Monthly Archives: March 2017

How Well Do You Know Intermittent FMLA Leave?

A recent Family and Medical Leave Act case decided by the 11th Circuit Court of Appeals offers some clarity on one of the most challenging aspects of administering FMLA, the dreaded intermittent leave. Intermittent leave is when an employee takes leave on an intermittent basis or a reduced schedule when medically necessary to care for a seriously ill family member, covered service member, or because of the employee’s own serious health condition.

The 11th Circuit’s recent case involved an employer that provides in-home healthcare services to the terminally ill and an employee that worked as a clinical social worker with many duties relating to care plans for the employer’s terminally ill patients. The employee requested intermittent leave to care for her elderly mother who was quite ill. The employer approved her leave request.

The employer’s leave policies required employees use PTO concurrently with an approved medical leave. In the six months following her initial request for leave, the employee frequently received notices from her employer keeping her advised of her PTO usage and letting her know when her PTO balance was low. It also reminded her that exhaustion of PTO, along with absences, could adversely impact her job and benefits.

Ten months after her initial request for leave, the employer requested not only an updated certification, but also additional documentation “to support the need of intermittent use of FMLA.” Shortly thereafter, the employer advised the employee that her leave entitlement was running low, that she may want to conserve her remaining FMLA leave, and that her continued time away from the workplace compromised the quality of care being provided to patients. Shortly thereafter, the employee altered the plans she had made to care for her mother, choosing not to take an approved leave.

Eleven months after she began using intermittent leave the employee was separated from her employment. She was informed that she was separated for poor performance. Her performance issues were documented by the employer. These issues included care plans not being timely updated, a patient without a care plan, time sheets for patient visits not being timely completed, and failure to coordinate the bereavement group. However, just days before her separation, the employer mentioned in a discussion regarding her performance issues, that “’quality of care’ [was] suffering due to repeated ‘emergent’ leaves of absence.”

How did the court evaluate these facts when the employee asserted an interference claim? Did it find that the employer’s record of performance issues supported the decision to terminate? Did it find that the employer interfered with the employee’s use of her FMLA entitlement? Need some help? Well, here are some FMLA facts that may assist in analyzing this fact pattern:

  • The regulations provide that when an employee takes unforeseeable FMLA leave, the employee must notify the employer as soon as practicable in compliance with the employer’s usual and customary notice and procedural requirements for requesting leave.
  • The regulations interpreting the FMLA provide that, aside from an annual re-certification, an employer is prohibited from obtaining additional documentation from the healthcare provider once a complete and sufficient medical certification has been obtained.
  • If there is an existing certification, an employee’s notice to the employer that there is a recurrence of the need for leave, is sufficient notice to the employer.
  • When an employee’s FMLA leave entitlement is exhausted, any further absences are not subject to the protections of the FMLA.
  • An interference claim is established when an employee shows that she was denied a benefit to which she was entitled. Benefits under the FMLA include taking leave and being reinstated following a leave period (subject to certain restrictions).
  • Unlike retaliation claims, intent is not relevant to an interference claim. Interfering in an employee’s ability to take leave encompasses not only refusing to authorize such leave when an employee is qualified, but also discouraging an employee from using such leave.
  • To recover for interference, an employee must show that she was harmed by the interference.

Although the district court granted summary judgment for the employer on the employee’s interference claim, the 11th Circuit Court reversed. The 11th Circuit found that many of the employer’s statements, such as, “[y]our continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization,” discouraged the employee from using the time she was entitled to. Further, since the employee was terminated, she suffered damage.

So, you ask, how does this case provide clarity? For one, it affirms that generally employers should not be requesting additional documentation from an employee already on an approved intermittent leave. Second, employers should avoid making statements that may be interpreted as discouraging the use of leave. Next, when discussing performance issues with an employee on an intermittent leave employers should not provide a causal connection between the leave and the performance issue, i.e., focus on a discussion of the performance difficulty and ascertain what can be done by the employee (other than to stop missing so much work) to improve performance. Finally, do not forget that during the period of intermittent leave, the employer may require the employee to transfer temporarily to an available alternative position with equivalent pay and benefits, for which she is qualified and which better accommodates the intermittent nature of the leave.

Protecting Your Valuable Business Information and Relationships

When survey after survey of America’s workforce confirms that a large majority of employees admit to taking data from their current or former employers without permission, safeguards to protect proprietary and confidential information, including trade secrets, become a priority. The loss of corporate data can be devastating. When a former employee or former business owner solicits business contacts or employees, the results can be equally damaging. In today’s highly competitive marketplace, it is essential for businesses to have a well-developed plan in place to protect corporate data and business relationships. Such plans should employ several tools, including, but not limited to, appropriate security safeguards, confidentiality policies, and agreements containing restrictive covenants.

As discussed in a May 2016 blog post, a federal civil remedy became law and employers no longer are limited to state court remedies to combat a misappropriation of trade secrets.

Restrictive Covenants in Florida – In Florida, a business can use restrictive covenants to obtain a promise from an employee, independent contractor, officer, agent, or even a seller of an acquired business not to engage in any behavior contrary to its business interests. Certain restrictive covenants protect specific interests. For example, a covenant “not to compete” is generally a promise that the employee, independent contractor, officer, agent, or seller will not be involved, in any capacity, in a competitive business in a certain geographic area for a certain time period. Other restrictive covenants include covenants “not to solicit” the employer’s customers, clients, donors, or current employees and covenants “not to disclose” the employer’s confidential business information.

Enforcement of restrictive covenants in Florida is governed by statute. The current statute provides that the enforcement of contracts that restrict or bar competition is permitted as long as the restrictions are reasonable in time, area, and line of business. Additionally, the contracts must be in writing and signed by the persons agreeing to the restrictions. To enforce a restrictive covenant, a business must be able to demonstrate that the covenant it seeks to enforce was based on the need to protect a “legitimate business interest(s)” and that the contractual restraint is reasonably necessary to protect such interests. Florida courts deem restrictive covenants not supported by a legitimate business interest to be unenforceable. In determining whether a restrictive covenant is properly supported, Florida courts may not take into consideration the relative hardship the enforcement of a restrictive covenant would have on the person against whom enforcement of the agreement is sought.

To read more on restrictive covenants, Florida’s Uniform Trade Secrets Act, and best practices for protecting information and relationships see the full article in Williams Parker’s recently published edition of Requisite, a firm publication offering insights on important legal issues. Additionally, you may view the digital version of Requisite in its entirety for more articles on topics critical to senior executives in managing their businesses and the associated risks.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

New Information About “A Day Without A Woman” Provides Some Insight to Employers

WomensMarchFlyerInstagram4Recently, additional details were released regarding the March 8, 2017, A Day Without A Woman, organized by the same group responsible for the Women’s March in January. In addition, other groups, such as the International Women’s Strike, are now planning their own events on March 8, International Women’s Day. Some of these organizations are encouraging women to ask their employers for the day off, while others appear to suggest women should actually refuse to work. When an employer approves the time away from work, then employees are not really engaged in a “strike” in the traditional understanding of the word. On the other hand, refusing to work when scheduled without employer approval is a strike.

As explained in our previous post, the purpose of the strike determines how an employer can legally respond to its employees that refuse to work. If workers are taking action to alter the terms and conditions of their employment, and their employer has the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act.

The basic platform set forth for A Day Without A Woman, as explained in the draft letter to employers that can be downloaded from the Women’s March website, is that the event is to recognize “the enormous value that women of all backgrounds add to our socio-economic system — and the pervasive and systemic gender-based inequalities that still exist within our society, from the wage gap, to vulnerability, to discrimination, sexual harassment, and job insecurity.” As stated, this platform appears to focus on national, general objectives that may weigh in favor of a finding that the activity is not protected by the National Labor Relations Act. Yet, as evidenced by the charges filed against several McDonald’s a few years ago, if employees’ own wages and work conditions are an inherent and primary motivator for their participation in the strike, then the strike may be protected.

Some employers may choose to support the national platform being proposed, and either allow those wishing to participate time off without question, or shut down their operations for the day. Other employers that are unable to provide such support and need workers in order to meet client expectations, may want to impose disciplinary action pursuant to a well-established policy applicable to employees who refuse to work. If this is the case, they should first ascertain the reasons for such refusal before imposing any such disciplinary action.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558