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The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the 12-month period immediately preceding the start of the leave). Not so fast, said the 11th Circuit in Pereda v. Brookdale Senior Living Cmtys., Inc., which opened the eligibility door a crack back in 2012. And more recently, on April 13, 2017, a federal district court in Oregon nudged that door open just a bit wider when it issued the decision in Johnson v. Jondy Chemicals, Inc., 2017 WL 1371271 (D. Or. 4/13/2017).

For those of you who don’t have the Pereda case at your fingertips, a quick refresher: In Pereda, the employee notified her employer she would be taking FMLA leave for the birth of her child on or about Nov. 30, 2009. At the time of her request, she had not yet met the eligibility requirements to take FMLA leave, but she would have become eligible by her due date. The court held that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” Thus, an employee can maintain an FMLA interference claim even though at the time of the termination, she was not an “eligible employee” with respect to the 12-month employment requirement.

The Johnson case present us with the intersection of another wrinkle. Recall that if an employee becomes FMLA-eligible during a leave (by meeting the 12-month requirement), the beginning of the leave must be designated as non-FMLA leave while the portion of the leave after the employee meets FMLA eligibility requirements would be designated as FMLA. 29 C.F.R. § 825.110(d). The Johnson case combines the prescience of the Pereda case with the hindsight of this provision to create a new animal: in some circumstances–despite the fact that the employee is not eligible for FMLA at the time of the request or at the time the leave is to begin–an employee’s request for leave could trigger FMLA protections if, at some point in time during the leave, the employee will meet the 12 months of employment eligibility requirement. The Court considered this hypothetical and concluded “the fact that an employee’s treatment commences pre-eligibility…does not, in and of itself, bar the employee’s rights in subsequent FMLA leave for the same treatment during the same contiguous absence…” The court held that an employee who notifies the employer of the need for treatment that will extend into a period of time in which the employee will be FMLA-eligible is entitled to FMLA-protected leave for that period. Therefore, any adverse treatment based on the leave request could be grounds for the employee to claim the employer interfered with his right to FMLA leave.

In the case at hand, the Court was not so sure that the employee had demonstrated that FMLA would have applied to a portion of the leave, because the claim did not specify whether the leave would have extended beyond the employee’s FMLA-eligibility date. As a result, the Court dismissed the claim; leaving open the possibility the employee could refile with more facts to support the claim.

Concerned about navigating your way through complex leave administration issues? Reed Group has options. We offer both outsourced and software solutions for clients with complex and/or multi-state employee populations. To learn more about ReedGroup’s products and services visit reedgroup.com.

Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether the requested accommodations were reasonable. The third focuses on overcoming the hurdle of establishing that an employee is, in fact, disabled under the ADA. All three cases resulted favorably for employers.

In Whitaker v. Wisconsin Dep’t of Health Servs., No. 16-1807, 2017 WL 745600 (7th Cir. Feb. 27, 2017), Whitaker worked as a corrections officer for the Wisconsin Department of Health Services, eventually transitioning into other positions due to a back injury. Her most recent position relevant to her case was that of an economic support specialist in the Department’s Income Maintenance Program. In this role, Whitaker’s job duties included processing applications for benefits, answering phone calls, and general case management, all requiring regular attendance.

Whitaker exhausted her available FMLA leave for her medical condition as well as a 30-day unpaid leave to care for her father and due to her own personal illness. Whitaker was informed by the Department that if she failed to return to work upon the conclusion of the 30-day leave, the termination process would begin. Whitaker did not return to work on her expected date but did submit notes from her doctor requesting additional time off for a medical leave. The notes did not provide any detail on her condition, course of treatment, or estimated recovery. Whitaker continued to assert she was unable to return to work and the Department terminated her employment. Whitaker sued, claiming the Department should have considered her request for an accommodation of unpaid leave rather than terminate her.

The court found that Whitaker was unable to establish that she was an “otherwise qualified” employee as required by the ADA as she provided no proof that she could fulfil the requirement of regular attendance, even with an accommodation. Whitaker argued that if she had been given additional leave as an accommodation, she could return to work on a regular basis. Consistent with other cases we have seen, the Seventh Circuit did not find this argument persuasive. Rather, the court found this accommodation to amount to an open-ended leave request, which was not reasonable and would have imposed an undue burden on the department.

Like Whitaker, Bagwell v. Morgan Cty. Comm’n, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017), analyzes an employee’s essential job functions and whether an employee’s request to accommodate those essential job functions is reasonable.

Bagwell was a County groundskeeper whose essential job functions included tasks necessary to maintain and upkeep city parks, such as traversing uneven and wet surfaces, standing, and walking. Due to stamina and endurance issues caused by a leg injury, she was unable to safely perform these functions consistently, even with the assistance of an accommodation. It was established that Bagwell could only tolerate walking and standing for one-third of her shift. Although some equipment accommodations would reduce related difficulties, Bagwell was unable to perform the essential job functions of the position, with or without accommodations; thus, the court found that Bagwell was not an “otherwise qualified” employee. Additionally, the court found that if the County were to consider an accommodation, it would be a significant one, requiring a co-groundskeeper or hiring a third-party service to complete the work. Finding in favor of the employer, the court held that this type of accommodation would be unreasonable as it was the duty of the groundskeeper to perform such work.

Two employer tips stand out in these cases:

  1. Be sure to keep your job descriptions up to date and accurate. Regular attendance is often an essential job function and the courts rely heavily on employers’ job descriptions to establish the essential functions of a job.
  2. The courts continue to side with employers when an employee is requesting indefinite leave under the ADA, which is considered unreasonable and burdensome to the employer.

The third notable ADA case of 2017 brings us to Alston v. Park Pleasant, Inc., No. 16-1464, 2017 WL 627381 (3d Cir. Feb. 15, 2017). In 2011, Park Pleasant hired Alston to be the Director of Nursing at an adult care facility; one year later, Alston was having significant performance issues. Shortly after meeting with her HR director to discuss these issues, Alston missed work to have a biopsy and was diagnosed with early-stage DCIS (a form of breast cancer). Alston’s performance continued to be in question and she was terminated in early August 2012. Upon termination, Alston sued, claiming employment discrimination under the ADA.

To establish a claim for discrimination under the ADA, Alston was required to demonstrate that she was a disabled person within the meaning of the ADA. The court relied on 29 C.F.R. § 1630.2(j)(1)(iv) in concluding that the determination of whether an employee is disabled under the ADA requires an individualized assessment to analyze whether the employee’s impairment ‘substantially limits a major life activity.’ Throughout the case, Alston failed to provide enough evidence to prove she had a disability. The court did note that cancer generally would qualify as a disability; however, based on the individualized assessment for Alston, there was no argument or proof that this condition limited any of her major life activities. Therefore, the court found that Alston failed to establish she was disabled under the ADA and dismissed her discrimination claim.

This case goes back to the basics, but it reminds employers that an individualized assessment of each employee and his or her ailment(s) or condition(s) is required to establish whether the employee is considered disabled under the ADA and thus entitled to the protections afforded by the act.

It’s evident that ADA discrimination cases continue to be brought by disgruntled employees. To avoid potential risks in litigation:

  • make sure your job descriptions are specific and in writing;
  • follow the interactive process; and
  • evaluate employees on an individual basis.

Outsourcing to a third-party administrator that specializes in ADA management, such as ReedGroup, will keep you ahead of the curve and compliant on all ADA matters. For more information, check out our solutions here.

Reasonable Accommodations Available to NY Domestic Violence Victims Starting November 18, 2019
Sue Woods

Reasonable Accommodations Available to NY Domestic Violence Victims Starting November 18, 2019

Victims of domestic violence gained additional employment protections under a new law recently signed by New York Governor Andrew Cuomo. Effective November 18, 2019, NY Senate Bill 1040 offers reasonable accommodations to victims when needing time off of work as well as protection from discrimination.

Covered Victims of Domestic Violence

A “victim of domestic violence” is defined to mean any person over sixteen, any married person, or any parent accompanied by a minor child, when such person or child is a victim of a criminal act committed by a family or household member. Covered criminal acts may include harassment, disorderly conduct, sexual misconduct, sexual abuse, stalking, menacing, kidnapping, assault, strangulation, identity theft, attempted murder, and other violations of the New York penal code. The acts must have resulted in actual or a substantial risk of physical or emotional harm to the person or child.

Family or household members that deem an act to be domestic violence include persons:

  • related by blood or affinity
  • legally married to each other
  • formerly married to one another regardless of whether they still live together
  • who have a child in common
  • unrelated to each other but who are continually or at regular intervals living in the same household (or have done so in the past)
  • who are in an intimate relationship, regardless of whether living together.

Reasonable Accommodations

The new law makes it an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation to an employee who is known by the employer to be a victim of domestic violence when the employee must be absent from work for a reasonable time to address concerns related to the violence. An employer may require the employee to take time off under an existing paid leave policy provided by the employer. Otherwise, the time off generally may be unpaid.

Reasons for which an employee may take time off include:

  1. Seeking medical attention for injuries;
  2. Obtaining services from a domestic violence shelter, program, or rape crisis center;
  3. Obtaining psychological counseling;
  4. Participating in safety planning and taking actions to increase safety from future domestic violence, including temporary or permanent relocation; and
  5. Obtaining legal services, appearing in court in relation to the incident, and assisting in the prosecution of the offense.

Employers must continue to provide any health insurance coverage to which the employee is otherwise entitled while off work for any of these reasons.

Undue Hardship Defense

New York employers need not provide reasonable accommodations for an employee’s absence due to domestic violence if able to show that the absence would constitute an undue hardship to the employer. Factors to support an undue hardship denial include the overall size of the business (e.g., number of employees, number and type of facilities, size of budget, etc.) and the type of operation/business.

Notice and Certification Requirements

Employees must provide reasonable advance notice of the need for a domestic violence-related absence, unless advance notice is not feasible. If an employee cannot feasibly give reasonable advance notice of the absence, then the employer may request, and the employee must provide, a certification to support the need for leave. That certification may be a police report, a court order, evidence of a court appearance, or documentation from a health care provider, counselor, or domestic violence advocate. Employers must maintain the confidentiality of any information related to the employee being a victim of domestic violence.

Discrimination Prohibited

Employers may not discriminate against an individual because of his or her status as a victim of domestic violence. Prohibited activities include refusing to hire, firing, or discriminating against a victim in pay or in other terms and conditions of employment.

Concurrency with Other Laws

To the extent a domestic violence situation results in circumstances under which the employee would be entitled to leave or benefits under another applicable law, those laws may run concurrently with the New York domestic violence accommodation law. For example, if the employee suffers a serious health condition due to domestic violence, the employee may be entitled to leave under the federal Family and Medical Leave Act (FMLA) and may qualify for mandated disability benefits, if otherwise eligible. Similarly, if the employee’s child is the victim of domestic violence and has a serious health condition, the employee may be entitled to paid time off under New York’s paid family leave law. Employers will need to determine which laws apply to each particular circumstance.

Next Steps for Employers

With less than three months before this new law goes into effect, employers with New York employees should prepare now by:

  • Reviewing employment policies and handbooks to reflect this new leave/accommodation;
  • Training managers, supervisors, and HR professionals on the new law and the rights and obligations it provides; and
  • Updating hiring, disciplinary, and firing procedures to prohibit discrimination on the basis of status as a victim of domestic violence.

What ReedGroup Is Doing

If you are using ReedGroup’s leave management services or software, please be aware that we will update our platforms and operations to administer an employee’s request for leave under this domestic violence law in New York. This includes required notices to both the employee and supervisor as well as case management and return to work tracking.


Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.
The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the...

read more
Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether...

read more
Try Not to Die this Summer
Anne Ahlman

Try Not to Die this Summer

I’ve been thinking a lot about death lately. It all started after reading the cryptic advice of a man named Bob Weighton. When asked for the secret to his longevity on his 111th birthday, Mr. Weighton replied “I have no answer, except to avoid dying.”1 I keep...

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