September 2015

Tricky FMLA Issues: Can You Transfer an Employee During Intermittent Leave and What Does it Mean to "Reinstate?"

1.  When can you transfer?  Companies can temporarily transfer an employee on intermittent leave to minimize the effect of that person’s absence on the overall operation.  The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.  There are a few restrictions.  First, the move can’t be made if the transfer “adversely affects” the individual.  Also, it can’t be made as a way to discourage the employee from taking intermittent leave or punish them for doing so.
2.  What does it mean to reinstate to an equivalent position?  Employers usually understand that they have to return an individual to an equivalent position that maintains his or her pay and benefits.  It’s easy to forget that the position must include virtually identical working conditions, privileges and status.  However, because the DOL (Department of Labor) has not defined “status,” it’s difficult to apply in practice and connotes a very subjective meaning.
There isn’t a whole lot of flexibility in returning the employee to a different position.  Generally speaking, if the new position includes more clerical duties, requires different skills or negates skills previously necessary for the employee’s position, offers fewer opportunities for advancement than before, removes supervisory duties and authority, or even if it is arguably a lower standing within the workforce, at least from an objective standpoint, this could be a violation of the FMLA.  It is not enough that the pay, benefits and even title are the same – there must be more to avoid a violation.
Moreover, reinstatement must not be delayed. The employee needs just two days to receive notice and return to work.  For example, if an employee who is filling in for a colleague on leave is in the middle of a project when the individual asks to return, the substituting employee probably can’t finish the project before the co-worker is returned to his or her job – it’s that quick and strict. 
3.  When can you terminate an employee on FMLA?   First, let’s remember that the FMLA doesn’t provide any greater rights to reinstatement or other benefits and conditions of employment, including continued employment than an employee who does not take leave.  Thus, an employer may terminate an employee regardless of FMLA leave status provided that there is a legitimate, nondiscriminatory reason for termination.  Let me repeat that in a different way – if you have the right documentation, you can do any of the examples below:
  • If an employee would have been terminated regardless of FMLA leave because of poor performance, then the employee may be terminated before, during or after FMLA leave.
  • If, prior to the leave, an employee fails to meet the goals of a corrective action program designed to improve performance, then the employee may be terminated upon return from FMLA leave.
  • Infractions or poor performance that come to the employer’s attention during the leave.
  • Insubordination, fraud, or other prohibited conduct while out on leave.
  • If there is a reduction in workforce.
If you do terminate an employee on leave, the courts might well pose this key question:Why didn’t you fire this person before he/she took leave?  Hopefully the answer will be something like we didn’t realize how badly an employee was doing until he/she was out on leave.  The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee was on leave.

With any termination of someone in a protected class or situation, it is critical to seek advice of counsel prior to taking an adverse action.  Remember, employers must be able to show that the reason for termination was based on a legitimate, nondiscriminatory reason, unrelated to the exercise of rights under FMLA.
Side Notes:
1. Practice Tip
: Because the ADA often takes a back seat when an employee is on FMLA-leave, some employers neglect to recognize that the ADA protections can essentially reactivate when FMLA obligations expire.  If employees cannot return to their jobs when their 12-week FMLA entitlement ends, they lose their right to FMLA job restoration.  However, that doesn’t mean that the employer can fire the employee without assessing exposure under the ADA.  If the ADA is implicated at this point, this triggers employer’s obligation to engage in the interactive process.

2. Case in Point: Earlier this year an employer terminated an employee within weeks after he started with the company and after he’d asked for a leave.  The company determined that since he was still a probationary employee and had no leave time available to him.  Thus, his termination was warranted.  The EEOC filed suit on behalf of the employee and the case was quickly settled.  Take away?
  • There’s no probationary status under the ADA. A new employee must be treated the same as a 20-year employee. As such, you should review and take out any and all references in your handbooks to probationary status.
  • If you have a policy of leave time for non-probationary employees, you must do the same for all other employees. Yes, treating employees the same (while looking at each case individually) is the name of the game.
  • Don’t forget the interactive process. Even if you decide not to give leave time, you must at least show that you engaged in the interactive process, learned the basic facts of the medical condition, how it affected his/her job and how long he/she will need off of work. The interactive process is a strong repellent to a plaintiff’s attorney.
  • Look at undue hardship and use that information with your interactive process.  Before you fight the leave time, check to see if there’s a way to minimize the impact of the employee’s leave.

Mistakes Employers Make During An EEOC Investigation

No. 1.  Not Staying in Touch. Many employers and their attorneys fail to stay in touch with the EEOC while an investigation is taking place. It’s important to to show the EEOC that the employer acted properly.  Thus, proactive communication with the EEOC investigator builds credibility for the company and for the attorney who represents it.

No. 2. Not Making it Easy for the EEOC.  We tend to think complicated may warrant a dismissal.  But that’s not true. In your Position Statement, be sure that you fully and in plain language explain all relevant background information and your position. You will not go wrong by making your statement easy to understand.  Sometimes the more complicated, the more questions you’ll get.

No. 3. Forgetting that they do litigate. Although litigation (rather than a dismissal and notice of rights) is still the exception, the EEOC has been known to go to court – especially when class relief is possible. The EEOC is looking at religious discrimination allegations (because many people with deeply-held religious beliefs do not believe in filing suit on their own behalf), and when one of the EEOC’s favored causes is at issue (currently disability, disparate impact, and the ever popular retaliation).

No. 4. Ignoring retaliation (because you can’t see it). It’s out there and a silent killer to an employer’s arguments that there was “no discrimination.” There are two broad categories of actions that are legally protected: (1) participation and (2) opposition. “Participation” includes filing a charge, testifying against the company, and similar activity. “Opposition” includes activity that does not involve a formal process, such as making an internal complaint about discrimination against oneself or co-workers. It is important to remember that retaliation can exist regardless of the strength of the underlying claim.

For example, an employee may have a good-faith but legally weak claim of workplace harassment. Yet, even though her claim is weak, it would still be unlawful for the employer to take action against her based on the fact that she made the complaint. Don’t forget, a non-protected employee can become “protected” by the retaliation laws when they make a complaint.

No. 5.  Bugging the EEOC. This goes with No. 1.  While it’s important to stay in touch, it’s also important to let some time lapse if the investigator has a big case load.  Always know that when you ask if they need anything else – and they say no – that means no.  Of course, if you come up with additional information, that’s also a perfect way to “remind” them of the strength of your position.

No. 6. Not admitting a mistake. Mistakes are unavoidable, but if you get a charge and realize that indeed you’ve not handled the situation appropriately, begin working to resolve the matter.  The EEOC likes to know that you recognize where your “issue” may be. 

No. 7. Thinking that you don’t need an attorney. Of course, a lawyer is writing this but I can’t over emphasize how important it is to get a no probable cause finding.  Your legal counsel will know what information to give, when the Department has asked for too much, or when to give more. They know the laws in all the states and can help you make arguments that you may not have thought of.  You can always write the Position Statement yourself and have an outside attorney “ghost” the finishing touches. You can be 100% sure you won’t regret the additional input and legal arguments.

No. 8.  Don’t try to fake them out.  Don’t try to avoid liability by claiming that a termination for cause was a “job elimination.”  The EEOC is on to this one big time (so are plaintiff’s attorneys).  If you need to fire someone for their performance, do it.  Don’t make up some reason to avoid initial conflict.  It will come back to haunt you.

Do You Have to Give Holiday Pay While on FMLA?

As we near the holiday season, I’m often asked what’s “right” when it comes to holiday pay for employees on leave.  The main “rule” for FMLA is that an employee’s entitlement to benefits, other than group health benefits, during a period of FMLA leave (e.g., holiday pay) is determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).

Put in simple terms, you first look to treat the leave in the same manner you treat other forms of non-FMLA leave.  If FMLA is being taken in conjunction with paid leave, look to the manner in which you treat employees on paid leave.

Here’s a common scenario:

Suppose you have an employee who is taking vacation time during the holiday week and your policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday. Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee’s paid vacation leave, or whether it is simply an unpaid leave under the FMLA. If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow that for the employee on FMLA leave. On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the employee on FMLA leave. In other words: you must treat employees consistent with similar forms of non-FMLA leave under your policies.

The Department of Labor has addressed this issue in one of its first FMLA opinion letters (in 1993) and the rule remains the same today. There, the employer did not provide holiday pay to any employee on personal leave or educational leave, which were unpaid forms of leave. Because FMLA by its very nature is unpaid, the DOL opined that the employer was not required to pay holiday pay in this instance because it did not provide holiday pay to those employees on unpaid leave.  If the employee was entitled to obtain holiday pay while on paid leave, then “the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave.”

Terminating an Employee: Likely your least favorite "job"

There’s no question that firing meetings are difficult for everyone involved. So, what should happen at the termination meeting to make it as easy and clean as possible?  

  1. Do not revisit the details or indicate your decision may not be final.  Be clear about the decision for the company and the employee.
  2. If an in-person meeting, it should be held in a neutral, private setting such as a conference room and you should have a witness present.
  3. In addition to the verbal discussion, you should provide the employee with a termination letter that puts your reason in writing and explains how and when final compensation and benefits will be distributed.
  4. Take notes about the meeting and put them in the personnel file.  Hopefully, you won’t ever need them. 

Sometimes, no matter what you do, an employee will threaten a lawsuit.  Know the potential claims:

1. Discrimination: It is illegal to terminate an employee because of their age, race, religion, disability or any other status that is protected.  Some states have additional protected classes so be sure you are up to date on potential protected classes.

2. Public Policy and Retaliation: You cannot legally terminate an employee for reasons that violate public policy or because they made a complaint about something that they reasonably believed was illegal.  So, before you terminate ensure that there’s nothing that the supervisor is aware of in terms of complaints or requests for accommodations.

3. Just Cause: If you have a policy that has a strict process for discipline or termination, you will likely be held to that standard.  This could be an implied contract so ensure you have the requisite disclaimers in your handbook and in any termination or discipline policy.

One final reminder on terminations: Don’t wait.  If you have enough reasons to let someone go – do it.  Waiting will often cause more problems, rather than less.

This newsletter is provided for informational purposes only, not as legal advice.  The reader of these materials should seek legal advice before using this or any other materials from this author.

Copyright © 2018 Roe Law Group, PLLC, All rights reserved.

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