Fishin’ and Boatin’ on FMLA

The termination of a night shift employee who went fishing and boating while on FMLA leave did not violate the FMLA, according to a decision last week by a California federal district court.

The plaintiff had been approved for FMLA intermittent leave. He called out on FMLA for his night shifts on October 19, 20 and 21. The employer had previously denied a request by the plaintiff to take vacation on those three dates.

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During the day on October 21, during hours the plaintiff was not scheduled to work, the plaintiff went with co-workers on a pre-planned boating trip.  A co-worker made a video at the outing and posted it on Facebook. In the video, according to the decision, the plaintiff said “I’m not out here.”

When the plaintiff’s employer learned of the video, it investigated and then terminated plaintiff for dishonesty for improper FMLA use. In granting summary judgment to the employer, the court rejected the plaintiff’s arguments that the termination violated the FMLA because fishing and boating activities were not inconsistent with his medical condition and the trip did not conflict with his work shifts. The court concluded that the employee did not produce any evidence to suggest that the employer’s termination decision was based on anything but the employee’s dishonesty.

By the way, this is not my first fish story. See here.

Maine Governor Signs “Any Reason” Leave Law 

On Monday, Maine Governor Janet Mills signed the Earned Paid Leave Law. While some media describe the law as a PSL law (see, for example, here and here), it is not a PSL law. As noted in my post last week, earned paid leave under this law can be used for any reason. Unlike all other PSL laws, it does not itemize the reasons for which accrued leave can be used.
To use accrued leave, an employee who works for a covered employer (more than 10 employees for more than 120 days in a calendar year), absent an emergency, must give “reasonable notice” of the intent to use earned leave and must schedule that leave time “to prevent undue hardship on the employer as reasonably determined by the employer.” The law takes effect on January 1, 2021.
The Maine law also preempts any political subdivision from enacting an ordinance or other rule regulating earned paid leave. Last month, the City Council in Portland, ME narrowly defeated a traditional PSL bill.

ADA Inflexible Leave Case Settled

Lawsuits involving inflexible leave policies always get my attention. I have been speaking and writing about such policies for decades. Last year, the EEOC sued Pilgrim’s Pride, alleging that it had violated the ADA by not modifying its attendance and leave policies to accommodate an employee with a disability. Earlier this month, the case was settled for $50,000 and other non-monetary relief.

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In its press release about the settlement, an EEOC official stated that “Nearly 30 years after the enactment of the ADA, some employers are still enforcing inflexible attendance policies… This lawsuit is a reminder to employers they have an obligation to make exceptions to attendance policies and provide leave as a form of reasonable accommodation unless doing so would result in undue hardship.”

Underlying the EEOC’s inflexible leave position is the oxymoronic anomaly that an individual who cannot come to work is nonetheless a qualified individual with a disability, defined as one who can perform the essential functions of the position either with or without an accommodation.

Not all courts subscribe to the EEOC’s view of inflexible leave policies. In 2017, the Seventh Circuit not only rejected the EEOC’s inflexible leave position but also held that the ADA does not even govern medical leaves. “The ADA is an antidiscrimination statute, not a medical-leave entitlement…. Long-term medical leave is the domain of the FMLA,” the Seventh Circuit said in Severson v. Heartland Woodcraft, Inc. Continue reading

Maine Leave Law Goes Where No Leave Law Has Gone Before

Like the mission of the Starship Enterprise into the unknown, the Maine paid leave law boldly goes where no leave law has gone before by requiring employers to allow employees to accrue paid time off which may be used for any reason. If Democratic Governor Janet Mills, who supports the law, signs the Maine Earned Paid Leave Law or simply does not act on it, the law will be enacted within days. It applies to employers with at least ten employees and is effective on January 1, 2021.  For reasons that are unclear to me, employees covered by a collective bargaining agreement are not entitled to leave under this law “during the period between January 1, 2021 and the expiration of the agreement,” which could be years after non-represented employees are receiving leave under the law.

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Because of its “any reason” provision, the law is not technically a paid sick and safe leave law, though I will include it in my list of PSL resources.  It is a PTO law which, I suspect, will have covered Maine employers revisiting their PTO policies.

While Maine may be first to enact an “any reason” earned leave  law, it was not the first to consider such a law. In 2017, Maryland Governor Hogan, faced with pressure to enact a PSL bill, proposed the Commonsense Paid Leave Act, which would have allowed employees to accrue paid time off that could be used for any reason.  The legislature rejected the Commonsense approach and passed a PSL bill instead. Earlier this year, Presidential candidate NYC Mayor Bill de Blasio proposed legislation to make NYC the first city in the nation to require employers to provide employees paid vacation.

For those concerned that the Maine law might open yet another patchwork in the paid leave mosaic, you are spot-on. One need not look too deeply into one’s crystal ball to see a list of municipalities and perhaps even a few states that will be eager to follow Maine’s lead.  Watch for bills to amend PSL laws to delete the often lengthy and specific “allowed uses” provision and replace it with two words: “any reason.”

Excessive Absence Day Today; Some Likely Fraudulent

It’s likely that some employees in your workforce called out sick today because they were watching the Game of Thrones finale last night. A recent study found that more than 10 million employees.will not report to the office today due to activities related to the Game of Thrones finale. If that occurs, the finale will join the Super Bowl and Oscars as entertainment events that instigate widespread absenteeism the day after.screen-310714_1280

Some percent of this group will likely report that they cannot come to work because they are sick when, in fact, they are not. No law protects an employee who reports fraudulently that he or she cannot come to work due to illness. The challenge, of course, is proving fraud.

Logic suggests an employer might ask the employee for a more detailed explanation of the reason for the employee’s illness to flesh out the employee’s explanation. Doing so would be unlawful in jurisdictions with a PSL law. The EEOC may view such inquiries as violating the ADA as well.

Logic also suggests an employer would require the employee to produce a doctor’s note substantiating the reason for the absence. Alas, that’s not allowed either. The various PSL laws prohibit an employer from requiring an employee to produce a doctor’s note unless the employee has been out three (or, under some laws, more than three) consecutive workdays. Even when a doctor’s note is allowed for a day here/day there absence, a note stating that the employee was absent for medical reasons, which is woefully unsatisfying when dealing with suspected fraud, is sufficient.

I have argued for some time that insufficient ink  is devoted in PSL laws to the fraudulent use of sick days. Few statutes acknowledge the issue; none give employers effective tools to deal with it. Which leads me to question whether PSL proponents believe, to paraphrase their mantra, that no one should have to choose between missing a paycheck and watching the Game of Thrones finale!

 

Amended Minneapolis Sick and Safe Leave Law Upheld on Appeal

The Minneapolis Sick and Safe Time Ordinance can be enforced against businesses not physically located in the city but who have employees who work at least eight (80) hours in a year within the geographic boundaries of the city, according to a state appellate court decision last week. The court also held that the Minneapolis ordinance was not preempted by a state law allowing employees to use their sick leave benefits to care for ill or injured family members and for safe time.

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A cadre of business interests brought the legal challenge to the Minneapolis ordinance in January 2017, months before the ordinance went into effect on July 1, 2017. The initial court decisions enjoined the city from enforcing its PSL law against employers who did not have a physical presence in the city. To address this issue, in March 2018, Minneapolis amended its ordinance by narrowing its application to such “extraterritorial” employers. The amendments added that employees accrue PSL time for hours worked “within the geographic boundaries of the city” and could use that time only when scheduled to work “within the geographic boundaries of the city.” These amendments, the city argued, salvaged the Ordinance’s extraterritorial provisions.

Last week, the court of appeals agreed, reversing a state district court decision a year ago which had rejected the Ordinances’ application to businesses outside the city limits.