NBA-CLS Newsletter Online: The Family Medical Leave Act

The Family Medical Leave Act

By Patrick E. Beasley, Esq.[1]

The Family Medical Leave Act of 1993 (hereinafter referred to as “FMLA” or “the Act”) has been considered a milestone for employee rights since its inception in 1993; however, employers and employees alike have complained about abuses of the Act. Employers argue that many workers are taking time off for maladies that the FMLA was never created to cover and that workers are taking the 12 weeks of leave intermittently, rather that in blocks of time—making scheduling and staffing difficult to say the least. Employees counter by stating that employers are making it increasingly difficult to qualify for leave. Additionally, workers also cite instances in which employers resorted to retaliatory tactics, including terminating the employment of workers who elected to take FMLA leave.

No matter what position one takes, most employers and employees agree that many of the Act’s provisions are difficult to interpret. This article addresses the following key questions: (1) which employers are covered by the FMLA; (2) which employees are eligible for leave under FMLA; (3) under what circumstances can an eligible employee take leave pursuant to the FMLA; and (4) what constitutes sufficient notice to the employer of an employee’s intent to take leave under the Act.

Which Employers are Required to Provide Leave Pursuant to FMLA?

The Family Medical Leave Act requires an employer with 50 or more employers to provide its full-time employees the opportunity to take 12 weeks of unpaid leave during any 12- month period to care for a child after a birth or an adoption, to recuperate from the employees’ own serious medical condition, or to care for a family member with a serious health ailment without the fear of losing their job. 29 U.S.C. § 2601(b) (2004). According to the latest data available to the Department of Labor, nearly 13 million workers took FMLA leave in 2005.

The provisions of the FMLA apply to any person engaged in commerce with 50 or more employees within 75 miles of the worksite for each working day during each of the twenty 20 or more calendar weeks in the current or preceding calendar year. 29 C.F.R § 825.104(a) (1995). In counting employees for FMLA purposes, employers must include employees that are on leave, including FMLA leave and disciplinary suspensions; however, employees that have been laid off are not included in this tabulation. 29 C.F.R. § 825.105(b) (1995). The term employer for FMLA purposes also encompasses one who acts “directly or indirectly in the interest of an employer to any of the employees of such employer.” 29 C.F.R. § 825.104(d) (1995). This interpretation of the term employer leaves little doubt that corporate officers throughout an organization’s chain of command can be individually liable for violation of the FMLA.

Employee Eligibility

An employee is eligible for FMLA leave if he or she has worked for an employer for at least 12 months and has been employed for a minimum of 1,250 hours of service with such employer during the previous 12-month period. Additionally, the employee must work at a worksite where 50 or more “employees are employed by the employer within 75 miles that worksite.” 29 C.F.R. § 825.110 (1995). Employees not eligible for FMLA leave are federal civil service employees, certain medical care providers employed by the Department of Veterans Affairs, and teachers employed by the Department of Defense who teach abroad. 29 C.F.R. § 825.109 (1995). The determination of whether an employee is eligible for FMLA protection must be made as of the date leave commences. 29 C.F.R. §825.110 (1995).

Leave Provisions of the FMLA

An eligible employee’s “FMLA leave entitlement is limited to a total of 12 work weeks of [uncompensated] leave during any 12-month period” for any of the following: 1) the birth of a child and care of an infant; 2) the placement and care of an adopted or foster child; 3) a serious health condition “that makes the employee unable to perform one or more of the essential functions of his or her job”; or 4) the care of a spouse, child or parent with a serious health condition. 29 C.F.R. § 825.200(a) (1995).

As one might expect, the leave provisions of the FMLA have been a source of confusion as well as the basis for lawsuits. The employer has the sole responsibility for determining whether the need for leave is a FMLA qualifying event. Manuel v, Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir. 1995). Additionally, the employer is permitted to choose any of the following periods as the 12-month period in which the 12 weeks of leave entitlement occurs: 1) the calendar year; 2) any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date; 3) the 12-month period measured forward from the date any employee’s first FMLA leave begins; or 4) a rolling 12-month period measured forward from the date an employee uses any FMLA leave. 29 C.F.R. § 825.200(b) (1995).

Notice to the employer is required by the Act. If the need for leave is foreseeable, the employee must give a minimum of 30 days notice. A foreseeable event is one such as an expected birth or planned medical treatment. 29 C.F.R. § 825.302(a). When the event triggering the need for FMLA leave is unforeseeable, the employee should provide the employer with as much notice “as practicable” in the context of his or her specific case. 29 C.F.R. § 825.303). The critical inquiry “is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off for a serious health condition. Manuel, 66 F.3d at 764. Not only must the notice of leave be timely, it also must be sufficient to put the employer on notice of a FMLA qualifying condition. To be sufficient the notice need only inform the employer of the duration of the requested leave and state a reason/ condition that would trigger protections under the FMLA. Manuel, 66 F.3d at 762.

Interestingly enough, the notice provided does not have to be written, nor does the employee have to specifically mention the Act for the provisions of the FMLA to be invoked. The Fifth Circuit has stated that the Act does not specify the form of notification required for foreseeable leave, nor does it provide guidance concerning the notice requirements for unforeseeable leave. The employer has the sole responsibility for determining whether the underlying reason for the leave qualifies under the Act. Manuel, 66 F.3d at 761. Employers should be especially cognizant of this fact since they are responsible for notifying the employee of any event that may be FMLA qualifying.

An employer is not simply required to take the “word” of an employee that leave under the Act is needed. A employer may request orally or in writing that the employee provide medical certification for leave requested under the Act for both foreseeable and unforeseeable leave. 29 C.F.R. § 825.305(b). In the event that FMLA leave is required because of a serious health condition, the employee may be required to get certification from as many as three different physicians if the veracity of the health condition is doubted as qualifying for FMLA purposes. 29 U.S.C.§ 2613(d).

While abuses of the Act do occur, employers should find solace in the facts that there are many protections in the Act that prevent misuse and that having a thorough understanding of these protections can greatly minimize the economic impact that FMLA leave has on an organization. Conversely, employees can find comfort that the protections of the Act, in most cases, are invoked by the mere request for leave by the employee if the basis of the request is a FMLA triggering event. Moreover, Congress is actively seeking to expand the breadth of protections offered by the FMLA to provide employees with protections not contemplated a decade ago.