Guest Article

What Every Employer Should Know About The Family and Medical Leave Act

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by Jacqueline E. Kalk
Powell, Goldstein, Frazer & Murphy, L.L.P.

Congress enacted the Family and Medical Leave Act ("FMLA" or "the Act") in 1993 to respond to growing concern over job security for people with health problems and to assist working parents. The Act is an attempt to promote family integrity by balancing the demands of the workplace with family needs while also accommodating legitimate employer interests. To accomplish these purposes, the FMLA creates a set of substantive employee rights and proscribes discrimination or retaliation against employees that exercise those rights.

The first question employers are presented with is whether the FMLA applies to or the employee in question. FMLA coverage only extends to companies that have had fifty or more employees for at least twenty weeks in the current or preceding calendar year. Only employees that have worked for at least twelve months and for at least 1250 hours during the preceding twelve month period are entitled to take a leave.

Employees may take up to twelve weeks of FMLA leave during a twelve-month period, calculated on either a calendar-year or rolling basis. When medically necessary, employees may take their leave intermittently or on a reduced work schedule. If this occurs, employers may elect to place employees in temporary, but monetarily equivalent, alternative positions that better accommodate the leave schedule. Employers may also require employees to use accrued paid leave time, such as vacation or sick days, concurrent with the FMLA leave, although generally FMLA leaves are not paid.

Employees are only entitled to FMLA leave for the birth or adoption of a child, if the employee has a serious health condition, or to care for a spouse, child, or parent with a serious health condition. The interpretation of what constitutes a "serious health condition" has generated much recent litigation. Initially, an individual suffering from a health problem must be receiving either inpatient care or "continuing treatment." Continuing treatment occurs when the individual is incapacitated for at least three consecutive days, and (1) receives either treatment by a health care professional on at least two occasions, or (2) visits a health care professional and is placed on a supervised treatment regimen. Alternatively, continuing treatment may comprise any period of incapacity due to a "chronic health condition," (i.e., asthma, diabetes, etc.) which requires periodic visits to a health care professional and continues over an extended period of time. This episodic incapacity is then treated as a continuing incapacity.

Employers should require employees to provide medical certification that a serious health condition exists. Employers must notify employees about the medical certification requirement with a writing that specifies the consequences of noncompliance. Thereafter, employees must be given have at least fifteen days to provide the certification. To guard against collusion between employees and health care providers, employers may request, at their cost, a second opinion, and even a third opinion if the first two opinions conflict. If an employer does not require a second opinion, it may not challenge the original physician's finding assuming the certification was satisfactory.

No illness is considered serious without certification from a medical health professional. Employees are prevented from making "post-hoc attempt[s] to make a silk purse out of a sow's ear." For example, in Price v. Marathon Cheese Corp., the Fifth Circuit would not consider carpal tunnel syndrome a serious health condition because the employee's doctor would not testify that the employee could not work. Indeed, even with medical certification that a number of combined conditions constitute a serious medical condition, FMLA leave is not allowed. FMLA leave is only required when a serious health condition exists at one single time. For example, recently in Marchisheck v. San Mateo County, the Ninth Circuit would not allow a mother FMLA leave to take her mentally disturbed son to the Philippines after he sustained injuries in a fight. The court noted that while multiple minor conditions may combine to form a serious health condition, the incapacity and continuing treatment must refer to the combination of illnesses as a whole. Therefore, the fact that the son visited a doctor once for his injuries and later a psychologist for unrelated problems did not add up to continuing treatment.

Courts have recently begun to recognize a need for some fluidity in the serious health condition determination. Now, illnesses diagnosed as minor may qualify as FMLA protected, if they meet the incapacity and continuing treatment tests after the certification period. For example, the Eighth Circuit recently held that an employee with a hiatal hernia, normally a minor problem managed with antacid, was retroactively entitled to FMLA leave because the employee saw a physician twice in a matter of only a few days, thus, satisfying the continuing treatment test. This decision was based on the fact that the doctor had not yet ruled out more serious illnesses when the employee missed work. The Eighth Circuit later exhibited more generosity by suggesting that the three-day incapacity may occur at any time during the entire illness, even after termination of employment.

Moreover, employees cannot always just announce the need for a leave. Instead, employees must, when possible, give notice of their intent to take a leave. If the need for the leave is foreseeable, such as for childbirth or a scheduled surgery, employees must provide thirty days notice to the employer and schedule treatment in the least disruptive manner. If they are not given proper notice, the employer may delay the leave. If the leave is unforeseeable, the employee must notify the employer as soon as practicable, usually within one or two business days. In emergency situations, notice by a spokesperson for the employee by phone or any electronic means is sufficient.

The regulations promulgated under the FMLA state that employee eligibility is confirmed when the leave is requested, an employer may not later challenge eligibility. Further, if an employer fails to notify an employee of his ineligibility within two days of the leave request, the employee becomes eligible for leave. At least three courts, including the Seventh Circuit in a July 24, 2000 opinion, have struck down this particular regulation as "contrary to the statute."

The "risk of ignorance" that the FMLA may apply rests with employers. Employees need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or serious medical condition. Employees need only provide enough information to put employers on notice that FMLA may be invoked. The burden then shifts to the employer to inquire and investigate further to determine the applicability of the Act. For example, in a recent case an employer's knowledge of a work-related accident where an employee might have broken his neck sufficed to place the burden of investigation on the employer. The employee's repeated refusal to return the employer's phone calls was considered immaterial. The employer had notice of a possible FMLA leave. Employers, therefore, must resort to the certification process, which has a fifteen-day limitation period, to resolve problems of uncommunicative employees and gain more information on the seriousness of the condition.

Similarly, the employee need not always be specific about the date of a foreseeable leave. In Blohm v. Dillard's, Inc., the plaintiff told his supervisor that he would take leave when his wife gave birth but refused to give an exact date. The Eastern District of North Carolina ruled that since the plaintiff gave this notice thirty days in advance, he did not have to specify the exact date thirty days in advance, just as soon as practicable. If an employee takes foreseeable leave for childbirth, the leave does not have to be scheduled around employer's critical business practices.

After a request for FMLA leave is received, the employer must inform the employee in writing within two business days (1) whether the leave counts against the twelve-week entitlement and (2) whether employer intends for any accrued paid leave to run concurrently with the FMLA leave. Employers must also inform key employees (those among the highest paid ten percent) if the person's job will not be held open during the leave.

If an employer fails to comply with any of the notice requirements, the absence will not count against the employee's twelve-week entitlement. An employer may only retroactively designate leave as FMLA-protected in two situations: (1) if the employer did not know of the reason for the leave until the employee's return; or (2) if the employer knows the reason for the leave but has not yet confirmed that the condition qualifies under the Act or awaits medical certification, the employer may then designate the leave as an FMLA leave for up to two days after it receives the proper information. Because notice issues may allow employees over 12 weeks of leave, the Circuits are split on whether these regulations are enforceable. The safer course is, of course, to follow these rules.

Following a FMLA leave, employers must reinstate the employee to the same or "substantially equivalent" position. Moreover, employees retain their employment benefits during leave, but may be required to pay the cost of the benefits. However, if the employee does not return to work at the expiration of the leave, employers are entitled to recover all costs incurred providing these benefits as long as the employees are aware this consequence at the outset. If after the leave expires, the employee still cannot perform his or her job, the employer may then discharge the employee seek recovery of the cost of benefits provided during the leave, and discontinue benefits, provided that any additional burdens imposed by the Americans with Disability Act ("ADA") or workers' compensation statutes have been met.

The Act also prohibits employers from interfering with, restraining, or denying the exercise of any right provided in the Act. Thus, employers may not discriminate or retaliate against any employee or prospective employee who has used requested or intends to take an FMLA leave.

Recent cases suggest that protection against retaliation may extend further than the employee's actual substantive rights. In a controversial 1998 decision, the First Circuit extended the definition of an eligible employee for rehabilitation purposes to former and prospective employees, if such employees satisfy the hour and month requirements. In Duckworth v. Pratt & Whitney, Inc., an employer refused to rehire the plaintiff because of a fifty-two (52) day FMLA-protected absence during his prior tenure with the company. The court allowed the plaintiff to bring suit as an employee, even though he had not worked for the company for two years and therefore was not currently "eligible" under the FMLA definition because the plaintiff had worked 1250 hours in the twelve months preceding his FMLA leave and was entitled to that FMLA leave. Thus, the 1250 hour requirement must be measured as of the date of leave, not as of the date of the adverse action.

The Sixth Circuit complemented Duckworth by holding that an employee's claim is not barred if she is ineligible under the Act on the day of termination. In Butler v. Owens-Brockway Plastic Products, the employer assessed an employee points for unexcused absences, some of which were arguably FMLA-protected. When the employee accumulated enough points, the employer terminated her. The court denied summary judgment and allowed this case to go to a jury because the employee was eligible for FMLA protection when she took the alleged FMLA leaves, even though she had not worked the requisite 1250 hours as of the date of her termination.

Often an employee's situation will invoke two or more statutory protections at the same time such as both the FMLA and Americans with Disabilities Act ("ADA"). Therefore, issues arise when the various statutes prescribe different treatment of situations. In these instances, courts will apply the Act with the greatest employee protections. For example, although a "serious health condition" under the FMLA differs from a "disability" under the ADA, some conditions may qualify as both. The FMLA requires incapacity and continuing treatment; the ADA requires an impairment that substantially limits major life activities or being regarded as having an impairment. Thus, partially disabled employee not under the continuing care of a physician would have a disability but not a serious health condition. So he or she might be entitled to a leave under the ADA even though the FMLA does not require the employer to grant such a leave. Conversely, an employee with temporary back problems may have a serious health condition, but not a disability so he or she is entitled to leave but not a reasonable accommodation.

If an employee qualifies for both FMLA and ADA protection, The employee may not be limited to twelve weeks of leave, but may have an indeterminate amount of leave available under the ADA, barring any undue hardship. But that same employee may still benefit from the FMLA requirement of continuing health plan coverage for the first twelve weeks of leave even though the ADA does not require health plan coverage during leave. Given the broad requirements imposed on employees by the FMLA, the best practice is to institute a detailed FMLA policy, including appropriate notice and medical certificate forms. Any such policy should include a non-retaliation and problem reporting provision.

Because of the complexity of the rules under the FMLA and the ever-changing landscape of regulations and court decisions, we recommend that you periodically review your company's FMLA policies to ensure that they are in compliance with the law and meet the company's business needs. If you have any questions, please call Jackie Kalk at (404) 572-6970 or send her an email to jkalk@pgfm.com.

Reprinted with permission. Copyright 2000 Powell, Goldstein, Frazer & Murphy, L.L.P. All rights reserved.

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