Nolo’s Employment Law Blog

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

It’s official: The FMLA has been amended for the first time in its 15-year history. On January 28, President Bush signed a defense authorization bill that includes new FMLA leave rights. The president vetoed two previous incarnations of this legislation for reasons unrelated to the FMLA provisions.

The new law makes important changes to the FMLA—and leaves significant questions that will have to be answered by the Department of Labor (DOL). Because the law doesn't include an effective date for the new provisions, it looks like they take effect immediately. The law provides for:

FMLA leave for active duty of a family member. In addition to taking leave for their own serious health condition, to care for a seriously ill family member, or for the arrival of a new child, employees are now entitled to FMLA leave for “any qualifying exigency” arising out of a family member’s active duty or call to active duty. This leave is part of the regular 12-week entitlement—that is, the employee gets 12 weeks total per year for any qualifying reason, not an additional 12 weeks for issues relating to a family member’s military service.

Extended leave to care for injured or ill service member. The law also creates an entirely new entitlement for family members who need to care for an injured service member. These employees can take up to 26 weeks of leave in a year (that’s 26 weeks total, not 26 weeks plus 12 weeks of FMLA leave for other reasons). In addition to spouses, children, and parents (the usual family members covered by the FMLA), “next of kin”—defined in the law as a service member’s “nearest blood relative”—are eligible for this type of leave. This appears to be a one-time-only entitlement; the law says this 26-week leave will "only be available during a single 12-month period."

Regulations called for. The law leaves a number of issues to be determined by regulations issued by the DOL These questions include:

• What’s a “qualifying exigency” that entitles an employee to leave arising from a family member’s service or impending service?


• What certification can an employer require? This question arises both as to the service member’s active duty and as to the employee’s status as “next of kin.”

And speaking of regulations. Last week, the DOL sent proposed FMLA regulations to the Office of Management and Budget. These regs haven't been made public yet, but news reports say that they address medical certifications, notice and waiver requirements, and when leave may begin. (An official at the DOL has characterized the changes as "modest," but that is, of course, in the eye of the beholder.) Once the OMB has reviewed them -- a process that could take up to three months -- the regs will be published in the federal register. Then, there will be a period for public comment before final, binding regs are issued.

If you’re in the running to be the Democratic party’s presidential nominee, you’d better have a proposal to expand the Family and Medical Leave Act (and a health care plan, but that’s a story for another day). In recent weeks, the leading democratic contenders—Senator Hillary Clinton, Senator Barack Obama, and John Edwards—have all come out with various plans to expand the FMLA. (The leading contenders who have announced, that is: According to CNN’s latest poll, Al Gore is ahead of John Edwards right now.)

All three are in favor of all of the following, in some form:

Mandatory paid sick leave. Clinton, Obama, and Edwards have all come out in favor of requiring companies to give employees at least seven paid sick days per year. Clinton and Obama are cosponsors of a Senate Bill, the Healthy Families Act, that would enact this requirement; additional cosponsors include presidential contenders and Senators Joe Biden and Chris Dodd.

Support for state-run paid leave programs. John Edwards has proposed spending $2 billion to assist states in developing programs to offer paid family leave; his goal would be for all workers to have access to eight weeks of paid family leave by 2014. Senator Clinton would spend $1 billion, and Senator Obama $1.5 billion, to help states come up with paid leave programs.

Apply the FMLA to smaller companies. Currently, the FMLA covers only companies that have at least 50 employees. All three of the democratic frontrunners support lowering this coverage threshold, so companies with at least 25 employees are covered.

Lisa Guerin

Yesterday, President Bush vetoed a bill to reauthorize and expand the State Children's Health Insurance Program (SCHIP), which gives funding to the states so they can provide health insurance for children who would not be covered otherwise. Now the fight moves back to Congress, where sponsors of the bill are trying to line up the necessary votes to override the President's veto.

The debate is extremely heated, with opponents of the bill claiming it would lead to socialized medicine and supporters claiming that anyone who votes against it doesn't care about poor children. Lost in the rhetoric are some of the other provisions tucked into the bill, including a couple that would expand the FMLA and create a new leave right for those caring for injured servicemembers.

Added via amendment by Senators (and presidential contenders) Dodd and Clinton, the Support for Injured Servicemenbers Act would allow family members to take up to six months off work to care for an injured servicemenber, with all of the benefits continuation and job reinstatement rights provided by the Family and Medical Leave Act (FMLA).

A second provision, the Military Family Job Protection Act, would prohibit discrimination against family members who take up to a year off to care for a recovering servicemember. Employers may not deny an employee who takes such leave retention, promotion, or any other job benefit based on the employee's absence from work. (You can read these provisions at the website of the Library of Congress. Search for the final version of House Resolution 976, the Children's Health Insurance Program Reauthorization Act of 2007; the leave provisions are in Sections 621 and 622.)

And these aren't the only proposed changes to the FMLA that are kicking around in Congress; for more information, check out my update for Nolo's The Essential Guide to Family and Medical Leave.

Lisa Guerin

General David Petraeus, in his recent testimony before Congress, spoke out against a rapid withdrawal of American troops in Iraq. And President Bush, in his speech to the nation on September 14, spoke of a gradual reduction in forces (from the current level of 169,000 to 130,000, the level in Iraq before the “troop surge”) by July of 2008. The ultimate timetable for drawing down the troops remains to be seen, but one thing is clear: American troops will continue to serve in Iraq for the foreseeable future.

Many of those troops will be members of the National Guard, whose members typically hold down civilian jobs when not serving in the military. More than 400,000 members of the National Guard have been called to serve in Afghanistan and Iraq. And those who employ Guard members are called on to shoulder part of the burden: the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) requires these employers to ease the reentry of Guard members into the workforce by holding their jobs for up to five years (with all promotions and raises they would have gotten had they not been deployed), providing the necessary training to bring them up to speed when they return, and protecting them from termination except for good cause for up to a year. (A great resource for information about USERRA, including excellent tools and tips for employers, is Employer Support for the Guard and Reserve.)

Returning National Guard troops are at risk. At a conference in August 2007, researchers from the Walter Reed Institute of Research indicated that Guard members who face financial difficulties as a result of their deployment are six times more likely to suffer from post-traumatic stress disorder. Guard members are also more likely to be married and tend to be older than regular enlisted troops, both factors that increase the possibility of problems upon return. All in all, guard members face unique challenges when they are asked to leave their families and jobs to serve in the military. Although complying with USERRA can strain company resources, it serves the very worth goal of helping service members make a successful transition back to civilian life.

For more about the employer responsibilities to guard members and other personnel, pick up Attorney Fred S. Steingold's The Employer's Legal Handbook (Nolo).

Lisa Guerin

Several states have passed laws that recognize the importance of allowing working mothers to express breast milk in the workplace. These laws usually require employers to provide the time (not necessarily paid) and proper facilities for expressing breast milk.

Perhaps the legislative movement is driven, in part, by the growing number of women who are breastfeeding. Though the numbers are on the rise, the CDC says current numbers fall short of goals. Apparently, these goals are largely based on the health benefits of breastfeeding.

That’s why it’s ironic that the National Board of Medical Examiners won’t allow a nursing mother additional breaks and proper facilities to express breast milk during a physician licensing exam. Harvard-educated Sophie Currier wrote a letter to the Board requesting the extra time and a private location to plug in an electric breast pump. A Board representative responded that it could make accommodations for disabilities covered by the ADA—but expressing breast milk wasn’t one them. The Board offered Ms. Currier access to a testing room, with a monitor and glass walls, to express breast milk during regularly-scheduled breaks, but wouldn’t allow longer or additional breaks or a private location for that purpose.

Obviously, a law granting rights to lactating employees won’t apply to Ms. Currier (Massachusetts, where she’s taking the exam, doesn’t have such a law, anyway). But her experience reminds us that it’s worthwhile to provide the necessary time and space to lactating women even if it’s not legally required. An employer who does so will engender goodwill (or maybe even make Working Mother’s list of 10 Best Companies for Breastfeeding), which can be particularly important for an employee who is reintegrating into the workforce after an absence. Also, the employee avoids physical problems, like breast engorgement and mastitis (an infection caused by blocked milk ducts) that could result in lost work time.

If your state has a law about expressing breast milk in the workplace, make sure your company complies with the law. And if not, consider whether it’s good business practice to provide this benefit anyway.

Update, September 27, 2007: A Massachusetts appeals court judge ruled that Sophie Currier can take additional time during the exam to express breast milk. The judge said the extra time would put Ms. Currier on equal footing with men and nonlactating women taking the exam.

For more about what you can do to ensure that your company's various personnel policies are up to date, try reading The Employer's Legal Handbook, by Attorney Fred S. Steingold (Nolo).

Alayna Schroeder