Here’s an instance when Facebook photos provided an employer with the belief that an employee has been abusing FMLA policy. In the court settlement, honest belief was enough to win the case.
About a year-and-a-half into Sara Jaszczyszyn’s employment with Advantage Health Physician Network (“Advantage”), she began taking intermittent FMLA leave for back pain that which she stated left her “completely incapacitated.”
About five weeks into her leave, several of her coworkers saw pictures of her on Facebook consuming adult beverages at a local Polish beer festival. (Although she doesn’t appear to be “completely incapacitated,” she does appear to be having a good ol time, doesn’t she?)
Yadda, yadda, yadda, Advantage fires Ms. Jaszczyszyn and she claims FMLA retaliation.
Who wins? That’s easy.
Check out a recent post by HR Morning to learn about when reassigning an employee on leave could result in a lawsuit.
A win and a warning for employer in FMLA lawsuit
This firm won on a technicality in court after it reassigned a woman on medical leave. Here’s what HR can learn from the case.
Rachel O’Sullivan was a sales rep for Siemens Industries for 10 years when she took medical leave to give birth.
When she returned, she learned that her manager had reassigned her to a different sales territory – one had less sales potential than her old one.
Instead of returning to work, O’Sullivan sued, claiming she was constructively discharged and that Siemens interfered with her right to take maternity leave and retaliated against her in violation of the FMLA.
AspexSolutions, the nation’s premier online applicant tracking system in public education, has listed eFMLA as its preferred partner for FMLA administration!
Check it out by clicking here!
-The eFMLA Team
Dear eFMLA Members,
We will be upgrading the eFMLA software to Version 2.1 on Tuesday, October 30, from the hours of 4-7am EST. eFMLA V2.1 will incorporate a number of requested new features and updates, which include:
- Improved document/form upload administration,
- Easier navigation throughout the site,
- Enhanced leave tracking capabilities, and
- Miscellaneous editorial changes and bug fixes.
We look forward to hearing your feedback on the latest eFMLA upgrade!
-The eFMLA Team
Check out this article from Business Management Daily to read about a recent court ruling that extends disability accommodations beyond what you might expect.
Disability Accommodations: The ‘Reasonable’ List Grows
Wouldn’t it be nice if there was a final list of what the courts say are “reasonable” accommodations under the disability laws? Employers are truly confused about how far they must legally go to accommodate disabled employees. Well, grab your pencil and the list. One court recently added a new one. And it’s a shocker …
Case in Point: Clarice Sanchez, an administrative employee at the Department of Agriculture office in Lufkin, Texas, fell down a flight of stairs at work. She lost the left half of her field of vision. Seven weeks later, she returned to work. But that wasn’t the end.
Sanchez then requested a transfer from Lufkin to the agency office in Albuquerque, New Mexico. Her reasoning: There were no doctors in Lufkin qualified to provide the specialized therapy she needed to adjust to her injury. She also said Lufkin lacked public transportation, plus Albuquerque was home to several family and friends who could support her during her vision recovery.
The Ag Department denied her transfer request, saying it was unreasonable because the transfer was not tied to Sanchez’s need for fulfill the essential functions of her job. The agency argued that federal disability discrimination law doesn’t obligate an employer to grant an employee’s request for a transfer solely for the purpose of obtaining medical treatment. (Sanchez v. Vilsack, 10th Cir., 9/19/12)
What happened next?
Many HR managers fear the potential consequences of terminating an employee after FMLA leave. Lawsuits for FMLA retaliation and discrimination are not uncommon, making many employers fearful of putting “FMLA” and “termination” in the same sentence. However, if letting go of an employee truly is the best decision for your company, there are ways to prepare a solid defense for your actions.
Take a look at a recent HR Morning article that discusses just how you can protect your company in these situations.
Rare case: When it’s OK to fire worker returning from FMLA leave
In these post-ADA Amendment days, HR pros are acutely aware that they need to be extremely careful if they’re considering a decision to terminate an employee who’s exhausted her FMLA leave. Here’s the story of a company that got it right.
The case involved a credit analyst, Kathy Henry, who worked for United Bank in Massachusetts. She was out on FMLA leave for a spinal condition.
Shortly before her FMLA leave was about to expire, she provided her employer with a doctor’s note right stating that she’d need to “remain out of work until further notice.”
Upon review, the company let the worker know it couldn’t hold her position open “indefinitely” and eventually fired her.
But when the worker sued for FMLA retaliation/disability discrimination, the company was prepared.
FMLA abuse is a prominent issue facing the HR community. Pair that with the difficulties of tracking intermittent leave and you have a headache in the making. Luckily, there are simple steps you can take minimize FMLA abuse in intermittent leave. Take a look at four tips published in a recent Business Management Daily article.
As with FMLA leave taken in one block, employees who request FMLA intermittent leave must give you notice—at least 30 days in advance when the need is foreseeable. When it’s not, they must notify you “as soon as practicable.”
Certify and Schedule Leave
Don’t accept intermittent leave requests at face value. The FMLA allows you to demand certification from a doctor that an employee needs FMLA leave. You can request new medical certification from the employee at the start of each FMLA year. You’re also entitled to ask for a second or third opinion (at your expense), before granting FMLA leave.
When employees have chronic conditions and certifications that call for intermittent leave, attempt to work out leave schedules as far in advance as possible. It’s legal to try to schedule FMLA-related absences, but you can’t deny them.
Immediately nail down the expected frequency and duration of FMLA intermittent leave. Demand a medical provider’s estimate of how often the employee will need time off. You also can wait until the provider gives you that estimate to approve intermittent leave.
Here are four tips on certifying FMLA intermittent leave requests…
A recent publication by Reed Group outlines a growing trend in FMLA policy- mandated, job-protected paid time off. How will this trend affect your FMLA management?
Seattle is the most recent jurisdiction to enact paid sick and safe leave. Pay attention; you may be next!
Starting September 1, Seattle employers must provide job-protected paid time off to employees for their own or a family member’s health and safety reasons. Seattle joins San Francisco, Washington D.C., and the state of Connecticut in requiring paid sick/safe leave. A host of other locales (including New York City, Denver, Miami-Dade County, and others) are wrestling with the issue as advocates of paid sick and safe leave become increasingly active…
In recent years there has also been a move to enact national paid sick leave requirements. The proposed Healthy Families Act (H.R.1876/S.984) would provide 15 days of paid leave per year for an employee’s or family members health and safety needs…
Why is this trend toward paid sick and safe leave growing? Here’s why: More than 40 million private sector workers – 40 percent of the workforce –don’t have access to earned paid sick days. (U.S. Bureau of Labor Statistics, March 2011). This causes workers to choose between going to work ill or missing work and pay – and possibly facing discipline or termination.
This article presents a summary of the Seattle law’s key provisions and links to the ordinance and other materials available online. It also raises considerations for non-Seattle employers; clearly, this is a trend employers need to follow…
Dear eFMLA Community,
Exciting news! Based upon your feature requests and overall feedback, we have enhanced eFMLA and are preparing to launch eFMLA Version 2. This latest version of the system will include all new capabilities to allow for a more comprehensive FMLA service.
The newest eFMLA features will enable you to:
- Track Multiple FMLA Instances: You will now be able to document and track multiple FMLA leave reasons for each employee (e.g., leave to care for own serious health condition, parent, spouse, or child). Each employee will have an Employee FMLA Instance (EFI) Summary Page which contains a comprehensive list of their FMLA instances, complete with the color-coded checkmark icons and relevant demographic information.
- Upload Medical Providers’ PDFs: If an employee’s healthcare provider returns a paper copy of any certificate, simply scan the document and upload it into the employee’s profile. The uploaded document will save in place of the eFMLA-generated form and the color-coded checkmark icons will update accordingly.
- Upload and Email Miscellaneous PDFs: Now you will have the option to upload and email any miscellaneous documents relating to any employee’s FMLA leave (e.g. doctor’s notes, Employee Request for FMLA Leave form, company notices) right from their Employee Profile!
- Upload Company-Wide FMLA Policy: To replace the default eFMLA Policy with your company’s custom FMLA Policy, simply upload the new document in PDF form in your Account Profile page. This action will overwrite the existing policy and your company’s custom FMLA Policy will appear throughout the site.
- Personalized Emails: You may now include a personalized note with each email you send! When delivering FMLA forms to an employee, you may choose to including some additional text specific to that email.
- Sort Employees Selectively: The newly formatted Employee Profile List provides you with selective list viewing options. Choose a letter from the alphabetical menu at the top of the page to view employees falling under the chosen last initial.
The launch date for the eFMLA Version 2 upgrade is Tuesday, September 4th, 2012. Please note that the eFMLA website will be temporarily down from Saturday, September 1st through Monday, September 3rd to allow for the system updates.
We are excited to bring you these upgrades and we look forward to hearing your feedback on our exciting new changes!