Angels or devils?
BY LYNN GRESHAM
Despite fast-growing market, plan sponsors remain undecided
on the wisdom of guaranteed income products
(COVER STORY ON PAGE 19)
Benefits Corner Office
Key notification requirements under
health care reform
DOL issues new regulations on fee
Renewed interest in identity theft
BY THE NUMBERS
of employers plan to increase
cost sharing for deductibles,
copays and out-of-pocket
maximums in 2011.
See page 74
OCTOBER 2010 • VOL 24 NO 13 • EBN.BENEFITNEWS.COM
BY KATHLEEN KOSTER
Recent FMLA litigation offers
valuable lessons for employers
In a recent series of Family Medical
Leave Act cases, courts have reinforced
the rights of employees taking FMLA
leave and redefined important aspects
of who can take leave, such as opening
the door to same-sex spouses. A detailed
look at some of the more striking cases
offers employers valuable takeaways
from each ruling to keep them out of the
In Saenz v. Harlingen, (5th Circuit,
Aug. 2), Harlingen officials knew Saenz
was incapacitated because the company’s health supervisor visited Saenz in
the emergency room after she was hospitalized for bipolar disorder. Harlingen
required employees to follow stringent
policy to provide information to a third
party. When Saenz failed to contact Harlingen’s third party FMLA administrator
within two days of returning to work, she
“In Saenz, the court concluded that
the employer had not acted reasonably
under the circumstances [in discharging
the employee for unapproved absences]
based on all the information that the employer knew regarding the employee’s
mental health condition. The employer
had sufficient notice that she needed
FMLA leave,” says Christy Phanthavong,
counsel with Bryan Cave.
The takeaway, says Phanthavong, is to
require employees to provide notice and
meet other applicable requirements, but
be reasonable in determining whether
employees have met those requirements.
Feel free to enforce requirements, she
says, but keep at the back of your mind
to be reasonable. In this case, enforcing
A key point in FMLA management is to “train
supervisors to let you — the HR person or the
FMLA administrator — know when an employee is gone,” emphasizes Darlene M. Clabault,
PHR, senior editor of human resources at J.J.
Keller & Associates, Inc.
the employer’s strict notice requirement
was not reasonable or permissible because the employee had given sufficient
notice under FMLA.
Myra Creighton, a partner with Fisher
& Phillips Labor Lawyers, urges employers not to elevate form over substance.
Don’t be disingenuous; react with what
knowledge you do have, she adds. However, if an employee refuses to provide
the health care certification, even if the
employer knows they have a condition,
that’s a different story.
“While FMLA is hard to comply with,
I don’t think the courts are going necessarily overboard. I think they’re fairly
balanced, in my view as a defense attorney. Now, do I think FMLA is fairly balanced to the employer when it comes to
unpredictable intermittent leave? That’s
another issue,” Creighton says.
She thinks this because even though
an employee has to comply with an employer’s call-in policy absent unusual
(SEE FMLA ON PAGE 66)