Court Report

Courts rule in Family and Medical Leave Act cases: failure to submit medical certification; worksite of jointly employed employees; willful violation.

Mar 1, 2005
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HR Magazine, March 2005Nonexistent FMLA Medical Certification Is Not ‘Incomplete’

Urban v. Dolgencorp of Texas Inc., 5th Cir., No. 03-11276, Dec. 8,

Certification under the Family and Medical Leave Act (FMLA) that is not submitted in a timely manner is not a deficient or “incomplete” submission that an employee is entitled to correct, the 5th U.S. Circuit Court of Appeals recently held.

The FMLA entitles eligible employees to a total of 12 workweeks of unpaid leave in connection with their own or a family member’s serious health condition. An employer may require certification from a health care provider, but must allow the employee at least 15 days to submit it. The certification must include the date the serious health condition began, its probable duration, medical facts regarding it and, if the leave is for the employee’s own serious medical condition, a statement that the individual is unable to perform the functions of his or her job.

The relevant federal regulations require the employer to advise the employee if the certification supplied is deficient or incomplete, to specify the consequences of a failure to provide adequate certification, and to provide the employee with a reasonable opportunity to cure the deficiency.

Debbie Urban, an assistant store manager with Dollar General in Abilene, Texas, requested medical leave for surgery to take place in June 2002. The employer notified Urban that she had to provide medical certification by June 24, 2002, and informed her of the consequences of submitting incomplete information. Although Urban requested, and was granted, a 15-day extension for submitting the certification, Dollar General did not receive the information by the extended deadline. Urban’s employment was terminated because, without the appropriate certification, her absences were considered to be unauthorized.

Urban filed suit, alleging that the company violated the regulation that requires a reasonable opportunity to cure a deficiency in a medical certification. There were no material facts in dispute, and the trial court ruled in Urban’s favor as a matter of law.

The company appealed, arguing that failure to file any certification was not a deficiency anticipated under the regulation. Urban contended that her physician had misplaced the form and never returned it to Dollar General. The 5th Circuit ruled in favor of Dollar General, noting that if it were to adopt Urban’s position, an employer would be obligated to allow an employee to cure a failure to submit information by extending the deadline—a scenario that could repeat itself “ad infinitum,” the court said.

By Maria Greco Danaher, an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

FMLA ‘Worksite’ Regulation Invalid

Harbert v. Healthcare Services Group Inc., 10th Cir., No. 03-1156, Dec. 13, 2004.

The 10th U.S. Circuit Court of Appeals has held that a U.S. Department of Labor (DOL) regulation interpreting the Family and Medical Leave Act’s (FMLA) definition of worksite is invalid as applied to jointly employed employees.

Nancy Harbert was a housekeeping and laundry supervisor for Sunset Manor, a convalescent/nursing facility in Brush, Colo. In 1997, Sunset Manor outsourced its housekeeping and laundry services to Healthcare Services Inc.

Harbert’s employment was transferred to Healthcare, but she continued to work out of an office at Sunset Manor, and Sunset Manor’s administration exercised supervision and control over her activities.

Healthcare has about 17,000 employees and contracts with about 1,300 long-term care facilities in 42 states. Its regional office is in Golden, Colo. In November 1998, Harbert requested FMLA leave due to a hip injury. Healthcare denied Harbert’s request, and, when she failed to return to work, it terminated her employment.

Healthcare had denied FMLA leave based on a provision of the law that excludes from eligibility any employee who is employed at a particular “worksite” if the employer employs fewer than 50 employees within 75 miles of that worksite. Healthcare’s conclusion was based on the premise that Harbert’s worksite was Sunset Manor in Brush rather than Healthcare’s regional office in Golden. Healthcare employed fewer than 50 employees within 75 miles of Sunset Manor but more than 50 employees within 75 miles of the regional office in Golden.

Healthcare’s position was in direct contradiction to the DOL regulation (29 C.F.R. §825.111(a)(3)) that defines the “worksite” of jointly employed employees. That regulation defines the worksite of employees with two or more employers as being “the primary employer’s office from which the employee is assigned or reports.” In this case, that would have been Healthcare’s regional office in Golden.

Harbert sued Healthcare, alleging that it had wrongfully denied her request for FMLA leave and wrongfully terminated her. The parties agreed that the DOL regulation, if valid, would mean that Harbert was a covered employee and entitled to FMLA leave. The 10th Circuit, reversing the district court, agreed with Healthcare, holding that the DOL regulation was contrary to the FMLA and invalid. The 10th Circuit concluded that Congress intended the term “worksite” to mean the employee’s regular place of work even when the employee has joint employers rather than a single employer. While deference is owed to a federal agency’s interpretation of a statute it is charged with administering, the 10th Circuit explained, a regulation cannot stand if it is contrary to Congress’ clearly expressed intent.

By Kenneth J. Diamond, an attorney with the firm of Winterbauer & Diamond PLLC in Seattle, an affiliate of Worklaw Network.

‘Willful’ Violation Defined Under FMLA

Hanger v. Lake County, 8th Cir., No. 03-1386, Dec. 7, 2

The definition of a “willful” violation under the Family and Medical Leave Act (FMLA) mirrors that under the Fair Labor Standards Act (FLSA), the 8th U.S. Circuit Court of Appeals has held.

Susan Hanger worked for the Lake County Board of Commissioners as head of the human resources and safety department. In May 1999, Hanger took FMLA leave to give birth. The board hired Pamela Parkinson temporarily to replace Hanger. The commissioners were impressed with Parkinson’s performance and decided to place Parkinson in charge of the human resources department. Although effectively demoted, Hanger retained the same pay and benefits on her return from FMLA leave July 26, 1999. Hanger resigned her position Aug. 10, 1999. Following an administrative hearing, Hanger was reinstated to her former position. In March 2000, Hanger again resigned and moved out of the country.

On Aug. 17, 2001, two years and one week after her first resignation, Hanger filed an FMLA claim against the board. Among other things, she claimed that the board violated the FMLA by failing to restore her to the same or equivalent position after her FMLA leave. The district court granted summary judgment in favor of the board, holding that Hanger’s FMLA claims were time-barred under the FMLA’s two-year statute of limitations.

Generally, the statute of limitations for an FMLA violation is two years from the date of the last event constituting the alleged violation—in this case Hanger’s reinstatement in a lesser position on July 26, 1999. However, when an employer engages in a “willful violation” of the FMLA, the statute of limitations is three years. Not only is the statute of limitations extended, but a finding of a willful violation also allows the plaintiff to collect liquidated damages.

On appeal, the 8th Circuit considered whether the board’s actions were “willful.” Although the FMLA does not define willful, the 8th Circuit noted that the FMLA and the FLSA use the term “willful” in similar ways and in identical contexts. Consequently, the court adopted the U.S. Supreme Court’s definition of a willful violation under the FLSA and applied it to the FMLA suit brought by Hanger. Under that definition, a willful FMLA violation occurs when “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.”

The board certainly knew that the FMLA was “in the picture,” the court noted, but there was no evidence that the board either knew it would violate the FMLA or acted with reckless disregard. The court also rejected Hanger’s argument that the board’s failure to consult an attorney before making its decision proved recklessness. Based on these findings, the court upheld the district court’s ruling that Hanger’s FMLA claims were time-barred.

By Paul Flannigan, an attorney with The Barnes Law Firm P.C. in Dallas, an affiliate of Worklaw Network.

Professional Pointer 1

Employers risk legal liability if they arbitrarily reject deficient certification if the deficiency can be cured within a reasonable time and with reasonable effort. For example, one state court held that an employer violated the FMLA when it failed to inform an employee that a “return to work slip” was inadequate to support a request for FMLA leave and failed to provide an opportunity to cure the deficiency.

Professional Pointer 2

Employers outside the 10th Circuit should recognize that other courts could review the same issue and reach an opposite conclusion. Note also that the 10th Circuit indicated that the “joint employment” regulation is valid as applied to employees of temporary help agencies. That is, for an employee who works at various changing locations through a temporary agency, the “worksite” would be the temporary agency’s office.

Professional Pointer 3

The employer dodged a bullet in this case. The only reason the board remained unscathed is that Hanger filed suit too late. The board should have returned Hanger to her former position following her pregnancy leave. If unsatisfied with her performance, it could have followed its normal procedures for dealing with poor performance.

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