Last week the federal Departments of Labor, Health and Human Services, and the Treasury issued joint FAQs that address questions regarding COVID-19 vaccinations and group health plans. The FAQs are particularly relevant to those employers considering whether to provide incentives or impose surcharges under their group health plans to encourage employees to become vaccinated. Here’s what employers need to know:
It’s not surprising that employers don’t approve of employees “shredding the gnar”* when they’re supposedly unable to work because of a serious medical condition. And that’s exactly what happened in Botelho v. Mayorkas, where a former Behavior Detection Officer for the TSA who worked at the Honolulu International Airport was fired for Family and Medical Leave Act abuse after his employer discovered that he was making snowboarding movies while apparently using FMLA to take an extended vacation.
Now, just to remind you, the FMLA (which applies to employers with 50 or more employees) provides up to 12 weeks of leave to eligible employees for certain reasons, including the employee’s own serious health condition. Such serious health conditions must involve either inpatient care (i.e. overnight in a hospital) or an incapacity with continuing treatment. “Incapacity” means the inability to work, attend school or perform other regular daily activities due to the serious health condition (including treatment and recovery). And obviously, while on an FMLA leave, an employee should not be engaging in activities that are inconsistent with the serious health condition that is supposedly preventing them from working.
In March of 2009, the employee applied for and was granted intermittent FMLA leave for his diabetes. In December of 2010, the employee traveled to Canada to “check on his rental properties.” The employee was accompanied by two friends who were filming a television show, “Board Stories,” for which our snowboarding employee was listed as an executive producer. While in Canada, the employee experienced a diabetic reaction and his doctor informed him that that he should not fly home until he “felt better.” The employee called his employer to let them know he would be taking two weeks of FMLA leave before returning to work in Honolulu. But, although the employee was supposedly too ill to return to work, he accompanied his friends to a ski resort, and was filmed snowboarding for his show during his FMLA leave.
Meanwhile, back at work, the employee’s second-level supervisor informed his first-level supervisor that the employee was absent from his shift on FMLA leave. However, the first-level supervisor told the second-level supervisor that it was common knowledge that the employee went skiing each year around that time. Questions and eyebrows were raised.
So after the employee’s return, the TSA’s Office of Inspection formally investigated the employee’s possible misuse of FMLA, which included viewing a Board Stories video featuring the employee. Completely coincidentally, I’m sure, the employee stopped reporting to work shortly after the investigation concluded, submitting a doctor’s note stating that the employee was unable to work and that it was not clear when he would be able to return. The employee was eventually terminated after he failed to return from a seven-month leave.
The employee then sued, claiming that he had been retaliated against due to an EEO complaint that he had filed, and then withdrew, almost seven years prior to his termination. The federal court, however, shredded his claim. It found that the TSA had set forth a legitimate, non-retaliatory reasons for the employee’s termination: FMLA abuse (and also, well, the employee apparently couldn’t work at all). Specifically, the employee’s activities while in Canada, including socializing, snowboarding, and assisting with the snowboarding television show were certainly inconsistent with his claimed debilitating diabetic reaction.
So this case reminds employers that FMLA does not provide complete immunity to employees. If an FMLA snow job is suspected, a careful and thorough investigation may allow employers to establish legitimate grounds for termination. But employers should be careful and consult with counsel to make sure that the employee’s activities are, in fact, inconsistent with their claimed FMLA incapacity. (And here’s an old blog post that makes that point – the Court in that case found that an investigator’s report of an employee’s hunting activities while on FMLA leave for back pain didn’t, in fact, establish that the employee was actually acting inconsistently with his doctor’s restrictions.)
*Editor’s note: “shredding the gnar” is a much cooler way to say “snowboarding.” I didn’t know that. Thanks to Evan for expanding my vocabulary. I feel practically hip.
The U.S. Department of Labor recently highlighted a federal court ruling that private arbitration agreements will not prevent the federal Secretary of Labor from bringing suit against an employer for violation of the Fair Labor Standards Act (and presumably other federal laws within the DOL’s jurisdiction, like the Family and Medical Leave Act).
Here’s another installment in our occasional series on the I-can’t-believe-they-did-that actions of employees. Now, I know that there’s a more common term for these types of pictures of a guy’s personal junk, but one of my law partners (let’s call her “Lulu,” shall we?) insisted that I not use it. Even with asterisks. So … let’s see what lessons we can draw from this situation, shall we? Beyond the obvious, of course.
As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws. And the answer is a lawyerly, “Well, it depends.” (Of course).
A day after President Biden announced his COVID-19 Action Plan (which we discussed here), leaders from the Occupational Safety and Health Administration held a short briefing to discuss its forthcoming Emergency Temporary Standard that will require employers with 100+ employees to (1) mandate vaccinations or weekly testing, and (2) provide paid vaccination leave. The President’s announcement regarding these requirements was sorely lacking in details, but the OSHA briefing provided a few (not many) useful tidbits for nervously wondering employers. (Be aware, however, that the ETS is not yet written, and it is possible that some of what they said today might not end up being accurate….) Continue Reading A Few More Answers from OSHA on the Impending Vaccination ETS…
An issue that we’ve run into recently is what to do about employees who are vaccinated – but not with one of the FDA-approved vaccines (whether under Emergency Use Authorization (Moderna and J&J) or regular approval (Pfizer-BioNTech)). Perhaps they are participating in a clinical trial or maybe they were vaccinated in another country. Employers are wondering – is this really a valid vaccine? Can we require employees to go get a “real” vaccine?
A National Labor Relations Board (“NLRB” or “Board’) decision that was once thought to be a significant win for employer property rights may ultimately result in increased property access for off-duty contractor employees, following a recent decision by the U.S. Court of Appeals for the D.C. Circuit.
And I’m pretty darned sure that many employers feel the same way. This issue has been coming up a lot lately with the burgeoning requests for medical exemptions in the context of COVID-19 vaccine mandates. TO BE CLEAR, I am NOT questioning those employees with actual medical conditions that legitimately prevent them from getting a vaccine – I’m talking about those folks who just don’t want the shot, and get their doctors to write some nonsense note that has no actual basis in medical fact. And frankly, this has been an issue generally beyond the vaccine. (It even showed up in my recent blog post about the employee who wanted to bring his dog to work). So what can we do?
A National Labor Relations Board (NLRB) hearing officer recently recommended that the union election at an Alabama Amazon warehouse be run a second time. The hearing officer, an employee of a NLRB Regional Office, sided with the Retail, Wholesale and Department Store Union (RWDSU) that Amazon’s actions interfered with a fair election. Specifically, the hearing officer found that Amazon’s installation of an unmarked mailbox as a ballot drop-site that was within the view of company surveillance cameras, hiring of private police, threatening of employees, and changing county traffic lights (come on, how many companies have the pull to get county traffic lights changed?) to impede RWDSU access to voters amounted to objectionable conduct.