| I.
Overview of the Family and Medical Leave Act (FMLA)
The federal Family and Medical
Leave Act of 1993 (FMLA), 28 U.S.C. § 2601 et seq.,
applies to most employers with fifty or more
employees. The FMLA requires covered employers
to grant up to twelve weeks of family and medical
leave each year to eligible employees.
This first section of these
materials is a primer on the FMLA. Employers will
find here "the basics" -the who, what,
where, when, and some of the "why." The "how" -how
to put together a policy and how to administer
your policy -may be found in Section V.
- Which employers are
covered by the FMLA?
A "covered" employer
is one that employs fifty (50) or more employees
each working day during each of twenty (20) or
more calendar workweeks in the current or preceding
calendar year, including successor employers,
schools, and public agencies.
--"Employee" includes:
full time, part-time, hourly, salaried, exempt,
and non-exempt employees.
--If an employee's name appears on the payroll
for a given week, the employee is deemed to
have been employed for that week. Also, any
employee on leave of any kind generally counts
towards the required total of fifty.
Sometimes, an employer with
fewer than fifty employees may be "covered" if
it meets the "integrated employer test" (two
or more businesses may constitute one employer
if they have one or more of the following characteristics:
common management; interrelations between operations;
centralized control of labor relations; and a
high degree of common ownership or financial
control) or the "joint employers" test
(a joint employment relationship may exist if
two employers have an arrangement to share an
employee's services or if they share control
of the employee, whether directly or indirectly).
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- Which
employees are eligible to take FMLA leave?
In general, an employee
is eligible to take FMLA leave if he or she has
been employed by the employer for a minimum twelve
(12) months total (current and prior employment)
and if he or she has worked at least 1250 hours
for the employer during the 12-month period immediately
preceding the commencement of the leave. Note
that the employee need not have worked for the
employer for 12 consecutive months, as
long as the 1250-hour requirement is met.
For employers with multiple
sites, the employee must have worked on a site
at which fifty (50) or more employees work, unless
the total number of employees within seventy-five
(75) miles of the worksite is 50 or more.
Note that in order to be
eligible to take FMLA leave, an employee must
not have used up his or her 12-week allotment
of leave during the current "leave year" (see
Section V.G).
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- What
are the legitimate reasons for taking FMLA
leave?
An eligible employee
may take family and medical leave (up to
twelve weeks) only for one of the four
following reasons:
--because of the
birth of a child and to care for the
newborn child
--because of the placement of a child with
the employee for adoption or foster care;
--because the employee is needed to care
for a family member (son or daughter, spouse,
or parent) with a serious health condition;
or
--because the employee's own serious health
condition makes the employee unable to
perform the functions of his or her job.
Leave taken due to the
birth, placement, or adoption of a child must
be taken within one year of the qualifying
event.
In the case of leave taken
due to a placement or adoption, the child must
be under 18 years of age.
For FMLA purposes,
--"Son or daughter" means
a biological, adopted, or foster child,
a step child, a legal ward, or a child
of a person standing in loco parentis,
who is either under age 18, or age 18
or older and "incapable of self-care
because of a mental or physical disability,"
i.e., requires assistance or supervision
in three or more activities of daily living
such as grooming, bathing, dressing, eating,
cooking, cleaning, shopping, paying bills,
maintaining a residence, using telephones,
and so on.
--"Spouse" means a husband or
wife as recognized under state law for
purposes of marriage in the state where
the employee resides. Note that the State
of Maine does not recognize "common
law" marriage.
--"Parent" means a biological
parent or an individual who stands or stood
in loco parentis to an employee when the
employee was a son or daughter as defined
above. The term "parent" specifically
excludes
"in-laws."
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- What
is the definition of a serious health condition?
There are six definitions
of a serious health condition. A "serious
health condition" is an illness, injury,
impairment, or physical or mental condition
that involves one of the following:
(1)Hospital Care
Inpatient care (i.e.,
an overnight stay) in a hospital, hospice,
or residential medical care facility, including
any period of incapacity or subsequent treatment
in connection with or consequent to such
inpatient care.
"Incapacity" means,
for purposes of the FMLA, the inability to
work, attend school, or perform other regular
daily activities due to the serious health
condition (or due to treatment for the condition,
or due to the need for recovery from the
condition).
2) Absence Plus Treatment
A period of incapacity
of more than three consecutive days (including
any subsequent treatment or period of incapacity
relating to the same condition), that also
involves:
a) Treatment two
or more times by a health care provider,
by a nurse or Physician's assistant
under direct supervision of a health
care provider, or by a provider of
health care services (e.g., physical
therapist) under orders of, or on referral
by, a health care provider;
or
b) Treatment by a
health care provider on at least one occasion
which results in a "regimen of continuing
treatment"
under the supervision of the health care
provider.
"Treatment" includes
examinations to determine if a serious health
condition exists and evaluations of the condition.
Treatment does not include routine physical
examinations, eye examinations, or dental
examinations.
A "regimen of continuing
treatment" includes, for example, a
course of prescription medication (e.g.,
an antibiotic) or therapy requiring special
equipment to resolve or alleviate the health
condition. A regimen of treatment does not
include the taking of over-the-counter medications
such as aspirin, antihistamines, or salves;
or bed-rest, drinking, fluids, exercise,
and other similar activities that can be
initiated without a visit to a health care
provider.
3) Pregnancy
Any period of incapacity
due to pregnancy, or for prenatal care.
4) Chronic Conditions
Requiring Treatments
A chronic condition
which:
a) Requires periodic
visits for treatment by a health care
provider, or by a nurse or physician's
assistant under direct supervision
of a health care provider;
and
b) Continues over
an extended period of time (including recurring
episodes of a single underlying condition);
and
c) may cause episodic
rather an a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc,)
5) Permanent/Long-term
Conditions Requiring Supervision
A period of incapacity
which is permanent or long-term due to a
condition for which treatment may not be
effective, The employee or family member
must be under the continuing supervision
of, but need not be receiving active treatment
by, a health care provider. Examples include
Alzheimer's, a severe stroke, or the terminal
stages of a disease.
6) Multiple Treatments
(Non-Chronic Conditions)
Any period of absence
to receive multiple treatments (including
any period of Recovery therefrom) by a health
care provider or by a provider of health
care services under orders of, or on referral
by, a health care provider, either for restorative
surgery after an accident or other injury,
or for a condition that would likely result
in a period of incapacity of more than three
consecutive calendar days in the absence
of medical intervention or treatment, such
as cancer (chemotherapy, radiation, etc,),
severe arthritis (physical therapy), kidney
disease (dialysis).
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- What
is the employee's right to reinstatement?
Employers must reinstate
employees who take FMLA leave to the prior position
or to an equivalent position. An "equivalent
position"
is one with equivalent benefits, pay, and other
terms and conditions of employment, without loss
of accrued and unused benefits.
There are some exceptions
to the FMLA' s rule regarding reinstatement.
Employees whose employment would have been terminated
even if they had not Taken leave are not protected
from the vicissitudes of modern business. Downsizings,
layoffs, and outsourcing may be implemented even
when an affected employee is on FMLA leave. When
the employee seeks restoration, the employer
must be able to show that the employee would
not have been employed if he or she had not taken
the leave of absence. Similarly, an employee
may be terminated for a performance or other
valid reason if such termination would occur
whether or not the employee was on leave.
Employees who have not provided
employers with an appropriately requested "fitness
for duty" certification may be denied restoration
to work. Employees who have fraudulently obtained
FMLA leave may be denied restoration to work.
Another exception to the
general rule of restoration is for certain highly
paid employees who may be designated as "key
employees."
A key employee is an employee who is (1) salaried
(not hourly) and (2) among the top 10% of all employees
working within a 75-mile radius of the key employee's
worksite in terms of pay (measured among all employees,
salaried and hourly alike). If an employee is a
key employee, and if the employer has designated
the employee as a key employee at the beginning
of the FMLA leave, the employer may deny restoration
if the employer can show that the such restoration
(as opposed to the leave itself) would cause "substantial
and grievous economic injury" to the employer's
operations.
--Employers should consider
whether they are able temporarily to replace
or do without the key employee. If permanent
replacement is unavoidable, then the employer
should consider the cost of reinstating the
key employee in the course of evaluating
whether there would be substantial and grievous
economic injury.
--There is no precise
test for what amounts to substantial and grievous
economic injury .At one end of the spectrum,
if the economic viability of the business would
be threatened by restoration of the key employee,
then clearly the test has been met. At the
other end of the spectrum are minor inconveniences
and costs that employers normally encounter
in the course of doing business. Restoring
most key employees will fall somewhere in between,
and each case must be evaluated on an individual
basis.
--The test for substantial
and grievous economic injury is less stringent
and less difficult to meet than the test for "undue
hardship" under the ADA.
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- What
benefits are employees entitled to under the
FMLA?
Unpaid leave of absence
of up to 12 week (usually). See section H below,
as well as section V -F for a discussion of when
an employee must be paid during FMLA leave.
Continuation of current
level of health benefits. An employer must provide
continuous coverage under its health plan to
the employee on FMLA leave on the same terms
and conditions as they would have been provided
had the employee continued in employment and
not taken leave. If the employer normally pays
for all or part of family medical coverage, then
the employer must continue to pay for the same
proportion of coverage during the FMLA leave.
The FMLA does not affect
other benefits of employment, and the employer
has the right to limit such benefits during FMLA
leave. The FMLA is a "minimum," however;
many employers continue some or all of the employee's
other benefits during leave. Also, some employers
may be bound by the terms of collective bargaining
agreements as to which benefits will continue
during family and medical leaves of absence.
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- What
are intermittent leave and a reduced leave
schedule?
Intermittent leave is FMLA
leave taken periodically rather than in one.
consecutive period of time. Examples are occasional
days off due to severe migraine headaches, occasional
mornings off for prenatal care, or periodic absences
for chemotherapy treatments and recovery from
such treatments.
A reduced leave schedule
is FMLA leave taken in the form of a part-time
schedule. For example, an employee may work half-days
for several weeks after returning to work following
a heart attack.
Intermittent leave or a
reduced leave schedule is not required in every.
circumstance. Employers may choose, but are not
required, to provide - intermittent or a reduced
leave schedule to employees taking leave for
a birth or placement of a child. For employees
taking FMLA leave due to their own serious health
condition or the serious health condition of
a child, parent, or - spouse, intermittent leave
or a reduced leave schedule must be granted when
the health care provider certifies one of the
following circumstances:
--The employee has a
serious health condition and a medical need
for leave, and such medical need can be best
accommodated through an intermittent or reduced
leave schedule; or
--The employee's child,
parent, or spouse has a serious health condition,
and the health care provider has determined
that the employee is "needed to care for" the
family member on an intermittent or part-time
basis. This care includes physical care (when
the family member is unable to attend to his
or her own basic needs or needs transport to
obtain treatment) and psychological care (when
comfort and reassurance would be beneficial
to a family member receiving inpatient or at-home
care).
The employee must attempt
to schedule such leave so as not to disrupt
the employer's operations.
When the need for intermittent
or part-time leave is foreseeable, the employer
may reassign the employee temporarily to an
alternative position that better accommodates
the intermittent or part-time schedule. The
alternative position may be lower in status
and responsibility but the employee must receive
the same pay and benefits that he or she normally
receives.
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- Substitution
of Paid Leave
Although FMLA leave is unpaid generally,
an employer may choose to require employees to
use up any paid leave they have accrued. The
only limitation is that accrued leave may not
be used for anything that it is not normally
used for.
For example, if an employer does not normally allow
employees to use "sick days" for taking
care of family members, then the employer may not
require the employee to use up accrued "sick
days" for any type of leave except leave taken
due to the employee's own serious health condition.
Even if the employer does not choose to require
employees to use up accrued paid leave, the employee
may always choose to use up accrued leave during
FMLA leave.
Once the accrued leave has been used up, the remainder
of the leave may be unpaid.
Many employers have short term disability ("STD")
policies, or similar benefits, that provide for
whole or partial salary continuation during illness
or injury .In most cases involving workplace injuries,
the employee will receive workers' compensation
benefits during any leave of absence. In either
case, employers may not require employees to use
up accrued paid leave during any period of time
covered by STD or workers' compensation benefits.
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- What
certifications and verifications may the employer
require?
Employers may require
employees' health care providers to certify
that the employee has a "serious health
condition."
--Under the FMLA,
employers must accept certifications
from any professional defined as a "health
care provider," including th6 following
categories: doctors of medicine or osteopathy,
podiatrists, dentists, clinical psychologists,
optometrists, chiropractors (for treatments
specific to manipulations of the spine
to correct subluxation demonstrable in
an X-ray), nurse practitioners, nurse-midwives,
clinical social workers, Christian Science
practitioners (officially listed), and
any other health care provider from whom
an employer or the employer's group health
plan will accept certification of a serious
health condition to substantiate a claim
for benefits.
--All of the professionals
listed above must be authorized by the State
within which they practice, and must be practicing
within the scope of their authority under
State law in order to qualify as a "health
care practitioner"
from whom the employer must accept certification.
When an employer does
not agree with the certification provided by
an employee in response to the employer's initial
request for certification, the employer may
seek a second certification by a health care
provider of the employer's choosing and to
be paid for by the employer. Except in geographical
areas with limited access to health care providers,
employers may not choose for the second certification
any health care provider with whom they regularly
contract for any purpose. Should the first
and second certifications disagree as to the
need for FMLA leave or the extent of leave
that is needed, the employee is entitled to
a third certification by a health care provider
that the employee and the employer mutually
agree upon. The third certification is binding
on both the employee and the employer.
When an employee is taking
FMLA leave in the form of intermittent leave
or a reduced leave schedule, the employer may
require periodic recertification of the medical
need for such leave.
Except in cases involving
intermittent leave, employers may require employees.
to supply a "fit for duty" certification
before allowing them to return to work.
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- What
is a "Violation" of the FMLA?
The FMLA prohibits
interference with an employee's rights
under the law. More specifically, the following
actions or conduct by employers are considered
to be "violations"
of the FMLA:
Interference with, restraint,
or denial of an employee's right to take FMLA.
leave.
--Failure to provide
leave or failure to restore to the same
or an equivalent position would generally
fall under this category of violation.
--This category
also includes when an employer manipulates
the circumstances in order to avoid responsibilities
under the law, such as by transferring
employees to other worksites to avoid
reading the 50-employee threshold, changing
the essential functions of the job just
to avoid an employee taking leave, or
reducing an employee's hours simply to
avoid allowing that employee to reach
the 1250-hour threshold.
Discrimination against
any employee who has taken or is taking FMLA
leave.
--This includes
discriminating against applicants or
employees who have taken FMLA leave.
Also, employers may not take FMLA-covered
leave into account in any disciplinary
decisions or count it toward days missed
under a "no-fault"
attendance policy.
Retaliation against any
person (not only employees) for opposing any
illegal act under the FMLA or for participating
in any proceeding undertaken pursuant to the
FMLA (whether in court or with the Department
of Labor)
--"Participation" includes
filing a charge, giving testimony, or
giving information in connection with
an inquiry or investigation.
Failing to adhere to the
requirements of the statute or the regulations.
--Thus, according
to the U.S. Department of Labor (DOL),
violations of the FMLA that may subject
an employer to liability include such "technical" violations
as a failure to give proper notice.
- What
enforcement rights does the employee have if
the employer violates the FMLA?
Employees who believe
that their rights under the FMLA have been
violated may:
--File a complaint
(or have another person file a complaint
on the employee's behalf) with the DOL;
or
--File a private lawsuit (civil action).
The DOL will investigate
any complaints (complete with subpoena power) and
issue an advisory opinion as to whether a violation
has occurred. The DOL also may bring suit on behalf
of an aggrieved employee.
Employees generally have two or three years to
bring a civil action against an employer. The
two-year statute of limitations applies generally.
In cases in which the employee can show a "willful" (knowing
and intentional) violation, however, the employee
has three years to bring a civil action.
Damages available
in a civil action include:
--lost pay and benefits;
--in cases in which there are no lost pay
or benefits, any actual monetary losses,
e.g., the cost of paying for another
individual to care for a family member
with a serious health condition (up
to twelve weeks' worth);
--interest on any amount of lost pay and
benefits or actual monetary losses, if
no lost pay and benefits;
--in cases involving a "willful" violation,
liquidated damages in the amount of the
lost pay and benefits or actual monetary
losses, if no lost pay and benefits;
--equitable relief such as reinstatement
or promotion; and
--attorneys' fees and costs (including
expert witness fees).
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- Miscellaneous
Employers are required to post a U.S. Department
of Labor (DOL) notice about the FMLA in a conspicuous
place where notices to employees and applicants
are customarily posted.
The actual notice may be obtained from the DOL's
Wage and Hour Division (207-780-3344); ask for "WH
Publication 1420." The penalty for not posting
the required notice is $100 per offense. A copy
of the required notice appears as
Appendix C to 29 C.F .R. § 825.
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II.
Overview of Maine's Family and Medical Leave
Act (FMLA)
Maine's Family and Medical
Leave Requirements, 26 M.R.S.A. § 843 et
seq., apply to any Maine employer with
twenty-five employees total and fifteen or
more employees in one location. Such employers
must allow eligible employees to take a leave
of absence for up to ten consecutive weeks
in any two years due to certain family or medical
reasons.
The following guidelines
explain how Maine's act differs from the federal
FMLA. Employers who are covered by the federal
FMLA should note that even when an employee is
not eligible under the federal FMLA, he or she
may be covered under Maine's FMLR. These employers
must also take note that any aspect of Maine's
FMLR which is more generous to employees than
is the federal FMLA must be provided to any employee
eligible under both Acts. Indeed, the employee
always receives the most generous provision whenever
the FMLA, the FMLR, and/or the employer's own
policies are in conflict.
- Which
employers are subject to Maine's FMLR?
Any employer with 25 or
more employees, 15 of whom are in one location,
must comply with the FMLR. (Note that employers
with fifty or more employees in Maine may or
may not be subject to the federal Family and
Medical Leave Act (see Section I), but will always
be subject to the FMLR).
--"Employee" includes
any person who may be permitted, required,
or directed by an employer in consideration
of direct or indirect gain or profit to engage
in any employment but does not include independent
contractors.
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- Which
employees are eligible to take leave under
the FMLR?
Under the FMLR, an employee
of a covered employer who works in a workplace
with 15 or more employees is eligible to take
family or medical leave if he or she has been
employed by the employer for twelve (12) consecutive months.
Note that under the FMLA, the requirement is
12 months total with 1250 hours in the past 12
months, but not necessarily 12 consecutive months.
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- What
are the four valid reasons for taking FMLR
leave?
Under the FMLR, an
eligible employee may take family and medical
leave (up to ten consecutive weeks
in any two years) only for:
--Serious health
condition of the employee;
--The birth of the employee's child;
--The placement of a child 16 years of
age or less with the employee in connection
with the adoption of the child by the employee;
or
--A child, parent, or spouse with a serious
health condition.
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- What
is the definition of "serious health condition"?
The FMLR defines "serious
health condition" similarly to the way that
the federal FMLA statute defines that
term. It is unclear whether the definitions developed
under the U .S. DOL's regulations will apply,
however.
A "serious health
condition"
is "an illness, injury, impairment or
physical or mental condition that involves:
A. Inpatient care
in a hospital, hospice or residential medical
care facility;
B. Continuing treatment by a health care
provider.
26 M.R.S.A. § 843(6)(1997).
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- What
is the employee's right to reinstatement?
An employer must restore
an employee who has taken family medical
leave to the position held by the employee
when the leave commenced or to a position
with equivalent seniority status, employee
benefits, pay and other terms and conditions
of employment.
--An employer may
deny restoration if it can prove that the
employee was not restored as normally required
because of conditions unrelated to the
employee's exercise of rights pursuant
to the FMLR.
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- What
benefits are employees entitled to during FMLR
leave?
Leave taken pursuant
to the FMLR is generally unpaid. Of course,
the employer may provide paid leave for any
of the specified reasons if it chooses to
do so.
Also, the employee may qualify
for short-term or long-term disability insurance
benefits, if any. This depends on the policy's
specifications.
No benefit accrued before
the commencement of the family medical leave
may be taken away due to the fact that the
employee took the leave.
An employer must make
it possible for employees to continue all their
employee benefits, including but not limited to
health coverage, but wholly at the employee's
expense. Thus, unlike the FMLA, which requires
the employer to continue paying any share paid
by the employer prior to the leave, the FMLR
allows the employer to transfer the entire
costs of health premiums to the employee during
leave.
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- How much leave is required
under the FMLR?
Employers need only
give ten consecutive weeks in any two-year period.
Intermittent leave or
a part-time schedule are not required under
the FMLR. The language "any two-year period" suggests
that employers are required to use a "rolling"
leave year rather than a calendar year or other
fixed leave year. (See section V.F.)
Employers may require
thirty (30) days' notice of the need for leave
and of the dates the leave will begin and end,
except in cases where medical emergency prevents
the giving of such notice.
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- Substitution
of Paid Leave
The FMLR is silent with
respect to whether employer can require employees
to use up accrued paid leave, such as sick
days or vacation leave, during family and
medical leave.
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- May
employers require medical verification and
certification?
Employers may require
certification from a physician to verify
the need for leave. With one exception (see
below), other practitioners (e.g., nurses,
psychologists, clinical social workers) need
not be accepted by the employer .
Employees who with the
tenets and practice of a recognized church
or in good faith rely on treatment by prayer
or other spiritual means in accordance religious
denomination may submit certification from
an accredited practitioner of those healing
methods.
The FMLR is silent with
regard to whether or not employers may use
a certification form or what may included in
such a form. Maine employers not covered by
the FM LA who wish to use a form may wish to
adopt the form suggested by the U.S. DOL (or
one similar to it). Such a form at least has
the blessing of a federal agency that regulates
a law similar to the FMLR, and it seems likely
that the Maine DOL or a court would find the
use of such a form to be reasonable.
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- What
is a violation of the Maine FMLR?
The prohibitions of the FMLR are similar
to those of the FMLA:
Employers may not
interfere with, restrain or deny the exercise
of or the attempt to exercise any right
provided by the FMLR.
Employers may not
discriminate against any employee for exercising
any right provided by the FMLR.
Employers may not
retaliate against any employee who opposes
any practice made unlawful by the FMLR.
--The terms "discriminate"
and retaliate include "discharge, fine,
suspend, expel, discipline or in any other
manner discriminate."
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- How
may employees enforce their rights?
Employees may bring
a civil action against any employer to enforce
their rights under the FMLR.
Remedies available include:
--An injunction against
any act or practice that violates or may
violate this subchapter, and
--Lost wages and benefits-
--Other pecuniary damages (e.g., home nursing
costs or child care costs), and
--Liquidated damages of $100 for each day
the violation continues, payable to the employee.
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- Miscellaneous
Employers must post
the Maine Department of Labor's poster
regarding certain labor laws, including
the FMLR, in an accessible, commonly used
area (an area where employees will see
it). This preprinted notice may be obtained
from the Maine DOL Bureau of Labor Standards
(207-624-6400).
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III.
New Legal Developments
This section will discuss
some recent trends in cases decided under the
FMLA.
This section assumes that
the reader is familiar with the previous sections
outlining FMLA basics.
- What
is a Qualifying Reason for FMLA Leave?
Employers should be
wary of overly narrow interpretations of
the definitions of the four qualifying
reasons for FMLA.
--Hodgens v.
General Dynamics Corp. ( 1st
Cir. 1998). In this first case to be
decided by the First Circuit Court
of Appeals (the federal Appeals Court
covering Maine) under the FMLA, the
Court made it clear that it would not
be taking a narrow view of "serious
health condition." The court below
had dismissed the case because it found
that the employee could not prove he
was entitled to FMLA-protected leave,
i.e., that he did not have a serious
health condition. Specifically, his
physician was "never able to diagnose
precisely what caused [the employee's]
symptoms." The First Circuit disagreed
with this holding, noting that "[i]t
seems unlikely that Congress intended
to punish people who are unlucky enough
to develop new diseases or to suffer
serious symptoms for some period of
time before the medical profession
is able to diagnose the cause of the
problem."
It is an appropriate use ofFMLA leave to
diagnose and treat symptoms that do not necessarily
have a specific diagnosis attached to them,
as long as the condition meets one of the
six definitions of "serious health condition" as
defined in the regulations. The Court also
found that the statutory requirement that
an individual be
"unable to perform" his or her
position in order to qualify for FMLA-protected
leave did not amount to a requirement that
the individual be physically incapacitated
to perform the work. Instead, the Court read
the statute to protect absences that are
required for the purposes of diagnosis and
treatment of a serious health condition.
For example, the employee must be at the
doctor's office for testing, the employee
is "unable to perform" his or her
job during that time.
--Kelley v.
Crosfield Catalyst (7th Cir.
1998). An employee applied for FMLA
leave to travel to another state to
take custody of his daughter after
a lengthy legal battle. The employer
denied leave, pointing to the FMLA
regulations, which define "adoption" as
the legal process in which an individual
becomes the legal parent of another's
child. In this case, the employee was
the child's biological father but was
not her legal father until the legal
proceedings were resolved just before
the request for leave. Consequently,
he was seeking leave to take custody
after becoming the legal parent of
another's child, and the employer was
liable for all damages flowing from
the denial of leave.
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- Employer
Failure to Designate Leave or Notify Employees
of Their Rights &
Responsibilities
Employers who fail to designate a leave
of absence as FMLA leave or who fail to notify
employees of their rights under the FMLA
have been held in some cases to have waived
the right to refuse to reinstate employees
to their positions at the end of leave. Nevertheless,
some courts have reacted negatively to the
notion that an employer's "technical" violation
of the regulations concerning designation
and notification of rights and responsibilities
can serve to give an employee additional
substantive rights. For example:
--Cox v. Autozone,
Inc. (M.D. Ala. 1998). A manager
at a retail store took temporary disability
leave due to complications related
to her pregnancy. Although the leave
of absence qualified under the FMLA,
the employer failed to designate it
as such. The manager stayed out of
work for 15 weeks, receiving 13 weeks
of short-term disability (STD) benefits
(the employer's maximum) and 2 unpaid
weeks of leave. When she returned she
was given the position of assistant
manager, with a lower salary .The employer
claimed that because she exceeded her
FMLA-protected leave of 12 weeks, it
was not required to return her to the
position of manager. The employee claimed
that under the regulations, the failure
to designate her leave as FMLA leave
and to advise her that her right to
restoration would end after 12 weeks
meant that the employer had to return
her to the same or a similar position.
The Court found that the employee was
not entitled to any protections under
the FMLA because she exceeded the 12
weeks provided for under the statute,
which offers 12 weeks of job protection,
and no more. The regulations function
to provide the employee with more job-protected
leave when the employer fails to inform
employees that they are using up their
FMLA-covered leave. The Court found
this aspect of the regulations to be "inconsistent
with a fair reading of the FMLA." Therefore,
in this respect, the regulations are
invalid.
--Santos v. Shields
Health Group (D. Mass. 1998).
After 15 weeks of leave in which an employee
never provided a medical certification
and never provided a definite return
to work date, she was terminated from
her employment. She sued her employer
alleging that it had failed to provided
adequate notice of her rights and responsibilities
(such as certification and providing
an expected return to work date). The
court held that even if we give the employee
the benefit of the doubt, and assume
that the employee had a serious health
condition that entitled her to FMLA leave,
there was no interference with her rights
under the statute. She was entitled to
12 weeks of leave with job protection,
and she received it. She was indisputably
unable to perform her job 15 weeks after
starting her leave, so even if she had
been notified of her rights and responsibilities,
reinstatement would not have been possible
after 12 weeks.
--Sherry v. Protection,
Inc. (N.D. Ill. 1997). An employee
asked for time off from work to care
for his father, who had been diagnosed
with terminal liver cancer. His first
two requests were denied, but a month
later, he again asked for and this time
received time off from work. His employer
never designated the leave as "FMLA
leave" or provided the employee
with any information about his rights
and responsibilities under the FMLA.
The employee did not report to work until
two weeks after his father's death. The
employer demoted him, claiming that the
employee had "forfeited" his
rights under the FMLA by failing to return
to work for two weeks after the FMLA
-covered leave had ended (i.e., the serious
health condition of his father, which
by definition ended with his father's
death). The Court found against the employer,
noting that it was the employer's duty
under the regulations to provide the
employee with written guidance as to
his rights and responsibilities. Having
failed to do so, the employer may not
penalize the employee for failing to
uphold any of the responsibilities that
should have been included in such written
guidance.
- Employee
Failure to Give Notice or Request Leave
Employees must give
employers enough information about the
need to take
FMLA leave that a reasonable
employer understands that the employee's
need for leave is due to an FMLA-qualifying
reason.
--Szabo v. Trustees
of Boston University (D. Mass.
1998). An employee's pregnancy ended
in a miscarriage and she subsequently
informed her employer that she was "thinking
of taking some time off."
She then took two weeks off, but never told
her employer about her miscarriage. After
two weeks, still unaware of the miscarriage,
her employer contacted her to tell her that
she should return to work. The employee did
return to work at that time, at the same
salary and same position as before her miscarriage.
Six months later, the employee was terminated
for excessive absenteeism, including the
two weeks following her miscarriage. The
employee sued claiming that her absence due
to the miscarriage was protected by the FMLA.
The employer defended by pointing out that
the employee never told anyone at work she
had had a miscarriage, and that the employee
had given insufficient notice for the employer
to apprehend that the employee had requested
or required FMLA leave. The Court agreed,
noting that the test was whether the information
given to the employer was "sufficient
to reasonably apprise it of the employee's
request to take time off for a serious health
condition."
Here, the employee's statement that she was
"thinking of taking some time off' was
not "sufficiently concrete or specific."
--Byers v. Toyota
Motor Manufacturing (E.D. Ken.
1997). An employee voluntarily admitted
himself into a hospital for treatment
of depression. He remained there for
nine days and did not call his employer
until the day after he left the hospital.
Meanwhile, pursuant to a no-call, no-show
policy that clearly stated that three
days' absence with no communication from
the employee was cause for termination,
the employer had terminated the employee
after the third day with no word from
the employee. The employee argued that
the termination violated the FMLA because
his absence was due to a serious health
condition. The Court disagreed and held
that the employer was not required to
grant an employee FMLA leave "when
it does not learn of the need for leave
until after termination."
(emphasis in original) At the same time, an
employee need not request or desire a leave
of absence under the FMLA for the employer
legally to place the employee on FMLA leave.
If the employee is eligible for FMLA leave
and cannot perform his or her job due to a
qualifying reason (for example, his or her
own serious health condition), the employer
may place the employee on a leave of absence
and count the time toward the FMLA allotment
of 12 weeks.
--Harvender v.
Norton Co. (N.D.N.Y. 1997). A
pregnant employee did not wish to stop
working during her pregnancy. Nevertheless,
her physician provided her employer with
a note stating that she could not work
with chemicals during her pregnancy.
Working with chemicals was a key part
of the employee's job. The employer placed
her on FMLA leave. The plaintiff argued
that placing her on FMLA leave involuntarily
was a violation of the Act. The Court
found the lack of a request for FMLA
leave to be "irrelevant" and
granted summary judgment for the employer.
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to table of contents
- Evolving
Concepts of FMLA Violations
Some recent decisions
have provided welcome clarification of what
constitutes or does not constitute -an FMLA
violation.
--Gunnell v.
Utah Valley State College (lOth
Cir. 1998). An employee claimed that
she was terminated for taking leave
covered by the FMLA. She was unable,
however, to provide evidence that her
termination was not due to other reasons,
as the employer asserted. The court
emphasized that "an employee who
requests FMLA leave would have no greater
protection against his or her employment
being terminated for reasons not related
to his or her FMLA request than he
or she did before submitting the request." Unless
the employee can show that the termination
was
"because of her FMLA request," the
court must conclude that "any reason
for terminating [her] employment would not
involved FMLA, and consequently that statute
can offer [the employee] no relief."
--Herman v. Princeton
City Schools (S.D. Ohio 1997).
An employer illegally "interfered" with
its employees FMLA rights when it failed
to advise them of those rights as required
by the DOL's regulations, including the
right to maintain health benefits at
the same cost to the employee. The employees
were entitled to reimbursement for the
employer's share of their health insurance
premiums, which they had paid during
their leave, as well as liquidated damages
(i.e., double damages), as well as reasonable
attorneys' fees and costs. The Court
also issued an injunction against future
interference.
See Harvender
v. Norton Co. (N.D.N.Y. 1997)
above for a description of a case in
which putting an employee on involuntary
FMLA leave is not a violation
of the FMLA.
--Duckworth v.
Pratt & Whitney (1st Cir.
1998). An employee took FMLA-covered
leave in 1994. In December 1194, he was
laid off. On a form regarding his "rehire" status,
a supervisor wrote that his attendance
was "poor." In 1996, the former
employee applied for another job at Pratt & Whitney
but did not get it. He sued, alleging
that he did not get the job because of
the "poor" attendance rating,
which was based entirely on absences
that were protected by the FMLA. The
employee argued that this alleged basis
for the failure to rehire amounted to
"interference" with his FMLA rights.
The lower court dismissed the case on the grounds
that the FMLA protects the rights of "employees"
to be free from interference, but not former
employees. The First Circuit Court of Appeals
reinstated the case, reasoning that the term
"employees" should be read broadly
-in the spirit of other, similar cases decided
under Title VII -to include former as well
as current employees. Thus, the former employee
had a right to proceed with his suit and attempt
to prove that failure to rehire was illegal "interference."
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of contents
- Courts'
Rejection of Portions of the Department of
Labor Regulations
In some recent cases,
courts have rejected as invalid particular
sections of the U.S.
DOL regulations. For example:
--Seaman v.
Downtown Partnership of Baltimore (D.
Md. 1998). An employer told an employee
she could take FMLA leave even though
she did not meet the 12-month and 1250-hour
eligibility requirements. While she
was on leave, the employer contacted
her and told her that her job was "in
jeopardy ." The job was later
eliminated. The employee sued, citing
a DOL regulation that provides that
once an employer confirms an employee's
eligibility for FMLA leave, "the
employer may not subsequently challenge
the employee's eligibility."
(See 29 C.F.R. § 825.110(d).) The court
found this section of the regulations to
be invalid because it "directly contradicts" the
eligibility requirements as set forth by
Congress in the statute itself. In short,
Congress did not intend to give employees
who did not meet the 12-month and 1250- hour
requirements substantive rights under the
FMLA.
See Cox v. Autozone,
Inc. (M.D. Ala. 1998) above for
a description of a case in which a Court
found that the U.S. DOL regulation providing
employees with additional leave when
employers fail to designate a leave of
absence as FMLA leave were invalid because
they were inconsistent with the language
of the statute itself. Similarly, see
Santos v. Shields Health Group (D. Mass.
-t 1998) above for a description of a
case in which the court held (similarly
to that in Cox) that a technical violation
does not render an employer liable to
an employee who received her 12 weeks
of leave but was unable to return to
work at the end of the job-protected
12 weeks.
--Cline v. Wal-Mart
Stores (4th Cir. 1998). An employee
with five day of paid vacation time accrued
sought to take FMLA leave. The employer
failed to inform an employee before the
commencement of his leave that his accrued
vacation time would be used up during
his FMLA leave. The Court found that
the employer must provide the employee
with 12 weeks of unpaid leave followed
by five days of vacation, in effect giving
the employee 13 consecutive days off.
Because the employee had returned to
work after the expiration of 12 weeks
but before the 13th week was up, he was
entitled to restoration to the same or
a similar job.
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- Other
Recent Cases
A federal court in Maine
has ruled that it is for the jury to decide
whether or not reinstatement to a position
with different duties and/or on a different
shift is restoration to an "equivalent" position
after FMLA-covered leave.
--Watkins v. J &
S. Oil Co. (D. Me. 1997). Before his
first FMLA leave, the employee was a station
manager. He was restored to that position after
taking a five-week leave following a heart attack
in 1994. Several weeks later, he suffered another
heart attack and underwent surgery .During his
FMLA- covered leave, the employer notified him
that he was being replaced as station manager.
Over the next few weeks, the employer offered
him several alternative positions. The Court
found that, as a matter of law, replacing the
employee as station manager in and of itself
did not subject the employer to liability. Beyond
that, it was for the jury to decide whether he
had been properly restored to "an equivalent" position.
Employers need not count
any hours except those actually worked toward
the 1250 hours needed to qualify for FMLA leave.
--Clark v. Allegheny
University Hospital (E.D. Pa. 1998).
An employee was terminated for excessive
absenteeism. He sued, claiming that many
of his absences were FMLA-covered due to
his own serious health condition and his
need to take leave to take care of his
son, who had a chronic serious health condition.
The employer argued that he had worked
only 1,03.7 of the required 1,250 hours
and therefore had no rights under the FMLA.
The employee argued that both the time
off due to his own or his son's serious
health conditions and the time off due
to disciplinary suspensions should have
counted toward meeting the 1,250 hour level.
The Court disagreed with the employee.
Neither paid nor unpaid leave is included
in calculating the required hours of service
under the FMLA, the Court held. Employers
should count actual days worked, and not
medical leave, vacation days, holidays,
sick days, personal days, days of suspension,
or any other time off from work.
An employee's failure
to comply with an employer's request for a
second certification of the employee's alleged
serious health condition may permissibly result
in the denial of restoration to the same or
a similar position or termination.
--Diaz v. Fort Wayne
Foundry Corp. (7th Cir. 1997).
The employee asked for FMLA leave due to
his bronchitis. His physician then submitted
a certification form stating he needed
FMLA leave due to irritable bowel syndrome,
hiatal hernia, gastroesophageal reflux,
and a duodenal peptic ulcer. Understandably
suspicious, since none of these conditions
appear to be related to "bronchitis," the
employer asked for a second certification.
The employee failed to show up for the
scheduled examination for the purposes
of the second certification. The employee
did not deny that the company had "reason
to doubt the validity of the certification," as
required by the regulations, but failed
to appear for the required examination. " An
employee who fails to cooperate with the
second-opinion process under [the FMLA]
loses the benefit of leave under [the FMLA]." Once
the employee missed the appointment with
no explanation, he as " A WOL and
could not invoke the FMLA to avoid discharge." The "fit
for duty" certificate provision of
the FMLA recently came under scrutiny in
a Massachusetts case.
--Albert v. Runyon (D.
Mass. 1998). An employee took leave under the
FMLA due to clinical depression which she alleged
was the result of sexual discrimination and
harassment at her employer. After her treating
psychologist released her to work with the
caveat that she be free from discrimination
and harassment, the employer informed the employee
that the psychologist's certification was inadequate
to enable the employer to assess her ability
to work, and that she had to undergo an examination
with a physician selected by the employer.
She refused, and when she was not reinstated,
she sued, alleging that her psychologist's
fit for duty note was enough pursuant to the
U.S. DOL regulations, which do not authorize
employers to seek second opinions for fit for
duty certifications. The court agreed, holding
that employers must rely upon the employee's
own treating health care providers' evaluations
regarding fitness to return to work.
--Porter v. U.S.
Alumoweld Co. (4th Cir. 1997).
In contrast to the Albert v. Runyon case
described above, the Fourth Circuit Court
of Appeals ruled that an employer could
require an employee returning from FMLA
leave taken due to back surgery to submit
to an examination prior to restoration.
The key difference appears to be that in
the Fourth Circuit case, the employer had
grounds under the Americans with Disabilities
Act to request such an examination.
Courts have fairly universally
found that the FMLA does not provide for compensatory
or punitive damages. Recently, however, a court
clarified that damages for the "loss of
job security"
could be included in the damages called "other
compensation" available under the FMLA :
--Lloyd v. Wyoming
Valley Health Care System, Inc. (M.D.
Pa. 1998). An employee returning from FMLA
leave was placed in a similar job with
thesame pay, but different supervisory
duties. After a workplace injury requiring
additional leave, the employee was placed
in a third position with the same pay but
different duties. Six months after the
second return to work, the employee's compensation
scheme was altered to a base salary with
an incentive schedule. The result of the
switch was a decrease in pay for the employee.
He sued under the FMLA, alleging that the
phrase "other compensation"
in the FMLA's damages section included both compensatory
damages for alleged emotional distress and damages
for the loss of economic security represented
by the switch in compensation plans. The court
disagreed regarding emotional distress damages
and held, as have other courts, that such damages
are not available under the FMLA. The court went
on to hold in an apparent case of first impression
that damages for |
