Delaware Employment Law Blog

FMLA 102, part of the HR Summer School, Back-to-Basics Program, reviews the conditions that entitle an employee to take FMLA-qualified leave.  The Course Materials are attached for your reference. 

I. Generally

The Family and Medical Leave Act of 1993 (“FMLA”) was enacted primarily to balance the demands of the workplace with the needs of families. It entitles eligible employees of covered employers to take up to 12 weeks of unpaid leave per 12-month period for:

ª the birth, adoption, or assumption of foster care of a child;

ª caring for an eligible family member with a serious medical condition;

ª caring for their own serious medical condition.

In its simplest form, the FMLA requires covered employers to give leave to covered employees for up to 12-weeks per year under any of the above three conditions. Employers must not only permit the employee to take leave, but also cannot take any retaliatory action as a result of the leave or request for leave.

II. Childbirth, Adoption, and Foster Children

A. Childbirth

Both fathers and mothers of newborns are entitled to take FMLA leave for the birth of a child.

The mother may take leave for childbirth, prenatal care, and to care for the newborn. She also may take FMLA leave for morning sickness and other pregnancy-related conditions that amount to serious health conditions.

The father may take leave for his wife’s serious, pregnancy-related health condition and to care for his newborn child.

If both spouses work for the same employer, the 12-week maximum is calculated in the aggregate. They can split up the leave as they want , and it can overlap, but the total combined leave cannot exceed 12 weeks.

B. Pregnancy-Related

Pregnancy itself is not a serious health condition. But conditions related to pregnancy are automatically serious health conditions under the FMLA if they prevent an employee from doing her job.

The FMLA protects intermittent and long-term leave for:

ª prenatal care and doctor visits;

ª bed rest on a doctor’s or midwife’s orders;

ª morning sickness; and

ª the birth of the child.

If an employee experiences complications from her pregnancy that incapacitate her and amount to a serious health condition, she is eligible for FMLA leave on that basis.

C. Adoption and Foster Care

Employees may use FMLA leave before actually getting the child if they must miss work to attend appointments, such as attorney meetings and court appearances that are required for the placement. Leave may also be taken to pick up the child. Employees do not have to wait for the adoption to become final before taking leave—they are eligible when they first begin caring for the child.

III. Medically Related FMLA Leave

The FMLA allows an employee to take protected leave to care for his or her own serious health condition. it also allows provides for leave to care for certain family members who suffered from a serious health condition.

A. Covered Family Members

Not all “family members” are included for the purposes of the FMLA. Only a spouse, son or daughter, or parent are considered to fall within this definition. A son or daughter can include a biological, adopted, foster, or stepchild, legal ward, or child for whom the employee stands in placer of a apparent. Parents do not include parent-in-laws.

B. Serious Health Condition

One of the biggest, yet unanswered questions with respect to the FMLA is what exactly is a “serious health condition.” Although there is no comprehensive definition that seems to apply in all situations, it is best to think of whether the condition has a serious effect on the individual employee. There are five categories of illnesses, injuries, impairments, and conditions. If the condition fits into one of the five categories, then it is covered by the FMLA.

Inpatient Care: Conditions requiring an overnight stay in a health-care facility (such as a hospital or hospice), automatically qualify as serious medical conditions. FMLA covers the time in the facility and any subsequent period of incapacity or follow-up treatment in connection with the same condition.

Incapacitation for More than Three Days: Conditions that incapacitate the employee for more than three consecutive calendar days are considered serious provided that he or she is under the “continuous treatment” of a health-care provider. “Continuous treatment” can mean

ª Two or more treatments by a health-care provider within the period of incapacitation; or

ª One treatment by a health-care provider that results in a regiment of continuing treatment under the provider’s supervision.

Chronic Serious Health Conditions: These conditions incapacitate a person but don’t last more than three straight days. It requires periodic visits for treatment by a health-care provider and continues over an extended period of time. The employee need not visit a health-care provider for each absence. Examples of chronic conditions could include diabetes, asthma, and epilepsy. Treatment may include prescription medications. Treatment does not include actions that the employee can do without a visit to a health-care provider, such as taking over-the-counter medications, or bed rest.

Long-Term Incapacity: A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective. For example, Alzheimer’s, stroke, or terminal disease.

Treatment to Prevent Incapacitation or for Restorative Surgery: This category includes absences that are taken to receive multiple treatments by health-care providers for reconstructive surgery after an accident or injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days if left untreated. Chemotherapy and radiation treatments are examples.

Courts continue to expand what is protected under the Pregnancy Discrimination Act (PDA). The Third Circuit Court of Appeals, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, recently ruled that abortion is an activity protected by the PDA. Then, on Wednesday, the Seventh Circuit Court of Appeals ruled that in vitro fertilization (IVF) treatments were also covered under the Act.

The lower court had ruled that in vitro fertility treatments were not covered under the PDA on the ground that infertility affects both men and women. On July 16, the Appeals Court overturned that decision. The Appeals Court ruled that the plaintiff's in vitro fertilization — like many fertility treatments — was gender-specific because it was related to childbearing, which affects only women.
“Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women,” the ruling said.

Facts of the Case
The plaintiff took a leave of absence for IVF, a complicated procedure wherein eggs are extracted, fertilized and then surgically implanted in the womb.

She took one three-week leave of absence for the procedure and then applied for another three-week leave after learning that the first in vitro was unsuccessful. Meanwhile, the company had been reorganizing and decided to eliminate a sales secretary position: hers.

Her supervisor told her that termination was in her own best interest due to her “health condition,” according to the Seventh Circuit decision. He had consulted with an employee relations manager over eliminating the position, who took note of the plaintiff’s “absenteeism — fertility treatments.”
The employer argued that a regional sales manager unaware of the in vitro treatment had made the decision to eliminate the plaintiff’s position in favor of keeping the other, more qualified sales secretary.

Protection Under Other Federal Employment Laws

Fertility treatments may also be covered under the ADA and the FMLA. The U.S. Supreme Court has held that inability to procreate is a “major life activity,” therefore treatment to combat infertility is most likely protected and you must “accommodate” the employee as you would any other qualifying disability (such as cancer). Also, fertility treatments probably qualify as a “serious health condition” under the FMLA.

Bottom Line

This case continues to expand the definition of “pregnancy and related medical conditions” under the PDA. Given the likely coverage of fertility treatments by a number of federal laws, tread carefully when making employment decisions related to employees undergoing such treatments.

In addition, the facts serve to remind us of some basic employment law tenets:

(1) Focus on the performance, not the reason - there is no reason anyone (an HR person, no less!) needed to note “fertility treatments” in documentation related to performance;

(2) A “downsizing of one” is always tough to defend – if a termination is due to performance, make it about performance and make sure you have the documentation to support it; don’t call it a “downsizing” when only one person is affected;  and

(3) Beware of “benevolent intent” – many managers get into hot water making employment decisions based on their opinion of “what is best” for the employee. Remember the decision about “what is best” should be made only by the employee.

One of great employment-law bloggers, Michael Fox, of "Jottings by an Employer’s Lawyer" recently celebrated his blog's six-year anniversary!  Not only is Michael one of the innovators in our genre, but he also writes a wicked good blog! 

In honor of his "blogiversary", Michael got nostalgic and posted this entry: "6 Years, 1800 Posts and How the World Has Changed."    It's a great list of some of the best e-law blogs around.  And, it just so happens, the Delaware Employment Law Blog is one of those blogs Michael considers worthy enough to make the list.  

Thank you, Michael, and Happy 6th Birthday to your blog. May there be many, many more!

Congratulations to Jon Hyman, of the Ohio Employment Law Blog, who celebrated the birth of his son, Donovan Joseph Hyman, earlier this week!!  And, wouldn't you know it, being the dedicated blogger that he is, Jon actually tied the joyous occasion to an employment-related topic--the FMLA!  And, if you can even believe it, earlier this week, my office cheered on William W. Bowser, a partner in our Group, when he managed to pull off the unimaginable--tying together Brangelina and the birth of their twins, to the FMLA!  I kid you not.

So, to read about a real-life FMLA scenario that can match just about any set of facts your employees might throw at you, check out William W. Bowser post, Brad + Angelina + twins = One Great FMLA Hypothetical .  And, for the scoop on intermittent leave under the FMLA, see Jon's post called, Dads Get FMLA, too, (and while you're at it, drop a comment with a congratulations on his exciting arrival!).

And for more about guys and babes (the swaddled type), here are some other interesting posts from the blogosphere:

"Daddy Track" Is a Major Concern for Law School Grads, Study Says (Martha Neil at the ABA Journal)

From winning the bread to spreading peanut butter on it:  Confidence in themselves, along with family support, helps stay-at-home dads get in the groove (Boston Globe)

Some Days It Would Be Better to Be In Management (by the dad who Stays at Home with Triplets

Happy Father's Day to Fathers Across the County (Delaware Employment Law Blog)

Corporate America, listen closely! Can you hear that sound?  It's the whoosh, thump, whoosh, thump, whoosh.  It's the pounding of feet on the two-ply treadbelt as it comes speeding around again and again.  Wait! What's it doing here, in Corporate America?  Your employer is going to make you healthy, darn it--like it or not!

Now, don't say you have no idea what I'm talking about.  Haven't you been reading our blog?  We've talked about employers' sheer determination to fight the battle of the bulge, whether employees like it or not.  We've talked about how many employers cite the rising costs of health care as the motivator for companies to implement wellness programs of every shape and size.  Employers have might even be getting pushy about their employees' health.  (Even to the point that some have begun to regulate what their employees' are scarfing down at meals).

And do these wellness programs actually work?  Some say yes, without a doubt.  Others say that wellness programs are running out of steam as more and more workers abandon their diet and exercise programs.  So, what is an employer who cares about its employees do to help them to learn to value a healthy, active lifestyle? 

Buy them a walkstation, of course! 

We posted about these walk-your-workday-away-machines back in March, at which time they were still more fantasy than reality.   But the collaborative news hounds of everything work-from-home related at Web Worker Daily, have an update. They report that Steelcase, the well-known manufacturer of office furniture, filing cabinets, and the like, has officially introduced the Walkstation to cubicle workers across the country.  From Web Worker:

Based on the idea that you can burn enough calories to make a difference, even if you don’t work up a sweat, the Walkstation marries an adjustable-height desk and monitor arm with a low-speed treadmill

There are plenty of other bells and whistles here, including a magnetic sensor that automatically stops the treadmill should you be carried away from your desk, and an optional convertible model that lets you switch from office chair to treadmill at the touch of a button. The drawback? Cost, mainly: buying one of these will set you back $4300.

If it's of any comfort, I am fairly competent that most employers won't be jumping at the idea of this size investment--especially after the first time the news reports that an employee was whisked right off of the Workstation, sustaining serious injuries and filing suit against her employer. 

HR Summer School is back again. We've finished two ADA courses, so it's time for the FMLA.  This is the first of five FMLA "courses" in the HR Summer School series.  The course outline is attached for your reference. 

I. Covered Employers

The easy answer is that private employers with 50 or more employees are covered by the FMLA. Of course, there’s nothing easy about the FMLA, which is why there is a much more detailed explanation of this seemingly simple statement.

The FMLA covers private employers that have:

• at least 50 employees;
• for at least 20 weeks;
• in the current or preceding calendar year.

A. “Employees”

So who actually counts as an “employee” for purposes of determining whether a business is covered by the FMLA?

• Full- and part-time employees
• Temporary employees, even if you don’t pay them.
• Employee’s located at all work sites within 75 miles.
• Employees with no regular office are assigned to the office to which they ordinarily report.
• Employees “acquired” as part of the sale of a business.

The last type of employee applies only to “successor employers.” If you’ve acquired or taken over all or part of a business that was covered by the FMLA, you are considered a successor employer and may have to grant FMLA leave to certain employees even if the part of the business you’re operating has fewer than 50 workers. You must honor the leave request of any employee who had provided notice to the previous employers and you must follow the FMLA’s rules on maintaining benefits and reinstating employees who were on leave when you acquired the business.

B. Relevant Time Period

The FMLA covers only employers with 50 or more employees (as defined above). But what about employers who fluctuate just around 50 employees, or who had 50 employees but recently reduced staff? To determine the number of employees for FMLA purposes, employers can’t simply look to one specific date on the calendar, such as the first or last day of the year. A more complicated evaluation is required.

The FMLA applies, even if the employer does not currently have 50 employees, where the employer had 50 or more employees for at least 20 weeks in the current or preceding calendar year. This requires the employer to look at both years, week by week. Any week in which there were 50 or more employees on each working day (usually Monday through Friday), will count towards the 20-week minimum.

II. Covered Employees

Once an organization determines that it is covered by the FMLA and bound by its provisions, it will next need to determine whether the specific individual requesting leave is a covered employee.

To be eligible for FMLA leave, an employee must:

• be employed by the employer for at least 12 months; and
• work at least 1,250 hours in the 12 months before the leave would start.

The 12 months of employment do not have to be consecutive. And the 1,250 hour requirement must be satisfied by the time the employee would take the leave—not at the time the employee requests the leave.

The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against The Cheesecake Factory in Chandler, Arizona.  The suit alleges that the California-based restaurant ignored repeated incidents of same-sex harassment.  Several male employees claim that there were regular sexual assaults by groups of male employees, who would grab another male employee and take turns simulating sex with him.  

One of the three men, Bryce Fitzpatrick, said he was harassed more than 20 times while he worked as a kitchen supervisor. Fitzpatrick, 23, said he would be cornered by about five to 10 cooks and dishwashers who would lift his legs into the air and grind up against him in the restaurant's kitchen area. 

R. Enochs, Esq. has posted on the difficulties the claimants are likely to face.  Same-sex harassment claims make up 16% of all sexual harassment claims filed with the EEOC.  Male-on-male claims are particularly stigmatized.  When a male victim complains to management, he's often faced with resistance instead of redress.  Excusing the behavior as "horseplay," the conduct is actually more akin to hazing. 

The Equal Employment Opportunity Commission (EEOC) has been hard at work.  Here's a rundown of some of the latest claims and settlements involving the EEOC and its big sister, the Department of Labor (DOL).

Hotel Heartache

The former owner of a Best Western hotel in Ocean City, Maryland hotel settled a claim for discrimination and retaliation brought by the former executive housekeeper for $36,000.

The owner of the Ramada Inn Wytheville, in Wyethville, Virginia, has settled a claim for unpaid back wages brought by the U.S. Department of Labor.  The hotel owner was alleged to have paid waitstaff the federal tip-credit wage of $2.13 per hour despite the fact that the employees didn't earn enough tips to yield the minimum wage of $5.85 per hour.  The employees were subject to a half-hour meal-break deduction, regardless of whether they actually took, or were permitted to take, any meal break. Finally, the hotel's time records did not reflect the number of hours worked by employees each week.  Improperly paid employees will share in a $23,000 settlement.

Fly Me to the DOL

An aircraft-painting company in New Mexico has agreed to pay more than $227,000 in back wages and fringe benefits to resolve a claim by the U.S. Department of Labor.  Dean Baldwin Painting misclassified employees who worked on an Air Force contract.  Workers assigned to work on military aircraft are paid at a different rate than those who perform work on commercial aircraft.  The company began paying back wages, which will be distributed among 255 current and former employees, four months ago.

And the Last Laugh Goes to. . .

Les Schwab Tire Centers of Montana has agreed to pay $185,000 to settle a racial harassment suit brought by the EEOC on behalf of Earle Nevins, a former Les Schwab employee.  Nevins, a member of the Blackfeet Nation claimed that he'd been subjected to a hostile environment by coworkers who called him derogatory names and made insulting jokes about Native Americans.  The EEOC  suit alleged that, when Nevins complained of the harassment, he was told that the coworkers were merely engaging in "horseplay," and was later fired for his complaints. 

Jin Hua Inc., a restaurant supply company in New York, has agreed to pay 28 employees a total of $110,788 in overtime back wages. in order to resolve a federal lawsuit brought by the Department of Labor.  estigation that disclosed violations of the FLSA’s overtime and record-keeping provisions.

It's official. The "Brangelina" clan, headed by Brad Pitt and Angelina Jolie, has grown by two. And what's the first thing that comes to mind?  The Family Medical Leave Act (FMLA), of course!  Ok, maybe not. 

The (Somewhat Complicated) Family Tree

The proud parents have announced that Vivienne Marcheline and Knox Leon were born on Sunday in a hospital in the South of France.  The unmarried Pitt and Jolie have four other children.  Jolie adopted Maddox in 2002 and Zaharah in 2005.  Pitt adopted the two in January 2006, which was followed by the birth of the couple's first child together, Shiloh who was born in Nambia in 2006.  The couple adopted Pax in 2007. 

It's safe to say that this family is a long way from what was once considered a traditional family unit.  What if Brad or Jolie were not motion-picture superstars but, instead, were your employees?  How would the FMLA be applied to situations occurring in their family?

The Family and Medical Leave Act (FMLA) is one of the most complicated employment laws for HR professionals to administer. It's hard enough to determine whether the Act applies to an employee who requests leave because of his own serious health condition. It can be even more challenging when leave is requested to care for a new or sick family member.

ABCs of the FMLA

The FMLA generally provides that certain employers (companies that employ 50 or more workers) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave for one of the following the birth of a child or to take care of the newborn; placement of a child for adoption or foster care; or to care for a spouse, child, or parent with a serious health condition.

Rock-a-Bye Baby

Both male and female employees may take leave for the birth and care of a newborn child. This type of leave has nothing to do with the medical condition of the newborn or the mother. As a result, Brad and Angelina are simply entitled to take leave as a result of the birth of the twins.

There are only three real limitations to this type of leave. First, the leave must be taken within a year of the child's birth. Second, it must be taken in a single block of full days off. In other words, Brad can't take leave three weeks after the birth of the child and then wait several months to take the remaining nine weeks. Similarly, this type of leave can't be taken intermittently or for partial days unless you agree to that arrangement. And finally, if Brad and Angelina both worked for you, they are entitled to a total of 12 weeks jointly.

The FMLA also requires you to grant leave when a child is placed with your employee for adoption or foster care. According to U.S. Department of Labor (DOL) regulations, FMLA leave may be used before the employee actually gets the child. She may take FMLA leave to attend meetings with an attorney, doctor's visits, and court appearances or to fly out of the country to pick up the child. Thus, Brad and Angelina could have taken FMLA leave off to fly to Cambodia, Vietnam, or Ethiopia in connection with the adoption of Maddox, Pax and Zahara.

Are You My Mother?

The FMLA allows employees to take unpaid leave to care for certain family members who are suffering from a "serious health condition." The law severely restricts the family members for whom leave can be taken, however. An employee can take leave "to care for" his spouse, son or daughter, or parent, but not for siblings, grandparents, or grandchildren. While it might seem that determining whether leave must be granted for a family member is straightforward, the definitions of "spouse," "child," and "parent" can make figuring out whether leave is required harder than it looks.

First, a "spouse" is either a husband or wife defined by the law of the state where the employee resides. That's a particular challenge for Delaware employers that have employees living in Pennsylvania. That state recognizes "common-law marriage," while Delaware doesn't. As a result, Brad could not take FMLA leave to care for Angelina if they lived in Delaware, but might if they lived in Pennsylvania and their relationship constituted a "common-law marriage."

The regulations define "child" as either a biological child, an adopted child, a foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (that's Latin for "in place of the parents"). In other words, the employee must have day-to-day responsibility for taking care of and financially supporting the child. The child must also generally be under 18 or incapable of caring for herself because of a mental or physical disability. All the Brangelina kids meet this definition one way or another.

The FMLA regulations define "parent" to include the employee's biological parent or the person who stood in loco parentis to him when he was younger. As a result, an employee can have more than two "parents" for FMLA purposes. As a result, the adopted kids might someday be eligible to take care of Brad and Angelina, but also their biological parents.

For more information on the basis of FMLA and what it requires, check in at HR Summer School for FMLA 101.

The healthcare industry can be characterized by some not-so-flattering statistics.  The industry has one of the highest rates of workplace violence, for example.  It is also known for fostering an environment that breeds distrust among co-workers and that acts as a petri dish of sorts for bullies and jerks.  That is, until now. 

The problem with bullies and jerks in healthcare is contagious.  Doctors, nurses, and other clinicians, who work in an environment where hostility is tolerated and where bullying behaviors are common, aren't the only ones paying a price.  For years, bad behavior among workers has been linked to medical errors. 

In his book, The No Asshole Rule, Bob Sutton discussed a study of hospital employees as evidence of this link.  The study looked at two groups of nurses and doctors.  One group was led by a jerk-doctor, the other by a non-jerk-doctor.  The researchers were surprised when they found that the first group (led by the jerk), reported a significantly lower rate of medical errors than did the happy, nice-guy group. 

So what was the deal?  Was the second group just too busy being nice to one another to pay attention to crucial medical procedures?  Or was the first group really more responsive to the reign-of-terror leadership style that the jerk doctor embodied?  Don't kid yourself.  The researchers soon learned that the first group had a lower reported rate of errors because they reported fewer mistakes--not because they made fewer mistakes. The second group, on the other hand, reported their mistakes without fear.  And the patients of the nice guys finished first after all. 

A 2004 study of workplace intimidation by the Institute for Safe Medication Practices (ISMP) found that nearly 40 percent of clinicians have kept quiet or ignored concerns about improper medication rather than talk to an intimidating colleague.  More than 90 percent said they’d experienced condescending language; nearly 60 percent had experienced strong verbal abuse and nearly half had faced negative or threatening body language.

The Joint Commission, though, is trying to put an end to these bullying tactics.  The Joint Commission is a national hospital accrediting agency, making it one of the few agencies with the power to effect real change.  Beginning in January, it will require hospitals to have implemented codes of conduct that define inappropriate behaviors and have plans for dealing with them.  This requirement is a recognition of the correlation between intimidating tactics and an increasing number of costly medical mistakes.  The Joint Commission's special Alert, Stop Bad Behavior Among Health Care Professionals, and corresponding report, Behaviors that Undermine a Culture of Safety, is packed with data and statistics that support the directive and is well worth the read for those who have an interest on the impact of Jerks at Work.