While the ADA does not require an employer to inquire whether an employee needs reasonable accommodation, the FMLA does require an employer to reasonably determine whether the FMLA may apply to a leave request which does not even mention the FMLA. This burden can be very onerous on an employer as one can see in a recent New York case, Coutard v. Mun. Credit Union, 2017 U.S. LEXIS 2322 (2ndCir. February 9, 2017).
The facts were very simple. The plaintiff worked for MCU, a financial institution, and on January 22, 2013, plaintiff took leave from MCU to care for his 82-year-old grandfather, who had been taken to a hospital on January 22, 2013. Mr. Coutard's grandfather was discharged from the hospital on January 23, 2013 with bronchitis, but Coutard believed his grandfather, Mr. Dumond, was seriously ill and should not be left unattended. He sought leave until he could obtain the assistance of a home health aide.
When Mr. Coutard requested leave, he did not mention that he had been raised by Dumond beginning at age four when Coutard's father died, until age 14. MCU advised Coutard that the FMLA did not apply to grandparents and declined the request for leave. It is undisputed that the term “parent” includes not only a biological parent but also “an individual who stood in loco parentis to an employee when the employee was a son or daughter.” 29 U.S.C. 2613.
MCU also suggested that Coutard apply for a short-term leave of absence under a separate MCU personnel policy. Coutard did not make any such application and was terminated on February 4, 2013. Coutard later sued for interference with his FMLA rights.
The federal district court ruled in favor of MCU but the Second Circuit Court of Appeals reversed based on the following language:
[W]e conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA's applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.
Translation: the employer had to ask Coutard whether his grandfather raised him. In making this ruling the Court of Appeals distinguished an identical case which went the other way in favor of the employer, Sherrod v. Philadelphia Gas Works, 57 F. App'x 68 (3d. Circuit 2003). The Court distinguished the Sherrod case, which also involved leave to care for a grandparent, by saying that the Department of Labor changed regulatory language in 2009. The regulation used to say that an employee had to “explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act.” In 2009 the regulation at issue was changed to state that an employee need only provide sufficient information to indicate that the FMLA may apply. 29 C.F.R. 825.303.
While the new language seems very similar to the old language, the Second Circuit Court of Appeals felt that the change was significant. The Court concluded that this ever-so-subtle change in language shifted the obligation to the employer to ask further into the relationship between the employee and the grandfather. For these reasons, the Second Circuit Court of Appeals reversed judgment for MCU and remanded the case for trial.
The decision will come as a surprise to many employers. When an employee asks for leave to care for a grandparent and never mentions that the grandparent raised the employee, an employer will have no way to know any of this history. Only the employee knows this information. According to the Second Circuit Court of Appeals, the employer now can be held liable for violating the FMLA, as in this case, if the employer does not know the law well enough to ask further about the past relationship between the employee and his or her grandparent. The case imposes no burden on the employee to volunteer this information initially.
The reality is that this was a situation where neither party really did anything wrong. No violation should have been found. It would be unreasonable to expect the plaintiff in this case to know the in loco parentis definition of a parent under the FMLA, but the plaintiff did certainly know that his grandfather raised him for 10 years and never mentioned this. In response to the leave request, MCU offered plaintiff a leave of absence under another policy but the plaintiff never pursued that option. Yet MCU was held potentially liable for an FMLA violation for not asking detailed historical questions about the employee's relationship with his grandparent.
ABOUT THE AUTHOR
John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers' Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. To visit his New Jersey Workers' Comp Blog, click here.
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