August 22, 2018
Author: Christine S. Keenan
Organization: The Kullman Firm
The Family and Medical Leave Act became effective on August 5, 1993. If there was a collective bargaining agreement in effect on that date, the FMLA became effective on the date the agreement expired or February 5, 1994, whichever occurred sooner. The provisions of the FMLA are left to interpretation by regulations from the Department of Labor and court decisions from the Federal Judiciary. The purpose and intent is clear: to afford qualifying individuals necessary leave to care for family during which time their job is secure. The effect is less than clear. It is important, then, to obtain an understanding of the interworkings of the Act, the regulations and the court decisions.
The Family and Medical Leave Act (FMLA), 29 U.S.C. §2601 et seq., applies to employers with fifty or more employees who work twenty or more workweeks in the current or preceding year.
a. To receive FMLA benefits, an employee must have worked for the employer for at least twelve months, not necessarily continuously, and must have worked at least 1,250 hours during the preceding twelve month period. 29 U.S.C. §2611(2).
b. Seasonal or part-time employees who work less than 1,250 hours per year are not covered.
Covered employees are entitled to take up to twelve weeks of leave during any twelve month period for (a) the birth of a child, (b) the adoption or placement of a child with the employee for foster care, (c) to care for a spouse, child, or parent who has a serious health condition, (d) a serious health condition that makes the employee unable to perform the functions of his job, or because of any qualifying exigency arising out of the fact that a spouse, son, daughter or parent of the employee is on active duty in the Armed Forces in support of a contingency operation. 29 U.S.C. §2612(a)(1) (as amended).
An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to 26 workweeks of leave during a 12-month period to care for a covered servicemember with a serious injury or illness received in active duty, that is an injury or illness that renders the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating. Such leave is only available during a single 12-month period.
An employee is unable to perform the functions of his job when a health care provider determines the employee cannot work at all or cannot perform the essential functions of his job. 29 C.F.R. §825.115.
1. A serious health condition under the FMLA is an illness, injury, or physical or mental condition that involves either \"inpatient care\" or \"continuing treatment\" by a health care provider. 29 U.S.C. §2611(11).
2. Inpatient care includes an overnight stay in a medical facility or any period of incapacity such as an inability to work or perform other regular daily activities caused by the serious health condition. 29 C.F.R. §825.114(a)(1).
3. Continuing treatment by a health care provider includes any period of incapacity of more than three consecutive calendar days plus either (a) two or more treatments by a health care provider, or (b) one treatment by a health care provider that results in a regimen of continuing treatment under his supervision. 29 C.F.R. §825.114(a)(2).
4. A regimen of continuing treatment includes a course of prescription medicine or therapy requiring special equipment to alleviate the condition. 29 C.F.R. §825.114(b).
5. A regimen of continuing treatment does not include taking over-the-counter medication or other activities, such as bed rest, which an employee can undertake without seeing a physician. Id.
Unless accompanied by further complications, minor illnesses such as the common cold, the flu, upset stomachs, minor ulcers, ordinary headaches (non-migraines), and routine dental or orthodontia problems do not meet the definition of a serious health condition. Such minor illnesses will not qualify as serious health conditions even if they last for more than three days. 29 C.F.R. §825.114(c).
When an employee is entitled to FMLA leave, he may prefer to take it intermittently or on a reduced leave schedule rather than taking off the entire twelve weeks at one time. 29 U.S.C. §2612(b). With intermittent leave, the employee can take leave a few hours or a few days at a time. With a reduced leave schedule, the employee reduces his work hours and works a part-time schedule. An employee's entitlement to intermittent or reduced leave depends upon the reason for the leave. If the employee requests leave for the birth, adoption, or placement of a child with the employee for foster care, the employee may take intermittent or reduced leave only if the employer agrees to it. Id. The employee is entitled to intermittent or reduced leave when the reason for the leave is his own serious health condition or the serious health condition of a spouse, parent, or child, provided the intermittent or reduced leave is medically necessary. Id.
Employees must try to schedule their intermittent or reduced leave so as not to unduly disrupt the employer's business. 29 C.F.R. §825.302(e). If the employee requests intermittent or reduced leave which is foreseeable based on planned medical treatment, the employer can require the employee to transfer temporarily to an alternative position with equivalent pay and benefits that better accommodates intermittent leave or a reduced leave schedule. 29 U.S.C. §2612(b)(2).
The amount of time allowed for leave must correspond to the number of hours in the employee's normal workweek. Thus, if an employee normally works fifty hours per week, he would be entitled to twelve fifty-hour weeks of leave, or 600 hours of intermittent leave. 29 C.F.R. §825.205(b).
National Defense Authorization Act
On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008, which amends the Family and Medical Leave Act of 1993. It provides additional leave entitlements for “covered servicemembers” or eligible employees related to “covered servicemembers.”
Active Duty Leave. An eligible employee is entitled to 12 workweeks of leave because of any qualifying exigency arising out of the fact that a spouse, son, daughter or parent of the employee is on active duty in the Armed Forces in support of a contingency operation. An employee shall provide notice to the employer that is reasonable and practicable for any leave necessitated by active duty that is foreseeable.
Care for Injured Servicemember Leave. An eligible employee who is the spouse, son, daughter, parent or next of kin of a covered servicemember is entitled to 26 workweeks of leave during a 12-month period to care for a covered servicemember with a serious injury or illness received in active duty, that is an injury or illness that renders the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating. Such leave is only available during a single 12-month period. The 26-workweek period for servicemembers includes the 12 workweeks previously available under the FMLA, but the amendment does not limit the 12 workweeks available during any other 12-month period for other types of leave.
A husband and wife of the same employer are limited to a combined 26 workweeks in a 12-month period under the same rules affecting other employees who are eligible for 12 weeks of leave.
On November 17, 2008, the U. S. Department of Labor issued its regulations regarding the FMLA. Following is a summary of the more pertinent changes in the regulations.
12 Months of Employment. The regulations clarify that should there be a break in employment of 5 years or longer, then the 12-months of non-continuous employment rule is not applicable and an employee is ineligible for FMLA-type leave; provided the following exceptions apply: military leaves, written agreement, collective bargaining agreement, or voluntary recognition by the employer. 29 C.F.R. §825.110(b).
Substitution of Paid Leave. The Department also clarified the ability to substitute paid leaves (sick leave, vacation, family leave and personal leave) for unpaid FMLA leave to take into account the multipurpose “paid time off” or PTO offered by many employers. The references to the individual types of leave have been deleted in §825.207, and now any “paid leave” may be substituted for any FMLA-type leave.
Bonuses. An employer can disqualify or deny an employee on FMLA leave from receiving an award or bonus predicated on achievement of a goal where the employee fails to achieve that goal due to the FMLA absence, as long as the same is true for any employee on a non-FMLA absence. 29 C.F.R. §825.215(c).
Holidays. If an employee needs less than a full week of leave, the hours that the employee does not work on account of a holiday cannot be counted against the employee’s FMLA leave entitlement. If, however, the employee needs a full week and a holiday occurs in that week, the hours the employee does not work on the holiday can count against the employee’s FMLA leave entitlement. 29 C.F.R. §825.205.
Light Duty. The regulations delete the last sentence in §825.220(d) to clarify that if an employee is voluntarily performing light duty at the request of the employer instead of taking FMLA leave, the employee is entitled to reinstatement to his/her former position and the full 12 weeks of leave entitlement under the FMLA. An employee cannot have his/her leave diminished by working in a light duty position, thus overruling Roberts v. Owens-Illinois, Inc., 2004 WL 1087355 (S.D. Ind. 2004) and Artis v. Palos Community Hospital, 2004 WL 2125414 (N.D. Ill. 2004).
Intermittent/Reduced Leave/Leave Increments. The DOL did not adopt the many suggestions from employers that intermittent leave be required to be taken in larger increments (e.g., a four-hour block of time). The new regulations clarify that employers must account for FMLA leave in increments no greater than the shortest period of time the employer uses to track other forms of leave (as opposed the shortest increments tracked on the employer’s payroll system), provided the increment used for tracking FMLA leave is not greater than one hour.
Notice. Section 825.300(a)(3) has been amended to require that each covered employer with eligible employees must distribute the general notice set forth in §825.300(a) to each employee by either including the notice in a handbook or by distributing a copy to each employee at least once per year in either paper or electronic format. Further, the employer has five (5) business days of receiving sufficient
information from the employee to designate the leave as FMLA leave (a change from the previous requirement of two (2) days). 29 C.F.R. § 825.300(b)(1) and (c)(1).
Serious Health Condition. The DOL has made three modifications to the regulatory definition of “serious health condition.” With respect to conditions that involve more than three consecutive days of incapacity plus two visits to a healthcare provider, the new regulations specify that the first visit must take place within seven days of the first day of incapacity, and that both visits must occur within 30 days of the beginning of the period of incapacity. As for conditions that involve more than three consecutive days of incapacity plus one visit to a healthcare provider and a regimen of continuing treatment, the DOL similarly requires the visit to a healthcare provider to take place within the first seven days of incapacity. Lastly, the new regulations define “periodic visits” for chronic serious health conditions as at least two visits to a healthcare provider per year.
Release of FMLA Claims. The final regulations settle a dispute among courts regarding the ability of employees to waive their rights under the FMLA, stating that employees may voluntarily release their past FMLA claims without court or DOL approval. As a result, employers can include releases of past FMLA claims in severance and settlement agreements.
Employer Notice Obligations. The new regulations clarify and strengthen employer notice requirements in order to better inform employees regarding their FMLA rights and obligations. For example, the new regulations require employers to provide employees with a general notice about the FMLA upon hire (which can be done through a handbook), an eligibility notice, a notice of rights and responsibilities, and a designation notice. To help ensure that employers are able to comply with these requirements, the new regulations extend the time period for employers to provide various notices from two business days to five business days.
Employee Notice Requirements. Under the new regulations, an employee needing FMLA leave must follow the employer's usual and customary call-in procedures for reporting an absence, unless there are unusual circumstances. This is a change from the prior regulations, which allowed some employees to provide notice to an employer of the need for FMLA leave up to two business days after an absence, even if they could have provided notice more quickly.
New Medical Certification Forms. As part of the new regulations, the DOL has created several new medical certification forms, one for use in considering an employee's own serious health condition and another for use when an employee requests leave to care for a family member with a serious health condition. In addition, there is a new medical certification form for use in obtaining certification of covered service member leave.
Notification of Certification Deficiencies. The regulations require employers to notify employees in writing if the employer determines that a medical certification is incomplete or insufficient. The employer must state in writing what additional information is necessary and give the employee seven days to cure the deficiency. If an employee does not cure the deficiency, the employer may deny FMLA leave.
Clarification and Authentication of Medical Certification Forms. The new regulations provide that an employer may contact an employee's health care provider for purposes of clarification and/or authentication of the medical certification after the employer has given the employee an opportunity to cure any deficiencies. An employer must use a health care provider, human resources professional, leave administrator or management official to make such contact and may not allow the employee's direct supervisor to contact the health care provider. Employers may not ask health care providers for additional information beyond that required by the certification form. In addition, where the health care provider sharing the health information of an employee with an employer is covered by the Health Insurance Portability and Accountability Act (HIPAA), the employer must have authorization from the employee in compliance with HIPAA. However, if the employee refuses to provide the employer with authorization and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification form is unclear.
Prior Employment Counts for Eligibility. Under the regulations, employers must count an employee's non-consecutive prior service with the employer unless the break in service was for seven years or more. In limited circumstances, such as when the employee's break in service was due to military service, the employer must count prior employment periods preceding a break in service of more than seven years.
Counting Employees. Any employee, including part-time employees, whose name appears on the employer’s payroll for any portion of a week will be considered employed each day of the calendar week for purposes of determining employer coverage. 29 C.F.R. §825.105(b). Employees on paid or unpaid leave, disciplinary suspension and the like will be counted as long as there is a reasonable expectation that the employee will return to active employment. 29 C.F.R. §825.105(c). Part-time employees are counted for each calendar week they are maintained on the payroll. Id.
Employees on layoff are not counted. Id. Individuals, who are employed at locations outside of the United States, even if that location is near a domestic office, are not counted. 29 C.F.R. §825.105(b). Employees who commence work after the first working day of a calendar week or who terminate before the last working day of a calendar week will not be considered to be employed on each working day of that calendar week. 29 C.F.R. §825.105(d).
Separate but Related Business Entities Separate but related business entities may be treated as a “single employer” for determining coverage under the FMLA under tests for “joint employment” or “integrated employment.” 29 C.F.R. §§825.106, 825.104(c). Joint employment may exist when two or more businesses exercise some control over the work or working conditions of an employee. Such employees will be counted on the payroll records of both employers. For example, an employer who jointly employs 20 employees from a temporary help agency and 40 regular employees would be covered by FMLA. In joint employment relationships, the primary employer is responsible for giving required notices to employees, providing leave, and maintaining group health coverage. 29 C.F.R. § 825.106(c). For example, in employees of temporary help agencies, the placement agency typically would be the primary employer. The secondary employer cannot interfere with a temporary employee’s attempt to exercise rights under the FMLA and is responsible for accepting the temporary employee who is returning from FMLA leave in place of any replacement employee. Under the integrated employer test, all employees of all entities making up the integrated employer group will be counted in determining employer coverage and employee eligibility. Factors considered in determining an integrated employer include:
a. common management;
b. relationship between operations;
c. centralized control of labor relations issues; and
d. degree of common ownership/financial control.
Covered employers also include any “successor in interest” of an employer. 29 C.F.R. §825.107. Factors considered in determining whether an employer is a “successor in interest” include:
1. Substantial continuity of same business operations;
2. Use of same plant, continuity of the work force, similarity of jobs and working conditions;
3. Similarity of supervisory personnel, machinery, equipment;
4. Similarity of products or services; and
5. Ability of predecessor to provide relief.
A predecessor employer’s employees who begin FMLA leave prior to purchase by a successor employer are entitled to maintenance of health insurance and job reinstatement by the successor, regardless of whether the successor meets FMLA coverage criteria. In Harbert v. Healthcare Services Group,10 WH Cases2d (BNA) 225 (10th Cir. 2004), the court held that the Department of Labor’s regulation that defines “worksite” for employees sent from a central office, is arbitrary and defies the FMLA’s legislative purposes. The employees in the case were assigned a fixed workplace at a nursing home that did not have 50 or more employees. The home office assigned the employee to the nursing home, but the employee never worked at or reported to the home office. The court held that defining the employee’s worksite as a regional office at which she never worked in order to reach the 50-employee threshold contradicted the FMLA provision concerning the 75-mile rule. Therefore, it invalidated the regulation, and held that the employee was not entitled to FMLA rights as she did not work at a facility with 50 or more employees. Section 825.111(a) addresses the issue of “worksite” for purposes of the FMLA.
Sovereign Immunity & Public Agencies By regulation, an employer under the FMLA includes any public agency, determined by whether the agency has taxing authority or whether the chief administrative officer is elected by the voters at large. 29 C.F.R. § 825.108(a)-(b). All public agencies are covered by the FMLA regardless of the number of employees. 29 C.F.R. § 825.108(d).
In 1999, the United States Supreme Court in Alden v. Maine, 527 U.S. 706 (1999) held that Congress did not have the power to subject nonconsenting states to private suits for damages in state courts. However, the Supreme Court also held in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) that Congress could usurp the state’s immunity under the Fourteenth Amendment if the federal legislation met the three part test announced in Katzenbach v. Morgan, 384 U.S. 641 (1966). To meet the Katzenbach test, the legislation must be (1) regarded as an enactment to enforce the Equal Protection Clause, (2) plainly adapted to that end, and (3) not prohibited with the spirit of the constitution. Recent cases have tested this power:
In Schall v. Wichita State Univ., No. 83-264 (Kan. June 9, 2000), the Kansas Supreme Court held that the provision of the FMLA that grants employees twelve weeks of leave time, per calendar year, for the employees’ own serious health condition, failed the second prong of the Katezenbach test. The court reached this conclusion by reasoning that the purpose of the FMLA was to address gender discrimination in the granting of family and medical leave and that the 12 week entitlement for one’s own health went beyond this constitutional purpose. Accordingly, it could not be used against a state institution. See also, Garrett v. University of Alabama, 5 WH Cases (BNA) 1153 (11th Cir. 1999).
In Darby v. Hinds County Dept. of Human Services, 6 WH Cases 2d (BNA) 347 (S.D. Miss. 1999), the district court likewise held that the means adopted by Congress in providing eligible employees with 12 weeks of leave under the FMLA was not “proportional” to Congress’ goal to and gender discrimination in the workplace. Hence, the Eleventh Amendment’s immunity from suit remained intact – a state and its agencies are immune from claims under the FMLA.
The Sixth Circuit Court of Appeals, followed this logic in Sims v. The University of Cincinnati, 6 WH Cased 2d (BNA) 289 (6th Cir. 2000), holding that the university, an arm of the State of Ohio, was immune from suits claiming a violation of the FMLA. The Fifth Circuit has also found that the States’ immunity was not properly abrogated by Congress such to subject the various States to actions under the FMLA. Kazmier v. Widmann, 6 WH Cases2d (BNA) 481 (5th Cir. 2000).
In Nevada Dept. of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003), the Supreme Court held that state workers may sue states for violations of the provision relating to care of a close family member (29 U.S.C. §2612(a)(1)(C)). In this case, the employee took off more than 5 months to care for his wife, utilizing time donated by coworkers and FMLA time. The state agency fired the employee, having counted the FMLA time to run concurrent with the donated time from co-workers. The Supreme Court held, in allowing the employee to maintain his suit, that Congress intended the FMLA to abrogate the 11th Amendment immunity because states had relied on gender stereotypes in administering leave. The Court held that the FMLA serves as an important governmental objective in eliminating the idea that women were primarily responsible for taking care of loved ones; hence, it prevents this type of gender discrimination in the administration of leave.
In Brockman v. Wyoming Dept. of Family Services, 342 F.3d 1159 (10th Cir. 2003), the court distinguished the facts in its case from Hibbs, holding that Congress did not validly abrogate the state’s sovereign immunity with respect to Section 2612(a)(1)(D), dealing with self-care. Therefore, the plaintiff did not have a claim for interference under the FMLA. See also, Touvell v. Ohio Dept. of Mental Retardation, 10 WH Cases2d (BNA) 1537 (6th Cir. 2005).
Employee Eligibility To receive FMLA benefits, an employee must have worked for the employer for at least twelve months, not necessarily continuously, and must have worked at least 1,250 hours during the preceding twelve month period. 29 U.S.C. §2611(2). Seasonal or part-time employees who work less than 1,250 hours per year are not covered.
In determining whether an employee meets the 1250 “hours worked” requirement, the standards of the Fair Labor Standards Act are applied. For example, hours worked does not include time paid but not worked, such as paid vacation, holidays, sick leave, nor does it include unpaid leave or periods of layoff. For employees exempt under the Fair Labor Standard Act, for whom hourly records are not kept, the employer has the burden of showing that the employee has not worked the requisite number of hours. The determination as to how many hours are worked and how many months have been worked for the employer must be made as of the date leave commences.
Although by regulation, all public agencies are covered by the FMLA regardless of the number of employees so employed, employees of public agencies must meet all of the requirements of eligibility, including working at a location that employs 50 or more employees at the worksite or within 75 miles. 29 C.F.R. § 825.108(d).
75-Mile Dilemma The FMLA only applies to employees who are employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. The 75-mile requirement is measured by surface miles using available transportation by the most direct route between worksites. For employees with no fixed worksite, e.g., salespersons who work out of their home, “worksite” is construed to mean the single site of employment to which they are assigned as their home base, from which there work is assigned, or to which they report. Whether 50 employees are employed within the 75 miles requirement is determined at the time the employee gives notice of the need for leave. Once an employee is determined eligible after requesting leave, the employee’s eligibility cannot be affected by subsequent changes in the work force.
In Bellum v. PCE Constructors, Inc., 10 WH Cases2d (BNA) 877 (5th Cir. 2005), a construction site manager took leave for heart surgery. His leave was not covered by the FMLA, as the employer had less than 50 employees within 75-miles. The court held that the decision of Congress not to define a method of measuring the 75-mile distance constitutes an implicit statutory gap that the Secretary of Labor is authorized to fill. The court further held that the 75-mile road miles measurement (as opposed to “as the crow flies”) is not arbitrary, capricious or manifestly contrary to the FMLA, and was entitled to deference. “Given that the overwhelming majority of workers in this country use surface transportation to get to work, the regulation implements the statutory scheme in a why that is consistent with the intent of Congress.”
Reasons for Leave. Covered employees are entitled to take leave for (a) the birth of a child, (b) the adoption or placement of a child with the employee for foster care, (c) to care for a spouse, child, or parent who has a serious health condition, and (d) a serious health condition that makes the employee unable to perform the functions of his job. 29 U.S.C. §2612(a)(1).
Caring for a family member encompasses both physical and psychological care, including situations where a family member is unable to provide his/her own basic health-related needs because of a serious health condition. 29 C.F.R. §825.116. It includes basic medical, hygienic, nutritional or safety needs, as well as transportation to a doctor or arranging to make a change in care. Id.
An employer can require documentation of the family relationship. “Spouse” does not include unmarried domestic partners, but includes common law spouses if the state in which the employee lives recognizes common law marriages. “Child” includes adopted children, and children under 18 years of age, and individuals 18 years of age or older who are incapable of self-care because of a mental or physical disability. It also includes biological children, adopted children, foster children, step-children, or the child of one standing in loco parentis. The ability to take leave for the birth of a child or the placement of a child for adoption or foster care expires 12 months after the event.
In Scamihorn v. Gen. Truck Drivers, Local 952, 282 F.3d 1079 (9th Cir. 2002), a truck driver received permission to take a month off to care for his father who was depressed after the murder of a family member. The driver then asked for addition time, which was granted, and then voluntarily resigned. During his absence, the driver drove his father to psychological counseling and performed household chores. He then sought reemployment with seniority to his former position. He was rehired, but classified as a probationary employee with no seniority. The court determined that the caring for his father could be a triable issue of fact for the jury, such that the denial of reinstatement without a loss in seniority could be a violation of the FMLA.
In Fioto v. Manhattan Woods Golf Enters., LLC, 270 F. Supp. 2d 401 (S.D. N.Y. 2003), the court held that the employee failed to establish that he was caring for a family member with a serious health condition. The employee took off time to be with his dying mother, who had undergone brain surgery. His termination was not in violation of the FMLA because he failed to show that he provided either physical or psychological care to his mother, and the statute does not protect one who is merely visiting a family member in the hospital.
Length of Leave. Eligible employees may take up to twelve weeks or twenty-six of leave during any twelve month period.
Calculating Leave Entitlement. There are four (4) methods are authorized by FMLA regulations:
1) the calendar year, wherein the employee may take 12 weeks of leave at the end of a calendar year and again at the beginning of a calendar year for a total of 24 weeks;
2) a fixed year, such as anniversary date, wherein the employee may take 12 weeks of leave at the end of a fixed year and again at the beginning of the next fixed year for a total of 24 weeks ;
3) a forward rolling year beginning with the first date leave is used, wherein an employee becomes eligible for an additional 12-weeks of leave 12 months after the first date the employee began leave; and
4) a rolling 12-month year measured backward from the date leave is chosen, wherein each time an employee takes leave, the employee remains entitled to the balance of the 12 weeks but on a staggered basis.
Method 4 is the only method which prevents the employee from combining the 12 workweeks from one year with the 12 workweeks from the next year. An employer must select a 12-month period and uniformly apply it to all employees in all facilities. 29 C.F.R. §825.200(d). The only exception is where an employer has eligible employees in a state with an FMLA statute – then the employer may use the 12-month period required by that state’s FMLA statute. Id. If an employer wants to change the 12-month period, it must give 60 days notice of any change to its calculation period to the employees, and transition the change that affords the greatest benefits to the employees. 29 C.F.R. §800.200(d).