By Martha J. Cardi, Reed Group Chief Compliance Officer
In the aftermath of natural disasters, employers may see a flood of requests for FMLA leave.
While compassion may call for establishing policy on time off for post-disaster clean-up, curbing FMLA abuse while staying in compliance with leave laws is important for both employers and their workforces.
Here are two potential areas employers should watch for potential FMLA abuse:
Pre-existing Intermittent Leave — Employees with chronic health conditions may take intermittent FMLA leave. If an employee already is approved for intermittent leave for a hard-to-verify condition such as a nervous disorder, migraines or back pain, he or she may try to use FMLA leave for flood damage or other home repairs.
Caring for a Family Member — Employees may take FMLA leave to care for a family member, but only as it relates to the family member’s personal care, such as bathing, transporting them to doctor appointments or fixing meals. FMLA does not provide leave for home cleaning and maintenance. Therefore, if an employee requests FMLA leave to deal with a parent’s flooded basement or to meet a repair crew at the parent’s house, these would not be covered under FMLA.
Court Rejects Flooded Basement For FMLA Leave
When Joe Lane, an employee of Pontiac Osteopathic Hospital on intermittent FMLA leave to care for his aging mother tried to claim flood clean-up of his mother’s basement as FMLA leave, the federal district court in Lane v. Pontiac Osteopathic Hospital rejected his FMLA interference claim on several grounds, one of which was that Mr. Lane did not present sufficient evidence that cleaning his mother’s basement met the definition of “caring for” a family member with a serious health condition.
What Should Employers Do?
While in most cases, employers have to take the employee’s word that the absence is justified, Reed Group experts find that practicing “appropriate and active oversight” tends to discourage FMLA abuse because employees who are not taking legitimate leave know they are being watched.
When the employee requests FMLA leave, try to verify the exact reason for the leave. If the employee says it’s for a doctor’s appointment, the employer may call the doctor’s office to verify that the employee appeared for the appointment, but may not request any additional medical information.
Post-Irene Situations that Warrant FMLA Leave
Be aware that there are many situations in which Irene’s aftermath may spur legitimate FMLA leave. The following are all examples in which leave should be granted:
- An employee with an existing nervous or stress disorder might have his or her condition exacerbated by the hurricane experience and need time off to recover.
- An employee with a bad back or other physical ailment might need FMLA time because of aggravating the condition while cleaning up after the hurricane.
- An employee with FMLA leave to care for a parent might need time because the hurricane cut power to the parent’s oxygen tank (requiring him or her to move the parent temporarily) or cut power to the parent’s refrigerator (requiring him or her to bring the parent staples or fresh food) or because Irene caused the parent to lose water service (requiring the employee bring the parent bottled water).
- An employee might have received a new injury during the hurricane or during the clean-up, which qualifies as a serious health condition and justifies time off after the fact.
Curbing FMLA Abuse May Benefit the Employee
In post-disaster situations it may be tempting to ease up on curbing FMLA abuse, but remember, FMLA leave is limited. If the employee abusing FMLA today needs it legitimately in the future, he or she may have exhausted benefits when they legitimately need them most.
Don’t Forget State FML and Other Leaves
FMLA and other leave laws can be a bewildering patchwork. Be sure to consider all FML leaves when evaluating post-Irene requests.
If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws.
by Martha J. Cardi, Reed Group Chief Compliance Officer
The “cat’s paw” theory of employer liability in employment cases has made headlines following the recent U.S. Supreme Court’s decision in Staub v. Proctor Hospital on March 1, 2011. Now, a federal court has also applied the cat’s paw theory to employees’ claims of employer interference with their FMLA rights.
USERRA Supreme Court Case
Vincent Staub was employed by Proctor Hospital and also served in the United States Army Reserve, which required monthly weekend duty and an additional two to three weeks of service per year. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of a person who is a member of a uniformed service. An employer violates USERRA if an employee’s military service is a motivating factor in the employer’s adverse employment action against the employee. 38 U.S.C. §4311(a)and(c).
Two of Staub’s supervisors had made statements to others showing hostility toward Staub’s military service and the burdens it placed on others in the department. One supervisor issued Staub an adverse corrective action and the other supervisor reported to the vice president of Human Resources, Linda Buck, that Staub had violated the corrective action. Staub denied the allegations.
Buck had shown no animus toward Staub’s military duty. She reviewed Staub’s file and, based on the corrective action and its alleged violation by Staub, decided to terminate him. During the company’s grievance procedure Staub alleged that his two supervisors’ actions were motivated by their hostility to his military service and that they intended their actions to influence the decision by Buck. Buck failed to investigate this allegation and upheld her termination decision. Staub sued, alleging that his termination was a violation of USERRA.
A jury found that Staub’s military status was a motivating factor in Proctor’s decision to discharge him and awarded over $57,000 in damages. Although initially overturned on appeal by the Seventh Circuit, the Supreme Court upheld the application of the cat’s paw theory to this case.
Staub v. Proctor Hospital, No. 09-400 (S.Ct. March 1, 2011).
Two employees of Ohio Bell—Blount and Durrah— were terminated for their undisputed failure to meet performance standards. They alleged, however, that their termination was in retaliation for taking FMLA leave, since they were “progressed much more quickly through the disciplinary process than were other workers” who had not taken FMLA leave. The employees’ supervisors had said in meetings that they would target individuals who took FMLA leave with increased punishment.
Ohio Bell defended the claims by asserting that the authority to punish or terminate the employees resided higher in the supervisory chain, not with the two antagonistic supervisors. Citing the recent Staub decision by the Supreme Court, the district court ruled that even if the two supervisors did not have such authority, the cat’s paw theory might apply and their animus could be “inferred upwards where it had the effect of coloring the various adverse employment actions in this suit.”
Blount v. The Ohio Bell Telephone Co., Case No. 1:10- CV-01439 (N.D.Ohio March 10, 2011).
Lessons for Employers
The cat’s paw theory has been in existence in employment cases for many years, but the recent attention brought by the Supreme Court decision in Staub is likely to cause an increase in the use of this argument by plaintiffs’ attorneys. There are steps an employer can take to minimize the risk of improper influence by a non-decisionmaker antagonistic toward the employee who has recently asserted FMLA rights.
- Beware of adverse employment decisions and recommendations by a supervisor whose job is made more difficult by the FMLA absences of workers. Any supervisor recommendation or decision to terminate or otherwise discipline an employee who has recently used FMLA leave should be:
– Reviewed by Human Resources personnel and
– Compared to the treatment of other employees with similar—but not FMLA-related—performance or attendance issues.
- Investigate any employee allegations of supervisor bias or animus based on a protected classification, such as use of FMLA leave rights.
– Although allegations of discrimination or retaliation should always be investigated, this becomes even more important when the employee is about to be terminated. The Staub case likely would have come out differently if Buck, the Human Resources vice president, had investigated Staub’s allegations of animus toward his military service. She might have found that the corrective action and report of Staub’s violation were unfounded and reversed the termination decision. Or, if her investigation showed that the corrective action was warranted Proctor Hospital would have had a defense that the termination would have occurred even without the discriminatory attitude of the supervisors.
Train supervisors on employee rights under the FMLA and other employment laws. Include in that training the importance of respecting these rights and not “punishing” employees by expressing impatience or intolerance with respect to their leave rights. See Reed Group’s prior article (PDF format): “An FMLA Lesson: supervisor attitudes can create employer liability”
What is the Cat’s Paw Theory?
The cat’s paw theory is a means of holding an employer liable for the illegal discriminatory motivation of a supervisor who did not make the adverse employment decision but exerted influence over the actual decision maker. The Supreme Court explained that the cat’s paw theory is derived from one of Aesop’s Fables. In the fable, a monkey induces a cat to extract roasting chestnuts from a fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.
The Supreme Court applied the cat’s paw theory to hold that an employer is liable under the applicable employment law:
- if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and
- if that act is a proximate cause of the ultimate adverse employment action.
Congratulations to Sara Lee Procurement Director Patty LaValle-Jones, who is featured in an HRO Today article for achieving 30 HR initiatives that resulted in a whopping $35 million in cost savings.
A major part of those HR initiatives was absence management. An outsourcing partnership with Reed Group produced $10 million in savings. Here’s what she had to say in the article:
Sweet Success: Sara Lee’s procurement director knows the ingredients for cost savings. By Debbie Bolla
“It was a challenge to outsource and a long project to get an idea of how we were doing, figuring out what our future state would be, understanding where the gap was, and then finding a supplier to support us,” she explains. “There were a lot of lean processes to go through, driving to the end result we wanted.” And that end result? An outsourcing partnership with Reed Group, producing a little more than $10 million in savings.
Want to explore how Reed Group can help you reduce absence management costs?
Contact us to speak to a Reed Group expert today.