by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
February 14, 2022
Valentine’s Day isn’t usually a big event for leaves of absence, but join us as we take a look at 3 scenarios where the employers had their hands full.
Miranda has numerous allergies for which she takes FMLA time periodically, especially in the Spring when plants are in bloom. She previously submitted an FMLA certification stating she will need intermittent time off due to flare-ups of her allergies. Miranda tells her supervisor (with plenty of notice and following her employer’s absence reporting procedures!) she won’t be at work on Valentine’s Day because she knows many co-workers will receive flowers from their loved ones and her allergies will flare up. True to her word, Miranda misses work on February 14th. A few days later one of Miranda’s coworkers tells their supervisor that she saw Miranda skiing at Vail on Valentine’s Day. Should Miranda’s absence on February 14 be counted as FMLA time?
Answer: Yes. Miranda’s FMLA certification supports her need for intermittent time off due to flare-ups of her allergies. And, the FMLA allows employees to take FMLA time to avoid having a flare-up of a serious health condition for which intermittent leave has been approved. 29 U.S.C. §825.102 [definition of “continuing treatment” (6)].
But what about Miranda’s ski day? Doesn’t that indicate FMLA misuse? Not necessarily. Skiing in the mountains in February is unlikely to expose Miranda to a high pollen count so her ski day is not inconsistent with the stated reason for her absence. Happy schussing, Miranda!
If HR is still concerned, best to talk tactfully with Miranda about the circumstances and also consider her past FMLA usage before just denying the leave. What happened on the last Valentine's Day, for instance, or other days when coworkers received flowers at the workplace?
Cupid is always busy the first two weeks of February, shooting lots of couples with love-laden arrows. Last year, he was so much in demand he tore his rotator cuff and had to have surgery in April. Months later Cupid’s shoulder is still giving him problems, but his off-season duties are not so strenuous, mostly completing reports on the prior season and scouting out candidates for next year. Now here comes Valentine’s Day again, and Cupid is expected to work extra hours for a couple of weeks, shooting lots of arrows to keep up with business. Cupid presents his employer (who might that be? Let’s call him “The Big Guy”) with a doctor’s note saying he can’t work overtime due to the strain on his injured shoulder. No more than 8 hours per day, 5 days per week. What laws does The Big Guy need to consider? And no, we’re not going to address child labor laws.
Answer: At least two laws are in play here (and maybe more depending on the state of Cupid’s employment): the Family and Medical Leave Act and the Americans with Disabilities Act.
Under the FMLA, Cupid can take time off to avoid mandatory overtime. If he is FMLA eligible and has leave available, he can use FMLA to keep his hours in check. The Big Guy just needs to be sure the mandatory overtime is also counted in calculating Cupid’s FMLA entitlement. But what if recovery from surgery was a slow process and Cupid used up all his FMLA by July? If Cupid’s employer (The Big Guy) uses the rolling back leave year, he has no more FMLA entitlement until the next April, a year after the first day he took leave.
Enter the ADA. In fact, the ADA has been running in the background all along, but FMLA leave trumped any ADA analysis as long as Cupid wanted a leave of absence. Unlike the FMLA, there is no set limit on the amount of time off an employee can take under the ADA as long as it is reasonable and supported by a doctor’s opinion. Now that Cupid’s FMLA entitlement is exhausted, the ADA steps up into place. The fact that Cupid already used 12 weeks of leave for this shoulder condition is of little consequence to the ADA analysis (although it can be considered in determining what is a “reasonable” amount of total leave). But The Big Guy has two defenses in an ADA situation that are not available under the FMLA: essential functions and undue hardship.
First, The Big Guy has a pretty decent argument that overtime in the weeks leading up to Valentine’s Day is an essential function. After all, it is important that Cupid make his appointed rounds and shoot his arrows into the unsuspecting targets. No one else can do it! And that leads to the other defense: undue hardship. Without Cupid working overtime, many of the waiting couples will be missed; the day known for lovers will suffer. Your classic example of operational difficulties! The Big Guy can’t let that happen, and so – barring any other reasonable accommodation and what would that be? – Cupid’s request not to work overtime can be denied. (Of course, that may be short-sighted by The Big Guy but maybe he knows something we don’t – like a successor to Cupid waiting in the clouds!)
NOTE: Cupid’s situation just barely scratches the surface of issue relating to overtime and the FMLA and ADA. Join Marti and Lana at the DMEC Compliance Conference in Los Angeles March 21-24 when they will present an LA-themed session on overtime, the FMLA, and the ADA. Featuring: “ Can You Name That LA Icon?” Prizes (and FMLA/ADA knowledge) abound! You can check it out and register here.
Tyler is approved for intermittent FMLA. His certification says his gluten intolerance causes incapacitating flare-ups of bloating, headaches, and cramps when he eats gluten. He is at work on Valentine’s Day but calls out the next two days because he is experiencing severe gluten symptoms. Co-workers report seeing Tyler out with his finance on Valentine’s Night at a romantic Italian restaurant, sharing a plate of pasta à la Lady and the Tramp. What should the employer do?
Answer: Tyler’s supervisor is advocating asking Tyler what he ordered in the restaurant, but what good will that really do? You may just have to give this one to Tyler. Many restaurants now offer gluten-free pasta and other options. Maybe his flare-up is caused by some inadvertent gluten ingestion. But so what if he did eat some gluten-laden pasta? Can you deny FMLA because the employee voluntarily brought on the flare-up? The answer is “no,” there is nothing in the FMLA that prevents legitimate leave usage even if the employee caused the serious health condition or a flare-up. Nor can you require a doctor’s note for every intermittent absence. 29 U.S.C. § 825.308(b). However, recertification might be appropriate if the employer believes that Tyler’s intentional pasta plate casts doubt upon his reason for the absence or the continuing validity of the certification. 29 U.S.C. § 825.308(c)(3). But in that case, do talk with Tyler first to hear his side of the story.
Finally, some food for thought . . . maybe Tyler should have given advance notice of his near-certain absence if he planned to eat pasta days in advance when he made the restaurant reservation and knew what the consequences of his date night would be!
Matrix Can Help!
At Matrix, we’re always assessing the application of leave and accommodation laws to the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations. Contact your Matrix or Reliance Standard account manager, or one of our regional practice leaders for more information or send us a message at [email protected].