Changes to FMLA Rules Mean Wider Provisions for Military Families

Thanks to the National Defense Authorization Act of 2010, employees of military servicemen and women now have more entitlements under the federal Family Medical Leave Act.

In late January, the U.S Department of Labor amended the FMLA to comply with the NDAA. The changes weren’t unexpected and actually work to the advantage of employees.

That’s because they change how eligibility is assessed for employees who need to take leave to care for a family member who serves or has served in the military.

Hitherto, employees could only take FMLA leave to care for a family member who had been injured or become ill while serving in the military. The family member who needed care had to be a current member of the armed forces and had a condition that resulted from military service.

Under the new provisions, FMLA leave can be taken up to five years after the employee’s family member leaves military service. Additionally, leave can be taken for an illness or injury that occurred prior to the individual joining the armed forces, but was exacerbated by military service.

For example, if a man injured his knee playing high school football and his military service made the injury worse, causing him to require surgery two years after discharge, his wife would be eligible for FMLA leave to care for him while he recovered from the operation.

The same entitlement of 12 weeks of FMLA leave applies in these cases.

Exigency Leave

The NDAA also expands exigency leave to cover family members of regular servicemen and women. Prior to, only employees with a family member called to active duty service in the National Guard or Reserve could take exigency leave.

Exigency leave is granted to employees whose family member is called to active duty service so they can attend to issues related to the service member’s deployment. Legal and financial matters, education, child care and a broad range of other matters are included. The change means family members of all service men and women can take exigency leave, as long as they’re being deployed to a foreign country.

The change also increased the number of days “Rest and Recuperation” FMLA leave an employee can take from 5 to 15 days. And, a new category was created that allows an employee to take FMLA leave to care for a service member’s parent who is incapable of self-care. So, if a woman’s husband was deployed to active duty military service overseas, she could take FMLA leave to care for his ailing mother or father.

These new rules officially take effect on March 8, 2013. Find more information about the changes and see a side-by-side comparison of the new rules with the prior version, frequently asked questions and a fact sheet, on the DOL’s website.


Is your paycheck less than it was a few weeks ago?

If your paycheck is a bit less than it was a few weeks ago, don’t blame your employer. You can thank the American Taxpayer Relief Act (ATRA) of 2012.

You probably heard the media call ATRA the “fiscal cliff bill.” ATRA partially addressed several tax cuts put into effect under President George W. Bush, which were set to expire on Jan. 1.

Congress passed ATRA on Jan. 1 and President Obama signed it into law on Jan. 2. In short, ATRA stopped some tax decreases from expiring, but made no provisions to address other looming tax increases.

What Did ATRA Do?

For the large majority of taxpayers, the most significant part of the ATRA legislation was its impact on federal income taxes. ATRA kept the 2003 Bush-era income tax rates in place for all earners, except those whose earnings exceed $400,000 for single filers or $450,000 for married couples who file jointly. That means you’ll probably pay a similar amount of income taxes this year as you have for the past decade.

Most of ATRA won’t impact most Americans. Here’s what else it did:

  • Stopped income taxes on capital gains from increasing from 15 to 20 percent.
  • Maintained income taxes on dividends at 15 percent instead of being taxed at ordinary income rates.
  • Increased Alternative Minimum Tax (AMT) exemption amounts which reduced the number of taxpayers that will be subject to AMT.
  • Raised tax liability for higher income taxpayers by reimplementing exemption and deduction phase outs.
  • Extended the availability of 50 percent first-year bonus depreciation, and increased the expensing limitation for depreciable property for 2012 and 2013.
  • Addressed looming tax increases in estate and gift taxes. The maximum tax was set to increase from 35 percent to 55 percent. The maximum tax is now set permanently at 40 percent.

What Didn’t ATRA Address?

The tax increases ATRA didn’t address are of much more significance to most Americans. Specifically, ARTA did not address a 2 percent tax rate increase on the Social Security payroll tax that’s automatically deducted from employees’ earnings.

For the past decade, employees had seen a 4.2 percent tax deducted for Social Security. Since ARTA didn’t address this tax, the rate has increased to 6.2 percent for everyone. This change has already gone into effect, so you’ve likely noticed your paycheck is about 2 percent lower.

The Medicare tax rate has also increased by .9 percent on earnings for employees whose wages are more than $200,000 for single filers or $250,000 for those who file jointly.

Last, ATRA allows a new 3.8 percent tax on investment income for joint filers with adjusted gross income above $250,000 or single filers with income of more than $200,000. The taxes applies to things like dividends, rents, royalties, interest, short- and long-term capital gains, a net gain from the sale of a second home and passive income from real estate and investments.

Most of the changes ATRA initiated won’t impact ordinary Americans. The legislation did keep federal income tax rates at 2003 levels for most Americans. It also caused everyone to experience a 2 percent decrease in their paychecks since the legislation didn’t address the increase in Social Security taxes deducted from each paycheck.

Note to self….Being the manager that grants FMLA Leave can be a tricky job

As a supervisor, you know you must grant eligible employees leave under the federal Family Medical Leave Act. FMLA provides employees the essential time off from work they need while they address their own or a loved one’s serious health issue.

However, there’s a much more compelling reason to make certain you, as a manager, are following the letter of the law. Federal courts in three districts have found individual managers to be personally liable when their eligible employers’ ability to take FMLA leave was impeded.

In a recent case, Haybarger v. Lawrence County Adult Prob. & Parole, 667 F.3d 408 (3d Cir. 2012), the Third Circuit Court unanimously held that a supervisor can be held individually liable for violations of the FMLA. This court’s decision follows similar decisions in the Fifth and Eighth Circuits.

So, if an employee requests FMLA, you should make every effort to support the request as promptly as possible. Otherwise, you might find yourself –rather than your company – at the center of a lawsuit.

Here are some important things to remember when an employee asks for leave under the FMLA.

Don’t delay your response. Provide employees with the necessary paperwork as soon as they request leave. Otherwise, it may appear that you have discouraged an employee from taking leave because you didn’t act quickly enough. In one court case, an employee requested the forms needed to take FMLA leave. She had to make the request several times over a period of three months before the paperwork was provided. The leave was approved by the company’s human resourced department once she submitted the required documentation. However, she sued, claiming her supervisor’s lack of response was a tactic to keep her from taking leave. The court agreed, and the company lost the case.

Refrain from asking for detailed medical information. The FMLA places strict limits on what medical information employers can request when employees take leave.  A company lost a court case after a manager asked an employee for a specific diagnosis in addition to the medical certification form that included symptoms. The employee refused to provide the additional documentation, and she was fired when she began taking leave. She sued, claiming the certification form provided all the information needed to verify her serious medical condition and its probable duration. The court agreed because the FMLA statute says employers cannot ask for a specific diagnosis.

Keep accurate records so you don’t grant employees too much leave. As a manager, you must be aware of who is eligible for leave and how many days or weeks of leave they’ve taken. In another case, an employee who was taking leave under the FMLA asked her direct supervisor for additional time off for follow-up surgery. She had exceeded the 12-week period of leave, but her supervisor granted the leave anyway. Later, the company fired her for missing too much work. She sued and the company lost. The court ruled the supervisor should have known she was out of leave and not granted the additional time off.

Paternal Leave? This new dad thought so!

While it’s the mother who carries and delivers the baby, fathers have the right to take time off work under the provisions of the FMLA and not face retaliation from their employers. That’s according to a U.S. District court which ruled in favor of Massachusetts man who sued his employer after he was terminated for taking leave to care for his ailing wife and newborn son.

The Details

Ariel Ayanna was an attorney at Dechert LLP, an 800-attorney international law firm. Ayanna took FMLA leave both during and after his wife’s pregnancy with their son. His wife suffered from several serious mental illnesses, and he needed to care for her during the pregnancy. Following the birth, Ayanna took four weeks paid paternity leave and additional FMLA leave to care for his wife and bond with his newborn son.

Attorneys productivity at work is usually measured in the number of billable hours they submit each year. Most have a quota of billable hours they must meet to be considered in good standing with the law firm. Because he took time off from work, the number of billable hours he submitted for the year was nearly 500 less than the firm’s quota of 1,950 hours.

Ayanna contends he asked for additional hours to be assigned, but was instead met with ridicule and discrimination because of his need to take leave to care for his family. Despite having stellar performance reviews and adequate billable hours in each of the prior two years, Ayanna said he was singled out because of his need to take family leave from his overly “macho” work environment.

A judge agreed, and denied the law firm’s request for summary judgment. In denying the request, the judge cleared the way for Ayanna’s case to be heard by a jury, which will consider recommending a civil award.

What Does this Case Mean for Employees?

In the Ayanna case, the judge’s ruling shows that fathers have just as much right to take FMLA leave to care for newborn children as the mother. The first case heard on this subject matter also favored the employee, a male state trooper whose employer neglected to allow FMLA leave because he, as the father, was not considered the child’s primary caregiver since he couldn’t breastfeed the baby.

It’s true that women take more FMLA leave than men – six out of 10 employees who take leave are female. And it’s true that in most cases, women do serve as the primary caregiver for newborn children.

But with gender roles changing in today’s two-income households, these types of situations are likely to arise more frequently. Male employees should ensure their employers are granting the leave they’re entitled to under the FMLA following the birth of a child.


Ensure Your Actions Are Consistent With Doctor’s Orders While on Leave

It should go without saying, but if you’re on FMLA leave don’t get caught abusing the privilege the statute gives you.

Here’s why:

Sara Jaszczyszyn had worked for a physician group for about 18 months when she requested intermittent FMLA-leave for worsening back pain resulting from a car accident that occurred 10 year before. Jaszczyszyn’s doctor confirmed the need for leave, stating she was “completely incapacitated” as a result of the back pain and would be out of work for a period of several weeks.

Jaszczyszyn’s employer complied with her request and approved her request for FMLA leave. Under the provisions of FMLA she was eligible for 12 work weeks of leave.

During the time Jaszczyszyn was out on leave, photographs of her drinking beer and partying at a Polish festival appeared on Facebook. Apparently, while she was at the weekend festival, she left several messages for her supervisor, indicating she would not be at work the following Monday due to her back pain.

She was “friends” with some coworkers who saw the photos of her escapades and reported the activity to supervisors. An investigated ensued, and Jaszczyszyn was ultimately fired for fraudulent use of FMLA time.

Jaszczyszyn sued her employer, stating her termination resulted from retaliation for taking FMLA leave. A district court in westernMichigan disagreed with Jaszczyszyn’s assertion, finding that the employer’s actions were not retaliatory, but had been motivated by honest suspicions she was abusing her leave. Jaszczyszyn filed an appeal with the sixth district court that agreed with the lower court’s decision in November 2012.

Despite this employee’s questionable actions, employees should not be fearful of following doctors’ orders while on FMLA leave. In a 2010 case, anotherMichiganwoman sued her employer after she was fired for similar reasons. The difference in this case hinged on the doctor’s treatment plan.

Mary-Jo Hyldahl worked for an AT&T subsidiary inMichigan. She was under psychiatric care for post-traumatic stress disorder and severe recurring depression, anxiety and chronic pain. Hyldahl’s doctors submitted the medical certification form authorizing her to be on leave up to 48 hours per month.

Outside of the certification form, her doctor recommended she spend time with friends and family as a means of support when going through a depressive episode. However, she was terminated for fraudulent use of FMLA leave after her employer discovered she got her hair cut, had drinks with a friend and attended a holiday party while on leave.

Hyladahl sued, and a jury sided with her. The company appealed, and an appellate court again sided with Hyladahl, saying the employer should have sought a second and possibly third medical opinion about her condition to determine if Hyladahl’s activities were consistent with medical treatment.

Ultimately, Hyladahl was awarded more than $500,000 in damages, back pay and attorney’s fees.

What can you learn from these cases? When you take FMLA leave, ensure your out-of-the-office actions are consistent with your doctor’s orders. Otherwise, you stand to loose your job and have no real way to seek damages in a court.

Medical Certification Required for FMLA Leave to be Granted

Taking leave under the federal Family and Medical Leave Act is not difficult, but there are some processes you must follow to ensure your employer grants the time off.

The medical certification form is an integral part of FMLA-leave requests. You must have the form completed by your physician and deliver it to your employer. Otherwise, you’re likely to lose your right to take FMLA leave and risk termination.

Take the case of Kimberly Miedema whose termination from a concession and catering service inTexaswas upheld by both district and circuit courts.

Miedema claimed she had experienced sexual harassment while on the job, and as a result, suffered post-traumatic stress disorder. Her employer, Spectrum Catering, didn’t dispute her need for leave. Spectrum was willing to grant leave while Miedema received treatment for PTSD.

However, Spectrum’s president requested Miedema have the Department of Labor’s “Certification of Health Care Provider” form completed by her physician on at least two occasions. Physicians complete the form on an employee’s behalf, providing details about the illness and the expected length of time he or she will miss work.

The first notification was made when Miedema initially indicated she would need FMLA leave. She didn’t provide the certification document within 15 days, so Spectrum again requested it in writing. Despite these requests, Miedema never provided a completed form to Spectrum. She had provided a hand-written note from her doctor that simply said she wouldn’t be able to work.

Consequently, she was terminated from her job since she had accrued unexcused absences. Miedema sued, alleging employer negligence and violations of the FMLA’s substantive and retaliation provisions.

Miedema apparently believed the note from her physician provided medical certification. Additionally, she said her employer should have been more forthcoming in explaining the consequences if she failed to return the Certification of Health Care Provider form.

The courts disagreed.

That’s because the FMLA statute’s requirements on medical certification are black and white.

“… in the case of a medical emergency, it may not be practicable for an employee to provide the required certification within 15 calendar days. Absent such extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. If the employee never produces the certification, the leave is not FMLA leave.

The Fifth Circuit Court of Appeals upheld Miedema’s termination in September.

And hers isn’t the only such case that has gone in favor of the employer. Consider these:

In Mueller v. Kohler, Inc. (6/15/12), the plaintiff, Andre Mueller, was terminated from his position for failing to call-in to work when he was out for foot surgery. He assumed he was on approved FMLA leave, but since he failed to return the proper medical certification form within 15 days of notifying his employer he would be taking leave, his FMLA request was denied. A U.S. District Court inAlabama upheld his termination.

In Graham v. Bluecross Blueshield of Tennesee (2/17/12), the plaintiff, Cynthia Graham, was terminated after failing to provide medical recertification to her employer. She had been on leave for migraine headaches, but did not provide recertification within the time frame required by her employer. A U.S District Court inTennessee upheld her termination.

These are real-world cases where employees were fired because they didn’t submit the proper documentation to their employers. Just because a doctor says you should miss work because of a serious health condition, you can’t take leave carte blanche. You must follow the correct procedures for requesting FMLA leave from your employer.

When are You Sick Enough to Take FMLA Leave for a Serious Health Condition?

The federal Family Medical Leave Act allows you take time off from work when you need to care for yourself or a spouse, child or parent with a “serious health condition.”

Despite numerous court cases and Congressional hearings on the matter, there is no specific list of illnesses that are considered a “serious health condition.” The U.S. Department of Labor has stated it avoids specifying conditions like “cancer” or “heart disease” in the statute so employers can’t refuse to grant leave to employees who suffer from conditions not included on a published list.

The absence of an official list makes interpreting the statute’s intentions confusing and can leave employees uncertain about when they qualify for FMLA leave.

In a recently released guide, the U.S. Department of Labor has provided some further definition that might help employees determine when they can take FMLA leave. While the guide does not pinpoint specific illnesses, it does provide parameters that should make the law somewhat less ambiguous.

According to the “The Employee’s Guide to the Family Medical Leave Act,” the most common serious health conditions that qualify for FMLA are:

  • Conditions requiring an overnight stay in a hospital or other medical care facility.
  • Conditions that prevent you or your family member from attending work or school for three consecutive days and have ongoing medical treatment in the form of a single or multiple, ongoing treatments.
  • Chronic conditions that cause occasional periods you or your family member to be incapacitated and require treatment by a healthcare provider at least twice a year.
  • Pregnancy, including prenatal medical appointments, incapacity due to morning sickness and medically required bed rest.

While these guidelines do give some insight into reasons why an employee might need to take FMLA leave, the definition of “serious health condition” remains quite broad and has caused some uncertainty among employers and employees.

If an employee requires inpatient hospitalization, there’s usually little question as to their FMLA status. It’s typically granted with no issues. However, if no hospitalization occurs, the situation is not as clear. Sometimes, employees file FMLA interference claims because an employer refuses to grant leave for what the employee believes to be a “serious health condition.”

Litigation in the court system about the meaning of “serious health condition” usually focuses on the question of whether the employee has received “continuing treatment” for the condition.

Using guidelines set forth by Congress and the DOL, most courts use a three-part test to determine if an employee’s “serious health condition” meets the threshold required for FMLA leave.

  • Does the employee have an incapacity requiring an absence from work?
  • Does the period of incapacity exceed three days?
  • Does the employee receive continuing treatment by a healthcare provider during the period?

While that may seem straightforward, there are myriad other facts considered during FMLA interference claims, and cases are far from black and white.

In some instances, employees lost FMLA interference claims because judges ruled their “serious health condition” to be manageable without FMLA leave. Consider the case of Brennerman v.MedCentral Health System (6th Cir. 2004).

The employee attempted to take FMLA leave while he recovered from the flu, but his FMLA leave was denied by his employer.  The court ruled in favor of the employer because the certification document from the employee’s physician indicated only the need for leave from work, bed rest and fluids, which do not qualify as a regimen of continuing treatment under FMLA.

However, in the case of Rankin v. Seagate Technologies, Inc., (8th Cir. 2001), the employee was found to be sufficiently ill from a virus with vomiting since he saw a physician twice over the course of a few days which met the FMLA requirement for “continuing treatment.”

While these two cases seem similar on the surface, the courts clearly arrived at opposite opinions about the employees’ need for FMLA leave. Therefore, if you aren’t sure if your condition meets the FMLA requirements, contact your human resources department first. If you still have questions, contact the U.S. Department of Labor’s Wage & Hour Division at 1-866-487-9243 for assistance.

To see “The Employee’s Guide to the Family Medical Leave Act” in its entirety, please click here.

The Importance of Following Your Employer’s Leave Procedures Before Taking FMLA Leave

In many ways, the federal Family Medical Leave Act works to your advantage as an employee. But you must not abuse the privileges it grants. Even if your leave complies with intermittent FMLA guidelines, you must still give your employer proper notice of your absences.

The FMLA clearly states employees must comply with “the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”

If you don’t follow your employer’s policy regarding call-out procedures, you stand to lose your job, and taking legal action may not help you get it back.

In at least four recent cases, courts have ruled in favor of the employer when an employee – even though he or she requested intermittent FMLA – fails to follow call-in policies.

Most recently, in Ritenour v. Tennessee Department of Human Services. (6th Cir. 8/29/12), the plaintiff was on intermittent FMLA leave to care for an ill child. However, when she missed four days of work in August 2008, she did not notify her employer – the Tennessee Department of Human Services – that she would be absent.

The TDHS job abandonment policy states:

“An employee who is absent from duty for more than three (3) consecutive business days without giving notice to the appointing authority or appropriate manager concerning the reason for such absence and without securing permission to be on leave . . . absent unusual circumstances causing the employee’s absence . . . is considered as having resigned not in good standing.” 

TDHS terminated the plaintiff, Amy Ritenour, who believed she didn’t have to follow the policy because she had requested FMLA leave. Ritenour brought suit against the TDHS for unlawful termination, but both district and appellate courts ruled in favor of her employer.

In its upholding a decision from a district court, the Sixth Circuit U.S. Court of Appeals, Sixth Circuit wrote:

“Ritenour knew that the absenteeism policy required that absent employees call-in their absences in order to give their supervisor appropriate notice to make alternative work assignment arrangements. TDHS’s job abandonment policy applies to all employees who are absent from duty without approval. The enforcement of that policy against Ritenour was not related to Ritenour’s request for FMLA leave because the policy applies to employees who are absent from work without approval for any reason.”

Other courts ruled similarly in FMLA-related cases.

  • In Righi v. SMC Corporation ofAmerica(7th Cir., 2/14/11), the employee missed work and made no effort to contact his supervisor for a week which violated his employer’s call-in procedure.
  • In Thompson v. CenturyTel of Central Arkansas (8th Cir., 12/3/10), the employee violated her employer’s call-in policy when she failed to regularly notify her supervisor of her absences.
  • In Brown v. Automotive Components Holdings LLC (7th Cir., 9/8/10), the employee violated notice procedures after failing to come to work or explain her absence within five days of receiving a quit notice from her employer.

In each of these cases, the employer was found not to have interfered with the employees’ ability to take FMLA because the employees hadn’t followed the call-in procedures. Ultimately, each employee lost their jobs.

The take away: just because you’ve requested FMLA, you must still notify your employer when you’re going to miss work or you could be subject to termination.