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Article 10-5

FMLA – U.S. DEPARTMENT OF LABOR ISSUES NEW REGULATIONS – NEW MILITARY LEAVE AND OTHER PROVISIONS AFFECT FIRE & EMS DEPARTMENTS

On Nov. 17, 2008, the U.S. Department of Labor, Wage & Hour Division, after almost two years of public comment and review, published their new Family Medical Leave Act regulations, which are effective Jan. 16, 2009. This is the first revision of the regulations since the FMLA law was enacted in 1993, and there are important changes in the regulations.

Employers, including Fire Departments, should print out the new forms that are in Appendix C & D to Part 825 of the regulations and review them with their HR and Legal advisors (forms are in back of the regulations, http://www.dol.gov/esa/whd/fmla/finalrule.htm).

Among the more significant changes affecting the fire service:

• Military Family Leave: The new regulations implement the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), which Congress passed with the support of President Bush. See Appendix C, NOTICE TO EMPLOYEES OF RIGHTS UNDER FMLA (WH Publication 1420).

12-Week Leave:

“Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserve in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.”

26-Week Leave:

“FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period. A covered servicemember is a current member of the Armed Forces, including a member of the National Guard or Reserves, who had a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or in on the temporary disability retired list.”

 • HIPAA - Direct Supervisor May Not Contact Employee’s Heath Care Provider In response to concerns about HIPAA violations, the Wage & Hour Division adopted a new regulation. When an employer needs clarification about the medical certification provided by an employee, only the employer’s physician or health care provider, or their HR professional, their administrator of FMLA, or senior management official can make that contact. Sec. 825.307 of the new regulations provides: “Under no circumstances, however, may the employee’s direct supervisor contact the employee’s health care provider.”

• Serious Health Condition – The definition has been clarified in response to many comments by both employer groups and employee representatives; see Appendix C, NOTICE TO EMPLOYEES OF RIGHTS UNDER FMLA (WH Publication 1420).

 “A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the function’s of the employee’s job, or prevents the qualified family member from participating in school or other activities.”

“subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.”

 • Request For Leave – Employee Must Follow Normal Call-In Procedure - In response to comments by employers that some employees were abusing the FMLA by failing to use the normal call-in procedures to notify the employer, the Wage & Hour Division modified the regulations and the publication that must be posted in the workplace. See Appendix C, NOTICE TO EMPLOYEES OF RIGHTS UNDER FMLA (WH Publication 1420).

“Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days advance notice is not possible, the employee must provide notice as soon as practicable and generally must comply with the employer’s normal call-in procedures.”

 • Light Duty – Time spent in “light duty” can not be counted as FMLA leave time; the employee also has the right to return to their old job after the light duty period.

LEGAL LESSONS LEARNED:These FMLA regulations are significant. Fire and EMS Departments should reading the new forms, and then set up a briefing by your HR and Legal advisor.

Article 10-4

Family Medical Leave Act – Congress Extends To Military Family Members -26 Weeks To Care For Military Injured In Active Duty - 12 Weeks If Service Member Called To Active Duty

On December 14, 2007, Congress passed a statute amending the FMLA of 1993. H.R. 1585, the National Defense Authorization Act For Fiscal Year 2008 includes Section 585, FAMILY LEAVE IN CONNECTION WITH INJURED MEMBERS OF THE ARMED FORCES (can read entire statute at http://thomas.loc.gov).

Sec. 585 provides in part:

 (a) Servicemember Family Leave-

`(16) COVERED SERVICEMEMBER- The term `covered servicemember' means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

`(19) SERIOUS INJURY OR ILLNESS- The term `serious injury or illness', in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.'.

`(3) SERVICEMEMBER FAMILY LEAVE- Subject to section 103, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.

`(f) Certification Related to Active Duty or Call to Active Duty- An employer may require that a request for leave under section 102(a)(1)(E) be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe. If the Secretary issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.'.

Legal Lesson Learned: FDs need to follow this new law. At least seven states have also enacted state family leave laws ( California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York).

Article 10-3

Family Medical Leave Act – Congress Extends To Military Family Members -26 Weeks To Care For Military Injured In Active Duty - 12 Weeks If Service Member Called To Active Duty

On December 14, 2007, Congress passed a statute amending the FMLA of 1993. H.R. 1585, the National Defense Authorization Act For Fiscal Year 2008 includes Section 585, FAMILY LEAVE IN CONNECTION WITH INJURED MEMBERS OF THE ARMED FORCES (can read entire statute at http://thomas.loc.gov).

Sec. 585 provides in part:

 (a) Servicemember Family Leave-

`(16) COVERED SERVICEMEMBER- The term `covered servicemember' means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

`(19) SERIOUS INJURY OR ILLNESS- The term `serious injury or illness', in the case of a member of the Armed Forces, including a member of the National Guard or Reserves, means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.'.

`(3) SERVICEMEMBER FAMILY LEAVE- Subject to section 103, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.

`(f) Certification Related to Active Duty or Call to Active Duty- An employer may require that a request for leave under section 102(a)(1)(E) be supported by a certification issued at such time and in such manner as the Secretary may by regulation prescribe. If the Secretary issues a regulation requiring such certification, the employee shall provide, in a timely manner, a copy of such certification to the employer.'.

Legal Lesson Learned: FDs need to follow this new law. At least seven states have also enacted state family leave laws (California, Illinois, Indiana, Maine, Minnesota, Nebraska and New York).

Article 10-2

OHIO – FMLA - PUBLIC EMPLOYEE CAN SUE UNDER FMLA EVEN IF LOST ARBITRATION

On April 30, 2007, in Miller v. Pond, 171 Ohio App.3d 347, 2007-Ohio-2084, the Ohio Court of Appeals for Stark County, held that former county employee can sue the Stark County Department of Job and Family Services for alleged breach of Family Medical Leave Act, even though she filed a union grievance and an arbitrator ruled against her.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 10-1

TEXAS: FAMILY MEDICAL LEAVE ACT - BATTALION CHIEF WRONGFULLY DISCARGED – ENTITLED TO BACK PAY AND LIQUIDATED DAMAGES, ATTORNEY’S FEES AND COURT COSTS

On June 30, 2006, the U.S. Court of Appeals for the 5 th Circuit in Lubke v. City of Arlington (5th Cir. No. 04-11213), 2006 WL 1793268, held that Battalion Chief Kim Lubke, with 22-years on the City of Arlington, Texas FD, was improperly fired for taking family medical leave to be home with sick wife, when all leaves were cancelled for the “Y2K” weekend of December 31, 1999 – January 2, 2000. Assistant Fire Chief told Lubke that the letter from his wife’s doctor about her bronchitis and back spasms, dated December 22, 1999, was “inadequate substantiation,” but the assistant chief and the city’s human resources manager declined to tell him what additional medical information was needed.

BACKGROUND:

The federal jury awarded him $395,394 in lost wages, $300,000 in liquidated damages, $305,292 in attorney’s fees, and $9,576 in court costs.   The city filed an appeal. The 3-judge panel of the U.S. Court of Appeals upheld the jury’s verdict, but ordered the damages for lost wages be reduced by the amount of retirement pay Battalion Chief Lubke will be receiving.

Battalion Chief Lubke was in charge of 8 stations and 40 - 50 firefighters. The city had issued a directive to all employees, cancelling all leaves for the “Y2K” weekend.  The FD had also issued an internal order that only emergency leaves, personally pre-approved by a designated officer, would be granted.  B/C Lubke never spoke to that designated officer. Instead he left a message on the normal call in machine, that he had to be home attending to his ill wife (his message was that had flu symptoms and back pain).

Lubke returned to work Jan. 3, 2000 (as did his wife, who is also a city employee); and he submitted a standard request for leave form to the FD, indicating: "Wife was ill with severe bronchitis / possible pneumonia.  During coughing spells had strained back muscles and could not get out of bed.  Needs my assistance."  He attached a report from his wife's doctor, dated Dec. 22, 1999, and he attached receipts for 3 prescriptions (one filled on Dec. 22, and two filled on Dec. 29). 

His wife's leave was approved by the city, but the FD disapproved his leave, for "inadequate substantiation."  Lubke asked the Assistant Chief what additional medical documentation was needed, but he declined to answer. Lubke also asked the city's HR manager, who simply referred him back to the Assistant Chief.  

The Assistant Chief also filed administrative charges against him for dereliction of duty, unauthorized absence and insubordination concerning his failure to clear his leave with the designated officer. Those charges, after internal administrative appeals, resulted in his termination on April 19, 2000. [Note: apparently Lubke had long disciplinary record, but the trial judge would not allow this be brought to the attention of the jury, and the U.S. Court of Appeals decision does not discuss any details.] After his firing, Lubke gave the Fire Chief a second letter from his wife's doctor, confirming that Lubke’s wife needed his care at home during Y2K.  The fire chief said the second letter was untimely.

The federal jury trial lasted 10 days, and included testimony from the physician treating Lubke’s wife, who confirmed she has suffered from chronic back problems for more than a decade, and over the years he had proscribed 40 medications, including muscle relaxers and sleep medication.  Another witness was his wife’s supervisor, and another was a co-worker for the city. Each testified that her back problems were well known to the city.

On appeal, the city argued that Battalion Chief Lubke failed to prove that his wife’s illness was “periodic” under FLMA regulations, and therefore he had an obligation to bring in a medicate certificate justifying each time he stayed home to be with her. The Court of Appeals strongly disagreed, “Finally, the City argues that, even if lay opinion may suffice to demonstrate a "serious medical condition," the evidence produced was not enough to demonstrate that Mrs. Lubke's back pain condition was periodic under 29 C.F.R. § 825.114 (a)(2)(iii)(A) (requiring periodic visits to a health care provider). The City contends that "periodic" necessarily means treatment at regular intervals, and one dictionary defines it to mean "[h]aving or marked by repeated cycles," "[h]appening or appearing at regular intervals," or "recurring or reappearing from time to time." AMERICAN HERITAGE COLLEGE DICTIONARY 1035 (4th ed. 2002). But synonyms include sporadic, intermittent, occasional, and fitful, all of which fit within DOL's regulation. The City's definition would lead to absurd results if the regulation required doctor visits only at precise intervals not coinciding with the flare-ups of a chronic condition. Clearly, the DOL intended that periodic visits could correlate with the anticipated episodic nature of chronic conditions. See 29 C.F.R. § 825.114 (a)(2)(iii)(A) and (C).”

The Court of Appeals also ruled the city had an obligation under FMLA regulations to advise the employee in writing if additional medical certifications were required if they doubted his leave request was legitimate. The court noted that under U.S. Department of Labor’s FMLA regulations, an employer may request an additional medical certificate "if the employer later has reason to question the appropriateness of the leave or its duration."  29 CFR 825.305(c).   Under 29 C.F.R. § 825.301(b)(1), the employee has 15 days to produce the additional certificate.

  LEGAL LESSON LEARNED:  Employers who question the appropriateness of a FMLA should advise the employee in writing that additional medical certification is required.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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