FMLA Liability Hotspots

Host: Hello, and welcome to Prevention and Protection, the United Educators risk management podcast. Today, Hillary Pettegrew, UE Senior Risk Management Council, and Alyssa Keehan, Director of Risk Management Research and Consulting at United Educators, will discuss the topic of liability hotspots arising from the Family and Medical Leave Act or, as it’s also known, the FMLA. Before we begin, a quick reminder to listeners that you can find other UE podcasts as well as UE Risk Management resources on our website, www.ue.org. Our podcasts are also available on Apple Podcasts and Spotify. Now here’s Alyssa.

Alyssa Keehan: Thank you. The Family and Medical Leave Act or FMLA is a law that comes up fairly frequently in employment contexts, so you’ll want to listen to our podcast today. If you work in risk management, human resources, or the law, you need to know about the FMLA and how it can lead to liability. But this is why I’m so happy we’ve got my colleague here, Hillary Pettegrew. Hillary, thank you for joining us today.

Hillary Pettegrew: You’re welcome, and I’m glad to be here.

Keehan: So Hillary, you just completed a really excellent report on the FMLA and its liability hotspots, and I just want to note for our listeners that we’ve placed a link to her report on the resources section of the podcast landing page. So if you’re a UE member, definitely check it out. But I think it’s probably important to start off with the basics here for our audience. Can you share for our listeners the nutshell description of what is the FMLA and why should they care?

Pettegrew: Sure. Now let me take the first part of your question: What is the FMLA?

It’s a federal law that protects employees from losing their job if they need to take time off in certain defined circumstances. And in a nutshell, the FMLA allows employees to take up to 12 weeks of unpaid leave with continuation of benefits — I want to note that — in a 12-month period for, first, birth and care of an employee’s newborn child or the placement of an adopted or foster child with an employee, an employee’s own serious health condition that makes them unable to work, caring for an employee’s immediate family member —and I want to note that’s limited to their spouse, child, or parent. It does not include in-laws, for example, with a serious health condition,  qualifying exigency leave for designated relatives of military service members on deployment, and military caregiver leave for designated relatives to care for military service members, including veterans who have a serious injury or illness.

Now, with respect to the second part of the question: Why should our listeners care?

Well, as you can see from that brief description, the situations that invoke the law’s protections can arise quite frequently in a workplace, including educational workplaces. And while the law provides valuable benefits to employees, it can create a real burden for employers. It’s also, unfortunately, highly susceptible to employee abuse. So in short, it’s a source of liability claims for the schools and colleges we insure.

Keehan: Hillary, while you said that the FMLA allows up to 12 weeks of leave in a 12-month period, my understanding is that that leave doesn’t need to be taken all at the same time. Is that right?

Pettegrew: That’s correct. Employees generally can take FMLA leave for medical or military family leave reasons, either all at once or on an intermittent or reduced schedule basis. That means in separate blocks of time or perhaps by reducing the time they work each day or week. The FMLA also requires that after returning from leave, employees be restored to the same job or one equivalent to it. And according to the Department of Labor, an equivalent position is virtually identical to the employee’s former job in terms of pay, benefits, and working conditions.

It also has to involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

Keehan: That’s helpful. And aren’t there some special rules for K-12 schools here?

Pettegrew: Yes there are. Different rules relating to intermittent leave and job restoration apply to employees of public school boards, elementary and secondary public schools, and private elementary and secondary schools. For example, public school employees aren’t eligible for FMLA leave if their school employs fewer than 50 people and no other schools under that same board’s jurisdiction exist within 75 miles. And for instructional employees, meaning employees whose principal function is to teach and instruct students in a class, small group, or individual setting, specific requirements govern intermittent or reduced schedule leave or any leave near the end of an academic term. And this, by the way, would include primarily teachers and athletic coaches.

Finally, employees of public school boards and public or private elementary and secondary schools are subject to different rules regarding restoration to their original position or an equivalent job after they return. For those employees job restoration is based on established school board policies and practices, private school policies and practices, and collective bargaining agreements as long as those satisfy certain requirements. So those special rules are obviously complicated, and if they apply to your school I strongly recommend consulting an attorney to make sure you’re in compliance.

Keehan: All right, so now that we’ve covered the basics of the FMLA, let’s talk about how this law leads to liability. Hillary, what did your research reveal about the liability hotspots under FMLA?

Pettegrew: Well, the report identifies four liability hotspots, and for today’s purposes we’re only going to discuss two of them, the two that I think tend to cause employers the biggest headaches.

Keehan: All right, so what was the top liability causing issue for [K-12] schools and colleges, from your research?

Pettegrew: Retaliation against employees who use FMLA leave is by far the most frequent cause of legal liability. Retaliation, as most of our listeners probably know, occurs when an employee engages in activity protected by the law and then suffers an adverse employment action because of that activity. An adverse action would include anything that might dissuade an employee from raising a concern about a violation, filing a complaint, or cooperating in an investigation.

Keehan: Can you talk about some of the situations where retaliation can arise involving the FMLA?

Pettegrew: Yes, of course. Several examples from UE claims involved really blatant examples of retaliation by supervisors. In one matter, a college supervisor demoted an employee the day she returned from leave. In another, an independent school fired an employee just 48 hours after he returned from leave. And in a third claim, a large research university used a one-person reduction in force to eliminate the job of an employee returning from leave. So again, those are blatant examples, but I also want to caution that more subtle forms of retaliation are also illegal, and that would include something like a supervisor displaying reluctance to give an employee who took FMLA leave for cancer treatment responsibility for a major new project because the supervisor feared the cancer might return. The common factor in all those examples, and what you as an employer should watch out for, is that the retaliatory action occurred because the employee exercised their right to take FMLA leave.

Keehan: Wow. I can see how retaliation can be tricky to navigate if you’re an employer.

Pettegrew: Yes, that’s definitely true. And like all employment retaliation claims, it’s difficult to defend if you do end up in litigation. Disputed facts might prevent a judge from dismissing a lawsuit before trial and juries in retaliation cases frequently award large verdicts. One jury, for example, awarded $11.65 million to a hospital maintenance worker who alleged he was fired for taking FMLA leave to care for his aging parents. I should also note that that jury held two of his supervisors personally liable for $900,000.

Keehan: So as employers, what can colleges or schools do to mitigate the risk of retaliation claims arising out of FMLA?

Pettegrew: Well, I recommend three actions to really reduce your chances of liability for retaliation in these circumstances. First, you should identify managers in situations where retaliation may be likely. Here you might think of managers of small departments or managers facing time deadlines where one employee’s absence might have a really significant effect on the work. These managers may be more likely to retaliate against someone taking FMLA leave. Ideally, HR would reach out to those managers to offer them support and educate them about the FMLA.

Keehan: And I just want to quickly interject here to let our listeners know that if you’re looking for help in training administrators and supervisors on what they need to do to comply with the FMLA, Hillary’s report has some great visuals on FMLA basics and the liability hotspots. So if you’re a UE member and you can access that report, you can print out those visuals in a poster format for a quick reference. Okay, Hillary, sorry. Continue on with your recommendations.

Pettegrew: Sure. So my second recommendation is that schools should require HR to review any proposed discipline against an employee who’s on FMLA leave or has recently returned from it. Retaliation is often an emotional response. It can be triggered by a supervisor’s resentment or frustration. And here again, HR can provide the necessary objective outside perspective on disciplinary action. They can also help ensure consistent treatment by supervisors in different departments. And finally, HR is usually going to be in the best position to recognize when legal help and advice may be necessary.

And that brings me to my third recommendation, which is to have an employment lawyer review all proposed firings of employees on FMLA leave or recently returned from it. Terminating someone in those circumstances is really tricky. So you want to consult a specialist in employment law first. Don’t wait until after the deed is done. This attorney should review relevant documentation, analyze the risks of litigation if the employee challenges their termination, and just help you as the [K-12] school or college decide whether firing that person is really in your institution’s best interest.

In my opinion, the cost of that legal consultation is well worth it because it can help you avoid a dangerous and far more expensive retaliation claim.

Keehan: Well, those are some very practical recommendations for helping to avoid retaliation. All right, so what’s our next and last FMLA liability hotspot for today?

Pettegrew: Well, that would be intermittent leave for a chronic health condition, which is susceptible to abuse by employees. The FMLA lets employees take unscheduled leave in increments of as little as one hour. But you can run into trouble when an employee with a legitimate chronic health condition starts using intermittent leave whenever they don’t want to come in to work. Over time, a supervisor who believes an employee is taking advantage of intermittent leave can get fed up and retaliate with excessive disciplinary action.

Keehan: So what actions can [K-12] schools and colleges take to help reduce the potential for employee abuse of intermittent leave here?

Pettegrew: Well, the report cites a number of recommendations, but I’ll just highlight a few of them here. The first one is to request medical certification of any condition that may qualify an employee for FMLA leave. Certification should include the date the health condition began, how long it’s expected to continue medical information about the condition and how it would prevent the employee from performing their job’s essential functions.

The FMLA gives employees 15 days to get medical certification from their healthcare provider, and you can withhold FMLA leave until that certification is completed, but be reasonable in enforcing that rule, especially for an employee who’s severely incapacitated or otherwise in dire circumstances.

Keehan: So Hillary, should supervisors just make these requests for certifications on their own or should they alert HR or someone else if an employee comes to them and requests leave for a health condition?

Pettegrew: Well, that’s a good point. If a supervisor learns an employee has a medical condition that may require leave, they should promptly alert human resources. It’s the responsibility of HR, not the supervisor to handle things like certification. And incidentally, that would include things like seeking second and third opinions in certain circumstances. So if your institution has reason to doubt an employee’s certification, you can pay for a second opinion from another healthcare provider.

If that second opinion conflicts with the first, you can require the employee to get a third opinion. In addition, HR should seek recertification every 30 days for chronic conditions. While you can only seek initial certification and second and third opinions once annually, you can require monthly recertification of chronic conditions. So, for example, if an employee displays a suspicious pattern like frequent absences on Fridays or Mondays, ask in the recertification whether that pattern is consistent with their condition.

Keehan: Well, that’s helpful advice about getting certification, seeking recertification for chronic conditions, and then potentially getting a second or third opinion. Are there any other recommendations for helping to stem abuse of intermittent leave?

Pettegrew: Yes. I’ll just briefly highlight two other recommendations and both relate to your school’s policies to consider. First other leave should run concurrently with FMLA leave. So I recommend adopting an FMLA policy that requires employees to use any accrued paid leave such as vacation time or sick leave concurrently with FMLA leave. And you should include that policy in your employee handbook.

Second, you want to address outside work. It’s really important to establish a policy prohibiting outside work during regular work hours for the duration of FMLA leave. That can help prevent employees from abusing leave to run a side business or engage in personal activities.

Keehan: Well, thanks. And I just want to reiterate for everyone that Hillary’s full report on the FMLA contains additional recommendations on preventing abuse of intermittent leave as well as some additional liability hotspots, so please check it out. Is there anything else you want to flag here for the audience today before we go?

Pettegrew: Yes. While we’ve obviously been discussing federal law, but as is almost always the case with employment laws, be sure to check your state law as well. The FMLA is a floor, not a ceiling, and so states can establish their own leave rules that are more generous than the federal rules. For example, a few states require paid parental leave for certain employees and several require employers to allow parents to take a specified number of hours each year to attend their children’s school events or activities,

and I believe those rules currently range anywhere from four hours to as many as 40 hours annually. So because family and medical leave is just such a complicated legal area, it’s important to consult an attorney so you understand the state as well as federal rules that apply to your school or college.

Keehan: This has just been such a great discussion about the FMLA and something you don’t get to say every day. In all seriousness though, Hillary, thank you so much for taking time to cover the basics of this important law, the liability hotspots, and of course recommendations for mitigating them.

Pettegrew: Alyssa, thank you so much for having me. And again, if our listeners who are UE members want to learn more, they can download the full report on FMLA hot spots, including the visuals, from our website, www.ue.org.

Host: From United Educators insurance, this is the Prevention and Protection Podcast. For additional episodes and other risk management resources, please visit our website at www.ue.org.