May 2011 ~ Issue 9

HR Corner: FMLA Do's and Don'ts for 2011

by Glianny Fagundo

2010 was a fairly active year for court decisions interpreting and affecting the implementation of the FMLA. While some of the following suggestions, based on 2010 decisions, further clarify and/or confirm practices most employers have already adopted, others suggest additional practices that should be adopted or avoided to limit or foreclose exposure under the statute:

• Don't ask for excuses, excuses, excuses - A federal court ruled that an employer was not entitled to request a doctor's note for every FMLA absence where that employee had already provided FMLA certification in support of intermittent absences. The court found such policy violated regulations prohibiting employers from asking for additional information beyond that required by the certification and discouraged employees from taking lawful leave. Recognizing the interests of employers in confirming FMLA absences, however, the courts have approved other less invasive, confirmation practices, such as calling an employee at home, or requiring an employee to verify, orally or in writing, that an absence was in fact FMLA-related.
• Do advise employees of certification requirements and consequences - The courts continue to insist that employers advise employees of FMLA certification requirements and the consequences of failing to provide the same in writing. They are also suggesting that the information be included in employee handbooks. In 2010, the courts specifically rejected employer arguments that employees had notice in fact regarding FMLA procedures because they were told orally or had previously taken FMLA leave.
• If they quack like FMLA and look like FMLA, do treat cases as such - The courts have continued to deride employers that do not comply with the FMLA merely because the employee did not invoke the statute by name; the burden is on the employer to recognize FMLA situations. For example, if an employee says she needs time off to help sick Mom, the employer should ask for additional information to determine FMLA applicability. And so, where the employer took such reasonable steps, the court upheld the employer's right to deny FMLA leave where the absence was merely to clean up Mom's flooded basement, rather than provide medical aid. Conversely, another court was not sympathetic with an employer that terminated a grieving widow because her request for time off to "take care of things" following the death of her husband was deemed insufficient FMLA notice by its HR department, which had it inquired, would have learned the leave was to seek medical treatment for distress. GINA Caution: The Genetic Information Nondiscrimination Act provides for the protection of certain health information, so FMLA inquiries should be properly limited in scope to avoid running afoul of GINA.
• Do abide by regulatory and reasonable certification deadlines - FMLA regulations provide that employers must give employees at least 15 calendar days to submit certification unless it is not practicable despite the employee's diligent, good faith efforts. The regulation itself, therefore, provides a "reasonability" standard that the courts take very seriously, even where a shortened certification period is given to an employee due to a lost, original certification.
• Do grant FMLA leave to gay parents - The definition of "son or daughter" under the FMLA includes "a child of a person standing in loco parentis." On June 22, 2010, the DOL issued an Administrator Interpretation stating that an otherwise eligible employee is entitled to FMLA leave under the same circumstances as a biological or legal parent if that individual has assumed parental responsibilities for a child. The DOL provided the following examples: (1) where an employee provides day-to-day care for his or her unmarried partner's child (with whom there is no legal or biological relationship) even if he does not financially support the child; (2) where an employee will share equally in the raising of a child with the child's biological parent; and (3) where an employee will share equally in the raising of an adopted child with a same sex partner, even if no legal relationship with the child exists. Notably, this new interpretation does not extend to FMLA leave rights to care for a same-sex partner, as it is limited to apply only for leave to care for children.

Glianny Fagundo is a partner at Elarbee Thompson, a labor and employment law firm in Atlanta, GA. Glianny's practice is focused on complex commercial litigation and employment law, Glianny has represented clients in business and complex commercial litigation matters involving claims for breach of contract, fraud, negligence products liability, directors and officers liability, wrongful death, and professional liability. She can be reached at fagundo@elarbeethompson.com.