA leave (much of which was apparently related to the depression). If she returned to Smithway, she was told her new position would be as a driver recruiter.    But, on June 21, Smithway told Dollar it needed to fill the driver recruiter position and could not guarantee that position would be available unless she returned to work immediately.   Because her psychiatrist recommended she be off work until July 9, Dollar did not return immediately.   Smithway terminated Dollar on July 6.  

At trial, Smithway’s defense to the FMLA interference claim was that Dollar’s depression made her unqualified to serve as a driver manager (Notably, Dollar agreed she was not qualified to return to the driver manager job). But, she claimed she should have been returned to the driver recruiter position upon returning from leave. Smithway contended it was not required to hold open the driver recruiter position until Dollar returned to work because FMLA imposes no duty to accommodate an employee by holding open an equivalent position. 

The Court skirted the issue whether Smithway was required to hold open the driver recruiter position, and instead found Dollar had already been transferred to the recruiter position at the time of her termination. Therefore, she had the right to “return” to that job (even though it was not a job she had actually performed) upon returning from leave.  

The Dollar case shows once again that bad facts can allow an employee to prevail even when the law is technically on the employer’s side.    Any time an employer is considering termination of an employee while she is on FMLA leave, the case should be thoroughly vetted with counsel in advance.   

Thanks to Molly DiBianca of the Delaware Employment Law Blog for including us in the 2009 list of Top Employment Law Blogs.  One of the things I have most enjoyed since launching this blog last April is the collegiality among bloggers and the willingness to share ideas and information. 

Always a good source of practical information, the HR Daily Advisor had two posts this week  dealing with employee’s abuse of FMLA leave.   The first addressed the abuse of intermittent leave, and the second tackled the problem of "pattern absences" (such as taking leave on Mondays or Fridays). 

Jon Hyman at Ohio Employer’s Law Blog discusses an interview with Phillies’ starter Cole Hamels after game 3 of the World Series.   Media reports of the interview contained a quote from Hamels that made it appear he had given up on the Series after his poor game 3 performance.   When considered in the context of the entire interview, however, it was clear Hamels was looking forward to the opportunity to redeem himself in game 7 (alas, a game which never was played).    The lesson for employers: be careful what you say and how you say it, because it is easy to take words out of context, especially for cross-examining lawyers. 

Megan Erickson of the Social Networking Law Blog has two recent posts (here and here) on factors employers should consider before drafting a social networking policy.   With the explosion in social networking over the past year, this has become a hot topic for employers.   See our related posts on this subject here and here.

H1N1 seems to have subsided among school age children in the local area, but now is hitting more adults.   The Washington D.C. Employment Law Update reports that two members of the House of Representatives have introduced a bill that would permit employees five paid sick days if they contract H1N1.  The Emergency Influenza Containment Act would apply to employers with fifteen or more employees.  It would permit both full and part time employees to be paid if sent home by their employer because of the flu. 

Finally, are employers under siege by the EEOC?  This post on Workplace Prof Blog reports on a human resources meeting in Detroit where many attendees reported facing EEOC charges for the first time.   The EEOC denies it is cracking down.   However, there is little doubt that charge statistics are up, and the EEOC’s own press releases report the filing of substantially more lawsuits now as compared to one year ago. 

An update on H1N1–the confirmed number of cases in Iowa is now 60, and perhaps growing.   That is up 17 cases since our last post on this subject two days ago.   In addition to the existing public health and employer challenges this disease presents, will a potential pandemic provide the impetus for Congress to mandate paid leave for employees? 

There are reports that Senator Edward Kennedy (D., Mass.) plans to reintroduce next month the "Healthy Families Act".  The bill would require employers with fifteen or more employees to provide at least seven paid sick days per year to full time employees.  According to The Des Moines Register, Iowa’s Senators and Representatives are divided on the proposed law, which was first introduced, but not enacted, in 2007.    Existing federal law requires private employers with 50 or more employees and all public employers to provide up to twelve weeks of unpaid leave because of a serious health condition of the employee or a close family member.   However, there is no law that requires paid time off because of illness.

Opponents of the law in Iowa’s delegation are concerned about the impact of another employer mandate on small business.   While no reasonable employer wants its employees to be harmed in the event of an illness, the law as it was proposed in the last Congress not only imposes the obligation of paid leave, but also provides that employees may enforce the act with a civil lawsuit. 

Interested parties should contact their Senator or Representative and let them know your views.

Just days after the Iowa Supreme Court’s ruling legalizing same sex marriage, at least one media outlet is reporting that Iowa employers are scrambling to determine whether they need to adjust their employment policies to comply with the ruling.  Of immediate concern are employee benefit programs that provide coverage for spouses, and policies governing family and medical leave.

An employee in Iowa is already protected from discrimination based upon sexual orientation or gender identity.  However, that protection did not necessarily require an employer to extend benefits to a same sex partner in the same way it would the spouse of a married employee.   The new ruling could change that requirement.  To the extent an employer grants benefits to the spouse of an employee, spouse may now include a person of the same sex.   It is important to note, however, that many employee benefits are governed by federal law, which is not necessarily impacted by the Iowa Court’s ruling.

Employers should also adjust their practices concerning Family and Medical Leave Act compliance.   An covered employee under FMLA has the right to job protected leave to care for a "spouse" with a serious health condition.    FMLA itself defines "spouse" as "a husband or wife as the case may be".  However, the Department of Labor Regulations interpreting FMLA look to the law of the state where the employee resides to determine whether a person is a "spouse." 

Employers are advised to consult with counsel and with their employee benefit provider when adjusting policies and practices to comply with the Court’s ruling.