What Kind of Notice Does an Employee Have to Provide to an Employer to Take FMLA Leave?

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The FMLA causes confusion among both employers and employees, partly due to the notice requirements that it mandates for both employees seeking to take FMLA leave and for employers that have an employee asking to take leave for reasons that may fall under the protection provided to the employee by the FMLA. To complicate things even more for both employees and employers, new legislation and regulations affecting the FMLA became effective in January 2008 and January 2009, respectively.

This discussion will deal with the notice requirements that an eligible FMLA employee must provide to his or her employer in order to be placed on FMLA leave. This discussion assumes that the employee is an eligible employee under the FMLA and that the employer is an eligible employer under the FMLA.

Time Requirements for an Employee’s Notification of the Need for FMLA Leave

An employee’s obligation to provide notice of the need for FMLA leave differs depending upon whether the forthcoming leave is foreseeable  or unforeseeable in nature. If the leave is foreseeable, such as most leaves are for pregnancy or necessary, but not emergency surgeries, then the employee must provide the employer at least 30 days advance notice before FMLA leave is to begin. It is always a good idea for an employee with the need for foreseeable leave to consult with his or her employer before actually scheduling the medical treatment, if at all possible, so that the treatment can be scheduled for a time when it would not unduly disrupt the employer’s business and operations. If the employee fails to give 30 days notice of foreseeable leave and provides no reasonable excuse for his delay in providing notice, then the employer can delay the employee’s leave for 30 days after when notice is actually provided. This can be a risky course of action for the employer, however, because the employer must make sure that all proper notices of the employee’s right to FMLA leave were provided to the employee in order to delay the leave.

In cases of unforeseeable leave, where providing 30 days notice is not practicable, because of a lack of knowledge of approximately when the leave will be required to begin, a change of circumstances, or a medical emergency, then notice must be given by the employee as soon as practicable. For example, an employee’s health condition may require leave to begin earlier than initially anticipated before the birth of a child, such as in situations where there are unexpected complications related to a pregnancy before the child is actually due. In these situations, employees must give the employer notice of the need for leave “as soon as practicable” – clearly not a black and white guideline. Essentially, “as soon as practicable” means as soon as practical and possible, taking into account all of the surrounding facts and circumstances of the particular case and the particular employee’s condition and reason for leave. Typically, this can be accomplished where the employee provides the employer with notice of the need for leave within the same time frame as he would be required to do so under the employer’s regular guidelines for taking sick or medical leave. In the case of a medical emergency requiring leave, however, advance notice may not be required at all as it would simply be impossible to provide under emergency circumstances.

The Content of the Employee’s Notice of the Need for FMLA Leave

In addition to the time requirements, an employee must provide the employer with sufficient and proper notice of his need for FMLA leave. At a bare minimum, an employee must provide at least verbal notice sufficient to make the employer aware that the employee needs leave that would qualify as FMLA leave, and the anticipated timing and duration of the leave. Essentially, the employee must provide enough information about his need for leave and reasons for needing to take the leave to allow the employer to determine whether or not the requested leave should be classified as FMLA leave.

While the employer must provide sufficient information regarding the reason for his absence, courts have held that an employee does not have to specifically mention or reference the FMLA in connection with his request for leave or specifically state to the employer that he would like to assert his right to take FMLA leave. In other words, there are no magic words required – only that the employee provide enough information to inform the employer that the need for leave would likely qualify as FMLA leave. On the same note, an employee’s failure to comply with an employer’s formal policy (typically contained in an employee handbook), will not prevent the leave from being FMLA protected leave.

In the case of leave for an employee’s own medical condition, the employer may further inquire into the nature of the serious health condition and may even request a medical certification from the employee’s physician to support the employee’s need for leave. An employee has an obligation to respond to an employer’s questions if they are for the purpose of determining whether or not the requested leave is FMLA-qualifying.

Covenants Not to Compete, Non-Compete Clauses, and Restrictive Covenants in S.C.

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Covenants not to compete, sometimes referred to as non-compete clauses, allow an employer to place certain limitations upon an employee’s activities subsequent to the employee’s termination or resignation. Essentially, an employee agreeing to a covenant not to compete agrees not to compete against the employer in the same trade or profession after the employee separates from the employer.

The traditional covenant not to compete restricts an employee from being able to compete with her employer for a set, limited time within a certain predefined geographical area. In the traditional covenant not to compete, the type of work or profession that the employee is prohibited from engaging in or conducting is defined in scope, as is the precise geographical area in which the employee agrees to not compete. Typically, the covenant not to compete also expressly states a set time, usually a certain number of months or years, that the restriction will remain in effect for after the employee’s separation from the company. Other common types of covenants not to compete include covenants not to solicit customers, covenants not to disclose trade secrets, and covenants not to solicit employees.

Covenants not to compete will not be upheld unless they are reasonable in nature and scope. In South Carolina, courts have used the “reasonableness test” to determine whether a covenant not to compete is enforceable. The test holds that a covenant not to compete will be enforced if it: (1) is necessary for the protection of the legitimate interests, (2) is reasonably limited with respect to time and place, (3) is not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood, (4) is reasonable from the standpoint of sound public policy, and (5) is supported by valuable consideration.

South Carolina courts strictly require that covenants not to compete be supported by “valuable consideration.” Case law has helped to shape the meaning of exactly what “valuable consideration” is over the years and the courts have refused to enforce covenants not to compete that are supported by consideration that is less than “valuable” or otherwise insufficient. For example, an employer giving an at-will employee a few dollars as consideration in support of a covenant not to compete that will last for 3 years from the date of the employee’s separation would not likely be considered as one giving valuable consideration. Likewise, continued employment alone is not enough to support a covenant not to compete that is entered enter after the employee has already started working for the employer. A promotion or pay raise, however, would be considered valuable consideration.

Many disputes surrounding covenants not to compete revolve around whether or not the geographical or time limitations of the covenant are overbroad or unreasonable.

Severance Agreements

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Severance agreements are often used between employees and employers when an employee is being laid off during a reduction in force by the employer. Employers can benefit from severance agreements by limiting their liability and by limiting potential future lawsuits from employees. Employees can benefit from severance agreements by receiving a lump sum payment to help tie them over until they are able to find subsequent employment.

Severance pay is not mandated by law and an employer is not required to provide any form of severance pay to a separating employee. In the event that an employment contract provides for severance pay, however, the terms of the employment contract will control and the employer will be contractually bound to the terms therein relating to severance pay. Often, employment contracts will stipulate that an employee terminated for cause is not entitled to severance pay even though the employee would have received severance in the absence of cause for termination. Courts have routinely upheld an employer’s refusal to pay severance in such cases.

Social Security Disability Benefits

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Although employees who have been terminated on the basis of a disability, or even a perceived disability, have recourse under the ADA and the ADAAA, Social Security Disability benefits provide another form of employee benefits to those who are disabled and not working. The Social Security Administration’s definition and characterization of who is and who is not “disabled” is not exactly the same as the ADAAA’s definition of disability.

Since a key factor in determining whether or not you are entitled to Social Security disability benefits is the issue of whether or not you are considered to be disabled under the Social Security Administration’s definition of disability, it is important for Social Security disability applicants to be familiar with the framework used to make this determination.

In a nutshell, if you have a medical condition, you may be considered disabled if:

(1) You can no longer perform work that you have performed in your previous job or jobs;

(2) You cannot adjust to new work because of your medical condition; and

(3) Your disability lasts or is expected to last for a year or more or will result in death.

Additionally, the Social Security Administration has a 5-step process for determining whether an individual is considered to be disabled. Step 1 is whether the claimant is engaging in substantial gainful activity. If the answer is no, then Step 2 is considered and it asks whether the claimant has a “severe” impairment. If the claimant has a severe impairment, then the next step involves determining whether the claimant’s medical impairment meets a “Listing.” The Social Security Administration uses a set of medical criteria for disability found within the social security regulations, known as the “Listing of Impairments” to make the third determination. If the claimant’s medical condition meets or medically equals one of the listings or one of the medical conditions found in the Listing of Impairments, the disability evaluation ends and the claimant is deemed to be disabled.

In the event that a claimant’s medical impairment does not meet or equal a listing, then the analysis continues to Step 4, which asks whether the claimant can perform past relevant work. Past relevant work can be any work that the claimant performed in the past 15 years, so long as the work was done at “substantial gainful activity” level and lasted long enough for the claimant to learn how to do the work. This can be virtually any kind of work so long as it can be considered substantial gainful activity. In order to proceed to Step 5, the claimant must prove that he or she is incapable of performing past relevant work. If the claimant is capable of performing past relevant work, then he or she is not considered disabled. Otherwise, the analysis continues to Step 5.

Step 5 of the Social Security Administration’s 5-step process for determining whether a claimant is disabled is whether other work, aside from past relevant work, exists or is available for the claimant. At this step, once the claimant proves that he or she is not capable of performing past relevant work, the burden shifts to the Commissioner to show that other work for the claimant does exist in significant numbers in the national economy. Not only must other work that the claimant can do exist, but the work must be feasible in light of the claimant’s work capacity, age, education and skills obtained from past relevant work. The Medical-Vocational Guidelines, known more commonly as “the Grids”, are used to determine disability based upon a claimant’s maximum exertional capacity, age, education and work experience. Where the claimant’s profile matches one of the rules within the Grids, the rules then direct the outcome of the case. Where a claimant’s profile fails to match one of the rules within the Grids, the rules may be used as a ‘framework’ for decision-making, even though they are not wholly conclusive and do not provide a definitive outcome.

For claimants under 50 years old, the Grids will direct a finding of disability only in the event that the claimant is illiterate or where the claimant has no ability to communicate using English. Otherwise, a claimant under the age of 50 will be deemed to be not disabled under the Grids. For this reason, claimants over the age of 50 have greater chances of being deemed “disabled” and receiving Social Security disability benefits than do claimants under the age of 50.

What does At-Will Employment Really Mean?

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Employment at-will or at-will employment essentially means that an employer can terminate an employee at any time and for any reason, whether a good reason or a bad reason, or for no reason at all. On the other side of the coin, at-will employment also means that an employee is free to quit working for the employer at any time the employee desires, for any reason or for no reason. While this may seem a bit more favorable to employers than employees due to the fact that employers typically have more leverage in the deal than do employees, employment at-will is general rule here in the Palmetto State, as well as in most other states. Employment in South Carolina is presumed to be at-will, unless the employee and the employer have an employment agreement or an employment contract for a definite term.

There are, however, exceptions to the general rule of at-will employment. An array of federal laws prohibit employers from terminating employees on the basis of gender, race, age, disability, perceived disability, national origin or ethnicity, among other protected classifications. Federal law also prohibits an employer from terminating an employee in retaliation for exercising a protected right, such as filing an EEOC charge or complaining to an employer about unpaid overtime pay.

South Carolina courts have additionally held that a cause of action for wrongful termination or wrongful discharge exists where an employee’s termination violates a clear mandate of public policy. Our courts have applied the public policy exception to at-will employment to situations in which the employer requires the employee to violate a law or where the reason for the employee’s termination is itself a violation of criminal law. South Carolina Courts have also applied the public policy exception to instances where an employee’s termination resulted from his refusal to participate in a company’s unethical conduct involving unlawful kickbacks, instances where an employee is terminated for complaining about unpaid wages and instances where an employee reports and testifies about extremely unsafe working conditions.

Another exception to employment at-will arises where an employer distributes employee handbooks to employees, as the at-will status of an employee may be altered by the terms of an employee handbook. Essentially, this occurs where an employee handbook sets forth personnel policies and procedures in mandatory and/or promissory terms. If the employer makes certain promises to the employee or sets forth mandatory procedures to the employee in an employee handbook, then both the employee and the employer have to abide by the handbook’s policies and procedures. In such instances, an employee handbook may actually create an implied contract of employment that both the employee and the employer must follow.

An employer may, however, issue an employee handbook without being bound by it and with a desire to continue under the at-will rule, by inserting a conspicuous disclaimer in the employee handbook. The disclaimer requirements can be found in South Carolina Code Section 41-1-110 and they require disclaimers to be set forth in underlined capital letters on the first page of the employee handbook and signed by the employee. Many employers continue to issue employee handbooks that fail to comply with Section 41-1-110′s bright line requirements. By doing so, such employers may be at risk of unintentionally creating an implied contract of employment with their employees.

Fitness-for-Duty Certifications under the FMLA

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Employees taking FMLA leave should be aware that, under certain circumstances, an employer may require an employee to provide a fitness-for-duty certification upon their return to work stating that the employee is physically able to return to their position. As a condition of restoring an employee whose FMLA leave was occasioned by the employee’s own serious health condition that made the employee unable to perform the employee’s job, an employer may have a uniformly-applied policy or practice that requires all similarly situated employees (i.e. same occupation, same serious health condition) who take leave for such conditions to obtain and present certification from the employee’s health care provider that the employee is able to resume work. Under 29 C.F.R. §825.312(a), an employee returning to work from FMLA leave has the same obligations to participate and cooperate in the fitness-for-duty certification process as in the initial FMLA leave certification process.

Essentially, the certification from the employee’s health care provider must certify that the employee is able to resume work. Under the recent revisions to the FMLA, an employer may also require that the certification specifically address the employee’s ability to perform the essential functions of the the job. In order to require these specific certifications, however, an employer must provide an employee with a list of the essential functions of the employee’s job by no later than when the designation of FMLA leave notice is provided by the employer to the employee and the notice must specifically indicate in that the certification must address the employee’s ability to perform those essential job functions. If an employer fails to notify the employee of the requirement for a fitness-for-duty certification upon his return to work from leave, then the employer may not require such a certification from the employee.

An employer may not delay the employee’s return to work for the purpose of clarifying or authenticating a certification with the employee’s health care provider and an employer may not require a second or third opinion on the employee’s fitness to return to work. If an employer provides the proper notice of the requirement of a fitness-for-duty certification to the employee, an employee who does not provide the fitness-for-duty certification upon his return to work or who does not request additional FMLA leave is not longer entitled to reinstatement of his position under the FMLA.

There are some different rules that apply to employees on intermittent or reduced FMLA leave. An employer is generally not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule. An employer may require a certification, however, for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform his duties, based on the serious health condition for which the employee took such FMLA leave. If an employer chooses to require a fitness-for-duty certification under such circumstances, the employer must inform the employee at the same time it issues the designation notice that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the last 30 days. A reasonable safety concern means a reasonable belief of significant risk of harm to the individual employee or others. An employer may not terminate the employment of the employee while awaiting such a certification of fitness to return to duty for an intermittent or reduced schedule leave absence.

Personal Liability for Unpaid Wages

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The South Carolina Payment of Wages Act requires employers to pay all wages owed to employees in full and in a timely fashion.  The Act also makes employers operating an LLC or corporation personally liable for unpaid wages to employees, which can create far-reaching ramifications for business owners in South Carolina.

Typically, business owners have some protection from personal liability provided by the “corporate shield” of an LLC or corporation.  This is not always the case though for unpaid wage claims.  The Act defines “employer” as “every person, firm, partnership, association, corporation, receiver, or other officer of a court of this Sate, the State or any political subdivision thereof, and any agent or officer of the above classes employing any person in this State.” S.C. Code Ann.  41-10-10(1) (Supp. 2010).  Needless to say, this is a fairly broad definition of what an “employer” actually is under the meaning of the Act.

The South Carolina Court of Appeals recently revisited the issue of personal liability for unpaid wages in Allen v. Pinnacle Healthcare Systems, LLC and essentially reaffirmed its ruling in the 1995 case of Dumas v. InfoSafe Corp., by holding that the Act imposes individual liability on agents or officers of a corporation who knowingly permit their corporation to violate the Act by failing or refusing to timely pay employees all wages due.  The Court of Appeals did, however, clarify that members of an LLC cannot be held personally liable for unpaid wages merely due to the fact that they are members of the LLC.  The Court clarified that members of an LLC will be imposed with personal liability if they “knowingly permit the LLC to violate the Act.”

The Payment of Wages Act provides great protection to employees and ensures that they will be paid all of the wages due to them in a timely manner.  Violations of the Act can cause employers to end up paying a lot more than they originally owed to an employee if a civil action is filed.