It seems likely that some type of paid Family and Medical Leave (otherwise known as “Paid FMLA”) bill is going to pass the General Assembly.

CBIA recently posted about the pitfalls that await employers with passage with one CBIA staff testifying that “small businesses are terrified of this proposal.”  

But the “paid” aspect of the bill is only one part. I’m not going to cover that in this post, but there are plenty of resources already on what it might mean.

What hasn’t been widely reported is that the bill would allow nearly all employees at nearly all companies in Connecticut to take protected family and medical leave — a monumental shift from the limits that are currently in place.  But in another way, it would expand the ability of employees to take unpaid leave too.

A caveat – there are various versions of the bill floating around.  For purposes of clarity, Bill No. 1 – which has already passed the Labor & Public Employees Committee – is the one that I’m going to discuss.

Here are four areas to focus on:

  1. Eligible Employee: Currently, to be eligible for state FMLA leave, the employee had to work for 12 months and 1000 hours. The bill would change that to simply that the employee must have earned at least $2325 from one or more employers. Theoretically, you could start taking leave from Day 1 of a new job.
  2. Employers: Currently, only employers with 75 or more employees are covered. The bill would change that to one or more.
  3. Amount of Leave: Currently, employees get 16 weeks of leave over 2 years. The bill would change that to 12 weeks over one year (consistent with federal FMLA rules).  One caveat: Employees could take two additional weeks due to a “serious health condition during a pregnancy that results in incapacitation”.  No definition of incapacitation is given.
  4. Reason for Leave: Currently, eligible employees can take leave to care for spouses, children or parents with a serious health condition. The bill greatly expands that to siblings, grandparents, and grandchildren. It expands the definition of a parent to include in-laws and “individuals who stood in loco parentis to the eligible employee when the employee as a child”.  If that wasn’t broad enough, employees could also take leave to care for “any other individual related by blood or whose close relationship with the employee is the equivalent of a family member”.

What’s the Takeaway?

If you’re an employer that has less than 50 employees, you’ve likely never had to deal with FMLA claims at the federal or state level.  That may change very soon and dealing with the FMLA is not necessarily intuitive.

Suffice to say that this bill is a massive expansion of FMLA. Small employers are simply not equipped to deal with this and having employees out on leave — even from Day 1 — is going to present a significant challenge for employers, small ones in particular.

The bill is still being crafted and it’s quite possible that we’ll see changes as this progresses.  But Governor Lamont has indicated support for a bill of this kind.

For now, employers should talk with their legislators if this is something of interest to them and share their concerns.  And stay tuned. This is a bill that all businesses are going to want to follow closely.

Back in 2010, I wrote a simple blog post about how organ donors were protected under Connecticut’s FMLA law.  In it, I recount how my father — 25 years prior at that time — donated a kidney to his brother (my uncle).  At the time, I noted that both were well.  

On Sunday, October 28, 2018, my uncle passed away after a short illness.   Dr. Allen Schwartz was retired as the Deputy Director of Policy and Enterprise solutions at NYS Office for People with Developmental Disabilities and recently served as a Senior Policy and Research Analyst at Westchester Institute for Human Development. He leaves behind his wonderful wife, Andrea, and two adult children.  Allen was blessed to contribute so much to society in the 33 years since that organ transplant and he will be sorely missed. 

In honor of Allen, I’m reprinting the blog post below.  Become an organ donor today.  

FROM THE ARCHIVES – September 2010

25 years ago nearly to the day, my father donated one of his kidneys to his brother.

What have you done today? Have you done everything you could? Could you have done better?

They may seem like unfair questions after the first sentence.

But tonight is the start of Yom Kippur – a Day of Atonement in the Jewish religion and one of the holiest days of the year.  And as part of the services tonight and tomorrow, Jews around the world will be asking tough questions of themselves all with the goal of being a better person next year.

And so, to honor my father and his heroism and provide education and insights in the employment law context in the way I know best, today’s post is all about organ donation and what employers need to know.  My goal is to begin a discussion this important issue in Connecticut.

FMLA is typically thought of in the medical context or childbirth/adoption process.  But Connecticut’s FMLA statute actually provides protection for those employees who become organ or bone marrow donors.

Donors are to be provided with the same amount of leave (16 weeks over a 2 year period) that, say, new mothers and fathers are accorded.

This is still a relatively new law — having been passed just six years ago fairly quietly.

If you’re an employer, what does this mean? Well, for one, your FMLA policies should be updated to let your employees know that they can be a living organ donor — and still have their job protected.

Employers can also update their FMLA forms to provide for organ donation is a category to check off. Many employers tend to use the Connecticut DOL’s forms (at the end of the regulations) — assuming that they are the most complete forms out there. But even those forms do not include language about being an organ donor.  (Don’t look to the US Department of Labor either; their forms just follow federal law, not state law.)

Enterprising employers might think to seek out the Connecticut DOL regulations for some guidance. But those employers would also be out of luck. Those regulations haven’t been recently updated and say nothing about how employers should handle such requests.  (Authors note: Still not updated in 2018!) Indeed, if you just read the regulations, you might even think that organ donors are not protected because language about “organ donors” isn’t even there.  (Conn. Regs. Sec. 31-51qq-7 is a perfect example.)

Perhaps a representative from the Department of Labor can take the opportunity to update their website on this category and provide additional information, in the absence of formal regulations.   Without that, organ donors may be left wondering if their jobs are protected if they choose to donate.

In the meantime, employers are on their own to take steps to educate their workforce about the protections offered under Connecticut’s FMLA for organ donation.  Employers should be sure their forms and policies are up-to-date and remove any barriers to organ donation that their employees might think exist.

Credit should be extended to the many employers that have done a lot in this area, including some local companies (Aetna and Bank of America).  The Workplace Partnership for Life initiative is truly a win-win campaign in which everyone can play a significant role in recruiting potential organ, tissue, marrow, and blood donors. Thousands of U.S. corporations, organizations, and associations are working to create a “donation friendly America” by joining the Workplace Partnership for Life.

(And, of course, if you haven’t become an organ donor, do it today.  You can download the form from the DMV off their website and mail it in. Or when you renew your license, you can become a donor then.  The DMV has a FAQ about the process on their website as well.)

And what of my father and his brother? They’re both living healthy and productive lives.  And we continue to celebrate many holidays together.

If through this post and actions by employers, we can ensure that another family has that same benefit, I think we can say that today was at least a pretty good day and we did what we could. Think about the simple changes that your workplace can make today.

Yesterday, one of the measures floating around the Connecticut General Assembly regarding Paid Family Medical Leave passed a key committee vote.

The bill still has a ways to go.  Indeed, as first reported by CT News Junkie, even the speaker of the house described it as a “work in progress”.  But now that’s closer to passage, it’s time employers start focusing on some of the key aspects – as framed currently.

The bill (House Bill 5387) would require all private sector employees to contribute 0.5 percent of their paycheck to a fund that they could then use if they needed to take Family Medical Leave. The leave could last up to 12 weeks and the pay would be capped at up to $1,000 per week.

The bill would radically change existing Connecticut FMLA by changing the number of employees required to be eligible for FMLA leave from 75 employees to just two. It would also, however, change the leave calculation period to be on a 12 weeks per 12 months basis, instead of the 16 weeks over 24 months basis that has been a challenge to reconcile with federal FMLA.

The bill would also expand allowable leave under FMLA to caring for grandparents, grandchildren, siblings, all other blood relatives, or those with a “close association … the equivalent of a family member.” This is far in excess of just the relatives covered under current law.

And if you’re wondering, there is no definition as to what would be “equivalent” to a family member.

As to the prospects for the bill, the CBIA has been opposed to it, in part because it’s not applicable to the public sector — and raises costs for both the state and for private employers.  A similar bill in the Senate was rejected by the committee because it would have required the state to commit to $20M in bonding.

But again, employers should be mindful of this bill as the short legislative session begins to wind down in the next few weeks.

 

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.