Special FMLA Issues

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August 23, 2018
Author: Christine S. Keenan
Organization: The Kullman Firm

A. Spouses Employed by the Same Employer
A husband and wife who are eligible for FMLA leave and are employed by the same covered employer are limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken:
(1) for birth of the employee’s son or daughter or to care for the child after birth;
(2) for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement;
(3) to care for the employee’s parent with a serious health condition;
(4) because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; or,
(5) because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.

29 C.F.R. §825.200(a). An eligible employee is entitled to 26 workweeks of leave to care for a covered servicemember with a serious injury or illness during a ``single 12-month period.'' 29 C.F.R. §825.127. This limitation applies even if the husband and wife work at different worksites that are more than 75-miles from each other, or even for two different operating divisions of the employer. 29 C.F.R. §§825.120(a)(3), 825.127(d). If one spouse is ineligible for FMLA leave, however, then the other spouse would be entitled to the full 12-weeks of FMLA leave. Id. Note, however, that the FMLA allows for an employee to take leave to care for his or her parent with a serious health condition – not parent-in-laws.

Each spouse would receive the full 12-weeks of leave if the basis for the leave is for the employee’s own serious health condition or to care for the other spouse or the children of the couple. 29 C.F.R. §825.200. For example, if each spouse took 6 weeks of leave to care for a healthy, newborn child, each could use an additional 6 weeks due to his or her own serious health condition or to care for a child with a serious health condition. Id. Note, too, Louisiana has its own provision for pregnancy leave, which would be considered FMLA leave for a serious health condition of the mother, and would not be subject to the combined limit. Id.

B. Key Employees
The FMLA provides for a limited exception from the requirement that an employee be restored to his or her former position. Employees who are exempt and the highest paid 10% of the employer’s workforce (both exempt and non-exempt) within 75- miles of the employee’s worksite are considered “key” employees. 29 C.F.R. §825.217. In determining which employees are among the highest paid 10 percent, year-to-date earnings are divided by weeks worked by the employee (including weeks in which paid leave was taken). Earnings include wages, premium pay, incentive pay, and nondiscretionary and discretionary bonuses. Earnings do not include incentives whose value is determined at some future date, e.g., stock options, or benefits or perquisites. An employer may deny job restoration to key employees if such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer in the restoration of the employee to his/her former position. 29 C.F.R. §825.216(c). To deny restoration, the employer must abide by the following:

29 C.F.R. §825.219 – Key Employee Rights
(a) An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer’s operations will result if the employee is reinstated from FMLA leave. If such notice cannot be given immediately because of the need to determine whether the employee is a key employee, it shall be given as soon as practicable after being notified of a need for leave (or the commencement of leave, if earlier). It is expected that in most circumstances there will be no desire that an employee be denied restoration after FMLA leave and, therefore, there would be no need to provide such notice. However, an employer who fails to provide such timely notice will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.

(b) As soon as an employer makes a good faith determination, based on the facts available, that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is using FMLA leave is reinstated, the employer shall notify the employee in writing of its determination, that it cannot deny FMLA leave, and that it intends to deny restoration to employment on completion of the FMLA leave. It is anticipated that an employer will ordinarily be able to give such notice prior to the employee starting leave. The employer must serve this notice either in person or by certified mail. This notice must explain the basis for the employer’s finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.

(c) If an employee on leave does not return to work in response to the employer's notification of intent to deny restoration, the employee continues to be entitled to maintenance of health benefits and the employer may not recover its cost of health benefit premiums. A key employee’s rights under FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work, or the employer actually denies reinstatement at the conclusion of the leave period.

(d) After notice to an employee has been given that substantial and grievous economic injury will result if the employee is reinstated to employment, an employee is still entitled to request reinstatement at the end of the leave period even if the employee did not return to work in response to the employer's notice. The employer must then again determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at that time. If it is determined that substantial and grievous economic injury will result, the employer shall notify the employee in writing (in person or by certified mail) of the denial of restoration.

In Banks v. CBOCS West Inc., 11 WH Cases2d (BNA) 584 (N.D. Ill. 2005), a restaurant chain did not violate the FMLA when it refused to restore a general manager to his prior position upon returning to work after taking FMLA leave. The court found it permissible for the chain to offer the employee an associate manager’s position (which was two steps down from his former position) because the employee was a “key employee,” was aware of his classification as such and the chain gave him clear notice that it would not offer him job restoration when he returned from FMLA leave.

Similarly, a hotel did not violate the FMLA when it permanently replaced the housekeeping manager during her FMLA leave because it offered to her an equivalent position of food and beverage manager. Oby v. Baton Rouge Marriott, 329 F. Supp. 2d 772 [9 WH Cases2d (BNA) 1519] (M.D. La. 2004). The housekeeping manager position was the third highest paid position at the hotel. The employee alleged that the position of food and beverage manager was not equivalent because she would have to undergo training. The court held that simply undergoing training does not make the position nonequivalent under the FMLA.

C. School Employees
Certain special rules apply to employees of “local educational agencies,” including public school boards and elementary and secondary schools under their jurisdiction, and private elementary and secondary schools. 29 C.F.R. §825.600. These special rules do not apply to other kinds of educational institutions, such as colleges and universities, trade schools, and preschools. Educational institutions are covered by the FMLA but the Act’s 50-employee coverage test does not apply. The usual requirements for employees to be “eligible” under the Act do apply, however, including employment at a worksite where at least 50 employees are employed within 75 miles.

The special rules affect the taking of intermittent leave or leave on a reduced leave schedule, or leave near the end of an academic term (semester), by instructional employees, meaning those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. It does not include, and the special rules do not apply to, teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists. It also does not include cafeteria workers, maintenance workers, or bus drivers.

Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee's FMLA leave entitlement. An instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year. 29 C.F.R. §825.601(a).

There are also different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term. Regular rules apply except in circumstances when:

(1) An instructional employee begins leave more than five weeks before the end of a term. The employer may require the employee to continue taking leave until the end of the term if--
(i) The leave will last at least three weeks, and
(ii) The employee would return to work during the three-week period before the end of the term.

(2) The employee begins leave for a purpose other than the employee’s own serious health condition during the five-week period before the end of a term. The employer may require the employee to continue taking leave until the end of the term if--
(i) The leave will last more than two weeks, and
(ii) The employee would return to work during the two-week period before the end of the term.

(3) The employee begins leave for a purpose other than the employee’s own serious health condition during the three-week period before the end of a term, and the leave will last more than five working days. The employer may require the employee to continue taking leave until the end of the term. 29 C.F.R. §825.602.

If an employee chooses to take leave for “periods of a particular duration” in the case of intermittent or reduced schedule leave, the entire period of leave taken will count as FMLA leave. In the case of an employee who is required to take leave until the end of an academic term, only the period of leave until the employee is ready and able to return to work shall be charged against the employee’s FMLA leave entitlement. The employer has the option not to require the employee to stay on leave until the end of the school term. Therefore, any additional leave required by the employer to the end of the school term is not counted as FMLA leave; however, the employer shall be required to maintain the employee’s group health insurance and restore the employee to the same or equivalent job including other benefits at the conclusion of the leave. 29 C.F.R. §825.603.

The determination of how an employee is to be restored to “an equivalent position” upon return from FMLA leave will be made on the basis of established school board policies and practices, private school policies and practices, and collective bargaining agreements. 29 C.F.R. §825.604.

D. Suspicious Claims
When confronted with suspicious claims, an employer should follow its medical certification process. Pursuant to 29 CFR §825.216(d), “an employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s job restoration or maintenance of health benefits provisions.” An employer need only have a good faith belief that the employee fraudulently obtained FMLA benefits. Kariotis v. Navistar International Transportation Corp., 131 F.3d 672 (7th Cir. 1997).

The Department of Labor issued an opinion letter on May 24, 2004, addressing the issue of suspicious claims. It provides that an employer may obtain subsequent medical certifications at reasonable intervals while the employee is on leave or needing intermittent leave, and may seek subsequent certification if the employer has enough information to cast doubt as to the continuing validity of the prior certification. DOL Opinion Letter, FMLA2004-2-A, 2004 WL 2146933 (May 25, 2004).

An employer may want to consider forwarding the suspicious activity (absences on Fridays and Mondays) to the healthcare provider for a determination if that activity is required by the “serious health condition.” Recently, in Crouch v. Whirlpool Corp., 11 WH Cases2d (BNA) 716 (7th Cir. 2006), the court found that an employer can discharge an employee for misusing FMLA leave when the employee was granted FMLA leave after faking a knee injury to take a vacation with his fiancé who was also a co-worker.

E. Disciplining Employees
The FMLA provides that an employer may not interfere with, restrain, or deny the exercise of or the attempt to exercise, any right to take leave under the FMLA. Further, the Act makes it unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the Act. However, an employer has the right to run its business, including disciplining employees who violate the employer’s policies.

An employer cannot use an employee’s qualified FMLA-leave as a basis for taking disciplinary action (e.g., violation of an attendance control policy). However, a documented record of an employee’s receipt of verbal warnings, customer complaints, co-worker complaints, etc. can effectively illustrate the actual basis for any disciplinary action taken against an employee. The ability to show that the rule at issue has been consistently applied, as well as being applied to those who took FMLA leave as well as those who have not taken FMLA leave, places the employer is an advantageous position to defend the disciplinary action.

Although proximity alone is insufficient to prove retaliation, Campbell v. Gambro Healthcare, Inc., 12 WH Cases2d (BNA) 677 (10th Cir. 2007), employers must be cognizant of any inference of discrimination which may arise due to the temporal proximity a disciplinary action may have with an employee’s exercise of his/her rights under the FMLA. In Coulter v. Deloitte Consulting LLC, 2003 U.S. App. LEXIS 22796, 2003 WL 22514343 (6th Cir. 2003), the court found no causal connection even though the employee was discharged the day prior to her schedule return to work from FMLA leave. In Sabbrese v. Lowe’s Home Centers, Inc., 320 F. Supp. 2d 311 (W.D. Pa. 2004), however, a causal connection was found where the employee’s FMLA request was two week prior to his discharge.

F. Prohibition of Retaliation
In addition to the FMLA making it unlawful to interfere with, restrain, or deny an employee’s exercise of or the attempt to exercise any right to take leave under the FMLA, and for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by the Act, the FMLA also makes it unlawful for any person to discharge or in any other manner discriminate against any individual because such individual: (1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to the Act; (2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under the Act; or (3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under the FMLA.

Under the interference with rights theory, an employee merely needs to prove that he/she was entitled to rights under the FMLA, and the employer (or supervisor) interfered with those rights. 29 U.S.C. §2615(a)(1). It does not matter if the employer did not intend to interfere or has a legitimate business reason for its decision. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135 (3d Cir. 2004).

In Xin Liu v. Amway Corp., 347 F.3d 1125 (9th Cir. 2003), the employee claimed that her rights under the FMLA were interfered with when she received an exceptionally poor job evaluation and then was terminated during a reduction-in-force while on maternity leave and leave to care for her terminally ill father (who lived in China). The court held that there was sufficient evidence to support a claim for interference because the supervisor repeatedly refused her requests to extend her maternity leave because it was inconvenient to him, gave her an evaluation that differed sharply from her previous evaluations, and mischaracterized her leave as a “personal leave” instead of an FMLA leave.

The Fifth Circuit found that the employer did not violate the FMLA when it discharged an employee who had been on paid medical leave for five weeks after she refused to explain why she had been seen at a bar while on leave and why she had told a co-worker not to tell anyone he had seen her. The company had a legitimate, nondiscriminatory reason for her discharge – refusal to explain her conduct. Chaffin v. John H. Carter Co., Inc., 179 F.3d 316 [5 WH Cases2d (BNA) 692] (5th Cir. 1999).

In Harper v. Hospital Service District No. 1 of Tangipahoa Parish, 36 F. Supp. 2d 322 [5 WH Cases2d (BNA) 167] (E.D. La. 1999), a genuine issue of material fact existed as to whether a nurse who signed a letter of resignation suffered adverse employment action necessary to establish a claim of discrimination under the FMLA. The nurse testified that her supervisor verbally demoted her from full-time with benefits to part-time without benefits six days before her FMLA leave expired. The demotion, she claimed, forced her to resign.

In Nero v. Industrial Molding Corp., 167 F.3d 921 [5 WH Cases2d (BNA) 207] (5th Cir. 1999), the employer was held to have violated the FMLA by failing to restore an employee to the position of interim plant manager upon his return from a leave of absence for a heart attack. The employer’s reasons of substandard managerial practices and difficulty getting along with other employees – four days before heart attack – did not convince the jury. Particularly in light of the fact that the company could not produce any documentary evidence to support its legitimate, nondiscriminatory reason. The jury awarded Mr. Nero $150,000.

In Hypes v. First Commerce Corporation, 134 F.3d 721 [4 WH Cases2d (BNA) 707] (5th Cir. 1998), the employer was found not to have violated the FMLA when it discharged the employee for excessive absences, and not because of his request for a leave under the ADA. Similarly, in Metzler v. Federal Home Loan Bank of Topeka, 11 WH Cases2d (BNA) 1541 (10th Cir. 2006), the court held that the imposition of stricter work standards due to a reorganization was not reprisal or retaliation under the FMLA.

It is also not a violation of the FMLA to terminate an employee who said he was leaving and not coming back following a confrontation in a manager’s office. The employee in this case was no longer employed when he requested leave (or was in the process of being terminated), and he did not request a specific amount of time and did not state any medical need for the leave. Mayo v. Trinity Marine Industries, Inc., 1999 WL 104421 [5 WH Cases2d (BNA) 443] (E.D. La. 1999).

In Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325 [11 WH Cases2d (BNA) 1] (1st Cir. 2005), the court held that no jury could find that the plaintiff was terminated because he called in sick due to migraines; hence, the employer did not retaliate against him for using intermittent leave. The employee was filmed driving, shopping and going to the gym on the days he called in, which was contrary to his application for short-term disability wherein he alleged that he was unable to perform any activities when he was experiencing migraines.

In Haley v. Alliance Compressor LLC, 391 F.3d 644 [9 WH Cases2d (BNA) 163] (5th Cir. 2004), the court held that an employee who took 8 weeks of leave was not treated with such hostility when she returned to justify her claim of a constructive discharge. Although the employee felt ostracized by her peers and micromanaged by her superiors, she did not suffer the type of badgering or harassment that is designed to encourage an employee to resign. The employee failed to prove that her working conditions were designed specifically either to set her up for termination or to compel her to resign.

The FMLA also allows for a claim of retaliation even where there is no claim of a violation of substantive rights. Thus, an employer is prohibited from taking any adverse job action against an employee who opposed any practice made unlawful under the FMLA or who filed a charge under the FMLA with the EEOC or Department of Labor.

G. Avoiding Lawsuits
Enforcement of the FMLA is by complaint filed with the Department of Labor or by filing a private lawsuit. 29 C.F.R. §§825.400 - 825.404. Remedies may include reinstatement, back pay and lost benefits or actual monetary loss to the employee (such as the cost of alternative care) in an amount equal to 12 weeks of wages plus attorneys’ fees, costs and interest. In addition, an amount equal to the preceding sums may be awarded as liquidated damages unless the violation was in good faith and the employer had reasonable grounds to believe it was not violating the FMLA.

One way to avoid lawsuits is to comply with the requirements of the FMLA and to apply the policies consistently. Another way to avoid lawsuits is to obtain a release from an employee upon his/her separation. Consideration, that which the employee is not otherwise entitled to, needs to be given in exchange for the release.

Employees, however, cannot waive, nor may employers induce employees to waive, their rights under FMLA. For example, employees cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. 29 C.F.R. §825.220(d). There is an issue as to whether such a waiver applies only to future FMLA rights or to past FMLA rights as well.

In Taylor v. Progress Energy Inc., 415 F.3d 364 [10 WH Cases2d (BNA) 1281] (4th Cir. 2005), reh’g granted, judgment vacated (June 14, 2006), opinion reinstated, 493 F.3d 454 [12 WH Cases2d 1220] (4th Cir. 2007), the employee was asked to sign a release of claims in exchange for additional compensation upon her termination. One of the claims the employer sought to be released from was a claim brought pursuant to the FMLA. The court held that the release was invalid because it was not approved by the Department of Labor or a court of competent jurisdiction. Section 825.220(d) of the Regulations provides that an employer may not require an employee to waive his/her rights under the FMLA (similar to the FLSA). The court determined that this prohibition applied to both retrospective waivers and prospective waivers. Therefore, the employee was not barred from bringing her suit against the employer for a violation of the FMLA. Conversely, in Faris v. Williams WPC-1, Inc., 332 F.3d 316 (5th Cir. 2003), the court held that the FMLA, specifically 29 C.F.R. §825.220(d), barred only prospective waivers of substantive rights. The waiver was part of a severance agreement served to bar the employee from suing for FMLA violations that occurred in the past. The court concluded that the employee’s potential retaliation claim was a type of claim that protects substantive rights under the FMLA, but was not a right in and of itself. Following Title VII and the ADEA, the court found no good reason why an employee could not waive claims that occurred in the past and of which the employee should be aware. See, Halvorson v. Boy Scouts of America, 2000 WL 571933 (6th Cir. 2000); Riddell v. Me. Inter-Ins. Exchange, 18 F. Supp. 2d 468 (D.C. N.J. 1998). Further, at least one court has held that a claim for retaliation under the FLSA may be waived by private agreement. Dorner v. Polsinelli, White, Vardeman & Shalton, 856 F. Supp. 1483 (D.C. Kan. 1994).

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