Update August 16th: Late yesterday, I received further confirmation that the provisions regarding FMLA were withdrawn entirely from the proposed Democrat-led budget bill. Moreover, the General Assembly early this morning voted on a Republican version of the budget implementer, which now goes on to Governor Malloy (who has indicated he will veto the bill). That version did not contain language on the FMLA changes either. So for now, employers can stand down. However, employers should continue to track the changes both this year and next. FMLA changes may make a return at some point.   

Update at 2:06 p.m.: Since publishing this article, I’ve now heard from three people who work at or with the legislature that while they can’t find fault with my analysis of the proposed legislation as described below, the section on FMLA was intended to address a separate issue.   As a result, it appears that the section on CTFMLA changes discussed below may be withdrawn this afternoon.

What the motives were for this language are far beyond the scope of this blog; this blog has always tried to provide an apolitical analysis of the law and legislation.  For employers, just take note that the budget implementer bill language on FMLA is now likely to be withdrawn when the final bill is considered. 

Late this morning, the proposed bill implementing the state’s budget (a so-called “budget implementer”) was finally released. And like years past, the bill contains some nuggets that are seemingly unrelated to a budget.

As the proposal is a monstrous 925 pages (download here), I’m still reviewing it but employers in Connecticut need to be aware immediately about some proposed changes to the state’s FMLA provisions.  First, a caveat: This is still very much a work in progress so employers should keep a close eye and contact their legislators if interested.

  • First, the bill would expand the scope of relationships covered to include siblings and grandparents/grandkids.  Thus, if you needed to take time off to care for a grandparent, that would now be a covered leave.
  • Second, the bill would revise the definition of employer to now include the state, municipalities, public schools and private schools which means the CTFMLA would now apply to all of them.
  • But then things get even a bit more confusing. The bill changes the definition of “eligible employee” presumably to exclude state workers who are subject to collective bargaining. BUT the bill’s language is far more imprecise and would seemingly exclude ALL workers who are subject to collective bargaining (whether private or public).  Specifically, the definition of “eligible employee” would now mean an employee “who is exempt from collective bargaining…” It does not have the qualifier that perhaps the drafters intended, though, given the speed in which this has been prepared, readers take caution.
  • Next. and quite significantly, the bill would seemingly extend the leave parents get upon the birth of a child or for placement of a child for adoption of foster care.  Specifically, it indicates (line 8472!) that:

Leave under subparagraph (A) or (B) of subdivision (2) of subsection (a) of this section may be extended up to sixteen workweeks beyond the expiration of such leave due under subdivision (1) of subsection (a) of this section.

  • Thus, Connecticut employers would seemingly need to provide up to 32 weeks (16 + 16 more) of unpaid leave for new parents.
  • But the bill goes beyond that too — for leaves for birth, adoption placement, care of a family member or self or to serve as a organ or bone marrow donor, the bill expands the leave too.  Specifically, in line 8529:

An eligible employee may extend his or her personal leave provided under subparagraph (A), (B), (C), (D) or (E) of subdivision (2) of subsection (a) for up to twenty-four workweeks after the expiration of any accrued paid vacation leave, personal leave, or medical or sick leave with proper medical certification.

  • In addition, the bill goes on to add in line 8534, that for leaves for serious health conditions of self or family member, or for donor leaves:

The use of sick leave by an eligible employee for leave provided under subparagraph (C), (D) or (E) of subdivision (2) of subsection (a) of this section shall not be deemed an incident or occurrence under an absence control policy.

The changes are coming fast and furious and it is possible that this proposed bill won’t get passed in its current form.  It’s certainly far beyond the paid FMLA program that was originally under discussion by the legislature.  These changes would be effective in two weeks — October 1, 2017 — which doesn’t given employers almost any time to revise their policies or train their employees.

And I must confess that I’m still a bit surprised by the breadth of this and scratch my head as to whether this language was intended to mean what it appears to say.  I’d like to see a the office of legislative research recap this bill too.

In the meantime, I’m still reviewing the remainder of the bill for other changes relevant to private employers.  (It’s 925 pages and 26452 lines long so bear with me.)  Have you spotted anything else? Add it in the comments below.

capitoldasIt’s a challenge for employers to keep up with changes to employment laws. What’s the current status? What do I need to change?

So, here are four quick things you can look at right now to ensure that you are up to compliance in Connecticut.

  1. Connecticut increased the minimum wage effective January 1, 2017.  It’s now up to $10.10 per hour. Are all your employees now at that minimum wage?
  2. Connecticut’s new Fair Change Employment Law went into effect January 1, 2017.  That means that most employers are not allowed to ask about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application unless the employer is required to do so by state or federal law, or a bond is required for the position for which the applicant is seeking.  When did you last update your employment application? 
  3. Last summer, Connecticut updated it’s state family & medical leave law to mirror federal FMLA law that allows an employee to take a leave for a “qualifying exigency”.  Recall too that Connecticut allows employees to take leave in order to serve as an organ or bone marrow donor. When did you last update your FMLA policy?
  4. Effective October 1, 2016, employers may now offer the use of payroll cards to deliver wages so long as the employee “voluntary and express authorizes” the payment of wages by that method and the employer provides a “clear and conspicuous notice” to employees about the use of it.  Have you updated your notices and have your received authorizations from your employees on the use of payroll cards?

 

depressOver the years, one of my favorite employment law blogs has been Jeff Nowak’s FMLA Insights.  He really takes a deep dive into the subject and I’ve had the opportunity over the years to exchange ideas with Jeff.

Recently, he alerted me to a new federal court decision in Connecticut that may have a significant impact for employers struggling with FMLA claims.

Rather than duplicate his post, I’m going to suggest reading it now.

The TL;DR note is that the issue he tackles is whether an employer can ask for more information from a medical specialist rather than some vague notes from the primary care physician filling out a FMLA certification form.  In some circumstances, the answer is now “yes”.

The case, Bento v. City of Milford, can be downloaded here.

The court was asked to look at two issues:

First on the initial FMLA certification — was the employer justified in asking for more specific information from a specialist? The court said that because the physician referenced a review from a psychologist, the employer was justified in following up with the specialist to clear up confusion that the physician’s notes brought up.

Second, when the employee wanted to come back to work, the employer was justified in delaying her return to get a more specific fitness for duty certification.  As Jeff notes: A fitness-for-duty certification can seek two things: “1) Confirm that the employee is able to resume work; and 2)Specifically address the employee’s ability to perform the essential functions of the employee’s job.”  A vague note that the employee could return to work was not enough, the court said.

Rather “the employer has the right to insist that the health care provider review the job description for the position and confirm that the employee can perform those job duties.”

 

The decision is a big win for employers in Connecticut who struggle with FMLA notes that are vague and gives some teeth to the notion that employers can push back.  This is particularly true, I sense, in situations where employees provide a note that they need leave for “job stress”.  Employers — in consulting with employment counsel — should consider seeking more information in response to ambiguity when it comes to FMLA certifications or return to work notes.

I thank Jeff for his tip to this important case.

nurseSo, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”

As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act. 

And that is the crux of the issue for employers.

Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility.  It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.

The EEOC’s guidance tries to explain this flexibility in various ways.  Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.

The guidance is broken down into six key areas.

1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.

2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally.  The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee.  This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.

4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.  Thus, policies with hard caps may violate the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment).  In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work.  A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example.  Again, the notion of a “reasonable accommodation” and flexibility controls.

6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more.  For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances.  A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”.  But overall, employers will need to examine such requests on a case-by-case basis.

Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.”  I respectfully disagree with Jon.  The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts.  Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.

For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?

That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.

But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”

And with the EEOC’s guidance, that end point remains as muddy as ever.

Air Force Memorial in Arlington, VA
Air Force Memorial in Arlington, VA

UPDATED

Continuing to recap various employment law bills out of the Connecticut General Assembly, the legislature passed a measure Wednesday night that brings Connecticut’s FMLA law more in line with the federal counterpart.

The federal FMLA was amended back in 2008 (prior post on the subject here) to provide coverage for any “qualifying exigency” arising out of the fact that the spouse, son or daughter, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces.  Regulations were put in place as well.

The new Connecticut rule — which will go into effect immediately upon the Governor’s signature — covers that same type of qualifying exigency. Indeed, it defines such an exigency by reference to the U.S. Department of Labor’s regulations on that very subject.

What this means is that employees in Connecticut will now have 16 weeks over a 24 month period for such a leave.  You can review Senate Bill 262 here.

The new rule, however, is not a mirror image of the federal counterpart but brings its nearly up to date with it. And as readers will recall, there is a 26 week period for caregiver leave also in place in Connecticut as a result of P.A. 09-70 back in 2009.

Ultimately, employers in Connecticut will have to update their FMLA policies and procedures to account for this leave, if you haven’t been allowing military leaves under CTFMLA.

And while it’s obviously important to support the military and those that serve — the confusing and overlapping laws on the subject don’t make it easy for employers who want to do right by their employees.

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

It’s been a big couple of days for court opinions. Today’s turn: FMLA lawsuits.

When we last talked about the FMLA, it was in the context of the fact that sometimes things about the law are bit complicated.

Well, if you didn’t like the intricacies of the FMLA before, this new decision isn’t going to make things better for you.

In a split from other federal employment laws, the Second Circuit last week held that some employees may be held individually liable for employment claims brought under the FMLA.

The case, Graziadio v. Culinary Institute of America, is sending shock waves throughout the employment law blogosphere (see some posts here and here).

And because the Second Circuit covers Connecticut, employers, supervisors and HR personnel need to read this one very carefully.  FMLA training should be part of training already but this case emphasizes the need to be careful.

So, what’s the court’s test to determine if a manager or supervisor can be individually liable for FMLA violations? The court said it will look to at least four factors:

  1. Whether the manager or supervisor had the power to hire and fire the employees;
  2. Whether the manager or supervisor supervised and controlled employee work schedules or conditions of employment;
  3. Whether the manager or supervisor determined the rate and method of payment; and
  4. Whether the manager or supervisor maintained employment records.

Because the court said this was a nonexclusive list of factors, there could be others. Not that we’ll find that out here, but something to be aware of.

In this case, the court said that there was substantial evidence of the test being met regarding the HR manager. For example, because the employee was fired for job abandonment and the VP of Administration deferred to human resources, it found that the HR manager handling the FMLA leave ended up having hiring/firing authority.

And because the HR manager was overseeing the terms of the FMLA leave, the court found the supervisor also controlled the schedule and condition of employment.

While evidence of the other two factors may not work in favor of individual liability, the court said the evidence was enough anyways.

Nevertheless, on the overarching question of whether (HR Director) Garrioch controlled plaintiff’s rights under the FMLA, there seems to be ample evidence to support the conclusion that she did: deposition testimony and email exchanges demonstrate a) that Garrioch reviewed Graziadio’s FMLA paperwork, b) that she determined its adequacy, c) that she controlled Graziadio’s ability to return to work and under what conditions, and d) that she sent Graziadio nearly every communication regarding her leave and employment (including the letter ultimately communicating her termination). Indeed, Garrioch specifically instructed [others] that they were not to communicate with Graziadio and that Garrioch alone would handle Graziadio’s leave dispute and return to work. …Given all this evidence, we conclude that a rational jury could find, under the totality of the circumstances, that Garrioch exercised sufficient control over Graziadio’s employment to be subject to liability under the FMLA.

Before we get to the takeaways, there’s also another portion of the court’s decision worth noting (as The Employer Handbook blog also noted).  It shows how e-mail isn’t necessarily the best approach to trying to resolve FMLA issues. A phone still works too and the HR Director’s failure to close the lines of communication seemed to worked against her:

Finally, [after many e-mails, HR Director Garrioch] announced that she would no longer be able to discuss this matter over email and asked [Plaintiff] Graziadio to please provide three dates/times for this week that you are available to come into work and meet with me.

In an excruciating exchange, Graziadio and Garrioch then proceeded, over any number of days, to email back and forth about scheduling a meeting without actually arranging it: Garrioch would ask for dates and times, Graziadio would respond that she was “available whenever,” Garrioch would again ask for specific times, Graziadio would insist that she was “available any time or day,” and so on. Early on in this exchange, Graziadio also forwarded Garrioch an updated FMLA certification for Vincent, but Garrioch did not acknowledge receipt of the certification or otherwise respond to that email. At another point, Graziadio attempted to circumvent the circular exchange by simply “requesting to return to work” on a “full time regular schedule.” Garrioch rejected this request and again insisted that Graziadio appear for a meeting before she could return to work.

Ultimately, no one set a time for a meeting, and Graziadio, facing persistent involuntary leave, retained an attorney.

This case is likely to change the way FMLA claims are litigated in the state. Individual supervisors and/or HR directors may now be brought in as additional parties on the defense side.  While employers may indemnify those individuals in nearly all of those cases, it still can be quite unnerving to be a party to a lawsuit.

If you have employment practices liability insurance, it may be time to review that policy to ensure that it covers supervisors who may be sued individually as well.

And, as a reminder, FMLA is not the easiest of statutes to follow. Be sure to stay on top of the certification process and document the steps you have taken.  Individuals may face liability for the actions if they don’t.

firedAn employee of yours goes out on medical leave. Suppose that you only have to abide by the federal FMLA law.  After 12 weeks, the employee is still out.

Can you simply fire the employee?

Well, the U.S. Department of Labor says “yes”.  Sort of.

As part of a Q&A on the subject, the DOL states the following: “Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.”

Case closed, right?

Not quite.  As Jeff Nowak has pointed out in an excellent (and perhaps overlooked) blog post back in 2014 through an interview with EEOC Commissioner Chai Feldblum, there may be a separate analysis under the ADA as to whether extended leave is needed as a reasonable accommodation.

In that circumstance, an employer can argue that it would be an “undue hardship” to extend leave beyond FMLA leave:

[I]t is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden.  [T]hese factors often are quite helpful in guiding an employer’s decision to grant or deny leave:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive customer service and increased customer dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers

Jeff has an additional post this week about a new case discussing this issue further — particularly where the employee cannot give an estimate on when he/she may return to work.

The key takeaway? When you’re analyzing FMLA cases, don’t keep your blinders on. There are other laws that may be impacted. While terminating an employee who has exhausted FMLA leave may be allowed in some (and perhaps many) cases, employees may argue that employers have additional obligations.

And remember: Connecticut FMLA has additional requirements as well.

Beyond the law, there may be other areas of concern — perhaps a union contract or an employee handbook that has additional requirements.

In short, make sure you have all your bases covered before firing an employee who has exhausted FMLA leave.

trviaI recently was invited the join the “Learned League”, which has been described by the Washington Post as the “coolest, weirdest Internet community you’ll never be able to join.”

Needless to say, now that I’m participating in it, I’m wondering if I’m either cool or weird or both.

The league is a hodge-podge of various people who answer six trivia questions a day for a five week period during various contests.  No money is involved (think: pride not prize) but the competition includes people like Ken Jennings, who is the all-time champion on Jeopardy.

The biggest rule is “no cheating” — in other words, don’t Google the questions. It’s a bit addicting, so in the spirit of the contest, I thought I would provide you with six questions to answer.  Note that this is not multiple choice — rather it’s fill in the blank, which is oh so challenging.

1.  According to the EEOC Charge Statistics for Fiscal Year 2014, retaliation claims were the number one filed claim with the agency.  What protected class was number two?

2. One resource that is (or should be) often referred to by employers when addressing disability issues is nicknamed “JAN”.  What do the letters JAN stand for?

3. The federal Family & Medical Leave Act provides that eligible employees may take up to 12 work weeks of leave in a 12-month period for one or more of four separate reasons.  Two of the reasons are for: 1) the employee’s own serious health condition; and 2) tocare for a spouse, son, daughter, or parent who has a serious health condition.  Name one of the other two reasons?

4. In Connecticut, family violence victims who work at employers that have three or more employees, are entitled to time off for various reasons including seeking medical care or attending court.  How many days per calendar year is the employee entitled to?

5. In 1994, Michael Douglas and Demi Moore starred in a film that, among other claims to fame, brought issues of sexual harassment and “reverse” harassment to the public’s attention. Notably (?), Demi Moore was nominated as “Best Villain” for the MTV Movie Awards.    What was the name of the movie?

6.  The current minimum wage in Connecticut in $9.15 cents per hour.  What will the minimum wage in Connecticut be effective January 1, 2016? (And for a bonus point, what about January 1, 2017?)

Continue Reading Trivia Time for HR Professionals – Six Questions of the Day

bobYesterday, I learned of the passing of a friend, Robert Gulomb, the beloved husband of Livia Barndollar – the former President of the Connecticut Bar Association, and a friend and mentor as well.   Robert passed away peacefully after a long illness.

I last saw Robert in the hospital earlier this month, but that’s not how I’ll remember him. 
My fondest memory of Robert was at a marvelous brunch we had last year in the Boston area.  He wasn’t in the best of health, but his wit, charm and smarts were never more evident.  The terrific food only added to the sense that this was something special.  My wife had been dealing with her own illness at the time and the four of us enjoyed a meal oblivious to the tolls that disease had taken on our families.  It was just good food and good company.
I remember talking about the blog and how writing was special to me.  He was inquisitive about it. So I can think of no better way for me to honor Robert from me than to dedicate this post about grieving and bereavement to him.
His passing is still yet another reminder that death is a way of life. It’s a cliché for sure but employers have to deal with this issue on an ongoing basis.
But what does the law tell us? For the most part, there aren’t any laws about it.  You won’t find the topic on Connecticut DOL’s wage and workplace standards pages. While FMLA leave is designed to provide leave to care for a family member (particularly in the end stages of life), an immediate death may not qualify and it does not seem to cover attending funerals. Indeed, do a search for “death” or “funeral” in the Connecticut FMLA regulations and your searches will come up empty.
Thus, employers have crafted their own set of rules. I covered this in one of my very first posts back in September 2007.  In that piece, I discussed several issues that employers may want to consider.
  1. Are your bereavement policies established? If so, are they non-discriminatory?
  2. What practices do you have to help the grieving worker communicate with colleagues? And do you have an employee assistance program that you can refer employees to?
  3. How can you help co-workers express their sympathy, particularly if the loss is actually in the workplace?
  4. How do you help the bereaved employee and his or her supervisor deal with any lingering productivity issues?

None of this is easy.

Usually, for immediate family members, many employers will provide employees two-three days off with pay, and no pay for any additional time, unless employees arrange to use personal days or vacation time. How you define “immediate family member” is up to the particular employer, but make sure that it takes into account the changes that have been made in Connecticut for same-sex marriages.

Sail on, Robert.  May his memory be for a blessing.