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February 20, 2009

Employment Law Alert

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Karen A. Whitley

617 226-3402

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Areas of Concentration

Business Litigation

Employment

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Boston

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Developments in the employment law area over the past few months have been dizzying. We’ve heard from several clients that, despite the number of emails in your in-box, you do want to know more about these developments and how they will affect your business. For 2009, we have developed an e-newsletter to keep you informed. As always, if there are topics which you would like to see included here, or have questions about any of the topics covered below, please let us know.

New Effective Date of Massachusetts Privacy Regulations: January 1, 2010

In an earlier advisory, we explained the new Massachusetts regulations which require all businesses holding personal information of Massachusetts residents to establish certain security measures. The regulations are aimed at minimizing identity theft. When they were initially published, the regulations were supposed to take effect on January 1, 2009. After a public outcry, the effective date was moved to May 2009. Last week, without any fanfare, the Office of Consumer Affairs & Business Regulation (“OCABR”) adopted final regulations which delayed the effective date of the regulations yet again. OCABR has confirmed that the effective date of the regulations is now January 1, 2010. This delay will give businesses additional breathing room to implement the required physical and electronic controls over private data. But it may also give the business sector a greater opportunity to challenge some of the more onerous requirements of the regulations. Stay tuned.

American Recovery and Reinvestment Act of 2009

On February 17, 2009, President Obama signed the $787 billion American Recovery and Reinvestment Act (ARRA) into law. The purpose of the law has been well-publicized—to preserve and create jobs, invest in infrastructure, to support energy efficiency and science, to stabilize state and local finances, and to help unemployed workers. These lofty objectives have a meaningful administrative impact on employers. We’ve chosen two examples: changes to COBRA and the possible expansion of unemployment to additional categories of employees.

Temporary Reduction in COBRA Premiums

Under ARRA, certain unemployed workers will receive a 65% reduction in their premiums if they elect COBRA continuation coverage. That is, for a certain period of time, workers who are eligible for and elect COBRA will only have to pay 35% of their premiums in order to participate in their former employer’s group health plan. Employers will pay the remaining 65 percent, but will receive a corresponding credit from the federal government against payroll taxes for the cost of the subsidy. This benefit is only available to workers whose income is $125,000 or less ($250,000 for couples filing jointly) and who were laid off between September 1, 2008 and December 31, 2009. A worker is only eligible for the COBRA subsidy for nine months, or a shorter period if the worker becomes eligible for coverage under another group health plan or Medicare, or if the worker’s COBRA continuation coverage period ends for some other reason.

It may be that some workers who were laid off as long ago as September 1, 2008 have already chosen not to elect COBRA, perhaps because they were unable to afford the premiums. Under ARRA, employers must give those former employees a second chance to elect COBRA. Employers must give them an additional notice, allowing them sixty (60) additional days to decide whether to elect COBRA.

Employers may need to review their severance policies. In some cases, employers have offered, as part of a severance package, to pay 100% of a former employee’s COBRA premiums for a period of time. Under ARRA, the federal subsidy is only available when the individual (and not the employer) is responsible for payment of the COBRA premium.

A new Model COBRA Notice is expected within the next thirty (30) days, and new regulations or other guidance are also supposed to be prepared by the Secretary of Labor, in consultation with the Secretary of the Treasury and the Secretary of Health and Human Services. The Notice will:

describe the terms and conditions of a worker’s eligibility for reduced COBRA premiums;
describe the extended election period (so that former employees who became eligible for COBRA before ARRA was enacted are given the option of electing COBRA now);
require the worker to tell the plan administrator if they become eligible for other group health coverage, making them ineligible for the COBRA premium reduction; and
notify the worker of the option to enroll in different coverage than they were enrolled when they became eligible for COBRA, if the employer allows it.

Even before the new Model Notice is issued, employers should be taking steps to identify all former employees who were eligible for COBRA at any point after September 1, 2008 and should contact the plan administrator about the logistics of giving those individuals proper notification of their options.

Unemployment benefits:

ARRA will greatly benefit former employees because it expands both the duration and amount of unemployment benefits. Workers may now collect benefits for a longer period of time, and will receive $25 more in their weekly checks. The first $2,400 of 2009 unemployment benefits are exempt from federal income taxes.

In addition, ARRA may result in an increased pool of workers who may receive unemployment compensation. ARRA sets aside $7 billion as an incentive to states to “modernize” their unemployment systems. Historically, workers have been eligible for unemployment benefits only if they lose their jobs through no fault of their own. States who choose to expand unemployment compensation to people who seek only part-time work or who voluntarily leave their jobs for “compelling family reasons” (such as illness or disability of an immediate family member or verified incidents of domestic violence) will receive additional funding from the federal government. It remains to be seen whether Massachusetts will change its system in order to become eligible for these funds.

Family and Medical Leave Act (FMLA):

On November 17, 2008, the Department of Labor, Wage and Hour Division (“DOL”) issued its Final Rule respecting The Family and Medical Leave Act of 1993, 29 CFR Part 825. The bulk of the final regulations address new military family leave entitlements created by the National Defense Authorization Act signed by former President Bush on January 28, 2008. However, the regulations contain many other substantive changes in response to various court rulings and two rounds of comments from the public. The new regulations took effect on January 16, 2009. The following are some highlights from the new regulations which will immediately affect employers.

Joint employers: When two employers may both be considered to have some employment responsibilities towards an employee, only the primary employer (such as a placement agency) is responsible for giving required FMLA notices to its employees, providing the leave, maintaining health benefits, and ensuring job restoration. The secondary employer (such as a manufacturing plant) is generally responsible for accepting the employee at the conclusion of the FMLA leave and for ensuring that it does not interfere with the FMLA, discriminate against someone who has taken FMLA leave, or retaliate against a worker who has exercised rights under the FMLA.
Break in Service: Generally, an employee must have been employed for 12 months and worked for 1,250 hours to be eligible for FMLA. However, the FMLA’s legislative history clearly states that the 12 months of employment need not be consecutive. The court in Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006) had permitted an employee with a five-year gap in employment to take protected leave. The regulations increased the permissible gap in employment to seven (7) years. An even longer gap is acceptable if an employee is away from work due to National Guard or Reserve military service or if the employer agreed in writing to rehire the employee after a break in service. And, an employer may consider prior employment beyond seven years, provided that it does so uniformly with respect to all employees with similar breaks in service.
Serious Health Condition. The definition of the term “serious health condition” has been the subject of debate for many years. The final rule does not materially change the substance of the definition, but does modify the time period in which “continuing treatment” following a period of “incapacity” must take place and the frequency of “periodic treatment” for chronic conditions. The regulations contain detailed rules about how to determine if an employee has a “serious health condition.” The DOL concluded that there was no alternative way to define “serious health condition” that would more effectively cover the types of conditions meant to be covered, while excluding conditions that generally should not be covered. The DOL kept intact its list of common ailments such as colds and flu that ordinarily will not qualify for FMLA leave. The final rule clarifies that a mental illness, regardless of its cause, can be a serious health condition under the FMLA if all the regulatory requirements are met.
Leave for Treatment of Substance Abuse. The regulations consolidate in a single location the provisions regarding leaves of absence for substance abuse. FMLA leave is available for the treatment of substance abuse when it qualifies as a serious health condition, but not for an absence because of the employee’s use of the substance. The FMLA does not prevent an employer from taking disciplinary action against an employee for violating a uniformly-applied substance abuse policy. An employee may take protected leave to care for a family member receiving substance abuse treatment.
Leave for Pregnancy or Birth, Adoption or Foster Care. Under the final regulations, all provisions regarding leave taken for the birth of a child have been consolidated into one section, as are provisions relating to leave for adoption or foster care, and provisions regarding leave to care for a parent.
With regard to leave for pregnancy or birth, the regulations confirm that both the mother and father are entitled to FMLA leave and that FMLA-protected “bonding time” following the birth of a healthy child must be completed within one year. A mother may take FMLA leave for prenatal care, incapacity related to pregnancy (including morning sickness which does not require treatment), and her own serious health condition following the birth of a child. Husbands and wives who work for the same employer may be limited to a combined 12 weeks of FMLA leave for the birth of a healthy child. But, if a child has a serious health condition, both spouses may each take their full 12 weeks of leave to care for the child, even if they work for the same employer.

An employee must reach an agreement with an employer before taking intermittent or reduced schedule leave to care for a healthy newborn child. However, prior agreement is not required where the mother or child have a serious health condition. The employer may temporarily transfer the employee to an alternative position to better accommodate the reduced leave/intermittent leave schedule.

A husband is entitled to FMLA-protected leave if his spouse is incapacitated due to her pregnancy (for example, if the pregnant spouse is unable to drive to a doctor's appointment). An employer may request medical certification to verify the employee's need for leave. Note that this leave is only available to “spouses,” not to a boyfriend or fiancé who is the father of the unborn child.
New Military Leave Requirements. The new military leave requirements address two types of leave.
- “Qualifying Exigency Leave” is permitted when there is a “qualifying exigency” necessitated by the fact that the employee’s spouse, son, daughter, or parent is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a “contingency operation.” Qualifying Exigency Leave is for members of the Reserves and the National Guard, and also to certain retired members of the Regular Armed Forces and retired Reserve. It does not extend to family members of the Regular Armed Forces on active duty status. Also, the leave is generally only available for a Federal call to active duty, not a State call to active duty.
  The types of “exigencies” which justify “Qualifying Exigency Leave” are:
  1. Short- notice deployment:
  2. Military events and related activities:
  3. Childcare and school activities:
  4. Financial and legal arrangements:
  5. Counseling:
  6. Rest and recuperation;
  7. Post-deployment activities:
  8. Additional activities.
- “Military Caregiver Leave” is permitted for an employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember and who is needed to care for that servicemember due to a serious injury or illness incurred in the line of duty of active duty which may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating. Unlike any other form of FMLA leave, an employee is eligible for 26 workweeks of Military Caregiver Leave during a single 12-month period. A “covered servicemember” may be a member of the Armed Forces, the National Guard, or Reserves. The covered servicemember must be (1) undergoing medical treatment, recuperation or therapy; or (2) otherwise in “outpatient status;” or (3) otherwise on the temporary disability retired list. Former members of the Armed Forces, National Guard, and Reserves (whether retired or discharged), and members on the permanent disability retired list are not “covered servicemembers.” Military Caregiver Leave eligibility is based on a per-servicemember, per-injury basis, meaning that an eligible employee could ultimately take more than one 26-week leave with a single employer.
  Because Military Caregiver Leave is calculated based on a “single 12-month period,” employers who track leave for other reasons on a calendar-year basis will need to track leave under two different 12-month leave periods.
  
  Employers must designate leave, paid or unpaid, as FMLA-qualifying, and give the proper notice to the employee. In the case of leave that qualifies as both Military Caregiver Leave and leave to care for a family member with a serious health condition, the employer must designate such leave as Military Caregiver Leave in the first instance.
  
  An employer may retroactively designate Military Caregiver Leave under certain circumstances. For example, an employer may not have enough information from an employee to designate leave until after the leave has commenced and/or to know whether the leave qualifies as Military Caregiver Leave or leave for a family member with a serious health condition under the FMLA.
- Certification of need for military leave.
Holidays During FMLA Leave.
Scheduling of Intermittent or Reduced Schedule Leave. Employees must make a “reasonable effort” to schedule treatment so as not to cause undue disruptions to the employer's operations. The prior regulations merely required employees to “attempt to schedule their leave so as not to disrupt the employer's operations.” However, if a health care provider determines that there is a medical necessity for a particular treatment time, the medical determination prevails. If it is just a matter of scheduling convenience for the employee, the employee must make reasonable efforts to avoid undue disruptions.
Increments of FMLA Leave for Intermittent or Reduced Schedule Leave. The DOL has acknowledged that there can be significant tensions in the workplace arising from the use (and possible abuse) of intermittent leave. For example, tension can arise if an employer seeks to charge an employee using intermittent or reduced leave in longer increments, in order to diminish the leave more quickly. Employees would like to use smaller increments of time so that their reduced leave or intermittent leave schedules last longer. Employers are not required to account for FMLA leave in increments of six minutes or even fifteen minutes simply because their payroll systems are capable of doing so. Rather, the focus is on how the employer actually accounts for the FMLA leave, as compared to other types of leave. If an employer allows employees to take sick leave in 30-minute increments and vacation leave in one-hour increments, the employer should account for FMLA leave in no greater than 30-minute increments. However, under no circumstances may an employer account for FMLA leave in increments of greater than one hour, even if such increments are used to account for non-FMLA leave (for example, four-hour blocks of vacation time).
Physical Impossibility. In some situations, the nature of the job may prevent an employee from using intermittent or reduced schedule leave. For example, airline pilots may be unable to start working midway through a shift. The DOL was concerned that employees could be subject to unfair discipline in situations where they need a short FMLA-protected absence from work, but must actually be absent for a longer period due to the unique nature of the worksite (for example, flight attendants, train conductors, workers in a sealed laboratory “clean room”). In these situations, the entire period of absence should be considered FMLA leave and should be protected under the Act. This is a narrow exception, applicable only to situations where an employee is physically unable to access the worksite after the start of the shift, or depart from the workplace prior to the end of the shift. An employer may provide alternative work during the remaining part of the shift if it does so for employees who take other types of leave.
Substitution of Paid Leave. The FMLA guarantees only unpaid leave, not payment for that leave. Paid leave is offered by employers as a matter of employer policy. However, paid leave policies are often subject to conditions or limitations by employers. Previously, employers could not impose limits on the substitution of paid vacation or personal leave in connection with FMLA leave. The new regulations now allow employers to apply their normal leave policies (and all terms and conditions of those policies) when an employee seeks to be paid for all or part of the FMLA leave. For example, an employer is not required to allow an employee to substitute paid sick leave for unpaid FMLA leave in order to care for a child with a serious health condition if the employer's normal sick leave rules say that an employee can only use sick time for his own illness. If an employer's paid sick leave policy prohibits the use of sick leave in less than full day increments, the employer is not required to allow the employee to use less than a full day of paid sick leave. Similarly, if an employer's paid personal leave policy requires two days’ notice for the use of personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days' notice. Employers may waive their procedural rules and allow an employee's request to substitute paid leave in these situations, but they are not required to do so. Of course, some employees might be unable to take paid vacation leave concurrently with FMLA leave because they might not be able to comply with their employer’s procedures (particularly those related to advance notice). However, if employees do not or cannot meet those requirements, they can still take unpaid FMLA leave.
If there are any additional requirements for the use of paid leave, this information must be included with the Rights and Responsibilities notice delivered to the employee (see below). The employer can include the information in the body of the Rights and Responsibilities notice, attach a copy of the employer’s policy, or provide a cross-reference to an employee handbook.
Bonuses and Awards. An employer may disqualify an employee from a bonus or other payment which would be based on the achievement of a specified goal, such as hours worked, products sold, or perfect attendance, where the employee has not met the goal due to FMLA leave—unless bonuses are paid to employees on other types of leave. Bonuses that are not premised on the achievement of a goal, such as a holiday bonus awarded to all employees, may not be denied to employees because they took FMLA leave.
Settlement Agreements. Resolving a question which courts across the country had answered differently, the regulations confirm that employees and employers may voluntarily settle an employee’s FMLA claims without the permission or approval of the DOL or a court. This clarification promotes the voluntary settlements of claims.
Light Duty. An employee may voluntarily, without coercion, accept a light duty assignment while recovering from a serious health condition. The employee's acceptance of the light duty assignment does not constitute a waiver of the employee's prospective rights, including the right to be restored to the same position the employee held when the FMLA leave commenced or an equivalent position. Thus, an employee who voluntarily returns to a light duty position has the right to be restored to the same or equivalent position. The time the employee works in the light duty assignment does not count as FMLA leave. If the voluntary light duty assignment ends before the employee is able to perform the essential functions of his or her job, the employee may use the remainder of his or her FMLA leave. Although this new provision could potentially create a disincentive for employers to offer light duty positions because it provides a more open-ended right to reinstatement, nothing prevents employers from offering light duty positions for a finite period of time.
Employer Notice Requirements. Every covered employer must post in conspicuous locations a notice providing information about the FMLA. The DOL has provided a prototype notice. WHD Poster Form 1420 An employer may post the general notice electronically if all employees and applicants for employment have access to the information. If the employer posts the FMLA information on an intranet or computer system that is not accessible to applicants, the employer should also post the necessary FMLA poster. Any employee handbook should include the general FMLA notice information. Covered employers must post the general notice even if no employees are eligible for FMLA leave.
The DOL also increased from $100 to $110 the civil money penalty assessment for an employer's willful failure to post the required notices.

If the employer's workforce is comprised of a significant number of workers who are not literate in English, then the employer must post the notice in a language in which the employees are literate. Forms may be downloaded from the DOL’s Internet website.
- Eligibility Notice. When the employer becomes aware that an employee is requesting FMLA, the employer now has five (5) business days (not just 2) to respond to the request. The DOL has provided a prototype Eligibility Notice. WH-381 If an employee is not eligible to take FMLA leave, the employer must state, in writing, at least one reason why the employee is ineligible. If medical certification (or certification of need for military leave) is requested by the employer, this request should be made at the time of the Eligibility Notice.
- Rights and Responsibilities Notice. At the same time the Eligibility Notice is provided, the employer should notify the employee of the specific expectations and obligations related to the FMLA leave. The prototype notice provided by the DOL is called the “Notice of Eligibility and Rights and Responsibilities.” WH-381 This notice can be sent electronically.
- Designation Notice. Communication between the employer and the employee is paramount to effective administration of the FMLA. The new regulations significantly modify the process for designating FMLA leave, and it will be important to carefully follow the new process to ensure that employees receive timely notification as to whether leave will be FMLA-protected and the amount of time that will be counted against their FMLA leave entitlement. A new prototype Designation Notice has been provided by the DOL. WH-382. This notice must generally be sent within five business days of the date when the employer has sufficient information to determine whether the leave is being taken for a FMLA-qualifying reason. The employer is expressly permitted to provide the Designation and Eligibility Notices simultaneously upon an employee's request for FMLA leave, if the employer has sufficient information to do so at that time.
  The DOL has eliminated the “provisional designation” concept because it caused confusion and could give employees a false sense of comfort in situations where the leave ultimately did not qualify for FMLA protection.
  
  At or before the time of the Designation Notice, the employer must also provide the employee with the list of essential job functions, if the employer intends to require a fitness-for-duty certification to return to work.
  
  Retroactive designation must be accompanied by appropriate notice to the employee and can only be done if it does not cause harm or injury to the individual or if the employee and employer mutually agree to the retroactive designation. In all cases where leave would qualify for FMLA protection, the employer and employee can mutually agree to retroactively designate the leave as FMLA leave.
- Failure to Give Notice. In response to court decisions, the regulations state that when an employer fails to give an employee timely or proper notice designating the leave as FMLA leave, the DOL cannot just “deem” the employee eligible for FMLA leave. However, an employer which does not designate FMLA leave properly could be liable for interfering with the employee’s FMLA rights, and could be liable for damages.
Employee Notice Requirements.

Foreseeable Leaves of Absence. An employee must give at least 30 days notice if the need for FMLA leave is foreseeable at least 30 days in advance, and must give notice “as soon as practicable” if leave is foreseeable but 30 days notice is not practicable. When an employee gives less than 30 days advance notice, the employer may ask, and the employee must explain, why it was not practicable to give 30 days’ notice.
Unforeseeable Leaves of Absence/Call-in Requirements. If an employee becomes aware of a need for FMLA leave less than 30 days in advance, an employee should generally be able to provide notice of leave within the time prescribed by the employer's usual and customary notice requirements. The DOL has recognized that call-in procedures are important to an employer's operations. The DOL permits employers generally to enforce non-discriminatory call-in procedures. Where unusual circumstances prevent an employee seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave so long as the employee complies with the policy as soon as he or she can practicably do so. The final rule confirms that calling in “sick” is not sufficient notice of the need for FMLA leave.
Employee Failure To Provide Notice. FMLA-protected leave may be delayed or denied when an employee does not comply with the employer's usual notice and procedural requirements and no unusual circumstances justify the failure to comply. FMLA leave cannot be delayed due to lack of required employee notice if the employer has not complied with its notice requirements.

Employer Requests for Certification. Employers may require employees to provide a certification from their health care provider (or their family member's health care provider, as appropriate) to support the need for leave due to a serious health condition. The new military family leave provisions also permit employers to require employees to provide a certification in the case of Qualifying Exigency Leave or Military Caregiver Leave. The time frame in which an employer should request medical certification has been increased from two to five (5) business days after receiving notice of the need for FMLA leave.
The employee has 15 calendar days to respond to all requests for certification. In all cases, employees who cannot meet that deadline should show their diligent, good faith efforts to do so. In response, employers should consider all the circumstances, including the employee's efforts to schedule appointments and follow-up and should consider that employees must rely on the cooperation of their health care providers and other third parties.

If certifications are incomplete and insufficient, the employer must notify the employee in writing as to what additional information is necessary for the medical certification and provide seven (7) calendar days to provide the additional information.

If an employee fails to submit a complete and sufficient certification, the employer may deny the taking of FMLA leave.

There are now two separate optional certification forms, replacing form WH-380: one for the employee's own serious health condition (WH-380E) and one for the serious health condition of a covered family member (WH-380F).

An employer may, but is not required to, provide a list of essential functions when it requires a medical certification. This will assist the health care provider’s assessment of whether the employee can perform his or her job. However, not all employers have written job descriptions or a list of essential functions for each position. Accordingly, the final form WH-380E has been revised to make clear that, in those cases in which the employer chooses not to include information on the certification form identifying the employee's essential functions, the health care provider may assess the employee's ability to perform his or her job based on the employee's own description of his or her job functions. The DOL does strongly encourages employers to provide a list of essential functions along with the medical certification in order to reduce the need for clarification from health care providers.

Where a serious health condition is a disability under the ADA, employers may follow the procedures under the ADA for requesting medical information. Employers may not require employees to sign a release of their medical information as a condition of taking FMLA leave. However, employees must submit a complete and sufficient certification upon request.
Authentication and Clarification of Medical Certification. In a change from the prior regulations, an employer's representative may contact the employee's health care provider for the purposes of authentication and, if the employee consents, clarification of the medical certification. No additional medical information may be requested. All contact with the employee's health care provider must comply with the requirements of the HIPAA Privacy Rules. Before contacting the health care provider, the employer must first give the employee an opportunity to cure any deficiencies in the certification. The DOL encourages employers to continue to use health care practitioners when contacting an employee’s health care provider wherever possible, but employers may now use appropriate representatives to expedite the process and to reduce administrative costs. Permitted representatives are human resource professionals, leave administrators, or management officials. Under no circumstances should the employee's direct supervisor contact the health care provider. If the employee does not permit the contact and the employee does not otherwise clarify an unclear certification, the employer may deny the FMLA leave.
Recertifications. For conditions that will last an extended period of time (for example, where the duration is “lifetime,” “indefinite,” or “unknown,”) the employer may not seek recertification of the need for the leave until the minimum duration specified in the certification had passed, but would always be entitled to seek recertification every six months in connection with an absence. In other words, if the certification specified a duration of greater than six months, the employer would still be able to seek recertification at six-month intervals. This was a change in the DOL's prior position that such conditions were subject to recertification every 30 days. As before, employers may request certification in fewer than 30 days if the employee seeks to extend the leave or if the circumstances of the certification have changed significantly, or if the employer receives information casting doubt on the stated reason for leave.
Employers may give an employee's health care provider a record of the employee's absence pattern and ask whether the leave is consistent with the employee's serious health condition.
Certifications for Fitness-For-Duty. Employees have the same obligation to provide complete certification in the fitness-for-duty certification process as they do in the initial certification process. The fitness-for-duty certification may be a simple statement. The employer is permitted to require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's job. However, the employer must advise the employee of this requirement in the Designation Notice and must provide a list of those essential job functions along with the Designation Notice at the beginning of the leave. An employee is not entitled to job reinstatement if he or she does not provide the required fitness-for-duty certification or request additional FMLA leave. An employer may require an employee to furnish a fitness-for-duty certification every 30 days if an employee has used intermittent leave during that period and reasonable safety concerns exist. No second or third opinions on a fitness-for-duty certification may be required. The DOL did not issue a prototype fitness-for-duty certification form.
Failure To Provide Certification. If an employee fails to provide medical certification in a timely manner, the employer may deny (not just “delay”) the taking of FMLA leave until it has been provided. Any absences that occur during the period in which an employer has the right to deny FMLA protection due to the failure to provide timely certification may be treated under the employer's normal attendance policies.
Damages. The regulations explain the scope of damages for violation of the FMLA. With regard to violations of the Military Caregiver Leave provisions, for example, an employer could be liable for wages, salary, employment benefits or other compensation and any actual monetary losses sustained by the employee up to a sum equal to a total of 26 weeks of wages plus interest and possible liquidated damages in the same amount, and possible attorneys’ fees and costs.
Recordkeeping. Employers must maintain copies of all written notices given to employees. The notices may be maintained in the employee’s personnel file. Employers must maintain medical certifications created for purposes of the FMLA as confidential medical records in separate files from the usual personnel files.

MASSACHUSETTS CASE LAW DEVELOPMENTS

Promises Made to Employees in Handbooks May be Enforceable.
In LeMaitre v. Massachusetts Turnpike Authority, the Massachusetts Turnpike Authority had outlined an incentive program in its employee handbooks for more than twenty years encouraging employees to use their sick leave credit only when absolutely necessary, and rewarding employees with cash and other benefits for unused days. In 1996, the MTA reduced the available rewards. When LeMaitre retired in 2002, he received compensation at the reduced reward rate for all of his sick days, even the time that had accrued prior to 1996. The court agreed that the employee was entitled to the full amount of benefits because those benefits were “essentially a form of employee compensation contingent on continued employment and services.” The court said that, although disclaimers used frequently in handbooks and policies are important, the court would look to the entire context behind the employment policies to see if the employee's belief that he was entitled to the full benefits was reasonable.
Employment Discrimination Claims May Be Maintained Against Employers With Fewer than Six Employees.
In Thurdin v. SEI Boston, LLC, the employee sued her former employer, a three person consulting firm, for discrimination based on gender and pregnancy. A Superior Court judge dismissed the plaintiff’s claim because the Commonwealth’s anti-discrimination statute only applied to businesses employing six or more people. The Supreme Judicial Court reversed this decision, finding that an employee who cannot bring a claim under the anti-discrimination statute could sue under the Massachusetts Equal Rights Act. Employees of companies employing fewer than six people are now clearly able to seek a judicial remedy for discrimination suffered in the course of employment.

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