Recent court decisions, new regulations, and a strategy to keep your most productive workers working after FMLA leave.
FMLA leave, chiropractors and foreign-based employees
The FMLA is a pesky law with many unexpected twists and turns. Here are a couple twists from recent court decisions that may affect you:
Chiropractors are approved providers only in limited circumstances.
Employees based outside the country have no FMLA protection.
No X-rays, no FMLA leave
In one case, an employee hurt her back at work, left early and went to a chiropractor for a spinal adjustment. The employer fired her, claiming she clocked out fraudulently. The employee claimed she was fired for taking FMLA leave.
The court said the employee’s absence didn’t count as FMLA leave. To show a serious health condition, she had to treat with an approved health care provider. Chiropractors are approved providers only when they use X-rays to find spinal problems and then treat them. This chiropractor took no X-rays.
No FMLA leave for expats
In the other case, an American expatriate based in Brazil flew home without permission and was later fired.
He claimed FMLA leave for depression and panic disorder, but the court pointed out that FMLA leave protection covers only employees in the U.S. and its territories.
Cite: Silcox v. Via Christi Oklahoma Regional Med. Center, No. 05-6401, 10th Cir., 9/5/06; Freeman v. Sikorsky Aircraft Corp., No. 04-CV-0506, N.D. Okla., 8/17/06
Workers can’t agree to give up their FMLA leave rights
Anti-waiver rule applies to past as well as future claims
You can’t legally ask employees to waive their FMLA leave rights without DOL or court approval, a federal appeals court has emphasized.
DOL rules say employees can’t surrender their rights, which include 12 weeks’ leave a year and protection against retaliation for taking it. But one appeals court, the 5th Circuit, has ruled in the past that the regulations cover only waivers of future FMLA claims, and don’t apply to employers and employees settling past FMLA claims.
Not so, the 4th Circuit Court of Appeals just ruled. This court said the DOL regulations make no distinction between forward- and backward-looking waivers. And the DOL’s rules properly express Congress’s intent toward the FMLA, the court said. The FMLA was meant to be like the FLSA in providing minimum standards for labor practices, and the FLSA doesn’t allow employers to induce employees to give up their rights to the minimum wage and overtime.
In the 4th Circuit case, the employee was laid off based on a poor performance review. The review was based in part on her attendance, which was affected by medical leave she took.
The employee signed a general release of claims on the company in return for $12,000 severance. Later, she sued for infringement of her FMLA rights. The court said the waiver was invalid, but left open the question of whether she had to give back the money.
Cite: Taylor v. Progress Energy, No. 04-1525, 4th Cir., 7/20/05
Workers on FMLA leave? How employers get ‘em back
Leaves from work for family, medical and other reasons are becoming rarer as employers, stretched thin by layoffs, will do anything to keep employees on the job.
Some companies have dangled flex-time, part-time and telecommuting arrangements to dissuade employees from taking a full leave of absence.
It’s generally acceptable for employers to ask employees on paid leave to do some work, but employees on FMLA leave have the right to a complete break from their jobs.
Source: Towers Perrin
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