13th Annual DE State
Human Resources Conference
November 7, 2013, 3:00 p.m. – 4:00 p.m.
FMLA Back to Basics and the 2013 Regulations
Jennifer C. Jauffret
302-651-7568 – direct dial
Lori A. Brewington
302-651-7689 – direct dial
Jauffret@rlf.com
Brewington@rlf.com
Richards, Layton & Finger, P.A.
One Rodney Square
920 N. King Street
Wilmington, DE 19801
Copyright © 2012 Richards, Layton & Finger P.A. All rights reserved.
 Family and Medical Leave Act
(“FMLA”)
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Agenda
 FMLA overview and recap
 New FMLA regulations
 Current FMLA forms, poster and GINA
compliance
 Best practices to avoid FMLA abuse
 Recent and significant FMLA case law
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Warm-Up Quiz
 Cordero v. AFI Food Service, LLC, 2012 WL
5989424 (D.N.J. Nov. 29, 2012)
– Employee worked as a receiver at a warehouse and
brought suit claiming he was retaliated against when he
was terminated for taking intermittent FMLA
– Employee’s wife had cancer and he requested FMLA
– Employee was never prevented from taking time off to
care for his wife, he was compensated for all time he
took off to care for his wife, and employer granted
intermittent time off to employee prior to him being
eligible for FMLA
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– Employer terminated employee as a result of costly
errors committed on the job
– No 12 month-period where employee did not receive
any disciplinary actions
– Event that led to employee’s termination was an error
that cost employer approx. $2K
– Employee admitted to multiple performance errors
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Employer v. Employee
Who Wins?
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– Win for employer
– Legitimate business reason for terminating employee’s
employment
– Employee failed to demonstrate a causal relationship
between FMLA leave and his termination
– Employee could not establish employer’s reason for
termination (i.e., performance issues) was not only wrong
but so “plainly wrong” that it cannot be the real reason for
the firing
 Court noted that purpose of FMLA is not to excuse
workplace errors that were made due to spouse’s illness
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FMLA: Overview and Recap

Provides up to 12 weeks of unpaid job
protected leave for eligible employees
– 26 weeks for service members
 Including veterans

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Leave can be taken in blocks or intermittently
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FMLA: Determining When an
Employee’s Absence Is Covered
 Eligible employers
– Private sector if 50 or more employees
 Eligible employees
– 12 months of employment
– 1,250 hours of work in 12 months preceding the start
of leave
– Must work at site with 50 or more employees within
75 miles
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FMLA: Determining When an
Employee’s Absence Is Covered
 Qualifying reasons for leave
– For employee’s own serious health condition
– To care for spouse, child, stepchild or parent
with serious health condition
– For birth, adoption or foster care placement of
a child
– Certain military related reasons
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"Needed to Care For"
 A spouse, child, stepchild or parent with a
serious health condition
– Includes physical and psychological care
– Applicable when family member is unable to care for
basic medical, hygienic or nutritional needs or for
safety reasons
– Can even include providing psychological comfort and
reassurance that would be beneficial when receiving
in-patient or home care
 DOMA ruling’s effect on FMLA
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Serious Health Condition
 Illness, injury, impairment or physical or mental
condition that involves:
– In-patient care;
– Continuing treatment by health care provider
 incapacity requiring absence of more than 3
consecutive calendar days OR
 a period of incapacity relating to 2 or more
treatments by health care provider;
– A period of incapacity due to pregnancy or for
prenatal care;
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Any period of incapacity that is permanent or
long term;
Any period of absence to receive multiple
treatments by a health care provider for
restorative surgery or a condition that will likely
result in a 3-day or more incapacity if not
treated; or
Any period of incapacity due to a "chronic
serious health condition"
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What Is a Chronic Serious Health
Condition?
 Requires periodic visits for treatment by a
health care provider
 Continues over an extended period
 May cause episodic rather than continuing
period of incapacity
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Military Reasons for Leave
 Military service members
A. 12 work-weeks for "Qualifying Exigency
Leave" of Reg. Armed Forces, National
Guard or Reserve member on active duty
 Must be deployed to a foreign country
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Qualifying Exigency Leave
 Employee must be service member’s spouse,
child, stepchild or parent
 For these events/issues:
– Short notice deployment
– Military events and activities
– Childcare and parental care and related
activities
– Financial and legal arrangements
– Counseling, rest and recuperation (up to 15
days)
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Military Reasons for Leave
B. 26 work-weeks to care for a covered service
member of Reg. Armed Forces, National Guard,
Reserves or a veteran who is
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Undergoing medical treatment, recuperation or
therapy and
Medically unfit to perform military duties or
qualified for certain veteran benefits
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Military Medical Leave
 Employee must be service member’s spouse,
child, stepchild, parent or “next of kin”
 “Next of kin” – nearest blood relative, other than
spouse, parent, son or daughter
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Military Provisions
 Authorized health care provider for military FMLA
certification may be:
– U.S. Dept. of Defense (DOD) health care provider
– U.S. Dept. of Veterans Affairs health care provider
– DOD TriCare Network authorized or non-network
private health care provider
– Non-military-affiliated health care provider
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FMLA
NOTICE REQUIREMENTS
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General Notice Requirements for
Employers
 All covered employers must display a general
notice about FMLA (FMLA Poster (WH-1420))
 Summarizes major provisions of FMLA and tells
how to file complaint
 Conspicuous place where employees and
applicants can see it
 Must also provide general notice in handbook (or
with other written material about leave and
benefits)
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Foreseeable Leave
 Employee notice due  30 days before leave
– Change of circumstances can negate need for 30-day
notice
– For future treatment: ordinarily expected to discuss
treatment schedule with employer to determine
mutually agreeable times
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Unforeseeable Leave
 Notice to be given as soon as practical and
possible
– in most cases within 1-2 days from when need for
leave becomes known
 Notice should include info. re: timing and
duration
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Formalities of Notification
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By employee or agent of employee
Any reasonable manner: e.g.,  in person,
phone, fax or e-mail
Does not have to mention "FMLA" or use words
like "serious health condition"
Inquiry notice, ex., dramatic behavior change in
employee, attendance/tardy
Should address nature and severity of illness
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THEN 
Burden shifts to employer/HR to inquire
further regarding whether leave is
FMLA qualifying
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Eligibility & Rights/Responsibilities
Notice Requirement for Employers
 Oral or written notice to employee
 Must provide w/in 5 business days of initial
request for leave or when employer acquires
knowledge of FMLA-qualifying reason
 Advise of eligibility status
 If not eligible, must state reason why
 Form WH-381
– Include request for medical certification if wanted by
employer
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Health Care Provider
Certification Forms
 Certification of Health Care Provider forms to be
given to employee as applicable:
– Employer’s Serious Health Condition
(Form WH-380)
– Family Member’s Serious Health Condition
(Form SH-380-F)
– Current Service Member – for Military Leave
(Form WH-385)
– Certification of Qualifying Exigency for Military Leave
(Form WH-384)
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Completed FMLA Certification
Should Be Provided to Employer:
 Prior to commencement of leave if leave is
foreseeable
 Within 15 calendar days of requesting leave if
leave is unforeseeable
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Designation Notice Requirement
for Employers
 In writing w/in 5 business days of having
enough information that leave is FMLA-qualifying
– Typically after receipt of health provider certification
 Must designate leave as FMLA-qualifying & give
notice to employee
 Provide the amount of leave designated and
counted against employee’s FMLA entitlement
 Request RTW note if needed
 Form WH-382
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Case Scenario 1
 Jacqueline Young v. The Wackenhut
Corporation, 2013 WL 435971 (D.N.J. Feb. 1,
2013)
– Former employee asserted a claim for interference
with FMLA rights relating to leave for birth of her child
and childcare thereafter and the termination of her
employment
– Former employee was terminated the day after she
was first told by employer that her FMLA leave time
had exhausted
31
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Case Scenario 1 (cont.)
– Former employee argued that employer did not provide
proper notice and that she was prejudiced as a result by
not being able to structure her FMLA leave time and
return to work in a meaningful way
– Employee also alleged employer’s missteps led to
employer’s decision to terminate her employment
– Employer argued former employee received proper notice
of her FMLA rights, and that she cannot demonstrate
prejudice
– Employer included a summary of employee rights in
employee manual and also posted a federal poster
notifying employees of rights under FMLA in a location
visible to all employees
32
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Employer v. Employee
Who Wins?
33
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Case Scenario 1 (cont.)
– Win for employee
– Court determined that employer’s actions only
satisfied the “general notice” requirements for FMLA,
not the “individualized notice” requirement.
– Employer failed to provide employee with required: (1)
eligibility notice and rights and responsibilities notice,
and (2) designation notice
 Nor did the employer properly designate former
employee’s leave as FMLA leave
 Nor did it tell employee her required return to work date
34
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Case Scenario 1 (cont.)
– Court said that had employee been given proper
notice of her rights under FMLA, she could have
planned and structured her leave time differently
– = she demonstrated the required prejudice
35
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Consequences of Failure to Provide
Medical Certification
 Leave is not considered FMLA leave
 Therefore  employee is not entitled to FMLA
job protection
 If not completed in full, request to employee that
it be
– Given reasonable amount of time
– Advised to do in writing
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Case Scenario 2
 Prigge v. Sears Holding Corp., No. 10-3397 (3d
Cir. June 23, 2011)
– FMLA case
– Employee who often was absent and left work early
told his employer that he was receiving radiation
treatment for prostate cancer that was formerly in
remission but was active again
37
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Case Scenario 2 (cont.)
– In reality he suffered from bipolar disorder which had
been diagnosed several years earlier
– Several months later he was hospitalized for 7 days for
depression
– He confessed to employer that actually suffering from
bipolar disorder not prostate cancer
38
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Case Scenario 2 (cont.)
– Supervisor requested documentation; he failed to
provide medical certification excusing all of his
absences
– Terminated for failure to provide documentation and
lying about his actual illness
39
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Employer v. Employee
Who Wins?
40
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Case Scenario 2 (cont.)
 Good news for employers! Holding: employers
are entitled to real reason for leave
 3rd Cir. upholds employee’s dismissal based on
lies about reasons for his absence
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2nd Opinions
 If there is reasonable doubt about validity,
employer may require, at its expense, a 2nd
HCP to give an opinion
– Employee entitled to travel expenses incurred
– Not from a HCP regularly employed by employer
– Employer’s HCP may contact employee’s HCP for
clarification re: the medical certification, BUT may not
request additional information
 Not the supervisor
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3rd Opinions
 If the 2nd opinion conflicts, the employer may
require, at its expense, a 3rd opinion
– This 3rd HCP must be approved jointly by employee
and employer
– Opinion  final and binding
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Provisional Entitlement
 During pendency of 2nd or 3rd opinion,
employee is provisionally entitled to FMLA
benefits
– Notify employee of such – in writing – using
provisional language
– Use provisional language also when waiting
for original certification
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Requesting Recertification
 No more often than every 30 days for pregnancy
or chronic permanent/long-term condition under
continuing supervision of health care provider,
unless:
– Circumstances described by the previous certification
have changed significantly or
– Employer receives information casting doubt on
reason for absence
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Requesting Recertification
 For other conditions may request it at any
reasonable interval but not more than every 30
days unless:
– Employee requests leave extension or
– Circumstances described in certification have changed
significantly or
– Employer receives information that casts doubt upon
continuing validity of the certification
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Examples of Possible Serious
Health Conditions
 Heart attacks or heart conditions requiring
bypass surgery
 Most cancers
 Back conditions requiring extensive therapy or
surgery
 Spinal injuries
 Appendicitis
 Pneumonia
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Serious Health Condition
Examples
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Severe arthritis
Severe nervous disorders
Pregnancy
Miscarriages, complications or illnesses related
to pregnancy
Need for prenatal care
Childbirth and recovery from childbirth
Alzheimer’s disease
Clinical depression
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Not Usually a Serious Health
Condition
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Plastic surgery solely for cosmetic purposes
Treatment for acne, unless hospital care required
The common cold
Ordinary flu
Earaches
Upset stomach
Minor ulcers
Headaches (other than migraines)
Routine dental or orthodontic problems
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Light Duty
 Entitlement to unpaid FMLA leave exists
regardless of whether other accommodations
are available that would allow employees to
continue working
– Employee’s choice
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In Sum, What Is the Main
Purpose of FMLA?
 To protect employee’s job while employee or a family
member is seriously ill or during childbirth and
adoption situations, and to care for service member
 The employee cannot be retaliated against for taking
leave
 It protects job benefits too; ex., health care benefits
51
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What Happens When the 12
Weeks Are Exhausted?
 Employee must return to work absent ADA
accommodation situations; in other words,
his/her job is no longer protected
 Ensure that individualized ADA analysis
is done each time
No blanket prohibitions
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FMLA: Returning to Work
 Fit for duty certificate — no general form — just
opinion of treating doctor that employee can
return to job
– Able to perform essential functions of position (w/ or
w/out an accommodation)
 Must provide ADVANCE notice to employee that
certificate is required when designating leave as
FMLA leave
 Can delay RTW until get it
53
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Job Restoration
 Reinstated following 12 weeks of FMLA leave
 To position held prior to leave or equivalent
position
 Employer does not have to allow seniority to
accrue while employee on leave
 Must receive unconditional pay increases that
may have occurred during leave
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When Is it an "Equivalent" Position?
 Equivalent:
–
–
–
–
–
–
–
–
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Compensation
Benefits
Working shift
Perks
Status
Level of responsibility, effort
Hours of employment
Other terms and conditions of employment
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Limitations on Obligations to
Reinstate
 Would have terminated even if FMLA leave not
taken - ex., RIF, major violations
 Employee announces that he or she does not
intend to return from leave
 No longer possesses the qualifications required
to perform the job
– However training, cert. license  time to requalify
56
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Limitations on Obligation to
Reinstate
 Fraudulently obtained his or her leave
 Took other employment while on FMLA leave (in
contradiction of the employer's policies)
 Temporary employee whose position no longer
exists
57
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Case Scenario 3
 Duggins v. Appoquinimink School Dist., 921
F. Supp. 2d 283 (D. Del. Feb. 5, 2013)
– African American former high school principal who
suffered from severe depression
– Took FMLA medical leave of absence which was
approved by the district
58
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Case Scenario 3 (cont.)
– Prior to her FMLA leave, her performance had
declined significantly according to an evaluation; a
survey completed by teachers indicated that morale
was low due to her ineffective leadership; and she
missed at least two key meetings involving her
superiors and the parents of her students
– When she returned from FMLA, the district
reassigned/demoted her to an assistant principal role
at a different high school
– Filed suit against school district for alleged violations
of FMLA, ADA and Title VII following her demotion
59
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Employer v. Employee
Who Wins?
60
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Case Scenario 3 (cont.)
– Win for employer
– Court held that former principal failed to establish
required causal connection between her use of FMLA
and her demotion
– Legitimate performance-based reasons
– Temporal proximity (i.e., closeness in time between
employee’s protected activity and employer’s alleged
retaliatory action) alone is insufficient to establish the
required causal connection for FMLA retaliation claim
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Case Scenario 4
 Naber v. Dover Healthcare Associates Inc.,
473 Fed. Appx. 157 (3d Cir. 2012)
– Employee who worked as recreation assistant at nursing
home facility was stressed from increased responsibilities
so she asked her manager and HR for a reduced work
schedule
– Manager approved employee’s request by providing leave
of absence
– Shortly after leave request was approved, manager
disciplined employee for violation of the dress code and
employee complained that manager was picking on her for
taking time off from work
62
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Case Scenario 4 (cont.)
– While out on leave the employee was diagnosed with
depression
– As a result employee requested intermittent FMLA to
attend one hour counseling sessions and medical
appointments. FMLA was approved
– The same day she returned from leave employee was
disciplined for failing to conduct an activity she was
scheduled to lead
– A week or so later employee’s manager accused
employee of falsifying an activity log and an
investigation by HR commenced
63
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Case Scenario 4 (cont.)
– Following the investigation HR suspended the
employee, concluding that she had falsified the activity
log for a resident, and employee was subsequently
terminated
– Former employee brought action for retaliation and
interference with FMLA rights and ADA discrimination
– Employee argued that employer’s reliance on mentally
handicapped residents’ statement during the
investigation was pretext for discrimination
64
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Employer v. Employee
Who Wins?
65
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Case Scenario 4 (cont.)
– Win for employer
– Court held that employee failed to establish a prima
facie case of FMLA retaliation because her reprimand
for dress code violations predated her request for
FMLA, there was no evidence that employer sought to
prevent her from using FMLA, and her FMLA request
was granted
– Court further held that employee failed to show that
employer’s reason for terminating her was a pretext
for discrimination; other employees who erred in
completing activity logs and were not disciplined were
not appropriate comparators
66
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Case Scenario 4 (cont.)
– There was no evidence that the decisionmaker was
aware of employee’s FMLA leave at the time he made
the decision to terminate employee. Therefore, this
fact could not be considered in evaluating whether the
decision to terminate employee was retaliatory
67
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Alcoholism/Drug Addiction
 FMLA provides leave for treatment, not the use
of alcohol or drugs
 Employer can still discipline for alcohol abuse or
illegal drug use while on job provided it is in a
nondiscriminatory manner
 Current substance abuse is not generally a
disability under the ADA, but disease itself can be
68
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FMLA Update: New Regulations

20th anniversary – Feb. 5, 2013: EEOC marked
the anniversary by issuing:
 Results of survey
 90% of workers return after FMLA leave
 91% employers report no, or positive, effect on
business operation
 Misuse rare
 Final rule implementing expansions of FMLA
protections from 2010 amendments
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FMLA Final Rule
1. Provides families of eligible veterans with same protected
FMLA leave currently available to families of military service
members and enables more military families to take leave
for activities that arise when a service member is deployed
2. Expansion of qualifying exigency leave to families of
members of the Regular Armed Forces
3. Modifies existing rules so that airline personnel and flight
crews are better able to make use of the FMLA’s protections

Effective March 8, 2013
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FMLA Final Rule
 Important provisions of FMLA Final Rule include:
– Defining a covered veteran, consistent with statutory
limitations, as limited to veterans discharged or
released under conditions other than dishonorable 5
years prior to date employee’s military caregiver leave
begins
– Creating a flexible definition for serious injury or illness
of a covered veteran, that includes 4 alternatives only
1 of which must be met
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FMLA Final Rule
– Permitting eligible employees to obtain certification of
a service member’s serious injury or illness (both
current service members and veterans) from any
health care provider as defined in the FMLA
regulations, not only those affiliated with the DOD, VA
or TRICARE networks (as was permitted under the
2009 regulations)
– Extending qualifying exigency leave to eligible
employees who are family members of members of
the Regular Armed Forces and adding the
requirement for all military members to be deployed to
a foreign country in order to be on "covered active
duty"
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FMLA Final Rule
– Increasing the amount of time an employee may take
for qualifying exigency leave related to the military
member’s Rest and Recuperation (R&R) leave from 5
days up to 15 days
– Creating an additional qualifying exigency leave
category for parental care leave to provide care
necessitated by the covered active duty of the military
member for the military member’s parent who is
incapable of self-care
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FMLA: List of Current Forms and
Poster
 Notice of Eligibility and Rights and Responsibilities (WH381)
 Designation Notice (WH-382)
 Certification of Health Care Provider for Employee’s
Serious Health Condition (WH-380-E)
 Certification of Health Care Provider for Family Member’s
Serious Health Condition (WH-380-F)
 Certification of Qualifying Exigency for Military Family
Leave (WH-384)
 Certification of Serious Injury or Illness of Covered
Servicemember – for Military Family Leave (WH-385)
 FMLA Poster (WH-1420)
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FMLA Forms
 But no updated FMLA forms yet to ensure
Genetic Information Act (GINA) compliance
– RECAP: GINA regulations issued in 2010 & took
effect January 2011
– GINA prohibits employers from inquiring about
employees' genetic information, except if obtains
GINA information inadvertently
– For exception, employers are advised to include "safe
harbor" language in any medical forms, such as FMLA
Copyright © 2013 Richards, Layton & Finger P.A. All rights reserved.
Safe Harbor Language
 “The Genetic Information Nondiscrimination Act of 2008 (GINA)
prohibits employers and other entities covered by GINA Title II from
requesting or requiring genetic information of an individual or family
member of the individual, except as specifically allowed by this law.
To comply with this law, we are asking that you not provide any
genetic information when responding to this request for medical
information. ‘Genetic information’ as defined by GINA, includes an
individual's family medical history, the results of an individual's or
family member's genetic tests, the fact that an individual or an
individual's family member sought or received genetic services, and
genetic information of a fetus carried by an individual or an
individual's family member or an embryo lawfully held by an
individual or family member receiving assistive reproductive
services.”
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FMLA Forms
– Unfortunately, 2012 updated forms issued by the DOL
do not contain that language, and some thought along
w/final rule new forms would be issued – but NO
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FMLA: Best Practices to Avoid
Liability and Abuse





Train supervisors and managers
HR determines eligibility for FMLA
Maintain accurate recordkeeping system
Establish 12-month period for measuring FMLA
Communicate to employees/complete required
forms timely
 Establish procedures for collecting premiums or
other payroll deductions
 Keep medical info. separate & confidential
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



Follow up with employee in writing
Consider the ADA
Administer uniformly
Only request certification (and recertification) as
permitted by law
 Document employee performance issues
 Notify employees of FMLA rights in writing
 When in doubt, consult counsel
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Case Scenario 5
 Dean v. Christiana Care Health Services, Inc.,
C.A. No. 12-059-RGA (Sept. 16, 2013)
– Employee brought suit against employer for sex and
pregnancy discrimination and retaliation for seeking
FMLA leave
– Facts are sparse; however, it appears that pregnant
employee requested an accommodation due to an
inability to bend
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Case Scenario 5 (cont.)
– PDA mandates that employers treat pregnant employees
the same as non-pregnant employees who are similarly
situated with respect to their ability to work
– Employee also requested FMLA, and sometime thereafter
her employment was terminated
– The employee put forth evidence of antagonism between
the employee and employer concerning the employee’s
use of FMLA and the existence of an unwritten policy to
accommodate similarly situated persons that was not
properly applied to her
– In response, employer argued that it was willing to
accommodate the employee and that it notified employee
of its willingness to accommodate her
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Employer v. Employee
Who Wins?
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Case Scenario 5 (cont.)
– Initial win for employee
– Court determined that there was a genuine issue of
fact as to whether or not the employer had a policy
(unwritten or otherwise) that would accommodate
similarly situated employees who could not bend
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Case Scenario 5 (cont.)
– According to the court, this created a genuine issue of
material fact concerning the reason the employer
failed to notify the employee of its willingness to
accommodate employee’s bending restriction
– As a result, the case will go before a jury to decide
whether employer violated the PDA and the FMLA
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Case Scenario 6
 Diaz v. Saucon Valley Manor, Inc. and Nimita
Kapooratiyeh, 2013 WL 797713 (E.D. Pa. Mar.
5, 2013)
– Former employee brought FMLA, ADA and other claims
against employer and individual manager (president)
alleging that she was fired because she suffered from an
alcohol-related disability and requested reasonable
accommodation to attend an in-patient treatment program
– Employee’s supervisors knew of employee’s alcoholism
and requested medical leave for in-patient treatment which
the former president of the company approved
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Case Scenario 6 (cont.)
– Former president of the company terminated
employee after hearing a rumor that the employee
was not at work, had been arrested for public
drunkenness and was entering rehabilitation treatment
– Employer argued that employee’s FMLA claim against
the former president of the company must be
dismissed because former president lacked sufficient
control over the employee’s employment and did not
know that the employee requested FMLA
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Case Scenario 6 (cont.)
– An employer under FMLA is “any person who acts, directly
or indirectly, in the interest of an employer to any of the
employees of such employer”
– A person also may be individually liable for violating FMLA
if she “exercises ‘supervisory authority over the
complaining employee and was responsible in whole or in
part for the alleged violation’ while acting in the employer’s
interest”
– Courts consider the totality of the circumstances, including
whether the person: (1) had the power to hire and fire the
employee, (2) supervised and controlled employee work
schedule or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained
employment records
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Employer v. Employee
Who Wins?
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Case Scenario 6 (cont.)
– Win for employee
– Court allowed FMLA claim to survive against
former president of company because she:
 Had the power to hire and fire employees and she
fired the former employee
 Supervised all employees, including the former
employer
 Was “very hands-on” and “always responsible for
[her] employees
 Approved the former employee’s request for FMLA
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QUESTIONS?
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This presentation and the material contained herein are provided as
general information and should not be construed as legal advice on
any specific matter or as creating an attorney-client relationship.
Before relying on general legal information or deciding on legal
action, request a consultation or information from a Richards, Layton
& Finger attorney on specific legal needs.