Employer liability for FMLA (Family Medical Leave Act) violations can be a tricky topic for HR leaders, especially considering a recent ruling from the Second Circuit of the U.S. Court of Appeals. The court's decision in Graziadio v. Culinary Institute of America (2016) offers a cautionary tale about the potential pitfalls of compliance with the FLMA.
The Facts of the Case
Ms. Graziadio had been a payroll administrator for five years when she told her supervisor that she needed to take leave to care for a sick son. She left work on June 6 and returned on June 18. Nine days after she returned to work, she submitted a medical certification supporting her need for leave. On the same day (June 27) she submitted her medical certification, a different son broke his leg playing sports. Ms. Graziadio then informed her supervisor that she'd need to take medical leave, and expected to return to work by July 9 on a part-time basis. On July 9, Ms. Graziadio provided a limited request to return to work on a reduced, three-days-per-week schedule through mid-late August. At that point, the supervisor brought the case to the attention of the HR director.
According to the ruling, the case seems to be based on an apparent breakdown in communication between HR and Ms. Graziadio. The HR director sent several emails requesting "updated paperwork" to support Ms. Graziadio's leave request, "without being specific or sending FMLA forms to [Ms. Graziadio]," according to the National Law Review. Despite the fact that Ms. Graziadio asked several times for clarification on the deficiencies, the plaintiff gave up after back and forth emails and because she felt the HR Director was never clear on what she needed. The plaintiff sought to return to work, full-time, and the her employer would not allow her to do so until she provided proper medical documentation justifying the need for leave. When she did not provide the FMLA documentation her employer requested and did not contact a supervisor about returning to work, they administratively terminated her for job abandonment.
Why the Graziadio Case Should Matter to HR
The FMLA gives eligible employees the right to take medical leave in qualifying circumstances while protecting their employment status. The Graziadio case involved an employee, a payroll administrator who sought leave to care for her two sick children. The employee was later terminated by her employer, the Culinary Institute of America, for allegedly abandoning her job. The employee sued, claiming she'd been retaliated against for using her rights protected by the FMLA, and she also claimed interference with her FMLA rights, and associational discrimination under the ADA
What the Second Circuit decided was that Ms. Graziadio was not required to provide medical certification at the time of her request for leave unless her employer specifically requested it, especially with respect to her FMLA interference claim. But what is really noteworthy is the fact that both the employer's handbook and the Notice of Rights and Responsibilities explaining the medical certification requirement sufficed as notice that Ms. Graziadio needed certification for leave with regard to her other son who broke his leg. In addition, the court found that the HR Director could also be deemed an 'employer' for purposes of FMLA liability. As the Society for Human Resource Management (SHRM) explains, "The court held that the 'economic reality' test used under the Fair Labor Standards Act (FLSA) to decide if an individual manager may be considered an "employer" also applies [to the HR director] under the FMLA."
Remember, the risk of individual liability is strong, so it's vital to ensure that HR managers, and especially those who are responsible for managing employee leave, are well trained on the FMLA's requirements.
What Is an "Employer" under the FMLA?
The FMLA defines an "employer" as "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The Second Circuit found that sufficient question of fact existed for a jury to conclude that the conduct qualified the HR director as an employer, but therefore denied summary judgment for the employer and remanded back to federal court.
According to the SHRM article cited above, "Under the economic reality test, courts consider several 'non-exclusive and overlapping' factors. These include if the alleged employer had the power to hire and fire employees; supervised and controlled employee work schedules or conditions of employment; determined the rate and method of payment; and maintained employment records."
In this case, the appellate judges vacated the district court's judgment in favor of the employer on the FMLA claims.
Takeaways from the Graziadio Case: HR Teams Beware
HR teams should conduct FMLA compliance with added care, because infractions may trigger personal liability. You'll need to be very careful about the level of "control" you assert over an employee's FMLA rights in light of the "economic reality" test. With that in mind, you and your HR team should take pains to learn the requirements of the FMLA inside and out, especially issues relating to qualifying events for leave, employee protections, various notice requirements, medical certifications and when they're needed and what forms are required for compliance.
Finally, stay on top of any changes to the FMLA through case law or amended rules and regulations and be sure to use the FMLA forms found in Appendix B to 29 C.F.R. Part 825 in order to help ensure compliance. It would also be prudent to have standard letters at the ready to assist your compliance efforts. You should also consider consulting with experienced employment counsel to help review FMLA policies and standards forms, and to help you navigate your company's obligations
As it is plainly clear from the Graziadio case, HR leadership and the organization they represent could potentially share in pitfalls associated with non-compliance. Because of the complications associated with individual liability, as well as general FMLA compliance, you will need to be vigilant and impeccably organized to navigate business and personal liability risk for FMLA infractions.
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