CAROL C BARNETT - Polsinelli · 2013-08-30 · 3 ©2010 Polsinelli Shughart PC Number 2. If an employee has no knowledge, ahead of time, of a need for FMLA (e.g., an emergency medical

Departments

Practice Areas

EducationJ.D., cum laude,

University of Illinois, 1983, Illinois Law Review (1982-83)

B.A., with distinction, Purdue University, 1977

AdmissionsIllinois, 1983 Missouri, 1984

Court AdmissionsU.S. District Court,

Western District of Missouri, 1984

U.S. Court of Appeals, Eighth Circuit, 1995

U.S. Court of Appeals, Tenth Circuit, 2001

U.S. District Court, District of Kansas, 2001

Trial

Business Litigation Labor and Employment Employment Litigation

[email protected] St. Joseph

Phone: 816.364.2117Fax: 888.231.5874

CAROL C BARNETT Shareholder

Carol C. Barnett serves both as a trial lawyer and as a counselor to clients on preventive strategies to avoid employment-related litigation. She has extensive jury trial experience and counsels and litigates on behalf of numerous business and governmental entities on a wide range of employment-related matters, including ADA, FMLA, Title VII, retaliatory discharge, wage and hour issues, and age discrimination. Ms. Barnett’s defense work includes cases brought in federal and state courts, as well as administrative agency charges. She has successfully handled dispositive motions in employment law and other matters.

Ms. Barnett has previously worked as an assistant prosecutor for Buchanan County (1986-91), where she handled a variety of complex criminal matters, ranging from homicide prosecutions to child sex abuse jury trials. She also handled civil cases for the Prosecutor’s Office.

Ms. Barnett regularly conducts training and seminars on hostile work environment issues and other areas of employment law of interest to businesses and government entities. She also frequently makes presentations to various community groups on legal issues. Prior to attending law school, Ms. Barnett worked for three years in employee relations/employee communications for Armstrong World Industries, a Fortune 500 company, in their corporate headquarters in Lancaster, Pennsylvania.

Memberships and Affiliations

■ The Missouri Bar ■ Kansas City Metropolitan Bar Association ■ St. Joseph Bar Association ■ U.S. District Court, Western District of Missouri, Former Federal Practice Committee ■ Society for Human Resource Management ■ Missouri Western State College's Legal Studies Department, Former Adjunct Professor ■ Ms. Barnett advises United Cerebral Palsy of St. Joseph and United Way of St. Joseph on a

pro bono basis ■ St. Joseph Public Schools, Volunteer ■ St. Joseph Safety Council, Board of Directors ■ St. Joseph Tennis Foundation, Board of Directors ■ St. Joseph Social Welfare Board (community health organization), Buchanan County

appointee

Distinctions

■ KC Magazine recognized Carol as a Missouri & Kansas Super Lawyer in 2005. ■ Law Clerk to the Honorable Robert C. Underwood, Justice of the Illinois Supreme Court. ■ Ms. Barnett has received various awards for outstanding victim advocacy for her work as

an assistant prosecutor.

EXPERIENCE

Ms. Barnett's cases have included representing:

■ A large health care provider on a successful Motion to Dismiss in a multi-count

employee benefits case under ERISA. No appeal. ■ A public official charged with various First Amendment violations. Received summary

judgment in favor of official and dismissal of related claims. Upheld on appeal. ■ A health care provider on a successful Motion to Dismiss a contract claim in state

court, using ERISA preemption argument. No appeal. ■ A major health care provider on a successful Motion to Dismiss (employee benefits

case). No appeal. ■ A large health care employer in obtaining summary judgment in an age discrimination

case and related claims. Upheld on appeal. ■ A large health care employer in a four-plaintiff, multiple theory employment

discrimination matter in federal court. Received summary judgment in favor of the employer on all claims. Not challenged on appeal.

■ Multiple, large manufacturing facilities in obtaining favorable National Labor Relations Board rulings.

■ A major meat processing operation. Received summary judgment on workers' compensation retaliatory discharge and all other claims. Not challenged on appeal.

■ A major food processing operation in federal court. Received summary judgment in the employer's favor on all claims (sexual harassment, sex discrimination, and retaliatory discharge claims). Upheld on appeal.

PUBLICATIONS & PRESENTATIONS

2008-2009 Miscellaneous Topics: OSHA, Fair Labor Standards Act, Immigration Reform and Control Act, Worker's Compensation, Employees' Records and Retention, Using Facebook, Etc.Presentations to St. Joseph Chamber of Commerce

2009 HR For Small Business - Avoiding Landmines Presentation for St. Joseph Human Resources Management Association

March 2009 The New FMLA Questions from the Employer's PerspectiveLegal Funamentals Seminar, Presented by Shughart Thomson & Kilroy, P.C. with St. Joseph Area Chamber of Commerce

01/01/2009 College 101Talk at Missouri Western State College

May 2008 What Did You Do Last Night? Regulating Off-Duty Conduct in the Workplace2008 Labor, Employment and Benefits Symposium, Sponsored by Shughart Thomson & Kilroy, PC

February 2008 Hiring Do's and Don'ts (Including I-9 and Immigration Issues) Legal Fundamentals Presentation to Northwest Missouri Area Employers

September 2006

Workers' Compensation and ADA Accommodation Issues (No FMLA Issues Considered)Presentation at 2006 Labor, Employment and Benefits Symposium , Sponsored by Shughart Thomson & Kilroy, P.C.

January 2006 Uniformed Services Employment and Reemployment Rights Act of 1994 - What's New? Webinar Hosted by Shughart Thomson & Kilroy, P.C.

December 2005

Sunshine Law in Missouri - Practical Applications Presentation to St. Joseph Area Chamber of Commerce

October 2005 FMLA: The Good, The Bad, and The (Almost) IncomprehensiblePresentation to Northwest Missouri Society for Human Resources

Management

June 2005 Discrimination and DiversityPresentation to Counselors for Boy Scouts of America

June 2005 Three Easy Pieces . . . Current Issues Facing In-House Counsel Ethics Presentation

February 2005 EEOC Issues New Guidance on Intellectual DisabilitiesPresentation to Northwest Missouri Society for Human Resources Management

October 2004 FMLA UpdatePresentation to Northwest Missouri Society for Human Resources Management

May 2004 Personnel Law Update 2004Council on Education in Management

April 2004 Major Developments in Employment LawPresentation to Northwest Missouri Society for Human Resources Management

April 2004 Employee Privacy in the Workplace: Regulationg the Off-Premises Conduct of Employees2004 Labor, Employment and Benefits Symposium, sponsored by Shughart Thomson & KIlroy, P.C.

December 2003

Effectively Managing Return to Work Issues: Understanding Your Employer Rights and ResponsibilitiesCouncil on Education in Management

September 2003

Update on Privacy and Emerging Issues in Electronic Workplace Litigation: Policies and Practices to Safeguard Your OrganizationCouncil on Education in Management

May 2002 Auditing Your Employee Handbook for Legal LandminesCouncil on Education in Management

November 2002

The Definitive Guide to Employment Law for HR Professionals Moderator

March 2002 Employment Law - Recent Developments 2000-2002 Presentation to Northwest Missouri Society for Human Resources Management

October 1998 Employment Law Issues for Nurse ManagersMissouri Western State College Nurse Managers’ Class

September 1998

Update on Employment Law IssuesPresentation to Northwest Missouri Society for Human Resources Management

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Top Ten Tidbits about FMLA

Presented by:

Carol Barnett

©2010 Polsinelli Shughart PC

Top Ten Tidbits About FMLA

2009 FMLA Regulations Change

+ 2009 National Defense Authorization Act Changes

= HR Departments “Working Through” the Changes

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Number 1.Employers covered under FMLA must post the DOL-required Notice of Rights PosterA. Or risk fines of $100/day from the DOL.B. As a temporary substitute for updating employee

handbook provisions.C. Only if there are FMLA eligible employees at the

particular worksite.D. Only if they have no employee handbook.


Number 1.

Employers covered under FMLA must post the DOL-required Notice of Rights Poster

A.Or risk fines of $100/day from the DOL.B. As a temporary substitute for updating employee

handbook provisions.C. Only if there are FMLA eligible employees at the

particular worksite.D. Only if they have no employee handbook.

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Number 2.If an employee has no knowledge, ahead of time, of a need for FMLA (e.g., an emergency medical condition develops)A. There is no obligation to notify the employer.B. The employee, or someone acting on the employee’s

behalf (e.g., significant other), should give notice within two days.

C. The employee who needs the leave comes in and fills out the paperwork whenever circumstances permit.

D. The employee, or someone acting on the employee’s behalf, such as a significant other, is generally required to comply with the employer’s established procedures for call-ins or absences unless there areextenuating circumstances.


Number 2.If an employee has no knowledge, ahead of time, of a need for FMLA (e.g., an emergency medical condition develops)A. There is no obligation to notify the employer.B. The employee, or someone acting on the employee’s behalf

(e.g., significant other), should give notice within two days.C. The employee who needs the leave comes in and fills out the

paperwork whenever circumstances permit.D. The employee, or someone acting on the

employee’s behalf, such as a significant other, is generally required to comply with the employer’s established procedures for call-ins or absences unless there are extenuating circumstances.

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Number 3.An employee who has a work-related injury and who is unable to perform an essential function of his or her job (and has submitted appropriate medical certification attesting to this)A. Can be denied FMLA leave (because the employee already

has a workers’ compensation claim and workers’compensation benefits will assist the employee).

B. Cannot be offered a light duty (transitional) assignment.C. Can be offered a light duty (transitional) assignment, but is

not required to accept if the employee wishes to take FMLA leave instead.

D. Can be required to take a light duty (transitional)assignment (if workers’ compensation insurer orThird Party Administrator insists on this).


Number 3.

An employee who has a work-related injury and who is unable to perform an essential function of his or her job (and has submitted appropriate medical certification attesting to this)A. Can be denied FMLA leave (because the employee already

has a workers’ compensation claim and workers’compensation benefits will assist the employee).

B. Cannot be offered a light duty (transitional) assignment.C. Can be offered a light duty (transitional)

assignment, but is not required to accept if the employee wishes to take FMLA leave instead.

D. Can be required to take a light duty (transitional) assignment (if workers’ compensation insurer or Third Party Administrator insists on this).

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Number 4.An employer can insist that an employee have a full release to return to work, with no restrictionsA. At the conclusion of FMLA leave.B. At regular intervals during FMLA leave.C. At the conclusion of FMLA leave, so long as the

Employer has already designated this requirement for the full release on the Notice of Rights

D. At no time.


Number 4.An employer can insist that an employee have a full release to return to work, with no restrictionsA. At the conclusion of FMLA leave.B. At regular intervals during FMLA leave.C. At the conclusion of FMLA leave, so long as the

Employer has already designated this requirement for the full release on the Notice of Rights

D. At no time.

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Number 5.

Individual supervisors or managers can be sued and held liable under FMLAA. For any violation of FMLA if they are acting on behalf of

a covered employer in the private sector.B. Only if they provided FMLA forms that are out of date

(not in compliance with the 2009 regulations).C. Under no circumstances; only corporations (and other

business organizations) can be held liable under FMLA.D. Only if they failed to provide updated information in the

employee handbook information after the implementation of the 2009 regulations.


Number 5.

Individual supervisors or managers can be sued and held liable under FMLAA.For any violation of FMLA if they are

acting on behalf of a covered employer in the private sector.

B. Only if they provided FMLA forms that are out of date (not in compliance with the 2009 regulations).

C. Under no circumstances; only corporations (and other business organizations) can be held liable under FMLA.

D. Only if they failed to provide updated information in the employee handbook information after the implementation of the 2009 regulations.

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Number 6.Up to twelve weeks of military exigency leave A. Is a benefit for certain military (e.g., Reserve, National

Guard) family members that Congress considered as an amendment to the FMLA, but ultimately did not pass.

B. Is a benefit for certain military (e.g., Reserve, National Guard) family members that can include events such as official ceremonies, Red Cross family support or assistance programs, and arranging for childcare and school enrollment changes.

C. Is a benefit for certain military (e.g., Reserve, National Guard) family members that can include making financial and legal arrangements, counseling, rest and recuperation for military members, as well as post-deployment activities for a period of up to 90 days following the end of active duty status.

D. Both B and C.


Number 6.Up to twelve weeks of military exigency leave A. Is a benefit for certain military (e.g., Reserve, National

Guard) family members that Congress considered as an amendment to the FMLA, but ultimately did not pass.

B. Is a benefit for certain military (e.g., Reserve, National Guard) family members that can include events such as official ceremonies, Red Cross family support or assistance programs, and arranging for childcare and school enrollment changes.

C. Is a benefit for certain military (e.g., Reserve, National Guard) family members that can include making financial and legal arrangements, counseling, rest and recuperation for military members, as well as post-deployment activities for a period of up to 90 days following the end of active duty status.

D. Both B and C.

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Number 7.An employee who needs treatment for drug or alcohol abuseA. Can be disciplined for alcohol/drug abuse at work and

can be disciplined or discharged for use of these substances at work.

B. Can qualify for FMLA if inpatient treatment is referred by a health care provider.

C. Both A and B. D. Can never qualify for FMLA because alcohol and drug

abuse are excluded from coverage under FMLA.


Number 7.An employee who needs treatment for drug or alcohol abuseA. Can be disciplined for alcohol/drug abuse at work and

can be disciplined or discharged for use of these substances at work.

B. Can qualify for FMLA if inpatient treatment is referred by a health care provider.

C.Both A and B. D. Can never qualify for FMLA because alcohol and drug

abuse are excluded from coverage under FMLA.

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Number 8.

An employee who has been with an employer for twelve (non-consecutive) months can satisfy the 1,250 hours of service requirement byA. Including paid vacation, sick, and holiday time in the

1,250 hours.B. Including lay-off time in the 1,250 hours.C. Including on-call time in the 1,250 hours.D. All of the above.


Number 8.

An employee who has been with an employer for twelve (non-consecutive) months can satisfy the 1,250 hours of service requirement byA. Including paid vacation, sick, and holiday time in the

1,250 hours.B. Including lay-off time in the 1,250 hours.

C. Including on-call time in the 1,250 hours.

D. All of the above.

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Number 9.An employee who requests FMLA leave can be temporarily transferred to another position A. If the employee occupies a “key person” role in the

organization.B. If the employee is on intermittent or reduced schedule

leave and requests such an assignment.C. If the employee has requested intermittent or reduced

schedule leave and she is moved to a position with equivalent pay and benefits if the position better accommodates the leave for the organization than the “regular” position.

D. None of the above.


Number 9.

An employee who requests FMLA leave can be temporarily transferred to another position A. If the employee occupies a “key person” role in the

organization.B. If the employee is on intermittent or reduced schedule

leave and requests such an assignment.C. If the employee has requested intermittent

or reduced schedule leave and she is moved to a position with equivalent pay and benefits if the position better accommodates the leave for the organization than the “regular” position.

D. None of the above.

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Number 10.Military medical leave is part of FMLA and means that an employeeA. Can have an additional 12 weeks of leave (in addition to

“standard” FMLA leave) to care for a covered service member—i.e., a service member with a serious illness or injury that occurred in the line of duty, or who is on the temporary disability retired list.

B. Cannot take time off for other non-military (but FMLA-covered) reasons if the employee uses 12 weeks to care for the covered military family member.

C. Can have a total of 26 weeks of leave in one 12-month period to care for a covered, injured service member service member with a serious illness or injury that occurred in the line of duty, or who is on the temporary disability retiredlist.

D. Can take such leave only if s/he is a coveredmilitary member.


Number 10.Military medical leave is part of FMLA and means that an employee

A. Can have an additional 12 weeks of leave (in addition to “standard”FMLA leave) to care for a covered service member—i.e., a service member with a serious illness or injury that occurred in the line of duty, or who is on the temporary disability retired list.

B. Cannot take time off for other non-military (but FMLA-covered) reasons if the employee uses 12 weeks to care for the covered military family member.

C. Can have a total of 26 weeks of leave in one 12-month period to care for a covered, injured service member service member with a serious illness or injury that occurred in the line of duty, or who is on the temporary disability retired list.

D. Can take such leave only if s/he is a covered militarymember.

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About the Presenter

Carol C. BarnettPolsinelli Shughart PC

3101 Frederick AvenueSt. Joseph, Missouri

64506816.271.8037

[email protected]

polsinelli.com

Carol C. Barnett serves both as a trial lawyer and as a counselor to clients on preventive strategies to avoid employment-related litigation. She has extensive jury trial experience and counsels and litigates on behalf of numerous business and governmental entities on a wide range of employment-related matters, including ADA, FMLA, Title VII, retaliatory discharge, wage and hour issues, and age discrimination.

Top Ten Tidbits about FMLA

Presented by:

Carol Barnett

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Top Ten FMLA Tid-Bits--Answers To Q &A Carol C. Barnett, Esq. ________________________________________________________________________ The FMLA statutory amendments and the relatively new regulations that went into effect in 2009 still pose many quandaries for inquiring HR minds. Our “top 10” tid-bits quiz was designed to help simplify some of the topics that come up most frequently under the recent changes. 1. A is the correct response. Reasoning: A is correct because any covered employer under the FMLA (generally speaking, any private employer with 50 or more employees, or with 50 employees at worksites within 75 miles of each other, and any governmental employer) MUST post the FMLA poster or risk DOL fines of $100 per day. The required poster can be found on the DOL website at www.dol.gov/whd/regs/compliance/posters/fmla/htm. The poster must be in appropriate locations at the employer facility, even if there are no employees who are eligible for FMLA. 29 USC Sec. 2619. The posters should be located in conspicuous places where employees are likely to see them. Note: many employers operate under the misconception that if they have an employee handbook with a policy on FMLA, they do not need to use the poster. In addition to the poster, the FMLA also requires separate written documentation called a General Notice of Rights. This Notice of Rights can be included in your employee handbook or other written summary of employee benefits. Employers that do not have an employee handbook or other written summary of employee benefits must give the General Notice in another written format. The General Notice can also be accomplished electronically by directing employees to a company intranet or website. Important: The poster and Notice of Eligibility and Rights and Responsibilities form includes information not typically included in existing company FMLA policies. Therefore, it is likely that many employers will need to revise their FMLA handbook policies in order to comply with the General Notice requirements of the regulations. If your handbook policy needs revisions, you should consider issuing a supplemental written FMLA notice to employees for the period of time between now and whenever your handbook will next be republished. 2. D is the correct response. Reasoning: The 2009 regulations attempted to remedy a problem that employers had consistently found under FMLA – i.e., employees relying on the fact that they did not need to use the employer’s already-established procedures for call-ins for absences or

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leaves. (The previous regulation provided only that the employee needed to provide verbal notice within two business days of when the need for leave became known.) This meant that the employer’s policy for sick leave call-in could essentially be short-circuited. This is no longer the case, although the regulations do caution that employers must be careful to furnish employees with prior notice of procedures for leave and/or reporting absences. The new regulations do not, however, resolve the problem in existing FMLA case law where employers seem to be required to be on the look-out for substantial changes in an employee’s medical condition and/or problems at work. (See, e.g., Stevenson v Hyre Elec. Co., ___ F. 3d. _____, 2007 WL 2990937 (7th Cir. 2007) held that an employer should have been on notice of an employee’s need for an FMLA leave after an employee who had previously had exceptional workplace behavior began screaming obscenities and alleging harassment after her desk was moved.) See also Krenzke v. Alexandria Motor Cars, Inc., No. 07-1561, 2008 U.S. App. LEXIS 17654 (4th Cir. Aug. 15, 2008), in which the court found that a doctor's note faxed to the employer stating, "I recommend 2 weeks of no work due to medical complications and illness" was sufficient to alert the employer of the possibility that the leave may be covered by the FMLA. (The court opined that although the note was “summary in nature,” because it was received from a medical doctor and stated that an extended leave was needed for medical reasons, the burden of inquiry then shifted to the employer to obtain further information to determine if the leave was actually covered by the FMLA.) This concept of “constructive notice” has been problematic for employers. Assuming no issues of constructive notice, however, an employee can generally be required to contact a particular individual, within a specified time frame, in accordance with the employer’s established rules unless there are emergency circumstances, and then the rule is generally that notification should occur as “soon as reasonably practicable.” 3. C is the correct response. Reasoning: This is an example of an employee having two different types of statutory rights in effect at the same time. The facts indicate that the employee was injured at work and therefore would likely have workers’ compensation rights related to the injury. Although an insurer or Third Party Administrator may insist on providing an employee with light duty, an employer cannot insist that an employee take a light duty assignment, and the employer is not entitled to rely on an insurer’s or Third Party Administrator’s assessment that the light duty job must be accepted. (If the employee opts for the light duty assignment, then time spent in the light duty assignment would not be counted toward FMLA leave time.) If the employee’s condition due to the work-related injury means that s/he qualifies for FMLA leave, then this is a statutory right that the employee must be permitted to exercise under the Act. Because the employee in this instance had submitted the appropriate

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medical certification, the employer cannot withdraw or make less appealing the employee’s right to take leave (doing so risks exposure to an interference with rights claim). However, the employer can offer the employee a light-duty assignment, if one is available, and the employee is entitled to decide if this is appropriate, given his/her particular circumstances. Furthermore, an employer cannot mandate that an employee take FMLA leave; it will be the employee’s decision as to how to proceed even if an employer believes very strongly that FMLA leave should be taken. 4. D is the correct response. Reasoning: The employer can, on the Notice/Designation of Rights Form, require that the employee periodically notify the Employer as to status and/or intent to return to work. 29 CFR Sec. 825.303. The regulation provides that if the Employer requests a fitness for duty certificate, this should be a general policy (and not operate on a case-by-case basis). However, although the FMLA permits an employer to specify on the Notice of Eligibility/Rights and Responsibilities Form that the employee can be required to furnish a “fitness for duty” (or return to work) form upon the conclusion of FMLA leave (29 CFR Secs. 825.300 and 825.312), the Employer does not have the right to insist upon a “full release” with no restrictions. The certificate is to state that the employee is “able to resume work.” 29 USC Sec. 26114(a)(4). Although the regulation permits the employer to give the employee a list of the essential functions of the job at the time the designation notice is provided, neither the statute nor the regulation uses the “full release” language. Further, the ADA (as well as various state laws) would require that the Employer consider reasonable accommodation, and utilize the interactive process for accommodation, for the employee upon return to work to assist with accommodation that might be needed. (See 29 CFR Sec 825.702(b), recognizing that in certain circumstances, an employer’s conduct may not be governed solely by FMLA and that there may be ADA implications, as well.) 5. A is the correct response. Reasoning: The FMLA has long provided for individual liability for supervisors and managers who are acting on behalf of a covered employer in the private sector. See 29 USC Sec. 26114(a). The FMLA defines an "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any employees of such employer." The supervisor or manager need only be involved in the chain of command for decision-making and need not be the ultimate decision maker. The DOL regulations extend individual liability for FMLA violations to "corporate officers acting in the interest of an employer," as that term has been interpreted by the Fair Labor Standards Act. 29 CFR Sec. 825.104(d). The HR manager should, of course, be assisting with compliance with FMLA, e.g., by having in place the appropriate notices and employee manual provisions, but this will not exempt him/her from liability for

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decision-making if the organization denies the employee FMLA leave, interferes with FMLA rights, or retaliates against an individual for exercise of FMLA rights. 6. D is the correct response. Reasoning: When Congress added to the FMLA in 2009 by passing the National Defense Authorization Act (“NDAA”), very specific additional leave provisions were added to assist the families of military service members. (See also Question #10.) “Exigency” means unusual or urgent circumstances requiring prompt attention. Military exigency leave is covered fairly extensively in the new regulations. See 29 CFR Sec. 825.309. Exigency leave is designed for only a certain subcategory of military service members—Reserve, National Guard, and retired armed forces members (not regular, active duty service members). The regulations state that qualifying “exigencies” will include events such as meetings or time off to arrange childcare and school enrollment changes, attending official ceremonies, utilizing Red Cross family support or assistance programs, attending counseling, participating in meetings for financial and legal arrangements associated with military service, and participating in rest and recuperation activities (for up to five days), as well as “post-deployment” activities for a period of up to 90 days after active duty service. (These categories cover a number of service-related events, and are not intended to be an exclusive list. The employer and the employee can agree on other types of exigent military leave.) 7. C is the correct response. Reasoning: Generally speaking, treatment of substance abuse or alcohol abuse can be FMLA-covered, at least to the extent that the employee is receiving treatment at an inpatient treatment facility. 29 CFR Sec. 825.119 specifically indicates that substance abuse can be a serious health condition and indicates that FMLA leave can be granted, provided the serious health condition and related requirements are met. (Note that this regulation is very specific that FMLA leave can be granted only for treatment provided by a health care provider or upon referral by a health care provider.) However, absences at work because of an employee’s use of alcohol or controlled substances, without in-patient treatment, do not qualify for this leave. In addition, nothing in the FMLA prevents employers from taking action against an employee who is unable to perform the essential functions of the job because of substance or alcohol abuse. Recent case law has upheld the right of an employer to discharge an employee whose alcohol-related absences occurred prior to undergoing rehabilitation treatment. Darst v. Interstate Brands Corp. (7th Cir., Jan. 11, 2008). 8. C is the correct response.

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Reasoning: Employers have been (understandably) confused about individual employee FMLA eligibility. The 2009 regulations include more detail. It is now clear that employees with 12 months of service (even non-consecutive months of service – as long as the break in service was not for seven years or more, subject to some exceptions cited in the regulation) and who had worked 1,250 hours (under a wage and hour definition of hours worked) were eligible. See 29 CFR Sec. 825.110. The revised regulations clarify that wage and hour rules will generally be followed to determine what constitutes the 1,250 hours (and therefore any hours that the employer “permitted” the employee to work (such as on-call time) are to be included. For exempt employees, where time records may not necessarily be kept, an employer will bear the burden of proof of demonstrating that the employee has not worked the requisite number of hours if the hours eligibility requirement is disputed. The revised regulations also clarify that if an employee goes out on non-FMLA leave prior to becoming eligible for FMLA leave (for example, at 11 months of employment) then the employee may become eligible for and convert the leave to FMLA leave once he or she meets the eligibility requirements. See 29 CFR Sec. 825.110. 9. C is the correct response. Reasoning: 29 CFR Sec. 825.204 expressly permits this transfer to an alternative position where leave on an intermittent or reduced schedule basis is foreseeable. The pay and benefits in the transferred position must be equivalent. However, the duties of the alternative position do not need to be equivalent to the employee’s regular position. The employer can transfer an employee to a part-time position to fulfill an employee’s need for reduced schedule leave, but the employer may not reduce employee benefits (for instance, the employer cannot eliminate benefits that would otherwise not be payable to part-time employees). However, vacation time can accrue at the regular part-time accrual rate for such a transferred employee. Of course, an employer may not transfer an employee to a different position in order to deter or discourage the employee from taking leave under the FMLA or to otherwise work a hardship on the employee. (For instance, an employer could not transfer a corporate headquarter employee to a branch location a significant number of miles away from the corporate office location.) An employee transferred to an alternative position cannot be required to stay in the alternative position any longer than is necessary to satisfy the terms of the FMLA leave. The employee also has the right to be restored to his/her previous position or an equivalent job upon expiration of the reduced schedule. 10. C is the correct response.

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Reasoning: Congress’s 2009 amendments to the FMLA, in addition to providing for military exigency leave for National Guard and Reserve family members (see question #6), also established a 26-week time frame, in a single 12-month period, for an eligible employee to take time off to care for a service member with a serious injury or illness. For this type of leave, the service member can be any person serving in the regular armed forces, the National Guard, or the Reserves (but this leave provision does not apply to former service members or retired service members). The service member can be undergoing medical treatment, recuperation, or therapy, or receiving treatment on an out-patient basis. The service member may also simply be listed on the temporary disability retired list. The DOL has developed a separate medical certification form for this type of leave (Form WH-385, which is available on the DOL website). This is an optional form. An employee is to provide 30 days’ advance notice of the need to take FMLA leave for planned medical treatment for a serious injury or illness of a covered service member. When the 30 days’ advance notice is not possible, the employee should give notice as soon as practicable, taking into account all the facts and circumstances. When the need for leave is foreseeable, an employee must comply with an employer’s normal notice or call-in procedures, absent unusual circumstances. (Note that in the case of extremely serious injuries or illnesses a family member may receive an “invitational travel order” (ITO) or “invitational travel authorization (ITA), which would establish an immediate need for the family member to be at the service member’s bedside, and the medical certification form would not be necessary to establish the reason for time away from work for any time frame covered by the ITO or the ITA. Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Copyright © 2010 Polsinelli Shughart PC.

Documents

CAROL C BARNETT - Polsinelli · 2013-08-30 · 3 ©2010 Polsinelli Shughart PC Number 2. If an employee has no knowledge, ahead of time, of a need for FMLA (e.g., an emergency medical