Labor law’s loopholes leave many helpless

An employee doesn't show up on Fridays and doesn't call in. Normally, that would be grounds for disciplinary action, but that's not necessarily the case under the Family and Medical Leave Act. Now, some Nevada companies are welcoming proposed changes to what has been called a "confusing" labor law.

The U.S. Department of Labor's suggested rule-tightening may give employers more rights when dealing with workers under the leave law. If the changes are enacted, businesses will have more authority to contact employees' physicians and compel workers on leave to abide by companies' call-in policies.

Up to 12 weeks of unpaid leave are allowed under the law enacted in 1993. Nearly 7 million employees used the leave policy in 2005.

The suggested revisions could bring local businesses much-needed relief, observers say.

"This has been an act that comes with a great degree of uncertainty, and anything that helps define it is good for the employer and the employee. Anything that give us tools to use this is basically good for both sides," said Kathleen Paustian, a lawyer who frequently gives seminars on the leave act for firms.

Her business clients most commonly complain about how difficult it is to determine what conditions the FMLA's "serious medical condition" language covers. Some business lobbyists have pushed for guidelines, but the new regulations do not broach that subject.

Migraine headaches can, and often do, qualify as a serious medical condition under the leave act, for example. Cancer and other critical illnesses are normally covered. Pregnancy, adoption and caring for sick relatives also qualify as FMLA certifiable conditions.

But the "headache" ailment has led to more than a few headaches for employers themselves. Some workers abuse the system without regard to the problems it may cause their bosses and co-workers, said Jeff Winchester, a local labor lawyer who represents employers.

"The biggest complaint I hear from clients is the 'intermittent leave' claims," he said. Intermittent leave is allowed under the FMLA for conditions, such as migraine headaches, if a physician has filled out the required certification form, he explained.

Courts have found that "unforeseeable" leave time may only require an explanation within one or two days, either before or after missing work, said Jacquelyn Leleu, a lawyer who represents employers. In those cases, the worker must only give the law's hazy "practicable" notice.

"Courts can go either way on this," she said. "It is very fact-specific (on a case-by-case basis). So I recommend (employers) don't take action against the employee."

An employee with an FMLA-certified condition may take every Friday, or every Tuesday following a Monday holiday off, for example, without fear of repercussions, Winchester said. The attorney has heard employers complain that some workers don't even grant them the courtesy of calling in.

"They just show up a day later and say, 'Oh, I was out on FMLA,' and there is nothing the employer can do to discipline the employee if they were out on FMLA. That will change with the new regulations," Winchester said. Under the current law, employees are required to give notice if they know 30 days in advance of taking FMLA, explained Angie Dunn, the director of human resources for Las Vegas-based Payroll Solutions. The company handles its own human resources as well as those services outsourced by other firms.

The intermittent leave, consisting of a leave day here and there, is what catches employers off-guard, she added. Dunn's experience is that most employees are responsible enough to let their bosses know.

"When (the employee) wakes up with a migraine that morning, they'll call in," she said.

Workers are only required to give notice within a few days of FMLA leave, as long as they have their doctor's certification completed, Dunn said.

"They could just say, 'I am experiencing severe migraine pain and I couldn't get around to calling,'" the HR director said.

The revisions proposed by the Labor Department wouldn't require employees to comply with companies' call-in procedures, leaving companies the option of disciplining workers who fail to adhere to policies requiring advanced notice of an absence.

Employers could also seek recertification from the employee's physician every 30 days. Employers can now seek reasonable recertification time, which has been interpreted as not more often than every 30 days. Some Senate Democrats, including Chris Dodd, D-Conn., and Edward Kennedy, D-Mass., have questioned whether that would be too burdensome for workers needing long-term medical treatment. The senators have expressed concern that the proposed new regulations could discourage workers from exercising their rights under the FMLA. Democratic presidential hopeful Barack Obama has suggested expanding the FMLA coverage to businesses with 25 employees or more, rather than the current required 50. The Illinois senator's plan would also expand paid leave to all 50 states.

Employees such as Las Vegan Maria Tejeda credit the leave act for giving them the security of knowing their job will be there when they are able to return to work. Tejeda, a 38-year-old Payroll Solutions employee, gave birth to her first child in October and took the entire 12 weeks of leave allowed under FMLA.

Dunn, who supervises Tajeda, advised the expectant mother to get the doctor's certification under FMLA.

"Angie told me everything about it, and I knew I would have my job when I came back," said Tajeda.

A pregnancy or adoption are more obvious situations. But employer verification of illnesses is a delicate subject, Paustian said. In the past, companies could not contact an employee's physicians. Instead, the companies would need to hire their own doctors to contact the employees' doctors, or fear running afoul of the Health Insurance Portability and Accountability Act, or HIPAA.

If the new rules are instituted, a human resources director or company benefits specialist could contact an employee's physician directly.

Disciplining workers who are on FMLA can be a minefield, however, many attorneys say.

An employee may claim retaliation or discrimination based on his or her leave act status, so companies must be cautious, Paustian said.

"I always tell employers to know the law, but that doesn't mean you can't discipline employees who have breached company policy," she said. "Follow the law, and if there is a question, err on the side of the employee."

In some cases, companies do illegally punish their workers for missing time under FMLA. But, if enough time passes, a complaint stemming from an alleged violation of the leave act may get filed as another kind of discrimination claim, said Bob Spretnak, a lawyer who represents employees in labor cases.

A recent federal court filing against Titanium Metals Corp., or Timet, alleged employment discrimination against a now-former worker who took time off to have a child. A Nov. 21, 2007, court filing reported the woman, Teresa Winter, was suspended and then fired about six months after returning to Timet's Henderson plant. The company claims she "misrepresented the company on a business trip," according to the filing.

Timet, which has headquarters in Dallas, does not comment on pending litigation, spokesman Jay Silverberg said. Attempts to reach Winter's attorney failed.

In another case, former Plaza worker Estaven Bonilla is suing the casino regarding his Aug. 8, 2007, termination and for failing to give him his job back after returning from FMLA leave.

Bonilla alleges he was suspended just one day after starting his medical leave for conditions that included a bone graft and umbilical hernia. The Plaza has cited his poor job performance as reason for his dismissal, according to the complaint.

Neither Bonilla's attorney nor the Plaza returned calls for comment.

These cases are not atypical, Spretnak said, not giving an opinion on either one.

"There is the 'patient retaliator,' who knows (the termination) is because of a medical or discrimination complaint. They 'paper' the file of the employee with write-ups," he explained.

The second type of retaliator acts at once and is easier to catch, Spretnak said. "That's where the worker puts in a complaint, and a few days later, he is written up," the attorney said.

Leleu admitted there is no recommended wait time in terms of taking unrelated disciplinary action against FMLA certified workers.

"There's no magical number, one month, two months or three months," she said. "Have programs in place for an evaluation and consistently follow through."

The public comment period on the proposed rule changes ends April 11. Implementing the proposed changes could cost an estimated $26 million in the first year, due to additional information employers would need to provide and an increased number of employees' doctor appointments for recertification.

Spretnak is taking a wait-and-see approach to the new regulations, but doesn't seem worried that his clients who take the leave will be harmed if the new regulations are implemented. FMLA violations don't require a review by an agency, such as the Equal Employment Opportunity Commission, he said.

"You go right to court," he said.

This story first appeared in the Business Press. Valerie Miller writes for the Business Press, the Review-Journal's sister publication. Contact her at vmiller@lvbusinesspress.com or at (702) 387-5286