Assessing FMLA Obligations
Question: Does an employer have an obligation to place an employee on Family and Medical Leave Act leave even though he/she has not specifically requested it? I have an employee who is eligible for FMLA leave but will not request it even though I have explained his FMLA rights. He refuses to request FMLA leave and refuses to fill out the FMLA-related paperwork. Can I place him on FMLA leave without obtaining his consent?
By Keisha-Ann Gray
Answer: Maybe, depending on the nature of the employee's medical condition.
If the reason for the leave meets all the requirements of qualified leave under FMLA, employers can (and should) designate the leave of absence as FMLA leave irrespective of whether the employee wants it designated that way or not. See Wage & Hour Op. Letter, FMLA-68 (July 21, 1995); Wage & Hour Op. Letter, FMLA-83 (Aug. 7, 1996). See also Harvender v. Norton Co., No. 96 - 653, 1997 U.S. Dist. LEXIS 21467 (LEK/RWS), at *21- 22 (N.D.N.Y. Dec. 15, 1997). Failure to do so can result in the employee obtaining more FMLA leave than the employer is required by the Act to give.
However, because a misclassification may result in the violation of the FMLA and may expose the employer to legal action, when designating a leave as FMLA related over the employee's objections, employers must take extra special care to confirm that the employee's medical condition truly qualifies as an FMLA qualifying leave (e.g., is a "serious health condition").
Under the FMLA, employers who employ 50 or more employees must provide up to 12 weeks of unpaid leave to employees who have worked for at least 12 months prior to leave, and at least 1,250 hours during the 12-month period immediately preceding the commencement of FMLA leave. FMLA leave is available to such employees for any of the following reasons:
* The birth of the employee's son or daughter and to care for the newborn child;
* The placement of a child with the employee for adoption or foster care or to care for the newly placed child;
* To care for the employee's spouse, son, daughter or parent (but not in-law) with a serious health condition;
* The employee's own "serious health condition" that makes the employee unable to perform one or more of the essential functions of his/her job;
* Any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency; and/or
* To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member.
To designate an employee's absence as FMLA leave without the employee's consent, employers should be mindful of following:
Make sure the classification is proper.
Employers must make every effort to ensure that absence qualifies as leave protected by the FMLA. Leave protected by the FMLA includes a "serious medical condition," which is a health condition that makes the employee unable to perform the essential functions of the position held by the employee. See 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1). A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves -- (a) inpatient care in a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).
Recently, the Department of Labor amended the existing regulatory definition of a "serious health condition" under the FMLA and clarified that, for an employee's condition to qualify as a serious health condition, it must be as a result of three consecutive days of incapacity plus two visits to a healthcare provider, each of which must occur within 30 days of the start of the period of incapacity, and the first visit must occur within 7 days of the start of incapacity. 29 C.F.R. § 825.115(a).
For an employee's condition to qualify as a "chronic serious health condition," the employee must make at least two visits to a healthcare provider per year. 29 C.F.R. § 825.115(c).
As such, before making any designation as FMLA leave, employers should obtain sufficient information to justify that the employee's stated reason for the medical-related leave fits within this classification before designating it as FMLA leave.
Avoid potential interference claims.
Proper classification is important because it assists employers in avoiding interference claims brought by employees who have had their leave designated as FMLA qualifying without their consent. The FMLA does not permit employers to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA. 29 U.S.C. § 2615(a)(1).
To prevail under the interference theory, a complaining employee must establish that (1) s/he is an "[e]ligible employee," under the Act 29 U.S.C. § 2611; (2) the defendant is an "[e]mployer," 29 U.S.C. § 2611(4); (3) s/he was entitled to leave under the FMLA, 29 U.S.C. § 2612(a)(1);(4) s/he gave the employer notice of his intention to take leave, 29 U.S.C. § 2612(e)(1); and (5) the employer denied the employee FMLA benefits to which s/he was entitled.
An employer who classifies an employee's absence as FMLA leave may be subject to a FMLA interference involuntary-leave claim brought under § 2615(a)(1) if the leave was misclassified as FMLA qualifying and thereby resulted in the employee being precluded from taking FMLA leave at a later time. See Wysong v. Dow Chemical Co., 503 F.3d 441, 448-49 (6th Cir. 2007) (an employer who forces an employee to take leave may create a claim under the FMLA if the employee can show that she did not suffer from a "serious health condition" during the time the employer forced her to take FMLA leave).
However, the employee's involuntary leave/FMLA interference claim becomes actionable only when, and if, the employee seeks FMLA leave at a later date and only if the leave is denied due to the fact that the employee took leave in the past that was improperly classified as FMLA leave. Wysong, 503 F.3d at 449 (citing Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006) (setting forth the elements of an interference claim). Additionally, the employee would have had to allege that s/he later requested FMLA leave, but that the employer refused, based on the fact that s/he had already used up their available FMLA leave. Id.
Provide proper notice.
In addition to ensuring proper classification, employers should remember to comply with all notice requirements when designating an employee's absence as FMLA leave.
Specifically, employers must notify the affected employee, in writing, that the absence is being designated as "FMLA leave within five days of receipt of the employee's first notice of need for absence/leave." See 29 C.F.R. §§ 825.300(b),(c). The regulations provide that the five business days is a ceiling, not a floor -- as such, employers should provide notice of FMLA leave designation as soon as sufficient information is made available to the employer.
Question: Can you provide some guidance on the area of reassignment under the Americans with Disabilities Act? If the employer reassigns an employee as a reasonable accommodation but the employee cannot perform the reassigned work, is the employer obligated to continue to reassign the employee to other positions until they are successful, or is a single reassignment sufficient? In other words, how may times must an employer attempt to reassign an employee under the ADA?
Answer: It depends: The ADA does not expressly state how many times an employer must attempt to reassign an employee under the Act's reasonable accommodation provision. What the Act is clear about, however, is that before reassigning employees, employers must engage in the interactive process with the employee so as to determine whether or not a reasonable accommodation can be made, and if so -- to identify the accommodation. Reassignment to a vacant position is a form of reasonable accommodation available to employees under the ADA. See 42 U.S.C. § 12111(9).
Determining what constitutes a proper reassignment requires a case-by-case assessment. Therefore, employers should be careful not to make a single offer of reassignment without first committing to the interactive process and assessing varying roles for the affected employee.
The ADA Generally
The ADA requires employers with fifteen (15) or more employees to provide reasonable accommodations for qualified employees with disabilities, unless such an accommodation would cause the employer undue hardship. See 42 U.S.C. §§ 12111(5)(A), 12112(b)(5)(A). A "qualified individual" is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. See 42 U.S.C. § 12111(8).
As with most of the ADA's provisions, determining what constitutes an undue hardship is fact specific. However, the following factors to be considered when making such a determination:
* The nature and cost of the accommodation needed;
* The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
* The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
* The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
42 U.S.C. § 12111(10)(B).
Reassignment: One Type of Reasonable Accommodation
The Equal Employment Opportunity Commission -- the administrative agency charged with promulgating regulations to implement the statutory language of the ADA -- describes the term "reasonable accommodation" as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." 29 C.F.R. pt. 1630, app. 1630.2(o).
Reassignment is one type of reasonable accommodation. However, employees do not have an absolute right to reassignment. In fact, the duty to reassign an employee to a vacant position is an option of last resort. EEOC Notice 915.002,
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA
, (Oct. 17, 2002); 29 C.F.R. § 1630.9(a); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677 (7th Cir. 1998); Smith v. Midland Bank, Inc., 180 F.3d 1154, 1166 (10th Cir. 1999).
In order to qualify for reassignment to a new position, the employee must be qualified for that new position. Dalton, 141 F.3d at 677; 42 U.S.C. § 12111(9)(B). An individual is "qualified" for a new position if the individual (1) satisfies the legitimate prerequisites for that alternative position and (2) is able to perform the essential functions of that position with or without reasonable accommodation. The offered position must be equivalent in terms of pay, status, benefits, or geographical location of the employee's former position. Dalton, 141 F.3d at 678.
To identify whether reassignment is appropriate, and if so, the proper position, employers must first engage in the interactive process. See 29 C.F.R. app. Pt. 1630, app.1630.9. The interactive process is an on-going obligation that requires both the employer and the employee to communicate in good faith in order to determine what specific accommodations are necessary. It requires:
* Direct communication between the employer and employee to explore in good faith the possible accommodations;
* Consideration of the employee's request; and
* Offering an accommodation that is reasonable and effective.
Properly engaging in the interactive process should enable the employer to identify whether undue hardship exists, and, if an undue hardship doesn't exist, a reasonable accommodation for the employee. If reassignment to a different position is the only reasonable accommodation available, then the employer must evaluate whether the employee has the knowledge, skills and abilities to perform the legitimate requirements of reassigned position. See Dalton, 141 F.3d at 678 (logically, reasonable accommodation will not require transfers to multiple positions if all potential positions were considered during the interactive process).
Turning back to the reader's question: An employee who, pursuant to a reasonable accommodation, is reassigned to a different position, but is unable to perform the essential functions of that position, is likely not qualified for the position.
Therefore, the employer should not have reassigned the employee to that position as an accommodation in the first place. Before giving up, however, it would be prudent for the employer to re-engage in the interactive process to ensure that no other positions are available to accommodate the employee. See Wiechelt v. UPS, 03-345A, 2007 U.S. Dist. LEXIS 71056, at *8 (E.D.N.Y. Sept. 21, 2007) (employee offered a reassignment in which the employee is not qualified for or is unable to perform due to known disabilities, has not been offered a reasonable accommodation).
However, if the facts and circumstances of the employee's qualified disability changes after having been reassigned to a new position, thereby making the employee unable to perform the essential job duties of the new position, the employer must again engage in the interactive process with the employee to determine whether an alternative position exists.
While these obligations may appear onerous, there are limits to the employer's obligation to reassign an employee. Employers are required only to take reasonable steps to effectuate reassignment and are free to choose the reassignment that they offer to their employees. Smith, 180 F.3d at 1171.
Additionally, a reasonable accommodation under the ADA does not include a reassignment to a position that the employee prefers, nor does it require employers to promote the employee, bump another employee from their existing position, or create a new position in order to accommodate the employee. Id. at 1174-78.
The operative word in the phrase "reasonable accommodation" is the word "reasonable", and employers are obligated only to 1) engage in a good-faith interactive process to identify whether a reasonable accommodation exists such that it will not create an undue hardship for the employer, and 2) offer the employee the reasonable accommodation if one in fact exists. If the interactive process is performed properly, there should be no need for multiple reassignments, unless the employee's condition changes such that the original reassignment would no longer remain a viable option.
Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer Rose in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.
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