A Year of FMLA and ADA Litigation: What Does It Mean? What Comes Next?

1. A Year of FMLA and ADA Litigation: What Does It Mean? What Comes Next? Marti Cardi Chief Compliance Officer Reed Group mcardi@reedgroup.com Jeff Nowak Partner, Co-chair, Labor and Employment Practice Franczek Radelet, P.C. jsn@franczek.com

2. AGENDA • The DOL and the FMLA • EEOC Charges and Enforcement Actions • A Year of FMLA Litigation • Retaliation • Caring For a Family Member • FMLA Developments for Public Sector Employers • FMLA Miscellany • Looking Ahead

3. The DOL and the FMLA

4. DOL - Wage & Hour DivisionBudget and Staffing for 2013 • W&H increase: 80 FTEs • Net DOL increase: 69 FTEs

5. DOL - Wage & Hour DivisionBudget Summary & Justification • “For FY 2013 the WHD budget request is $237,730,000 and 1,839 FTE.” • “These resources will support a continued shift to greater directed and complaint enforcement activity and . . . improved customer service . . .” • “These requests are partially offset by a proposed decrease of $2,029,000 and 12 FTE for the elimination of employer compliance assistance requiring investigator resources . . .” http://www.dol.gov/dol/budget/2013/bib.htm#summary

6. The DOL and the FMLA • Proposed new regulations • Already law per 2009 FMLA amendments: • Military Caregiver • Military Exigency • Airline Flight Crews • New proposals: • Increments of FMLA Leave Usage • Physical Impossibility – mid-shift start/depart • Comment period extended to April 30 • Comments received so far . . . • Expect new regulations approx. ????

7. The DOL and the FMLA • DOL FMLA forms – Certification of Health Care Provider • What’s new? • What’s wrong? • When will we see new forms?

8. EEOC CHARGES AND ENFORCEMENT ACTIONS

9. EEOC Fiscal Year 2011 • 99,947 charges of employment discrimination • $455.6 million in relief • Resolved 112,499 charges • 78,136 pending charges • New records in its mediation program: • Cases resolved - 9,831 • Payouts - $170,053,021

10. 40,000 35,000 30,000 25,000 31,429 20,000 35,395 28,534 15,000 25,742 23,465 10,000 11,833 2,832 919 5,000 245 4,151 5,905 0 Age Sex GINA Color Religion Disability Retaliation Equal Pay Act National Origin Race discrimination Title VII only Under Any Statute EEOC Charges of DiscriminationFY 2011

11. EEOC Strategic Plan:Systemic Discrimination • Increased Focus on Systemic Discrimination • EEOC’s Strategic Plan 2012-2016: strategic law enforcement “will consume the bulk of the EEOC’s financial and human resources” • Two goals: • Have a broad impact in reducing employment discrimination at the national and local levels • Remedy discriminatory practices and secure meaningful relief for victims of discrimination

12. Continued Focus on Disability Discrimination • Reduction in EEOC’s budget for FY 2012 likely will increase emphasis on systemic cases • The EEOC’s continued focus on disability discrimination • ADAAA broadened scope of “disability,” expanding the EEOC’s enforcement power • Shifted focus away from question of whether an employee has a legally protected disability • Number of disability cases in FY 2011 increased

13. Continued Focus on Disability Discrimination • Administrative relief obtained for disability discrimination charges increased from $76.1 million to $103.4 million (up 35.8%). • Most popular ADA Claims: • Back impairments • Other orthopedic impairments • Depression • Anxiety disorder • Diabetes

14. Automatic Termination Policies • Maximum leave policies not sufficient to satisfy employer’s duty of reasonable accommodation • Incorporate individualized assessment • No automatic credit for past leave granted • Reasonable accommodation may include assignment to temporary light duty position, reassignment, additional leave

15. Automatic Termination Policies:Have Employers Learned the Lesson? • High Profile Lawsuits and Settlements • EEOC v. Sears • EEOC v. Supervalu • EEOC v. Verizon • What do these cases tell us?

16. “Costs” to Employer: Undue Hardship? • Significant losses in productivity • Lower quality/less accountability for quality • Lost sales • Less responsive customer service and increased customer dissatisfaction • Deferred projects • Increased burden on management staff • Increased stress on overburdened co-workers • Lower morale

17. A Year of FMLA Litigation Overview

18. A Year Of FMLA Litigation – Overview • Two types of FMLA claims: • Interference claim: employer denied or interfered with employee’s rights under the FMLA • Retaliation claim: employee suffered an adverse employment action because the employee engaged in an activity protected by the FMLA • ~ 325 “decided” cases in 2011 • Most decided on summary judgment • Does not include: • Complaints filed with the US DOL • Lawsuits filed but settled without a court opinion

19. united states circuit courts of appealImpact of circuit court decisions on YOUR world

20. Cost of losing an FMLA case at trialAssumes: $40,000 / year salary 2 years of unemployment until trial See Brown v. Nutrition Management Services Co. (E.D. Pa. 2009) TOTAL $477,311.64

21. A YEAR OF FMLA LITIGATION: What’s “News”?

22. PLAINTIFFS’ LAWYERS UP IN ARMS! Courts Proclaim That Employers Enforcing Their Own Rules Dodge FMLA Liability! Washington D.C. — Plaintiffs’ lawyers staged asit-in on the steps of the Department of Labor yesterday, demanding more revisions to the Family and Medical Leave Act regulations. Recent court cases have shown that it is permissible for employers to have attendance and reporting policies, and to enforce those policies uniformly even if an employee has requested FMLA leave. Disclaimer: Any resemblance to actual people or events is coincidental.

23. Policies that WorkCommunications with Employees on FMLA Leave • Specific FMLA reporting channels OK • Policy: Employer procedure called for FMLA paperwork to be submitted to an employee’s supervisor • Court: Employee could not rely on documentation submitted through the wrong channel to support FMLA leave • Employer can require employee to contact a specific individual. 29 C.F.R. § 825.302(d) Lewis v. USA (9th Cir. 2011)

24. Policies that Don’t WorkCommunications with Employees on FMLA Leave • Failure to publicize 12-month calculation method • Court: Employer’s written notice to employee of leave approval and expected RTW date trumps “constructive notice” to employee of calculation method through union • Damages: over $500,000 — back pay, front pay, lost pension benefits, interest, attorneys’ fees, court costs Thom v. American Standard (6th Cir. 2012)

25. Policies that WorkCommunications with Employees on FMLA Leave • Sick leave policy curbed FMLA abuse • Policy: Employer policy provided wage replacement for sick leave • But: Employees have to remain in the immediate vicinity of their homes • Court: Employers can institute polices that reduce FMLA abuse as long as the policies do not conflict with an employee’s FMLA rights. Pellegrino v. Communications Workers of America (W.D.Pa. 2011)

26. Policies that Don’tWorkCommunications with Employees on FMLA Leave • Sick leave policy brings ADA liability • Policy: Use of company sick leave to be supported by doctor’s note that identifies the employee’s medical condition • Court: • Doctor’s note is sufficient if it states employee has a medical condition and what time off is needed • Further inquiry as to condition = impermissible disability-related inquiry; violates ADA EEOC v. Dillard’s, Inc. (S.D.Cal. 2012)

27. Policies that Don’tWorkCommunications with Employees on ADA Leave • Sick leave policy brings ADA liability • Policy: Use of company sick leave to be supported by doctor’s note that identifies the employee’s medical condition • Court: • Doctor’s note is sufficient if it states employee has a medical condition and what time off is needed • Further inquiry as to condition = impermissible disability-related inquiry; violates ADA EEOC v. Dillard’s, Inc. (S.D.Cal. 2012)

28. Policies that WorkCommunications with Employees on FMLA Leave • Requirement for periodic call-in during FMLA leave OK • Policy: Employer policy required daily calls when absent, and then weekly calls if continuous FMLA approved • Court: “An employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.” 29 C.F.R. § 825.311(a) Thompson v. CenturyTel of Central Arkansas, LLC (8th Cir. Dec.2010)

29. Practices that Don’tWorkCommunications with Employees on FMLA Leave • Don’t Fail to Call the Employee • Supervisor failed to return employee’s calls while on leave • Reflected an antagonistic attitude toward the employee and her use of FMLA • Court: Antagonism could lead a jury to conclude that employee was fired in retaliation for leave usage Hofferica v. St. Mary Medical Center (E.D.Pa. 2011)

30. Practices that Don’t Work Communications with Employees on FMLA Leave • But Don’t Call Too Often . . . • Weekly calls from supervisor inquiring when employee was going to return to work • Employee: “Is my job in jeopardy?” Supervisor: “Return to work as soon as you can.” • Court: “Chill theory”: employee has a right “not to be discouraged from taking FMLA leave.” Terwilligerv. Howard Memorial Hospital (W.D.Ark. 2011)

31. What’s an Employer to Do? • Centralize your leave management process *** • Absence reporting procedures • Company-wide policies that are well-publicized *** • Notice deadlines for leaves • Call-in requirements during leave • Manner of notice and reporting during leave

32. What’s an Employer to Do? • Absence reporting procedures (cont.) • Enforce procedures consistently • Make exceptions for unusual circumstances • Discipline employee for violations of procedures – but don’t deny the leave if FMLA requirements are met

33. What’s an Employer to Do? • Training *** • Train supervisors • FMLA – “issue spotters” • Company rules • Attitude!! • And – • Train HR personnel • FMLA is complex! • The rules keep changing!

34. Retaliation

35. Retaliation • The Supremes Have Gotten into the Act, why not the DOL too? • Fact Sheet #77 B (Dec 2011) • Retaliation issues on the rise • Eligibility: Pereda v. Brookdale Senior Living, 666 F.3d 1269 (11th Cir. 2011) • Dissuade/deter employee from exercising FMLA: Millea v. Metro-North RR Co., 658 F.3d 154 (2nd Cir. 2011)

36. Caring for a Family Member

37. Caring For a Family Member • “Caring for” • Physical or psychological care • Unable to care for basic medical, hygienic, or nutritional needs or safety • Unable to transport to the doctor • Providing psychological comfort & reassurance • But where does it end?

38. Caring for Family Member:What are the Courts Saying? • Direct vs. Indirect Care: Lane v. Pontiac Osteop. Hosp., 2010 U.S. Dist. LEXIS 61003 (E.D. Mich. 2010)(mom’s flooded basement) • Is Proximity Required?: Baham v. McLane Food Serv., 2011 U.S. App. LEXIS 13620 (5th Cir. 2011) (prepping for daughter’s arrival) • Travel: Tayag v. Lahey Clinic Hosp., 677 F. Supp. 2d 446 (D. Mass 2010)

39. “Caring for” Best Practices • Has the employee provided notice of the need for FMLA-qualifying leave? • Look to the information contained in the medical certification – what does it say? • Harm to the family member if not provided • What can the family member do? • “Intertwined” responsibilities 

40. Caring for a Adult Child

41. Caring for an Adult Child • Child: • under the age of 18; or • age 18 or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence • Active assistance/supervision to provide daily self-care in three or more activities of daily living or instrumental activities of daily living

42. Effect of ADAAA on Caring for Adult Child • ADAAA • Easier to establish disability • Easier to take FMLA leave? • Pregnancy-related issues: Serednyj v. Beverly Healthcare, 2011 U.S. App. LEXIS 17810 (7th Cir. Aug. 26, 2011) • Short-term impairments: Novak v. MetroHealth Medical Center, 503 F.3d 572 (6th Cir. 2007) • But they appear short term! Patton v. Ecardio Diagnostics LLC, 2011 U.S. Dist. LEXIS 61757 (S.D. Tex. June 9, 2011)

43. FMLA Developments for Public Sector Employers

44. FMLA Developments for Public Sector Employers • Individual Supervisor Liability – private vs. public employers • FMLA: “employer” includes any person who acts in the interest of an employer toward the employees • Private supervisors can be individually liable for FMLA violations • Supervisors for public-sector employers – liability rulings increase Haybargerv. Lawrence County Adult Probation and Parole (3rd Cir. 2012)

45. FMLA Developments for Public Sector Employers • Individual Supervisor Liability – public OR private • Trigger points – some of the following: • Has input into decisions to hire, promote, demote, fire, etc. • Conducts performance evaluations • Supervises daily performance • Communicates with employee about leaves of absence • Involved in specific action(s) alleged to violate FMLA

46. FMLA Developments for Public Sector Employers • No FMLA Self-Care Leave for State Employees • Complex constitutional issues – • 14thAmendment or the Commerce Clause? • Does your state have its own FMLA-like leave law? • Public employers are usually covered by state FMLA laws. • State employees ARE protected by family-care provisions of the FMLA Coleman v. Court of Appeals of Maryland (S.Ct. 2012)

47. Conclusion – Looking Ahead

48. CONCLUSION – LOOKING AHEAD • Travel • Alternative treatments • Social media • 24/7 culture • GPS tracking • Science & technology

49. RESOURCES Jeff and Marti frequently author articles about absence management issues and maintain blogs on these topics. Check out their websites and subscribe at the following links: Jeff – FMLA Insights– blog • FMLAinsights.com Marti – Reed Group Absence Update– quarterly newsletter • reedgroup.com. See “Resources” • Also check out Reed Group’s Leave of Absence Advisor– leaves.mdguidelines.com

50. A Year of FMLA and ADA Litigation: What Does It Mean? What Comes Next? Marti Cardi Chief Compliance Officer Reed Group mcardi@reedgroup.com Jeff Nowak Partner, Co-chair, Labor and Employment Practice Franczek Radelet, P.C. jsn@franczek.com