3d Cir. Rules on FMLA Definition of Overnight Stay

By William W. Bowser

Under the Family and Medical Leave Act, an eligible employee can take up to 12 weeks of protected leave for his or her own “serious health condition.” A “serious health condition” is defined by Department of Labor’s regulations as one “that involves inpatient care … or continuing treatment by a health care provider.” While many FMLA cases have focused on the meaning of “continuing treatment,” the definition of “inpatient care” has seen little review. A recent decision by the Third Circuit Court of Appeals, which covers Delaware, recently focused on the issue.

Jeff Bonkowski worked for Oberg Industries as a wirecut operator and machinist. During a meeting with his supervisors on November 14, 2011, Bonkowski began to experience shortness of breath. His supervisors gave him permission to go home and he clocked out at 5:18 p.m. Shortly after 11 p.m., Bonkowski’s wife drove him to the hospital. Although he arrived at the hospital before midnight, he was not admitted into the hospital until shortly after midnight on November 15th. As we will see, these few minutes would be very important.

Bonkowski underwent comprehensive tests and was sent home on evening of the November 15– after staying in the hospital for about 14 hours. Oberg terminated him because he had walked off the job on November 14 and his absence on November 15. Bonkowski filed suit under the FMLA claiming that his absence from work on November 15th was a qualifying absence under the FMLA protecting him from discharge.

The District Court for the Western District of Pennsylvania threw out his case. It found that Bonkowski didn’t have a “serious health condition” because he did not receive “inpatient care.” It pointed to the definition of “inpatient care” contained in the DOL’s regulations which requires an “overnight stay in a hospital….” The District Court ruled that in order to have an “overnight stay,” Bonkowski would have to be admitted before sunset on one day and discharged after sunrise the following day. Since Bonkowski was not admitted until after midnight on November 15 and discharged the same day, he did not have an overnight stay.

Bonkowski appealed to the Third Circuit. While the Third Circuit rejected the “sunset-sunrise” rule used by the District Court but still ruled in favor of Oberg. It ruled that an “overnight stay” means a stay in for a substantial period of time from one calendar day to the next day measured from the time of admission to the time of discharge. Since Bonkowski was admitted after midnight on November 14, his stay did not constitute an “overnight stay.” Without such a stay, he could not have received “in patient care” and could not have a “serious health condition.”

The Third Circuit rejected the “sunrise-sunset” rule because the required time in the hospital would vary depending on the season of the year and geographic location. It also rejected Bonkowski’s claim that time spent at the hospital before actual admission should count because the “calendar day” rule would provide a bright line criterion for employers and employees alike.

Conclusion

In sum, Bonkowski FMLA claim was erased because of a few minutes waiting at the hospital. While the result may seem harsh, the rules does, at least, provide an somewhat understandable standard. This case does not resolve what a “substantial” time in the hospital means. In other words, will a stay just before midnight to just after midnight qualify? If not, just how many hours will be required? Stay tuned.

Bonkowski v. Oberg Industries, No. 14-1239 (3d Cir. May 22, 2015)

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Marriage Equality and the FMLA

The Supreme Court’s 2013 ruling in United States v. Windsor created a lot of uncertainty in the area of federal employment benefits. Because the federal government’s definition of marriage as being between one man and one woman was held to be unconstitutional, the decision left open the question of when same-sex couples were eligible for spousal benefits in a variety of contexts. In a move that is sure to simplify issues for multi-state employers, the Department of Labor is taking steps to clarify that issue under the Family & Medical Leave Act (FMLA).

The FMLA

The FMLA is a federal law providing unpaid leave to employees who have worked for a company for at least twelve months, and who worked at least 1,250 hours in the calendar year preceding the request for leave. Leave may be taken for a variety of reasons, including to care for a spouse with a serious health condition. Thus, a key consideration in determining eligibility for FMLA leave is whether the person for whom you intend to care is a “spouse” under applicable law. The term “spouse” used to be defined by the Defense of Marriage Act (DOMA). However, DOMA’s definition of marriage was declared to be unconstitutional under the Windsor decision.

The Reaction to Windsor

In the wake of the Windsor decision, the federal government was forced to come up with a new approach to federal benefits impacting spouses. Different agencies adopted different approaches, and sometimes applied different standards to different laws administered by the same agency. With regard to the FMLA, the U.S. Department of Labor adopted a “state-of-residence” rule, meaning that if a same-sex couple’s marriage was not legal in the state where they lived, they were not entitled to spousal leave under the FMLA. So, for example, in 2003 a same-sex couple living in Pennsylvania, who are employed in Delaware and came to Delaware to get married, would not be entitled to spousal leave benefits under the FMLA because their marriage would not be recognized by the Commonwealth of Pennsylvania (a federal judge in Pennsylvania struck down the state’s ban on same-sex marriage in 2014).

This “state-of-residence” rule imposed a significant administrative burden on employers, who would have to research the legality of a couple’s marriage in their home state as part of the FMLA eligibility analysis. The problems are particularly taxing on the East Coast, where individuals frequently live and work in adjacent states. It also created a problem for businesses with a telecommuting workforce, where the HR professionals could have to familiarize themselves with the laws in all 50 states.

A New Approach

Recognizing the administrative burden imposed on employers, the Department of Labor had revised its approach to spousal benefits under the FMLA, adopting a “place-of-celebration” rule. Under the new rule, so long as the marriage is legal in the location in which it is celebrated, the couple will be considered spouses for purposes of being entitled to leave under the FMLA. This approach reduces the administrative burden on employers, who can now treat same-sex marriages the same way that they treat traditional marriages: by reviewing a copy of the marriage certificate of simply assuming that the marriage is valid.

The new rule is part of a formal rule-making process, and will be issued on February 25, 2015. It becomes effective March 27, 2015.

Bottom Line

The Department of Labor’s revised approach to spousal leave benefits is intended to give same-sex spouses the same access to FMLA leave as all other married partners. It has the added benefit of simplifying the administrative process for employers, which is already onerous under the FMLA. Employers who have already voluntarily extended FMLA leave to all same-sex spouses will not experience any change in the process, and can breathe an added sigh of relief!

FMLA Master Class: Feb. 12

Back by popular demand!  Our FMLA Master Class, presented in conjunction with BLR and HR Hero, is always the most requested seminar from clients and seminar participants.  So, at your request, we’ve brought it back. 

If your organization is subject to the Family Medical Leave Act or if you are nearing 50 employees, you should consider joining us on February 12, 2014, for this in-depth, full-day program. 

You can learn more about the program and register online.  We’ll look forward to seeing you then!

New FMLA Forms and Poster Now Available

The Family and Medical Leave Act (FMLA) took effect 20 years ago.  To celebrate, the DOL released a survey on the impact and use of the FMLA.  According to the DOL, the survey found that “misuse of the FMLA is rare.”

Now, for those of you who have not laughed yourself right out of your chair, congratulations. For the rest of us, the reality is that FMLA abuse is, in many, many workplaces, a significant problem and, I bet many employers would say, maybe the most misused workplace law today.  Of course, I don’t have a survey to back up my conclusions. But there you have them, anyway.

Putting aside the issue of employee misuse and abuse, employer compliance with the FMLA is difficult, to say the least. It’s a very technical statute and seemingly harmless oversights can land an employer in court. 

One of the easiest ways to improve your odds of not getting it wrong with the FMLA is to use, consistently, the DOL’s standard forms.  Use of the forms is voluntary-you may, lawfully, use your own forms and/or create your own letters and abandon forms altogether.  But, really, why?  The FMLA is not a law for which creativity will be rewarded. 

The DOL has just released updated FMLA forms.  Download the forms and, if you don’t use them (and, really, why wouldn’t you?), at least take this opportunity to review your own forms and letters to be absolutely sure that you have encompassed every aspect of the DOL’s versions. 

Forms relating to military caregiver leave for a veteran are not included in the revised forms.  That rule does not take effect until March 8, 2013.  In conjunction with that effective date, though, comes another important requirement- a new FMLA workplace poster.  The new poster has an updated section regarding Employee Rights and Responsibilities.  You can download the poster from the DOL’s website.

Until then, you can download the rest of the forms (in PDF) for your review and use using the links below or, if you prefer, download the whole lot in a single PDF containing all of the new FMLA forms.

Posting Vacation Pics on Facebook While On FMLA Is a Bad Idea

The FMLA turned 20 last week and there has been a flurry of articles and posts discussing how the FMLA has changed the workplace, whether it imposes too high of a burden on employers, and predicting how it will likely continue to evolve. All of the academic commentary aside, though, we all know that the FMLA is no easy row to hoe. The truth is that the law is a very technical one and its application must comply with very detailed technical requirements.

Which is why we get all sorts of excited over FMLA cases that are resolved in favor of employers. The case du jour is precisely that–a win for the employer. It’s such a great set of facts, though, that I’m going to switch up the normal order of things and start today’s post with my “lessons learned.” Admittedly, they’re a bit snarkier than usual. But, I dare say, spot on.

5 lessons for employees to learn from Lineberry v. Richards:

1. Give serious consideration to whether you should be Facebook friends with your coworkers. They’ll rat you out in a heartbeat and you’re a fool if you think otherwise.

2. Don’t demand or request sympathy from your “friends.” If they really are your friends, you wouldn’t be asking. Whining about why you have not received a get-well card constitutes a request for sympathy.

3. Do not press “Send” until you have cooled off. Getting into an email flame war is never a good idea. It is a very, very bad idea when your boss is the target of your flames. It is an even worse idea when you tell tall tales in the inflammatory email. After all, what you type can and will be used against you in a court of law (and by your employer).

4. Don’t lie, dummy. You’ll get caught. There are cameras everywhere, including at the airport and in your friend’s hands as they snap your vacation photos.

5. Don’t sue your employer after you’ve been fired for lying. If your employer wins, information about your case and related acts of deceit will be posted all around the Internet. It may be embarrassing.

The Facts

The plaintiff-employee was working as a full-time R.N. for the defendant-hospital when she was injured on the job. She was approved for FMLA leave for the maximum 12-week period. By all accounts, she was a good employee with satisfactory performance.

While on FMLA leave, the employee took a prepaid, planned vacation to Mexico. Her physician (who worked at the hospital), approved the vacation and testified that it would not conflict with her recovery.

During her leave, her co-workers saw pictures of the employee on her Facebook page, which showed her on vacation, riding in a motorboat, drinking, etc. She also posted pictures of herself holding her infant grandchildren–one in each arm as she stood. In her status updates she talked about trips to Home Depot, babysitting her grandkids, and taking online classes.

Her co-workers complained to their supervisors about what they considered to be a misuse of FMLA leave. About half-way through her leave, the employee sent her supervisor an email complaining that she had not received a get-well card from coworkers. Her supervisor responded:

[T]he staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.

The employee, apparently unable to hold back, sent the following email reply:

As far as the airport, customs, etc., goes, I was in a wheelchairbecause I couldn’t stand for that long. As far as the plane goes (3.5 hour flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.

* * * * *

I want to come back to work as soon as possible and wouldn’t have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

The next week, her supervisor reported her belief that the employee was misusing her leave. On the same day the employee was approved by her physician to return to work, the hospital’s HR and Loss Time Management departments decided she would be terminated.

In accordance with the hospital’s progressive-discipline policy, the employee was called in for an investigative meeting prior to her termination. At the meeting, the employee reiterated that she had used a wheelchair in all airports on her trip. When the hospital’s Director of Security Investigations presented the employee with the Facebook pictures, she admitted that she had lied and, in fact, had never used a wheelchair on her vacation.

She was fired for violating the hospital’s policy prohibiting “dishonesty, falsifying, or omitting information.” The employee sued, alleging that the hospital unlawfully interfered with her FMLA rights by denying her reinstatement upon return from leave and by retaliating against her for taking FMLA leave.

The court granted summary judgment to the employer on two alternative grounds. First, the court found that there was no evidence that the employee was terminated as a result of her FMLA leave. Instead, she was terminated because she violated the hospital’s policy against dishonesty.

Alternatively, the court found that the employer was entitled to summary judgment under the “honest-belief” doctrine because the employer honestly believed, based on particularized facts, that the employee lied and misused her FMLA leave.

For those of you who may be keeping score, this counts as a “W” in the Employers’ column.

Lineberry v. Richards, No. 11-13752 (E.D. Mich. Feb. 5, 2013).

[H/T to the Disability Leave Law Blog]

Party Like It’s the FMLA’s Birthday

The Family Medical Leave Act (FMLA) celebrated its 20th birthday this week. And boy, oh boy, was the DOL was ready to celebrate!

And what kind of birthday would it be without a party? Acting Secretary of Labor Harris hosted a commemoration program that featured celebrity special guests, including former President Bill Clinton, former Senator Christopher Dodd, and former labor secretary Hilda Solis, among others. The entire program, which lasts about an hour, is viewable on YouTube.

But wait, there’s more!! On February 5, the actual anniversary of the day the FMLA was signed into law, the DOL issued a final rule implementing expansions that cover military families and airline flight crews. Under the rule, military family members can take leave to care for a covered veteran who is seriously ill or injured. They can now take additional time, up to 15 days of leave, to be with a service member who is on leave from active duty. Additionally, the rule expands the FMLA’s protections to airline pilots and flight crews who were frequently ineligible for FMLA due to their unique work schedule.

And, for those who really can’t get enough of the FMLA, there is a new survey, “Family and Medical Leave Act in 2012: A Final Report,” which was released just in time for the big celebration. According to the DOL, the survey shows that the FMLA “has had a positive effect on the lives of millions of workers and their families without imposing an undue burden on employers.”

And, now, one for the road. Last month, the Wage and Hour Division issued an Administrator Interpretation providing guidance on the definition of “son or daughter” under the FMLA as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. Fact Sheet, FAQs

That ought to satisfy your FMLA thirst this Friday. Have a great weekend!

Return-to-Work and Fitness-for-Duty Examinations Following an Employee’s Medical Leave

Yesterday, I presented a section of the FMLA Master Class. In my session, we discussed mandatory return-to-work exams done by the employer’s selected doctors. There were lots of questions on this issue as many employers continue to require return-to-work exams as a matter of course before employee can return to work after FMLA leave. In many instances, such a practice will be in violation of the ADA and the FMLA. I promised a more thorough discussion of the issue, so here it is.

FMLA Regulations on Return-To-Work and Fitness-for-Duty Exams

The FMLA regulations state the following:

  • As a condition of restoring an employee whose FMLA leave was occasioned by the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e., same occupation, same serious health condition), who take leave for such conditions to obtain and present certification from the employee’s health care provider that the employee is able to resume work. The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer) in the fitness-for-duty certification process as in the initial certification process. See §825.305(d).
  • An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. The certification from the employee’s health care provider must certify that the employee is able to resume work. Additionally, an employer may require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job. In order to require such a certification, an employer must provide an employee with a list of the essential functions of the employee’s job no later than with the designation notice required by §825.300(d), and must indicate in the designation notice that the certification must address the employee’s ability to perform those essential functions. If the employer satisfies these requirements, the employee’s health care provider must certify that the employee can perform the identified essential functions of his or her job. Following the procedures set forth in §825.307(a), the employer may contact the employee’s health care provider for purposes of clarifying and authenticating the fitness-for-duty certification. Clarification may be requested only for the serious health condition for which FMLA leave was taken. The employer may not delay the employee’s return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required. 29 CFR § 825.312

These regulations make clear that the normal fitness-for-duty certification as prerequisite to return to work after FMLA leave is to be completed by the employee’s own health care provider, not the employer’s doctors. And a second opinion may not be requested. The requirements that it is uniformly applied and employee receives notice, relate to a fitness-for-duty certificate coming from the employee’s HCP, not a return-to-work exam conducted by the employer.

Therefore, what is an employer to do when it has a genuine concern about an employee’s ability to effectively perform the functions of his or her position, notwithstanding a cursory note from the employer’s doctor stating otherwise? Under the FMLA, it appears the employer is out of luck.

ADA Comes to the Rescue – Sometimes
Here’s where ADA may come to the rescue. The FMLA regs state that ADA requirements apply, and under the ADA employers have the right to conduct medical examinations to determine whether an employee can perform the essential functions of his or her job (with or without reasonable accommodation) in certain situations. Therefore, after an employee returns from FMLA leave, a medical examination at an employer’s expense by the employer’s health care provider may be required if it is job-related and consistent with business necessity. A number of cases have explored what qualifies as “job related and consistent with business necessity.” The key criteria are as follows:

There is a reasonable basis for the exams.
The employer must have a “reason to doubt the employee’s ability to perform the essential functions of the job.” For instance, a discrepancy between the doctor’s original letter and return-to-work certificate would be a reasonable basis. But, short of information from the employee’s own provider which leaves doubt, what will at court consider a “valid reason to doubt the employee’s ability to perform the job?” Certainly, direct observation of the employee’s physical restrictions, on or off the job, would be sufficient. Many employers, however, seem to feel it is their right to have their own HCP conduct an exam, when there is little or no objective basis for doubt of what the employee’s HCP is telling them. It appears that courts in very limited circumstances have found such exams as “job related and consistent with business necessity – when the reason for leave directly related to and impacted the employee’s ability to safely perform the job. For example, a police officer who breaks his arm. His ability to carry and discharge a gun is so critical to his safe performance if his job duties, that if his employer required a RTW exam narrowly tailored to the use of his arm, this would probably be upheld even if there was not a reasonable basis to doubt the officer’s HCP opinion that his arm was fully functioning.

The exams are narrowly focused.
The medical exam should seek only information about the effect of the particular injury or illness that necessitated the leave on the employee’s ability to return to work. Don’t request a general physical or a return-to-work certificate stipulating the employee is in “good health.” This again, is where many employers get into trouble. Many employers require the employees to provide medication information far beyond the original condition generating the leave. The more narrowly focused the RTW exam is, the less likely a court will delve into whether or not there was a reasonable basis for the exam in the first place.

The medical examination requirements are applied consistently.
Of course, as with all employment best practices, similarly situated workers must be treated the same.

Bottom Line
If your organization requires return-to-work physicals by its own health care provider as a matter of course for employees returning from FMLA leave, you need to take a close look at this practice. If you don’t have a reasonable basis to believe the employee is unable to perform their duties safely, then you should not be requiring these exams. If you maintain this practice despite my advice otherwise, you should ensure that they are narrowly tailored to the injury or illness that necessitated the leave. Failure to narrowly focus the exams or to have a reasonable basis to conduct them in the first place will leave your organization exposed under both FMLA and ADA.