FMLA Overview

Prepared for use in various speaking engagements.

FMLA PURPOSE

not an antidiscrimination statute
policy: to promote and preserve family integrity, permit balance of work and family life
Congress set out mandatory terms and conditions, to fill in gaps in discrimination statutes
is like the FLSA in this regard
because an employer could simply decide no one gets any benefits, and that's not discrimination

COVERAGE

Employers: 50 or more employees each day during 20 weeks in previous year

including employees in a 75-mile radius
contemplated legislation may eventually lower this to 25 employees

Employees: employed at least 12 months

worked at least 1250 hours in preceding 12 months

average 104 hrs./mo. or 24 hrs./wk.

new baby or placement
OR
sick spouse, parent, child or self with a "serious health condition"

BASIC OBLIGATION

provide up to 12 weeks leave without loss of fringe benefits or change in seniority status
not necessarily with pay

"SERIOUS HEALTH CONDITION"

either "inpatient care" or "continuing treatment by a healthcare provider"

inpatient care – at a health facility (overnight stay), or subsequent treatment after inpatient care (not routine eye or dental)
continuing treatment – including:

either 3 days' incapacity (inability to work, school, etc.), with

treatment 2 or more times by a healthcare provider
OR
treatment at least one time by a healthcare provider, with a regimen of continuing treatment (involving medication or therapy – more than just bedrest and over-the-counter medications)

or incapacity due to pregnancy
or incapacity due to a chronic serious health condition which

requires periodic visits for treatment over an extended period of time

may be episodic incapacity, not continuing
e.g., asthma, diabetes, epilepsy

or incapacity to receive treatment which may or may not be effective for a long-term condition

e.g., stroke, alzheimers, chemotherapy

or incapacity or absences for multiple treatments for a condition which would otherwise cause 3+ days' incapacity

e.g., dialysis, chemotherapy

e.g., out one week for flu, go to doctor at least once and get prescription meds, probably qualifies
telephoning the doctor's office but not actually seeing the doctor would not constitute "treatment" under the FMLA
advice to "stay at home, drink plenty of fluids and get plenty of rest" would not constitute continuous treatment under the FMLA
but prescription antibiotics and 3 days' incapacity would qualify

EMPLOYEE'S OBLIGATIONS

is supposed to consult with employer in planning scheduled, foreseeable leave, so as to minimize disruption
includes scheduling intermittent leave (FMLA leave taken in separate blocks of time, as opposed to reduced leave schedule, which reduces employee to part-time work by reducing number of working hours per day or week)

e.g., for chemotherapy or dialysis

if need for leave is foreseeable, is supposed to give employer 30 days' notice
if this cannot be done, notice "as soon as practicable", which is defined as at least 1-2 days' advance notice
if need for leave is not foreseeable, employee must still give employer notice "as soon as practicable" under the facts and circumstances of each particular case
SUGGESTION: HAVE AND USE A "REQUEST FOR LEAVE" FORM

EMPLOYEE'S BASIC RIGHTS

to be restored to the same position as before FMLA leave or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment
even if employee has been replaced or position restructured to accommodate leave
but not if employee is unable to perform essential job functions due to physical or mental condition
"equivalent position" is "virtually identical" in terms of pay, benefits and working conditions; must involve same or substantially similar duties, entail substantially equivalent skill, responsibility and authority
"equivalent terms and conditions" ordinarily means the same shift or hours, same opportunity for bonuses and overtime, at or near the original worksite

but does not extend to de minimis or intangible, unmeasurable aspects of the job

EMPLOYER'S BASIC OBLIGATIONS

must post the poster supplied by the DOL
must publish FMLA policy
must timely notify employee that leave is being counted against the 12 weeks as FMLA leave

within 2 business days of learning of the leave request
typically use DOL Form WH-381

failure to timely notify?

employer can't count the time against the 12 weeks
and the employee gets the same protections as if it were counted

employer's further inquiry obligation

employee does not have to call it a FMLA leave request in order for it to qualify
employer may bear a burden of further inquiry to determine whether an FMLA qualifying event has occurred

see Brannon v. OshKosh B'Gosh, Inc., 897 F. Supp. 1028 (M.D. Tenn. 1995), employee mom stayed home to take care of 3-year-old daughter with fever, sore throat, vomiting; employee was near employer's "points limit"; employee told employer daughter was sick, employer never asked about diagnosis or treatment; held, employer was "on notice" that the leave potentially qualified as FMLA, but made no inquiry; FMLA violation
but see Gay v. Gilman Paper, 125 F.3d 1432 (11th Cir. 1997), husband called employer and told that wife was "having some medical tests run," but she had really been admitted for a nervous breakdown; held, husband deliberately withheld information, burden never shifter to employer; no burden when information deliberately withheld

SUGGESTION: HAVE A POLICY AND PROCEDURE FOR GETTING THE NECESSARY INFORMATION FROM THE EMPLOYEE

best to have the supervisor who is first contacted by the employee ask "is this for a health related condition?"
if so, have the HR person follow up and ask specific questions, such as:

have you seen a health care provider?
how long have you been ill?
how long do you expect to be off work?
have you been hospitalized?
is continuing treatment or a prescription involved?

develop a procedure to automatically send required FMLA notice and healthcare provider certification forms to all FMLA eligible employees after 4 days of medically-based leave

employer cannot designate leave as FMLA after employee returns to work (unless employer just then learned it qualified and had no further inquiry obligation)
employer cannot disqualify employee from eligibility for attendance bonus or production bonus on account of taking FMLA leave; employee must be eligible for same consideration he would have received had he not taken FMLA leave

WHAT CAN EMPLOYER REQUIRE?

adequate notice from employee (discussed above)
substitution of available paid leave by the employee before unpaid leave begins (i.e., "using up" vacation, paid days off, personal days, etc.)
medical certification that leave is due to "serious health condition"

use DOL Form WH-380
this is the maximum information the employer can request
at time certification is requested, employer is supposed to notify employee of consequences of failure to get certification
employee must supply information within 15 days
if leave is foreseeable, employee to give certification before it begins
keep FMLA information and all medical information in a separate file, marked and kept confidential

if employer questions adequacy of medical certification

may not request additional information from the healthcare provider; but with employee's permission may contact provider for clarification and/or authenticity of the certification
if employer doubts validity of certification, can require employee to get a second opinion at the employer's expense
in such case, employer can designate provider, but not one employer by employer on a regular basis (i.e., probably not a workers' comp panel doctor)
if the employee's doctor's certification and the employer's second opinion conflict, employer may require third opinion (also at employer's expense), which will be final and binding; doctor to be jointly agreed upon
must give copies of second and third opinions to employee

subsequent recertifications

every 30 days for pregnancy, chronic, long-term conditions

notice of employee's intent to return to work

may require periodic reports from employee
if it turns out employee needs less leave than originally requested, employer can't require employee to take more leave than required

fitness for duty reports

if employer has a uniformly-applied policy for all similarly-situated employees (i.e., same occupation, same health condition), it can require these
cannot pick and choose when to require it
must be limited to the serious health condition that caused the need for FMLA leave
costs borne by employer

transfer to alternative position

if employee needs intermittent leave or reduced leave schedule
then during such, employer can transfer employee to available position which better suits the need for recurring leave
alternative position must have equivalent pay and benefits, but not necessarily equivalent duties
cannot be done for purpose of discouraging employee from taking FMLA leave

RECORDS REQUIRED TO BE KEPT BY EMPLOYER

records documenting compliance with obligations under FMLA
no particular form required
documents must at least show:

basic payroll info
dates FMLA leave taken
hours for intermittent leave
of employee notices
records of any dispute
medical certification records, kept in separate files from personnel records

ENFORCEMENT

employee can file complaint with DOL or file a private lawsuit

employee need not file EEOC charge first

statute of limitations is 2 years from the violation
employee may recover:

lost wages, employment benefits or other compensation lost
Interest
doubled amount as liquidated damages unless court is convinced employer acted in good faith and had reasonable ground to believe it was not violating the FMLA
attorneys' fees, expert witness fees

employer can also be liable for retaliation, unfairly disciplining, etc.

FINAL MISCELLANEOUS COMMENTS

an employee may elect to take FMLA leave even if it's a workers' comp injury and he is released to do "light duty" work

but he won't get TTD pay

personal liability for supervisors?

Beyer v. Elkay Mfg. Co., 1997 U.S.Dist. LEXIS (N.D. Ill. 9/19/97)

said yes, if supervisor controlled employee's ability to take leave of absence and return to workFMLA covers "any person who acts, directly or indirectly, in the interest of the employer"
but see Frizzell v. Southwest Motor Freight, Inc., 1:95-CV-275 (E.D. Tenn. 1995)

Tennessee's Maternity Leave Act (Tenn. Code Ann. § 4-21-408)

applies to full time employees only
requires 3 months' advance notice
can take up to 4 months for pregnancy, childbirth and nursing
only employers with 100 or more employees at the job site
does not cover leave for adoption or foster care
employer can deny reinstatement if employee's position was "unique" and after reasonable efforts employer couldn't temporarily fill position
requires reinstatement to the "same" status, pay, etc. (not "equivalent")

do not forget impact and interplay of ADA and workers' comp law (not discussed in this outline)

View all articles by Bob E. Lype