Supervisors, Managers Need To Be Trained in Details of Family, Medical Leave Acts

Published in The Daily Journal of Commerce

Do you train your supervisors to understand the federal Family Medical Leave Act ("FMLA") and the Oregon Family Leave Act ("OFLA")? What about the person who handles employee phone calls about absences?

If you are an employer in Oregon with 25 or more employees, or an employer with 50 or more employees, you should consider educating supervisors and anyone outside of human resources who handles employee absences about FMLA and OFLA. This is because when an employee is absent for a few days and returns with a doctor's note, or misses work because a family member is sick, there is potential that the employee may be entitled to rights and protections under FMLA and OFLA. If the supervisor does not notify anyone of the employee's situation, the employer risks exposure for interfering with and/or denying an employee's FMLA/OFLA rights and retaliating against the employee if the employer imposes discipline or terminates the employee based on absences that should have been protected under the law.

Most employers are generally aware that an employee may take FMLA/OFLA leave if an employee or an employee's family member has a "serious health condition" as a result of suffering an illness, injury, impairment, or physical or mental condition that requires in-patient care in a medical care facility such as a hospital, hospice or a residential facility. Many employers also are aware that the definition of "serious health condition" includes a broad range of other situations which may qualify an employee for leave, including an absence of more than three consecutive calendar days (called a "period of incapacity") when the employee cannot perform at least one essential job function or perform regular daily activities, and where the employee has received two or more treatments by a health care provider, or one treatment plus a regimen of continuing care.

What employers forget is that an employee need not expressly assert their rights to FMLA/OFLA leave or even mention FMLA or OFLA. It is the employer's obligation to recognize when circumstances implicate the possibility of leave under FMLA or OFLA. As a result, supervisors need to be able to recognize what information about an employee or family member will trigger possible FMLA/OFLA rights.

Similarly, supervisors and others who take employee phone calls about absences must be aware of the "period of incapacity" basis for leave. For example, an employee calls in sick for four days and then returns and tells his supervisor that he hurt his knee and could not get off the couch to do anything. The employee also discloses that he saw his doctor and that the doctor said the employee would need to rehab the knee, but can work if he wears a brace. The supervisor welcomes the employee back to work, but takes no other action with respect to the knee injury and the employee's need for subsequent physical therapy. Over the next month, the employee calls in sick on a number of occasions because his knee hurts and exceeds his available sick leave. The employee also leaves work early to go to physical therapy appointments. When the employee exhausts his sick time, the employer fires him for excessive absences.

In the scenario described above, the employer had knowledge (via the supervisor) that the employee: had a period of incapacity where he could not get off the couch for more than three days; saw a doctor for treatment; and had a regimen of continuing care in the form of physical therapy. This information is sufficient to trigger the employer's obligations under FMLA and OFLA to seek information to verify whether the employee qualifies for leave and, if the employee qualifies, to notify the employee of his rights, including the option to take intermittent leave when his condition flares up, and to attend physical therapy.  Assuming the employee provided adequate certification of his need for leave from his doctor, the absences should have been protected leave and should not have formed the basis of the employer's decision to terminate the employee. Had the supervisor been trained to understand what kinds of health conditions trigger FMLA/OFLA leave, this problem would have been avoided.

Another situation where employers miss the boat on FMLA/OFLA leave is where supervisors are not aware that chronic conditions may qualify as "serious health conditions" and may entitle an employee to take intermittent leave under FMLA/OFLA. The employee need not be incapacitated for three consecutive days. Instead, the employee must be otherwise eligible for leave, and the employee's health care provider must certify the health condition and need for leave. Employers also should understand, and help their supervisors understand, that employees with certain chronic conditions are not able to foresee when they will need leave and cannot be punished for taking leave – even when the timing is inconvenient or seems suspicious. Managing intermittent leave for all employers can be a challenge, but failing to recognize that an employee may be entitled to leave in the first place can create liability that far outweighs the challenge.

The bottom line for employers is to train supervisors to recognize what circumstances might qualify as the basis for FMLA or OFLA leave. Set up a chain of communication for supervisors to provide information to human resources so that employees can be promptly notified of their possible right to leave. Supervisors (and all employees) also need to be notified that retaliation against an employee on medical leave is not permitted and may subject the supervisor or anyone else who engages in retaliation to discipline, up to and including termination of employment.

This article was written by Elizabeth Semler, former Sussman Shank LLP Employment Law Partner.

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