We figured that after the last few weeks of excruciating blissful time with the relatives, we should give you some more family related news. Not only have legislators been expanding family leave laws, but courts too have recently been on a roll adding to employers’ responsibilities to provide leave under the Family and Medical Leave Act (“FMLA”).
While you know that there is no crying in baseball (except Wilmer Flores but that was a very special situation), apparently crying in other workplaces may require an employer to offer FMLA leave to the crier, according to a November 2019 federal court ruling. In that case, the employee claimed that her uncontrollable crying at work put the employer on notice that she had a serious health condition sufficient to trigger an obligation to offer her FMLA leave or to at least provide her with the paperwork. And we thought it just triggered an obligation to give her a box of tissues.
In the past, courts have ruled that an employee’s duty is merely to place the employer on notice of a probable basis for FMLA leave and employees do not need to give direct notice of a serious health condition or even ask for FMLA benefits. One court said that clear abnormalities in the employee’s behavior is enough. The court in the crying employee case said that uncharacteristic or unusual conduct at work may themselves provide an employer with adequate notice of a serious medical condition. Now we know what you’re asking: if abnormal or unusual behavior by your employees requires FMLA leave, who’ll be left to do the work? We hear you.
The crying employee resigned and soon after her doctor diagnosed her with depression, anxiety, panic disorder and insomnia. In defending against the employee’s claim of unlawful interference with her FMLA rights, the employer argued that it could not be held responsible for knowing that the employee had a serious health condition because she herself did not know until her doctor diagnosed her and that was only after she had already resigned. Sounds logical right? Well the court found that argument unpersuasive. Seriously? While there is no crying in court either, that ruling might have gotten us to well up a bit. And so what does this outcome mean? Employers are now expected to carefully observe, guess or diagnose their employees based on their behavior, and maybe just their mood or physical appearance at work, and then offer them FMLA leave just in case.
We can only imagine some of the scenarios that may result from this absurd ruling: Hey Bob, you’re looking more pale and pasty than usual. You may have a serious health condition. Would you like to take FMLA leave? Or hey Bob, you look like you’ve gone from a XXXL to an XL in the last three months. Are you trying to lose weight or might you be seriously ill and need FMLA leave?
But there’s more. Another employer got wacked for interference with FMLA rights by a federal court when its third party administrator failed to timely return an employee from FMLA leave. The employee had been in and out on intermittent leave for his own serious health condition. When he attempted to return to work, he delivered a generic note to his employer from one of those Doc in a Box places just saying that he was clear to return. The employer rejected the note saying that he would need to provide clearance from his treating pulmonologist who had certified the leave. A week later, the employee delivered an ambiguous note from the pulmonologist and the employer did not allow him to return but instead sent the second note to the TPA that administered its FMLA leave process. The TPA did nothing for almost a month despite the employee making several inquiries as to the status of his clearance to return. Ultimately, the TPA cleared up the ambiguities with the doc and the employer reinstated him. The court found that the employer had unlawfully interfered with the employee’s FMLA rights by not allowing him to return in a timely way. The lesson: if you a use a TPA to administer your FMLA program, you’re not off the hook for liability for interference claims if they screw up.
If you think 2019 brought changes to job protected leave laws, we might see a real game changer in 2020—a national paid family leave law. On December 11, 2019, two significant events occurred. The Business Roundtable, an organization comprised of the CEOs of the country’s biggest employers, including Amazon, Apple and GM, with collectively more than 15 million employees, sent Congress a letter advocating for a national paid family and medical leave law. On that same day, Congress passed a compromise bill that includes 12 weeks of paid family leave for federal government employees. The compromise from one side of the aisle — guess which one– an appropriation to fund the Space Force. No comment.
